Plaintiff v First Defendant Second Defendant

1 In this proceeding the plaintiff claims damages against the two defendants in respect of posts and statements which he alleges were published by being uploaded onto the 'Rights to Privacy Albury' ('RPA') Facebook page. The plaintiff's claim is set out in his fourth statement of claim ('4SOC'), filed 26 February 2016. The defence of the first defendant to that statement of claim is dated 6 June 2016. The second defendant relies on a proposed further amended defence and counterclaim as his pleading to the 4SOC.

2 The first publication is pleaded in paragraph 4 of the 4SOC as follows:

[Photo of plaintiff]

'Here is a photo of the only doctor in Albury-Wodonga who would stand outside a legal, Women's Health Clinic, violating women's privacy! This is, in our opinion, highly unethical and against the public statement by the highest authority of Women's Health in Australia, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists:

RANZCOG Statement, April 2013: 'Women have the right to access any medical service without their privacy being infringed or being subjected to harassment'.

Ref: www.ranzcog.edu.au Women's Health Statements CGyn 17

This is why the petition to NSW government banning antiabortion protesters outside women's health clinics MUST succeed.'

The second publication is pleaded in paragraph 8 of the 4SOC as including the first publication and the following further statements:

'Is this Roland Van Marburg, the "Butcher" ...'

'Careful with those rosary beads Roland, wouldn't want to accidently [sic] snort them up with your cocaine'

'To each his own Erin, but the man butchered me during surgery and then provided no post op care whatsoever. Julie has a right to express her personal opinion as do you'

3 In the 4SOC the imputations pleaded as arising from the first publication are that the plaintiff:

(a) violates women's privacy by harassing women seeking to enter an Albury women's health clinic where abortion procedures were undertaken;

(b) is guilty of highly unethical conduct by harassing women seeking to enter an Albury women's health clinic where abortion procedures were undertaken;

(c) acts in a way that is contrary to the public statement by the highest authority of women's health in Australia by harassing women seeking to enter an Albury women's health clinic where abortion procedures were undertaken;

The imputations pleaded as arising from the second publication are (a), (b) and (c) above, and in addition imputations that the plaintiff:

(d) acted in callous disregard to the welfare of his patients;

(e) seriously breached his duty as a surgeon by failing to provide postoperative care to a patient (one Cade Newell) who required it; and

(f) is a cocaine user.

4 By summons dated 19 May 2016, the plaintiff makes application to strike out various paragraphs of each defence. The issues in dispute on this application are:

(a) Each defendant pleads justification in respect of imputations (a) to (c) above. The first defendant further pleads justification to (e). The plaintiff argues that various particulars of each defence should be struck out as offending the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'), and that as a consequence whatever remains of the pleading will not disclose a defence, so that the justification defence of each defendant to these imputations should be struck out in its entirety.

(b) Each defendant pleads an honest opinion defence to imputations (a) to (c). The first defendant further pleads honest opinion in respect of imputation (e). For the plaintiff it is submitted that:

(i) it is untenable to plead that the imputations are an expression of opinion;

(ii) the opinion, if it is one, is not based on facts referred to in the publications; and

(iii) facts which it is alleged form the basis of the opinion are not particularised.

That being so, the plaintiff submits, the honest opinion defence of each defendant should be struck out.

(c) The first defendant pleads that the second publication conveys certain meanings which make out a contextual truth defence. The plaintiff submits that the alternative meanings are not capable of being conveyed by the publication; or if they are cannot make out the defence, and therefore the contextual truth defence of the first defendant must be struck out.

(d) By counterclaim pleaded by the second defendant in the proposed further amended defence and counterclaim, he alleges defamation by the plaintiff in respect of publications on the 'RPA Exposed' Facebook page. In respect of all bar one of the publications pleaded by the second defendant, the counterclaim relies on an allegation that the plaintiff and his wife operated or controlled the RPA Exposed Facebook page and uploaded or caused to be uploaded to that page the defamatory posts. The plaintiff submits that the particulars of the second defendant are insufficient to support the pleading that the plaintiff 'operated or controlled' the Facebook page or that the plaintiff 'uploaded or caused to be uploaded' the defamatory posts, and that accordingly the counterclaim should be struck out.

(e) By paragraph 8 of the amended defence of the first defendant, he pleads the thread of posts and statements on the RPA Facebook page which includes the second publication and approximately 70 other posts and statements, alleging that the thread ought be read as a whole when determining the natural and ordinary meaning of the second publication. The plaintiff submits that that pleading should be struck out because the plaintiff is only obliged to plead the particular words which he alleges are defamatory of him, not context or background; that in any event the first defendant has not discharged the onus to explain how the context created by the thread can alter the natural and ordinary meaning of the publication; and finally, that the proper course for the first defendant to adopt is to make application to 'strike in' the thread. In all the circumstances, it is submitted, that part of the first defendant's pleading should be struck out.

5 The plaintiff is a medical practitioner who practises in the Albury-Wodonga region. The defendants allege that the plaintiff is a highprofile opponent of abortion in the Albury-Wodonga community, and a supporter of an international antiabortion organisation called 'Helpers of God's Precious Infants' ('HoGPI').

6 There is a medical clinic located in Englehardt Street, Albury ('the clinic') at which pregnancy termination procedures are performed. The defendants allege that the plaintiff's conduct as an opponent of abortion, in particular conduct outside the clinic, results in imputations (a), (b) and (c) being substantially true, and that accordingly the justification defence is made out.

7 It is convenient to commence with the justification particulars pleaded by the second defendant, which read:

(i) Albury Wodonga is a regional community in the State of Victoria.

(ii) Von Marburg is a medical practitioner practising at 572 Kiewa Street, Albury in that community (Affidavit of Roland Von Marburg sworn 12 November 2014 (Von Marburg Affidavit) at [6]).

(iii) Von Marburg estimates that around half his patients are female (Von Marburg Affidavit at [6)).

(iv) Von Marburg is a high profile opponent of abortion in the Albury Wodonga community.

(v) Von Marburg is also a supporter of an international anti-abortion organisation called the "Helpers of God's Precious Infants" (HoGPI) which is affiliated with the Catholic Church and operates at a variety of sites in Australia and in the United States of America (Von Marburg Affidavit at [10]). This organisation encourages supporters to gather outside the entrance of medical clinics where abortion procedures are conducted in both Australia and America and deter women from undertaking abortions.

(vi) Von Marburg referred to "praying and counselling outside an abortion mill" each week as "on-site protesting" (CLQ Conference 2012 "Building Hope" reported in August 2012 Cherish Life Newsletter at http://www.cherishlife.org.au/cherish-life-newsletters/2012-newsletters/issue-3).

(vii) HoGPI has protest sites near medical clinics where pregnancy termination procedures are conducted, including the clinic at Englehardt Street, Albury (Von Marburg Affidavit at [12]) (Englehardt Street Protest Site), at which a variety of methods are employed by HoGPI protesters to deter women from undertaking abortions, including:

(A) standing outside the entrance of medical clinics;

(B) approaching women in the vicinity of medical clinics and preaching to them;

(C) approaching women in the vicinity of medical clinics and showing them graphic images of foetuses and babies;

(D) approaching women in the vicinity of medical clinics and offering them pamphlets, 'counselling' and support services;

(E) approaching women in the vicinity of medical clinics and telling them that abortion is unsafe;

(F) filming or photographing women who use the services of medical clinics at which abortions are available;

(G) conducting prayers and vigils in the vicinity of medical clinics; and

(H) conducting other types of protests,

(HoGPI's activities).

(viii) From time to time, Von Marburg has visited the Englehardt Street Protest Site in Albury with his wife Anna and alone (Von Marburg Affidavit at [13]), and has employed at least the methods particularised in (vii)(A) and (vii)(G) above to deter women from entering the clinic at Englehardt Street, Albury (Clinic) and undertaking abortions. Further particulars may be provided after discovery and interrogatories.

(ix) For example, at approximately 12.50pm on 16 October 2014, when traveling from Insight Private Hospital to his rooms in Kiewa Street, Von Marburg stopped on the way at the Englehardt Street Protest Site where he spoke to his wife, Anna Von Marburg (Mrs Von Marburg), for approximately 5 minutes and then spent approximately another 5 minutes in prayer himself (Von Marburg Affidavit at [14]). Further particulars may be provided after discovery and interrogatories.

(x) The conduct engaged in by Von Marburg (refer particulars (viii) and (ix)), whether by himself or as a joint enterprise with other protesters, has (particularly having regard to the matters particularised in (i) to (iv) above) subjected women seeking to access services at the Clinic to harassment in that it has violated their privacy, intimidated them and/or made them feel they must 'run the gauntlet' when they come in, thereby deterring or discouraging them from entering the Clinic and accessing its services.

(xi) Von Marburg's harassment of women seeking to access services at the Clinic has been aggravated by the following matters:

(A) His refusal to cease the conduct referred to in particular (viii) on at least 16 October 2014 (refer particular (ix) above) despite being on notice since at least 2 June 2014 that the presence of himself and other protesters outside the Clinic caused women attending the Clinic to feel harassed ("More than 100 march for Albury privacy rights", ABC Goulburn Murray, 2 June 2014 at http://www.abc.net.au/local/photos/2014/06/02/4017173.htm).

(B) His engagement in the conduct referred to in particular (viii) and (ix) even though it is contrary to the March 2013 statement made by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists that "Women have the right to access any medical services without their privacy being infringed or being subjected to harassment" (https://www.ranzcog.edu.au/component/docman/docview /926-termination-of-pregnancy-c-gyn-17.html?Itemid=946).

(a) the sting of the imputations (a), (b) and (c) is the alleged conduct of the plaintiff in harassing women seeking to enter the clinic, so that the fact in issue on the justification pleading is whether the defendants can prove the substantial truth of the sting;

(b) particulars (i) to (vi) are simply background and are not allegations of harassment of women by the plaintiff;

(c) particular (vii) is not an allegation of conduct by the plaintiff, is irrelevant and should therefore be struck out;

(d) the only allegations in the particulars which might go to establishing harassment of women by the plaintiff are particulars (viii) and (ix). No dates of attendance at the Englehardt Street protest site are particularised in (viii), which is therefore impermissibly vague and should be struck out. The second defendant is not entitled to cure that defect by the process of discovery;

(e) particular (ix) alleges a single incident in which the plaintiff visited his wife outside the clinic and engaged in prayer. To harass requires conduct which is repeated or persistent. The conduct particularised cannot establish harassment because of the nature of the conduct particularised, and because it is not repeated;

(f) particular (x) is vague, nebulous and conclusory, and should be struck out; and

(g) particular (xi) is irrelevant. The concept of aggravation has nothing to do with whether or not the imputation that the plaintiff harassed women entering the clinic is true.

9 In oral submissions, counsel for the plaintiff submitted that the 'Englehardt Street protest site' is 'presumably ... some site opposite the clinic in Englehardt Street'; that the plaintiff has never stood outside the entrance to the clinic; that he had from time to time stood in the vicinity, over the road; and that standing at the entrance to the clinic and praying was quite a different thing to standing on the other side of the road from the clinic and praying. I understood this to be a submission that the conduct particularised in (viii) and (ix), if proved, could not amount to harassment.

10 As to the function of particulars, counsel for the plaintiff relied on the statement of Scott LJ in Bruce v Odhams Press Limited,[1] that:

Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.

Counsel for the second defendant adopted that statement of principle.

11 In relation to the pleaded justification defence, the issues requiring consideration are:

(a) Are the attendances in particular (viii) sufficiently particularised?

(b) Do the facts particularised in (viii) and (ix) establish an arguable case that the plaintiff harassed women seeking to enter the clinic?

(c) Given that no conduct of the type described in particular (vii)(B)-(F) and (H) is particularised against the plaintiff, should particular (vii) to that extent be struck out as irrelevant?

(e) Should particular (xi) be struck out as irrelevant?

12 The justification particulars in the second defendant's proposed defence make reference to, and rely upon, the affidavit of the plaintiff sworn 12 November 2014. In that affidavit, the plaintiff confirms that he is a supporter of a local antiabortion organisation called 'Abortion Hurts Albury' and of the organisation HoGPI, and continues:

1. There is an HoGPI prayer site located outside of medical clinic [sic] where pregnancy termination procedures are conducted in Englehardt Street, Albury.
2. From time to time, I have visited the prayer sites at both Pemberton Street and Englehardt Street in Albury both with my wife Anna and alone.

Later in the affidavit the plaintiff refers to the prayer site as a 'protest site'. Counsel for the second defendant argued that particular (viii) relies upon the admission by the plaintiff in the affidavit of his attendance from time to time at the 'Englehardt Street protest site', accordingly is not vague or imprecise, and is sufficient to put the plaintiff on notice of the case he must meet at trial in relation to those particularised facts. I agree.

13 The next question is whether, if the conduct particularised in (viii) and (ix) is the only conduct of the plaintiff, it is arguable that the imputation that the plaintiff harassed women entering the clinic is made out. Counsel for the second defendant noted that in his affidavit the plaintiff described the HoGPI site as a 'protest site' located outside the clinic. Counsel also submitted that the August 2012 Cherish Life Newsletter, relied on in particular (vi), makes clear that the approach of the plaintiff should not be characterised as engaging in passive prayer, but as a far more active form of protest. I was directed to the following statements in the newsletter attributed to the plaintiff:

'Women have the right to know the effects of abortion on themselves and the community, and need compassionate help and healing.'

'We are not at war with the women who enter an abortion clinic, our target is the billion dollar taxpayer funded abortion industry.'

[The plaintiff] stated prayer must be the first action and an integral part of our plan to stop abortion. The second role is 'on site protesting' by praying and counselling outside an abortion mill each week.

Counsel for the second defendant argued that the inference is open that from at least August 2012 the plaintiff was engaging in the type of conduct described in the newsletter, that such conduct could amount to harassment of women entering the clinic, that this was reinforced by the fact that the plaintiff is a high profile anti-abortion/pro-life advocate in the Albury-Wodonga community, and that the particulars therefore established an arguable case that the plaintiff harassed women seeking to enter the clinic.

14 I was taken by counsel for the second defendant to the ABC Goulburn Murray report relied on in particular (xi), which, it was submitted, arguably established that by 2 June 2014 (that is, prior to the date of the attendance particularised in (ix)) the plaintiff was on notice that attendances at the protest site by him and others were causing women attending the clinic to feel harassed.

15 Particulars (viii) and (ix) are sufficient to put the plaintiff on notice of the conduct in which he is alleged to have engaged. Whether this conduct in attending outside the clinic and praying is passive and benign or, alternatively, constitutes active protest harassing women seeking to enter the clinic is a question for trial. In my view, particulars (viii) and (ix), taken together with particulars (i) to (vi), are sufficient to raise an arguable case on this aspect of the justification defence.

16 Particular (x) alleges joint enterprise between the plaintiff and other protesters. The basis of this allegation is clear enough. Counsel for the second defendant pointed to the ABC Goulburn Murray report, which relates to HoGPI activities at the clinic, and in which the plaintiff is quoted as saying:

We went through this some time ago and resolved what the law states and how we were to behave within the law and we have complied with that at every opportunity...

There's never been any suggestion, any real suggestion, any substantiated suggestion of us breaking the law.

In his affidavit sworn 12 November 2014, after stating that he is a supporter of 'Abortion Hurts Albury' and HoGPI, the plaintiff details the activities of those organisations, and states that he engages in the HoGPI activity of attending the Englehardt Street site, both with his wife and alone, and prays. I conclude that a joint enterprise allegation in relation to particulars (vii)(A) and (G), (viii) and (ix) is arguably made out.

17 The second aspect of particular (x) is the description of what is said to constitute harassment of the women entering the clinic. I do not think the description of harassment in particular (x) is necessary. Whether or not the conduct in which it is alleged the plaintiff engaged can be proved and, if it can, amounts to harassment of women entering the clinic is a question for trial. Adding a gloss on harassment does not further assist in informing the plaintiff of the case he must meet at trial, or in defining the question to be tried. I conclude that the last four lines of particular (x) (as set out at [7] above), commencing after the word 'harassment', should be struck out.

18 Counsel for the plaintiff argued that the concept of aggravation contained in particular (xi) has no relevance to the allegation that the plaintiff's conduct constituted harassment of women entering the clinic. Strictly, that may be correct. However, I understand the allegation to be that harassment by the plaintiff of women seeking to enter the clinic is further established given the circumstances set out in sub-paragraphs (A) and (B) of that particular. The contents of both sub-paragraphs are relevant. The particular should be re-pleaded using an alternative wording to 'aggravated'.

19 There are two faults with particular (vii) combined with particulars (viii) and (x). The conduct in particular (vii) sub-paragraphs (B) to (F) and (H) is not particularised with facts which enable the plaintiff to understand any case put against him. Particular (viii) alleges that the plaintiff 'has employed at least the methods particularised in (vii)(A) and (vii)(G)'. It is not clear whether the second defendant is seeking to leave open the opportunity of alleging against the plaintiff that he engaged in conduct particularised in (vii)(B) to (F) and (H) either personally, or as part of the joint enterprise particularised in (x). If the second defendant does wish to plead against the plaintiff that he engaged in conduct beyond the conduct in (vii)(A) and (G), either personally or as part of a joint enterprise, then the other conduct relied upon must be particularised. I do not know whether it is to be alleged that conduct described in (vii)(B) to (F) was engaged in by members of HoGPI at the clinic, and that there is evidence which establishes that the conduct was engaged in as part of a joint enterprise involving the plaintiff. If that is the case that the plaintiff is to meet at trial, it must be properly particularised. I will strike out particulars (vii)(B) to (F) and give the second defendant leave to re-plead this aspect of the particulars. Particular (vii)(H) is impermissibly vague, and will be struck out in any event.

20 I do not have to determine whether or not further particulars of justification might be allowed in future, or what restrictions might be placed on discovery and interrogation. Discovery cannot be used by the defendants to establish whether or not they have a defence. However, the defendants can seek discovery relevant to the defence, and might be entitled to refine the particulars of the justification defence following discovery. That being so, questions as to the breadth of discovery and as to the later amendment of particulars are for another day.

21 The particulars pleaded by the first defendant to support the justification defence are significantly different to, and more problematic than, those pleaded by the second defendant. Those particulars include:

(iii) Supporters of the HoGPI group have employed a variety of methods to deter women from undertaking an abortion, including:

1. standing outside the entrance of medical clinics;
2. approaching women and preaching to them;

1. approaching women and showing them graphic images of foetuses and babies;

1. approaching women and offering them pamphlets, 'counselling' and support services;
2. approaching women and telling them that abortion is unsafe;
3. filming or photographing women who use the services;
4. conducting prayers and vigils; and
5. conducting protests (HoGPI's activities)

(iv) HoGPI supporters have been regularly gathering outside the Fertility Control Clinic at 586 Englehardt Street, Albury (the Clinic) and have participated in HoGPI's activities for a number of years.

(v) a number of people, including staff, clients and women who have entered or tried to enter the Clinic have reported to the Clinic, to the police, to politicians, to councillors, to media outlets, and to other outlets, including the RPA Facebook Page, that they have felt harassed and intimidated and that their privacy has been violated through HoGPI's activities.

(vi) RPA believes that women have the right to access fertility control in privacy, free from intimidation and harassment and advocates for an exclusion zone outside the Clinic through, amongst other things, a petition.

(viii) at all material times, given the plaintiff's involvement and support of 'Abortion Hurts Albury' and HoGPI, plus the involvement and support of his wife, Anna Von Marburg, it is to be inferred that the plaintiff was aware that some staff, clients and women have felt that HoGPI's activities outside the Clinic, including the activities of the plaintiff, have been unnecessarily confrontational and have violated the privacy of those women that attended the Clinic;

(ix) at all material times, the plaintiff was aware of RPA, the RPA Facebook page and its petition;

(x) in spite of the above, the plaintiff has, on numerous occasions, participated in HoGPI gatherings and engaged in HoGPI's activities outside the Clinic.

22 There are no particulars in (iii), (iv) or (x) of which of HoGPI's activities were engaged in outside the clinic, when the activities were engaged in, when the plaintiff engaged in HoGPI's activities, and in which activities he engaged. Particular (v) is inadequate in a number of respects. It is not said which people made complaints, when the complaints were made, what the substance of the complaints was, which of HoGPI's activities were the subject of complaint, or how any of this is relevant to the truth of the imputation that the plaintiff harassed women seeking to enter the clinic. Particulars (vi), (viii), and (ix) are each irrelevant. The focus in the particulars must be on the activities in which it is alleged the plaintiff engaged, either individually or jointly, with some background and context which might give meaning to those activities. That is not the form of the particulars pleaded by the first defendant. I will strike out the current particulars and give the first defendant leave to re-plead.

23 The first defendant also pleads justification to the failure to provide post-operative care imputation (imputation (e)). The particulars pleaded by the first defendant read:

(i) In or around 2004 or 2005, the plaintiff conducted surgery on Newell. The procedure was to remove Newell's tonsils, trim the throat and remove the uvula.

(ii) Newell required post-operative care as a result of the procedure.

(iii) During the procedure, the plaintiff pierced a hole in Newell's nasal cavity.

(iv) After the surgery, the plaintiff told Newell that this was a normal part of the surgery.

(v) As a result, Newell has had medical problems ever since, including bronchiectasis;

(vi) Newell only became aware that the plaintiff's actions were not standard procedure at a time when he was informed that the limitations period for suing the plaintiff had passed;

(vii) The plaintiff has accordingly been referred to within the Newell family, including by his mother, Julie Newell, as "the butcher".

(viii) Further and better particulars will be provided after full and proper discovery and prior to trial.

Particulars (i) and (iii)-(v) provide background content. The first defendant does not particularise the post-operative care required by Newell, or how the post-operative treatment actually provided failed to meet the required standard. Particulars (vi) and (vii) detail facts which are irrelevant to the post-operative care imputation. As currently pleaded, the particulars do not make out the defence, and will be struck out. I will give the first defendant leave to re-plead.

24 Each defendant pleads honest opinion as a defence to the imputations pleaded by the plaintiff in paragraphs 22(a) to (c) and 23(a) to (c) of the 4SOC. The substance of the imputations alleged by the plaintiff is that the plaintiff harasses women seeking to enter the clinic. Counsel for the plaintiff submitted:

(a) it is untenable to plead that the imputations are an expression of opinion;

(b) the opinion, if it is one, is not based on facts referred to in the publications; and

(c) facts which it is alleged form the basis of the opinion are not particularised.

25 In State of New South Wales v IG Index plc,[2] Nettle JA noted that the distinction between expressions of opinion and assertions of fact was often difficult to draw,[3] that the distinction might depend upon context and where it did that was a matter for trial,[4] and that if the written words, taken in context, 'permitted of the possibility that the implication was one of opinion',[5] then the question should be left for trial. In Cleary v Hore-Lacy (No 2),[6] Ashley JA, when considering whether such a defence was open said:

These propositions underline what has often been judicially stated, that drawing the distinction between fact and comment can present difficulties; and it is with that in mind, and as well the great desirability of confiding to the finder of fact the task of fact-finding, that a fair comment defence should only be struck out, or not permitted, in the clearest case.

Counsel for the second defendant relies on the context which is said to be provided by facts particularised as part of the justification defence and submits that the meanings pleaded by the plaintiff, if conveyed, were inherently judgmental and therefore comment rather than statement of fact.

26 In argument in relation to the justification defence, counsel for the plaintiff characterised the actions of the plaintiff in attending the Englehardt Street site and praying as passive and non-harassing. By contrast, counsel for the second defendant submitted that in the established context the same conduct should be characterised as harassment. These different approaches to the characterisation of the conduct of the plaintiff reflect the positions adopted by the two opposing camps represented by the parties; namely, those that oppose abortion and support organisations such as HoGPI on the one hand, and those that are pro-choice and support Rights to Privacy Albury on the other.

27 In my view, the issue is not so much whether the imputation of harassment could possibly amount to opinion, but whether it is opinion based on facts within the context in which it is expressed. As Nettle JA stated in IG Index:[7]

The first point is that a statement may qualify as a comment if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred.

It is at this point that it is evident there are problems with the current pleading. For instance, the particulars of facts upon which the opinion is based that are pleaded by the second defendant in paragraph 27 of his proposed further amended defence and counterclaim are:

(ii) was based on material that is substantially true and that was stated or referred to in the first publication, namely, the matters set out in paragraph 26.1 above.

Other than by reference to the RANZCOG statement, it does not appear that particulars (i) to (xi) to paragraph 26.1 are referred to in the first publication. If it is to be alleged that some or all of the facts particularised are notorious, or that those facts form part of the relevant context on some other basis, this should be pleaded. Whether the facts are notorious or are truly part of the context in which the imputations were published is likely to be a matter for trial. However, further and better particulars are required from each defendant to clearly establish the existence and source of facts which could be said to form the basis of an opinion in relation to harassment.

28 The first defendant further pleads honest opinion as a defence to the imputations that the plaintiff:

(e) seriously breached his duty as a surgeon by failing to provide post-operative care to a patient (one Cade Newell) who required it;

29 The first defendant particularises allegations of fact relating to the treatment of Cade Newell by the plaintiff in around 2004 or 2005. The facts particularised are not contained or referred to in the publication, nor is it pleaded that they are part of the context in which the imputations arise, or matters of common knowledge to those to whom the words of the publication are addressed. Counsel for the first defendant now submit that the opinion is founded on facts contained within the statement published, namely that '...the man butchered me during surgery and then provided no post op care whatsoever.' I agree that the first defendant is entitled to re-plead in this fashion.

30 The first defendant pleads a contextual truth defence to the imputations that the plaintiff alleges are conveyed by the second publication, and relies in that regard on s 26 of the Defamation Act 2005, which provides:

Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that -

1. the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
2. the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

31 The two contextual truth imputations pleaded by the first defendant are that the plaintiff:

(a) was a user of illegal narcotic drugs of addiction ('narcotic drug imputation'); and

(b) was an incompetent ear, nose and throat surgeon ('incompetent surgeon imputation').

32 The task on the plaintiff's application to strike out the contextual truth defence is to consider whether the pleading of the first defendant raises an arguable case that:

(a) one or both contextual imputations arise from the publication;

(b) the contextual imputations which arise are substantially true; and

(c) if they arise and are substantially true, the contextual imputations outweigh the defamatory imputations.

33 Counsel for the first defendant submit that the narcotic drug imputation is conveyed by the statement in the second publication, 'Careful with those rosary beads Roland, wouldn't want to accidentally snort them up with your cocaine', and by reason of other comments in the thread. The only additional comment in the thread to which I was taken and which might possibly bear upon the question of whether this imputation arises is a statement 'Health Care Complaints Commission v Dr Roland Von Marburg 2012'. Counsel for the first defendant submit that cocaine is an illegal narcotic drug of addiction, that the word 'cocaine' could easily be understood by the ordinary reasonable reader as slang for narcotic drug of addiction, and that in a publication such as this the reader would not be overly concerned with questions of tense.

34 Counsel for the plaintiff submit that the statement in the second publication is direct and accuses the plaintiff of being a cocaine user, and that it is not possible that that short statement could be taken to mean that in the past the plaintiff was a user of illegal narcotic drugs.

35 The parties agree on the relevant principles to apply to the consideration of whether a pleaded contextual truth is conveyed by the publication. Those principles include that the ordinary reasonable reader:

(a) reads between the lines in light of his or her general knowledge and experience of worldly affairs;

(c) is a lay person, not a lawyer, whose capacity for implication is much greater than that of a lawyer.

36 The truth asserted by the first defendant is that, six years earlier than the publication, the plaintiff had, for a period, illegally used pethidine. I accept, for the purposes of this analysis, that pethidine is a narcotic drug which is addictive and can be described in the context of alleged use by the plaintiff as illegal.

37 I conclude that even taking account of the characteristics of the ordinary reasonable reader referred to above, it is not arguable that the narcotic drug imputation is conveyed by the publication. First, the statement makes specific reference to cocaine, a reference confirmed by the words '... wouldn't want to accidentally snort them up ...'. Second, the statement relates to the present, not to six years past. The particulars supporting the narcotic drug imputation currently rely on findings of fact by a New South Wales medical tribunal. Pursuant to s 91 of the Evidence Act, the first defendant may not be able to rely on findings of fact by that tribunal as proof of the facts found. The first defendant might re-plead to cure this last fault, possibly by pleading admissions by the plaintiff. However, I would still strike out the narcotic drug imputation pleading on the basis that that contextual truth cannot possibly be conveyed by the publication.

38 The incompetent surgeon imputation is alleged to arise from the statements:

'Is this Roland Van Marburg, the "Butcher"...?'

'To each his own Erin, but the man butchered me during surgery and then provided no post op care whatsoever. Julie has a right to express her personal opinion as do you.'

Counsel for the plaintiff submit that the contextual truth imputation cannot arguably arise and, relying on the statement by Ralph Gibson LJ in Bookbinder v Tebbitt,[8] that the wider meaning pleaded by the plaintiff is not capable of being conveyed by the words of the statement. Counsel for the plaintiff further submit that the attempt by the first defendant to plead wider meanings would result in further issues being introduced into the trial which would greatly prolong it, and would be oppressive to the plaintiff.

39 For the following reasons, I disagree. First, taking the two statements together, it is possible that the ordinary reasonable reader would conclude that 'Butcher' is an adverse comment on the skill of the plaintiff as a surgeon. Second, imputation (d) pleaded by the plaintiff is itself wide and general, rather than being an imputation of specific misconduct. I note that for the same reasons given above the particulars supporting the incompetent surgeon contextual truth pleading, to the extent they rely on tribunal findings as proof of facts, may be inadmissible in this proceeding. The issue of admissibility may need to be determined by the trial judge.

40 I will strike out the narcotic drug imputation. I will allow the first defendant to re-plead the incompetent surgeon imputation particulars.

41 Each defendant denies that the imputations pleaded by the plaintiff are conveyed by the second publication. It is not possible to know which of those imputations will ultimately survive evidence and argument at trial. It cannot be concluded at this stage whether or not the defamatory imputations which survive trial cause further harm beyond the incompetent surgeon imputation. Accordingly, I will not strike out the incompetent surgeon imputation pleaded by the first defendant.

42 The second defendant proposes to plead by counterclaim that the plaintiff is responsible for the publication of a series of defamatory posts which appeared on a Facebook page titled 'Rights to Privacy Albury Exposed' ('RPA Exposed Facebook page'). That claim depends upon pleaded allegations that the plaintiff, together with his wife, operated or controlled the RPA Exposed Facebook page and uploaded or caused to be uploaded the posts which it is alleged are defamatory.

43 Counsel for the second defendant acknowledged that the particulars of control point to evidence which is entirely circumstantial in nature. Counsel for the plaintiff submit that that part of the counterclaim should be struck out, because on the particulars pleaded the allegations of control and of uploading posts cannot possibly rise higher than mere conjecture or surmise. In relation to the test for sufficiency of circumstantial evidence in a civil case, counsel for the plaintiff directed me to the portion of the judgment of Tadgell JA in Transport Industries Insurance Co Limited v Longmuir,[9] in which his Honour referred with approval to a passage from Bradshaw v McEwan's Pty Ltd:[10]

Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ...[11]

44 In Longmuir, Tadgell JA made plain that circumstantial evidence is to be evaluated as a whole, and added:

A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details ...[12]

45 In Longmuir, one factor which weighed heavily on consideration of the circumstantial case put by the appellant was the failure of the respondent to give evidence, because it was in the power of the respondent to contradict the circumstantial case with direct evidence.[13]

46 I will not recite the pleaded particulars going to operation and control in this judgment. In substance, this aspect of the case is particularised in this fashion:

(a) the RPA Exposed Facebook page is dedicated to criticising the second defendant and the Right to Privacy Albury organisation and Facebook page;

(b) the plaintiff is a critic of the first defendant and RPA in relation to the issue of abortion in the Albury-Wodonga community;

(c) the inference that the plaintiff, together with his wife, operate and control the RPA Exposed Facebook page is supported by:

(ii) motivation resulting in a small number of possible candidates;

(iii) anonymity claimed by the administrators of the RPA Exposed Facebook page, particularly in the context of the current proceeding;

(iv) the fact that Mrs Von Marburg is a former software analyst, which is said to support technical capacity;

(v) the fact that the most prominent posts refer to this proceeding;

(vi) there are posts unrelated to the stated purpose of the RPA Exposed Facebook page which directly concern the plaintiff and his wife;

(vii) that the plaintiff and his wife have posted comments on the RPA Exposed Facebook page.

The particulars are not the evidence which will be led in the case. It is difficult to conclude that evidence led pursuant to these particulars cannot possibly do more than rise to the level of conjecture and surmise. Put another way, it is difficult to predict with sufficient certainty the outcome of the evaluative exercise which Tadgell JA said was required once evidence has been led.

47 In my view the particulars, looked at collectively, point to a hypothesis that the plaintiff and his wife did operate or control the RPA Exposed Facebook page. Once the particulars are sufficient to raise that hypothesis, it would seem to me a very difficult task for the plaintiff to establish that the pleading ought be struck out. That step should only be taken if it can now be determined that evidence which might be called cannot possibly elevate the hypothesis of operation and control by the plaintiff and his wife to the point that 'it is reasonable to find a balance of probabilities in favour of the conclusion'.[14] I conclude that this aspect of the proposed counterclaim of the second defendant should not be struck out.

48 Pursuant to an order made by Dixon J on 23 March 2015, the plaintiff pleaded a further amended statement of claim. That pleading has now been superseded. In the further amended statement of claim the plaintiff pleaded as the publication a post (which I understand to be the first publication in the 4SOC) and 'all related comments, replies to comments and "like" indications on the Facebook page in the period 16 October 2014 to 20 November 2014 (the thread)'. The thread was attached as schedule A to the further amended statement of claim.

49 The second publication pleaded in the 4SOC appears to be four disconnected parts selected from the thread, being the first publication and three statements which appear to have been posted by three different individuals as part of the thread of posts and comments following the first publication. Schedule A appears to show that these statements were interspersed among other comments and posts. The Cade Newell post and statement appears to be a response to a post under the name Erin Green, which itself appears to respond to the Julie Newell post and statement.

50 It is not clear whether either the second publication or schedule A represent the form in which material was published and received. Given the nature of the forum, it is possible that the form in which material was published and received changed over time, or appeared in a form different to schedule A.

51 The first defendant does not admit the second publication and pleads by his defence that the thread, as a whole, is the publication. Both defendants deny that the imputations pleaded by the plaintiff were conveyed by the second publication. Counsel for the first defendant submit that only by the thread being considered as the publication can the second publication be understood in context, and that the context so established is critical to determining whether the pleaded imputations are conveyed. In submissions, counsel for the first defendant point to certain posts and statements within the thread which it is argued are relevant context to the second publication. However, it is not said how those posts and statements arguably alter the meaning of the second publication. There is no 'bane and antidote' pleading by the first defendant. Counsel for the first defendant further submit that he is entitled to rely on parts of the thread to establish a defence.

52 Counsel for the plaintiff responded by submitting that the plaintiff is only obliged to plead the defamatory words and not context or background; that the first defendant has not pleaded how the context created by the thread can possibly alter the natural and ordinary meaning of the second publication; and finally the proper course for the first defendant to adopt is to make an application to 'strike in' the thread or parts of it which arguably alter the meaning of the second publication but that this must be done on proper material. It is argued that in all the circumstances, that part of the first defendant's pleading should be struck out.

53 Both the plaintiff and the first defendant rely on the statement of principle by Kaye J (as his Honour then was) in Perry v McIntosh & Ors,[15] in which his Honour stated:

The principles, which apply to this application, are not in dispute, and may be shortly stated. First, as a general proposition, a plaintiff is ordinarily only required to plead the particular words, published by the defendants, which the plaintiff alleges were defamatory of him. Thus, ordinarily, the plaintiff is not obliged to plead the context or background in which those words were published. However, as a qualification to that principle, a plaintiff may be required to plead other words, whether spoken by the defendant or by someone else, on the same occasion, where those other words might alter or qualify the complexion of the words which, the plaintiff alleges, were defamatory of him. Those principles are now well established, and have been stated in a number of cases, including Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors; Gordon v Amalgamated Television Services Pty Ltd & Anor; Kasic v Australian Broadcasting Commission; A v Ipec Australia Ltd v Crew.

54 The case of Robinson v Australian Broadcasting Corporation,[16] on which the first defendant relied, was an appeal from a decision of a judge at first instance to allow a 'strike in' of an entire telecast broadcast by the respondent. The plaintiff in Robinson had pleaded only parts of the telecast as the publication. In a judgment allowing the appeal in part, McMurdo P said:

If, however, the meaning is not materially changed by reference to the whole publication a plaintiff need not set out the entire publication for to do so may unnecessarily prolong the trial causing unnecessary escalating costs.

The Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") requires parties litigating in Queensland courts to frame pleadings as briefly as the nature of the case permits and to focus on the expeditious resolution of the real issues in the proceedings at a minimum expense. Requiring Mr Robinson to include in his pleading the entire transcript of the telecast, large portions of which are distinctly separable from his sole claim that the ABC defamed him in that part of the telecast dealing with vote rigging during the ATSIC election, is inconsistent with the philosophy and requirements of the UCPR.

...Aspects of some of the unpleaded portions of the telecast may arguably have some relevance to the pleaded defamation, but this is not a case where the telecast as a whole materially qualifies or changes the context of the pleaded defamation requiring Mr Robinson to amend his pleadings by incorporating the whole of the transcript of the telecast; it certainly is not a "bane and antidote" case. As Atkinson J points out, a more limited inclusory amendment of para 3 of the amended statement of claim was supportable. To require Mr Robinson to plead the full transcript of the telecast was, however, unnecessary in law and would risk needlessly prolonging the trial with ancillary costs implications. The learned primary judge erred in concluding otherwise. The ABC in its defence can, of course, plead those portions of the transcript of the telecast which it contends are relevant to Mr Robinson's pleaded defamation and on the facts before this Court it seems extremely probable that the ABC could at trial require Mr Robinson to play the telecast concerning him in full. [17]

55 A number of courses are available to the first defendant. First, he can make an application to strike in the thread. Such an application must be made on proper material establishing how the context provided by the thread can arguably alter the meaning of the second publication. It is unlikely that an application to strike in the whole thread could succeed. However, parts of the thread might arguably provide context which could affect the meaning of the second publication. Second, the first defendant may plead parts of the thread to establish a defence. However, that is not how the thread is currently pleaded by the first defendant in paragraph 8 of his amended defence. Finally, the thread might be a document considered at trial as long as it is relevant to the case of one of the parties.

56 I agree that the part of paragraph 8 of the amended defence of the first defendant from the words 'and says further' should be struck out. If the first defendant wishes to make a 'strike in' application or to plead parts of the thread to assist in establishing a defence he can do so.

57 The proceeding was commenced by the plaintiff filing a writ and statement of claim on 13 November 2014. In the writ the plaintiff signified, pursuant to r 47.02(1)(a) that he desired that the proceeding be tried by judge alone. There was no notice for trial by jury filed by either defendant in accordance with r 47.02(1)(a). In April this year, the first defendant made application that the proceeding be heard by a jury.

58 The first defendant relied on r 47.02(2) as providing power to the court to now order trial by jury. That Rule provides:

Any other proceeding should be tried without a jury, unless the court otherwise orders.

59 In support of the application by the first defendant, counsel submit that:

(a) the Court retains an unfettered discretion to order trial by jury, even in circumstances where no party has given notice signifying the desire for trial by jury within the timeframe provided by the Rules.

(b) the current proceeding is appropriate for trial by jury. Defamation proceedings such as this are usually, or often, tried by juries. There is no matter of legal or factual complexity which renders a jury trial inappropriate. Nor does the potential duration of the trial, or the stage at which the application has been made, weigh significantly in favour of trial by judge alone. Although time has passed since the proceeding was issued, it is still at a relatively early stage, pleadings not yet having closed. There would be no prejudice suffered by the plaintiff if the Court were to accede to the application of the first defendant for trial by jury.

60 The second defendant adopted a neutral position in respect of this application.

61 In opposing the application, the plaintiff relied heavily on the ruling of Forrest J in Deka v Johns.[18] In that case, the plaintiff had similarly chosen trial by judge alone. The defendant had not given notice for trial by jury in accordance with the Rules but some nine months later made application for trial by jury. Forrest J said in relation to such an application:[19]

A Court may, at any stage of a proceeding, direct a trial with or without a jury if it is satisfied that it should do so.

The onus in persuading a Court to dispense with the mode of trial determined by the operation of the rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.

...

The principles I have set out previously make it clear that once a party has chosen the mode of trial in accordance with the rules, then that mode of trial has been regularly invoked. There must be a special reason to disentitle, or deprive that party of the mode of trial it has chosen. This, it seems to me, is particularly so where a case has proceeded for nearly nine months without any suggestion that it be conducted in a different form.

62 Relying on the ruling in Deka,[20] counsel for the plaintiff argued:

(a) The plaintiff chose, as the mode of trial, judge alone. He should not be lightly deprived of that choice.

(b) The proceeding had been on foot for approximately 16 months before the first defendant made its application. The length of that delay weighs against the first defendant's application.

(c) No adequate explanation has been proffered by the first defendant for his delay in making the application.

(d) Steps have been taken in the proceeding on the basis of an understanding that trial would be by judge alone.

(e) The plaintiff would likely suffer prejudice if the application were granted, because the trial would thereby be prolonged.

63 I agree that those factors are relevant to the exercise of the r 47.02(2) discretion as to the mode of trial. The first defendant bears the onus of establishing a sufficient reason to deprive the plaintiff of the mode of trial chosen by him. The reason must be sufficient to outweigh the factors which otherwise weigh in favour of the plaintiff maintaining the benefit of the mode of trial he chose. No sufficient reason has been established by the first defendant. In the circumstances, the application of the first defendant for trial by jury is dismissed.

1. The second defendant has leave to file and serve a further amended defence in the form provided to the Court on 14 June 2016, subject to the striking out and re-pleading, in accordance with these reasons, of parts of the particulars to paragraphs 26 and 27.

2. The following is struck out of the amended defence of the first defendant:

a. Paragraph 8, from the words 'paragraph 8' onward;

b. The particulars to paragraphs 26, 29(iii), 30(iii), 31(iii), 32, 33, 34, 36, 37(iii), 38(iii), 39(iii) and 41(iii); and

with leave to re-plead in accordance with these reasons.

3. The first defendant's application for trial by jury is dismissed.

65 I will hear from the parties as to the appropriate form of orders, including as to costs.

[1] [1936] 1 KB 697, 712-13.

[2] [2007] VSCA 212; (2007) 17 VR 87 ('IG Index').

[6] [2009] VSCA 132; (2009) 21 VR 692, 705.

[7] [2007] VSCA 212, [96] (citation omitted).

[8] [1989] 1 All ER 1169, 1174.

[9] [1997] 1 VR 125 ('Longmuir'), 141.

[10] (1951) 217 ALR 1 ('Bradshaw').

[11] [1997] 1 VR 125, 141 (citations omitted).

[13] [1997] 1 VR 125, 142, citing Blatch v Archer [1774] EngR 2; (1744) 1 Cowp. 63, 65.

[14] Bradshaw (1951) 217 ALR 1, 5.

[15] [2010] VSC 85, [13] (citations omitted).

[16] [2004] QCA 319 ('Robinson').

[17] Ibid, [9]-[11] (citations omitted).

[18] [2009] VSC 296 ('Deka').

[19] Ibid [6], [13] (citations omitted).

[20] [2009] VSC 296.