WEEKS -v- NATIONWIDE NEWS PTY LTD [No 2] [2019] WASC 44 (1 March 2019)

1. It is necessary to outline the rather convoluted history of this application because of the defendants' contention that the plaintiff's application should be dismissed because the plaintiff seeks to revisit pleas that have already been dealt with by the court or not previously objected to.
2. The defendants filed a defence on 2 February 2018. The plaintiff applied to strike out paragraphs of the defence in which the defendants pleaded justification, qualified privilege, fair comment and honest opinion (the February strike out application). On the eve of the hearing of the application the defendants filed a minute of amended defence also dated 2 February 2018 (the defendants' February minute) which made some proposed amendments in response to the plaintiff's challenge to their original defence. The plaintiff maintained his challenge to the defence as formulated in the defendants' February minute.
3. The February strike out application was heard on 22 February 2018. The application was argued as if the defence had been amended in accordance with the defendants' February minute. On 13 April 2018 I struck out certain paragraphs of the defence and dismissed the balance of the plaintiff's application: Weeks v Nationwide News Pty Ltd [2018] WASC 113. I ordered that the defendants have leave to replead by an amended defence to be filed and served by 4 May 2018, except that the plaintiffs did not have leave to replead [10] of their defence in which they pleaded fair comment and honest opinion.
4. On 4 May 2018 the defendants filed an amended defence. Following conferral between the parties the defendants delivered to the plaintiff a proposed further amended defence dated 7 June 2018 (the proposed 7 June defence) but did not file the proposed defence. I made directions for the plaintiff to file any application to strike out the proposed 7 June defence and for the filing and service of submissions. I listed the plaintiff's strike out application to be heard on 12 September 2018.
5. On 12 September 2018 I ordered that the plaintiff's application to disallow or strike out the proposed 7 June defence be withdrawn and made directions for the defendants to file and serve a further amended defence and for the plaintiff to file any application to disallow the further amended defence.
6. On 8 October 2018 the defendants filed the FAD. It is that defence which is the subject of these reasons.

1. In [8] of their defence the defendants plead that the defamatory meaning pleaded by the plaintiff, that the plaintiff was incompetent in his profession as the head of a government department, is true and the defendants rely upon the defence of justification at common law and under s 25 of the Defamation Act 2005 (WA) and the equivalent provisions of the Defamation Act in the other States and territories of Australia.
2. It is convenient to outline the defendants' particulars of justification. They are extensive.
3. Paragraphs (a) to (c) of the particulars of justification set out matters a competent head of a government department is expected to and ought provide, abide by, perform and achieve, and the results which should follow from doing so.
4. Paragraph (d) sets out conduct, including omissions, by the plaintiff.
5. Paragraph (e) sets out matters relating to DAA staff. The matters consist of attitudes, feelings or intentions of staff and matters reported and witnessed by staff. Paragraph (f) says that the matters referred to in par (e) will be relied upon by the defendants as demonstrating that the plaintiff had failed to meet or achieve the criteria or what is expected of a competent head of a government department described at pars (a), (b) and (c).
6. Particulars (g) to (n) relate to a survey by the Public Sector Commission (Survey) and a report by Mr Bryant, a consultant engaged by the Public Services Commission to investigate the issues raised in the Survey. Particular (l) sets out matters 'Mr Bryant noted in his report, as was the case'. Particular (m) commences: 'it was the case (as was referred to in Mr Bryant's report) that' and then sets out matters which variously refer to the Survey results, the DAA and the plaintiff. Particular (n) says that Mr Bryant's report will be relied upon by the defendants as demonstrating that the plaintiff had failed to meet the incidents and what is expected of a competent head of a government department described in pars (a), (b) and (c).
7. Particular (o) sets out a number of practices and interactions with other DAA staff that the plaintiff engaged in and which are said to be inappropriate and constitute incompetent management. The particulars are said to be the best particulars the defendants can presently provide.
8. Particular (p) is that it is an incident of being a competent head of a government department to have a professional relationship with, and to accord appropriate respect and to follow the guidance of, an overarching government department, in this case the Department of Premier and Cabinet. Particular (q) says that the plaintiff acted in a mistrustful and contemptuous manner in respect to the Department of Premier and Cabinet. It states that the plaintiff isolated and persecuted employees who had a good working relationship with the Department of Premier and Cabinet and outlines the best particulars the defendants can presently provide of those matters.
9. Particulars (r) to (w) relate to the decision of this court in Robinson v Fielding [2015] WASC 108 and the response of the DAA, or its failure to respond, to matters arising from that decision.
10. Particular (x) is that the plaintiff failed to engage constructively with the Public Services Commission (PSC) in the process regarding the plaintiff's status and the status of his contract which was noted in a letter from the PSC of 28 October 2016. Particular (y) says that that failure will be relied upon by the defendants as demonstrating that the plaintiff had failed to meet the criteria and failed to conduct himself in the manner expected of a competent head of a government department described at pars (a), (b) and (c).
11. Finally, particular (z) is that further particulars will be provided after discovery and subpoena.

1. Order 20 r 8(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provides that subject to exceptions not presently relevant a defence must contain, and contain only, a statement in summary form of the material facts on which the defendant relies for his defence but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
2. A statement of defence must be concise. It must plead only material facts, meaning those necessary for the purpose of formulating a defence and not background facts or evidence. A defence should not contain arguments, reasons or rhetoric. These basic rules are important; they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial; see Tchenguiz v Thornton UK LLP [2015] EWHC 405 (Comm), [1] (Leggatt J).
3. Pleadings in an action for defamation are of the utmost importance. They play an important role in the conduct of the case, perhaps more so than in any other cause of action. The defence of justification must be expressly and specifically pleaded; the plea must be clear and distinct, exact and relevant. It must be sufficiently particular so that the plaintiff will know precisely what charge he will have to meet. Departure from a proper pleading of the defence of justification cannot be justified by a resort to a deprecation of technical pleading rules or strictness and formality in pleading.
4. A defendant may not plead irrelevant facts, opinions, arguments, reasons or rhetoric under the guise of background facts or narrative. The pleading of such matters may prejudice, embarrass or delay the fair conduct of the proceedings. It may obscure the issues or questions of fact and law which are in dispute between the parties and make it difficult for the plaintiff to discern the case that he has to meet. Such matters may improperly enlarge the ambit and range of discovery and make it difficult to determine the admissible evidence which a party is entitled to adduce at the trial.
5. RSC O 20 r 13 requires a statement of defence to contain the necessary particulars of any defence. I make five observations about that requirement. First, reference to modern case management and the contemporary role of pleadings and particulars or the ritual incantation of the statement of the former Chief Justice in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, to the effect that the court will properly be reluctant to allow the time and resources of the parties and of the court to be spent debating the application of technical pleadings rules, do not justify a defendant not providing relevant, precise and sufficient particulars of justification.
6. Secondly, where the imputation is general in nature the defendant in a plea of justification must state specific instances of conduct imputed to the plaintiff which justify the imputation: J'anson v Stewart [1787] EngR 116; (1787) 99 ER 1357; Hickinbotham v Leach [1842] EngR 799; (1842) 152 ER 510. Here, the imputation, that the plaintiff is incompetent as head of a government department, is general in nature. In a plea of justification the defendant must specify the conduct of the plaintiff, whether acts or failures to act, that justify the charge.
7. Thirdly, the issues to be tried are limited by the particulars of justification. Leave may be given to add particulars but until further particulars are delivered, the matters in question in the action are limited to the particulars that have been delivered: Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148, 152 (Lindley LJ).
8. Fourthly, a defendant must give adequate particulars before obtaining discovery and can obtain inspection of the plaintiff's documents only in respect of the specific facts or instances stated in his or her particulars of justification: Zierenberg v Labouchere [1893] 2 QB 183; Yorkshire Provident v Gilbert; Arnold and Butler v Bottomley [1908] 2 KB 151. The suggestion that, upon a generalised plea of justification, a defendant may obtain discovery from the plaintiff to gain information so as to possibly buttress general allegations is as unfounded today as it was in 1893. The rationale for this rule is the policy which discourages persons from making defamatory statements about others when not possessed of facts which would support such statements. In Zierenberg v Labouchere Kay LJ said:

If the defendant says that he is unable to state any facts without discovery, the answer is simple and conclusive he ought not to have published the libel, and cannot plead any justification for having done so (189).

To the extent that that is a special rule in defamation actions, it is well established and continues to be applicable today.

1. Fifthly, particulars of justification must satisfy at least three requirements. First, they must be relevant to proving the defamatory meaning pleaded by the plaintiff. Secondly, they must be pleaded with such particularity that the plaintiff knows not merely the general case he has to meet but also the acts, omissions or things attributed to him which is alleged to justify the imputation so that he knows the case against him. Thirdly, the particulars must be sufficient, that is, capable of proving the truth of the defamatory meaning sought to be justified. The first requirement is one of relevance, the second of specificity or precision; the third requirement goes to the capacity of the particulars to justify the pleaded imputation. See generally Ashcroft v Foley [2011] EWHC 1710 (QB); Ashcroft v Foley [2012] EWCA Civ 423; Rush v Nationwide News (2018) 359 ALR 473.
2. In this application the plaintiff challenges particulars of the FAD on the grounds of relevance, specificity and capacity. Further, the plaintiff relies on the concepts often referred to as the conduct and repetition rules.

1. The conduct rule is that where a defendant seeks to justify an imputation, in this case incompetence in performing the plaintiff's functions as head of a government department, the defence is required to focus on some conduct of the plaintiff as opposed to the opinion or allegations of third parties.
2. The repetition rule is a rule which not only governs the assessment of the meaning of a publication complained of, but also limits the permissible scope of a plea of justification of such a meaning and the admissibility of evidence to support such a plea.
3. The conduct and repetition rules have been considered in a number of cases in England and Wales where a defendant has pleaded that an imputation to the effect that there were reasonable grounds to suspect the plaintiff of wrongdoing is true. The principles outlined in those cases apply with at least as much force in cases where a defendant pleads that an imputation that the plaintiff is guilty of wrongdoing or has some bad quality or characteristic.
4. In Shah v Standard Chartered Bank [1998] EWCA Civ 612; [1999] QB 241 at 261, Hirst LJ held that it is an essential requisite of a defence of justification of reasonable suspicion of wrongdoing that it should focus on some conduct of the plaintiff giving rise to reasonable suspicion. His Lordship added that such a defence is not exclusively confined to allegations of such conduct; it will be necessary, particularly in a complicated case, for the defendant to portray in some detail the relevant background, and also to set out material which connects together the main facts relied upon.
5. In Shah v Standard Chartered Bank at 263 Hirst LJ said that imputations must be justified by reference to the underlying allegations of fact and not merely by reliance upon some secondhand report or assertion of them.
6. In Adam Musa King v Telegraph Group Ltd [2003] EWHC 1312 QB Eady J summarised what are now referred to as the Musa King principles:

This is one of those cases where the defence of justification depends upon establishing at least 'reasonable grounds to suspect' the claimant (of involvement in terrorist activity). Because it has become relatively common over the last decade, the ingredients of such a defence have received close scrutiny by the courts on more than one occasion. A convenient starting point would perhaps be Lewis v Daily Telegraph [1964] AC 235 but more recently the practical pitfalls have been examined by the Court of Appeal in Evans v Granada Television [1996] EMLR 429, Stern v Piper [1996] EWCA Civ 1290; [1997] QB 123, Shah v Standard Chartered Bank [1998] EWCA Civ 612; [1999] QB 241, Bennett v News Group Newspapers [2002] EMLR 39 and, with specific reference to the Human Rights Act in Chase v News Group Newspapers [2002] EWCA Civ 1772; [2003] EMLR 218.

From these authorities (among others) it is possible to derive the following principles, each of which Mr Rampton submits is relevant to the present case:

1. There is a rule of general application in defamation (dubbed the 'repetition rule' by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant, can only succeed in justifying it by proving the truth of the underlying allegation not merely the fact that the allegation has been made.
2. More specifically, where the nature of the plea is one of 'reasonable grounds to suspect', it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged.
3. It is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty.
4. A defendant may (eg in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact but that in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts.
5. Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the socalled 'conduct rule').
6. It has recently been acknowledged, however, by the Court of Appeal in Chase at [50] [51] that this is not an absolute rule, and that for example 'strong circumstantial evidence' can itself contribute to reasonable grounds for suspicion.

1. A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.

Those principles were repeated with apparent approval by Brooke LJ, with whom Parker and Kay LJJ agreed, on appeal in King v Telegraph Group Ltd [2004] EWCA Civ 613.

1. In Fallon v MGN Ltd [2006] EWHC 783 Eady J said at [18] that the 'conduct rule' requires that a plea should be directed generally towards the claimant's conduct. Eady J recognised that sometimes strong circumstantial evidence could be pleaded but courts need to be wary of pleaded particulars which appear to be designed to circumvent the primary conduct rule.
2. In Miller v Associated Newspapers Ltd [2014] EWCA Civ 39 MooreBick LJ adopted the Musa King rules. MooreBick LJ in addressing the need for the defendant to focus on conduct of the plaintiff said:

The whole emphasis is on the need for the appellant to adduce evidence of conduct on the part of Mr Miller sufficient to bring suspicion on himself, rather than relying on circumstantial evidence of a more general and unfocused nature.

1. In Miah v BBC [2018] EWHC 1054 QB the claimant doctor applied to strike out parts of the defendant BBC's defence to her claim for libel. The doctor alleged that the BBC had made two broadcasts and published an online article which defamed her by suggesting that she had defrauded the NHS of public money while running her surgery. After a trial on meaning, the court held that the publications bore the meaning that there were reasonable grounds to suspect the doctor of defrauding the NHS. The BBC prepared a draft amended defence in which it sought to defend that meaning as true. The defence included a summary of the NHS Quality Outcomes Framework (QOF), explaining how GPs obtain QOF points and payment for giving different types of advice to patients. The doctor submitted that parts of the defence should be struck out for being rambling and discursive and that substantial parts did not relate to her conduct and could not contribute to proving the truth of the publications, including reliance on the fact of an investigation and the views of investigators, as justifying a reasonable suspicion of fraud and reliance on the views of other third parties about her conduct. The BBC submitted that strong circumstantial evidence present in its defence was capable of demonstrating reasonable ground of suspicion against the doctor. Warby J adopted the Musa King principles. Warby J struck out much of what the doctor had objected to as being incapable of contributing to the proof of any relevant proposition. Warby J held that the defendant was not entitled to defend a libel action by proving the mere fact of an investigation. The focus had to be on the claimant's conduct. Parts of the defence exemplified the risk that narrative or context might stray into the impermissible territory of third party opinion, and some parts unequivocally relied on third party opinion as grounds to suspect, including the considerations of NHS bodies that the doctor's alleged conduct needed investigation, reliance on what they had to decide and what that indicated about the investigator's state of mind. Such an approach was illegitimate. Warby J said:

The beliefs, suspicions, decisions, and other evaluations of the NHS investigators in this case are no more grounds for suspicion than those of police or other investigators in other cases. The fact that someone 'saw fit' to investigate cannot prove that they had reasonable grounds for doing so.

Warby J also observed that the opinion, decisions or evaluations of those who carry out an investigation into alleged misconduct are simply not 'circumstantial evidence' at all and to characterise them as such would tend to undermine the conduct requirement altogether.

1. In Bokova v Associated Newspaper Ltd [2018] EWHC 2032 (QB) after a trial on meaning, the court determined that the natural and ordinary meaning of an article published in The Daily Mail included that there are reasonable grounds to suspect that the claimant was guilty of fraud in relation to the appointment of Ana Luiza ThompsonFlores as her assistant director general for strategic planning at UNESCO (the BSP post) and that Ms ThompsonFlores was unqualified. The defendant pleaded truth and gave particulars. The plaintiff applied to strike out some of those particulars. Nicklin J stated a number of legal principles including that the court can strike out parts of a defence if satisfied they are peripheral, and not essential, to the just determination of the real issues between the parties and investigation of which would be disproportionate to their importance to those issues. Nicklin J set out some further principles taken from Miller v Associated Newspapers [13] per MooreBick LJ:

1. a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation not merely the fact that the allegation has been made ('the repetition rule'); 2. it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;

1. generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the 'conduct rule');

1. but 'strong circumstantial evidence' can itself contribute to reasonable grounds for suspicion; 2. it is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty: 'a defendant is not entitled to defend a libel action by proving the mere fact of an investigation, because proof of that does not establish anything of relevance': Miah v BBC [2018] EWHC 1054 (QB) [35] per Warby J; 3. a defendant may adduce hearsay evidence to establish a primary fact but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;

1. a defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.

1. Nicklin J further elaborated on the conduct rule and circumstantial evidence stating:

But the fundamental and ultimate question is: whether taken as a whole the particulars demonstrate conduct of the claimant that gives rise to the suspicion: in other words, on the facts pleaded, a person could suspect that the claimant was implicated: Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) [14] [15] per Sharp J; and Miah v BBC [33] [34] per Warby J.

1. Nicklin J went on to say that he had no difficulty with the interplay between circumstantial evidence and the conduct rule:

However, the strength of the case, and why it gives rise to suspicion falling on the claimant is that, cumulatively and taken together, the evidence implicates the claimant because of his connection to the evidence as a whole. What matters, and what would be essential for the truth defence to have a realistic prospect of success, is the evidential link to the claimant. Without that, the rest of the evidence cannot give rise to a reasonable suspicion [25].

1. The defendant's case was in part that Ms ThompsonFlores was unqualified for the BSP post. Paragraph 12.2.2 of the defence relied upon conclusions of a subsequent internal investigation that Ms ThompsonFlores was unqualified for the BSP post lacking two essential requirements. Nicklin J struck out that part of [12.2.2] as a breach of the repetition rule:

It is permissible for the Defendant to contend that Ms ThompsonFlores was unqualified for the BSP post; it is not permissible to rely upon the fact that the IOS Report concluded that she was [72].

1. Another meaning which the court determined to be a natural and ordinary meaning of the article complained of was that 'there are reasonable grounds to suspect that the Claimant has used tainted monies to purchase two Manhattan apartments ...'. Paragraph 24.3.5 of the defence was that two attempted payments were rejected by Credit Suisse due to 'sensitivities'. Here, sensitivities is taken to reflect concern on the bank's part that the provenance and nature of the payments was ostensibly suspicious and potentially contrary to its due diligence and proceeds of crime protocols, and which serves to undermine Mr Mitov's public position that there was no basis to impugn the legitimacy of payments which had been channelled to him through the Core Laundromat Companies. Nicklin J struck out that paragraph of the particulars on the ground that it impermissibly relied on subjective third party concerns. Nicklin J observed at [86] that it might be a material averment if the claimant had known that two alleged payments had been rejected, as a basis upon which objectively to suspect that the funds were tainted, but without that the paragraph was a way of seeking to introduce an indirect statement by a third party that the transactions were suspicious which offends the repetition rule.

1. The authorities establish a defendant who asserts that a statement meaning that there are reasonable grounds to suspect the plaintiff of some discreditable act or condition is true, must plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged. It is impermissible to plead as a primary fact that some persons suspected, believed or reported the discreditable act or condition. For similar but more compelling reasons, a defendant who pleads that a statement which attributes a discreditable act or condition to the plaintiff is true, must plead (and ultimately prove) the primary facts and matters which prove the act or condition attributed to the plaintiff. It is impermissible to plead as a primary fact the proposition that some persons suspected, believed or reported the act or condition attributed to the plaintiff.
2. Here the defendants assert that statements meaning that the plaintiff is incompetent are true. The defendants must plead (and ultimately prove) the primary facts and matter which prove the plaintiff is incompetent. It is impermissible to plead as a primary fact that some person (such as DAA staff) witnessed or reported acts, or held beliefs or opinions, which prove, or from which it may be inferred, that the plaintiff is incompetent.
3. The defendants cannot rely on the fact of the Survey and the statements made by the Survey participants about the conduct or competence of the plaintiff to prove that the plaintiff is incompetent. The defendants cannot rely on statements made by participants to prove conduct of the plaintiff which proves, or from which it may be inferred, that the plaintiff is incompetent. The defendants must plead (and ultimately prove) the primary facts and matters which prove conduct of the plaintiff which proves, or from which it may be inferred, the plaintiff was incompetent.
4. The defendants are not entitled to defend the action by proving the fact of a survey, investigation or report. The beliefs, feelings, attitudes, reports and other evaluations of DAA staff or Mr Bryant do not prove the plaintiff is incompetent. The fact that someone saw fit to engage Mr Bryant to investigate the results of the Survey cannot prove the plaintiff is incompetent. Nor can Mr Bryant's report or his conclusions.
5. The focus of the defence of justification must be on the plaintiff's conduct. Circumstantial evidence may be pleaded. The defendants may plead circumstances which prove, or from which it may be inferred, that the plaintiff was incompetent. The defendants may plead primary facts which prove that the DAA was inefficient, failed to achieve its objectives, had poor staff morale or was completely dysfunctional if they also plead facts which link the plaintiff to, or implicate the plaintiff in, those organisational inefficiencies and dysfunctions.
6. It is not sufficient for the defendants to merely plead that the plaintiff was the director general, or chief executive officer, of the department. There may be many reasons why the department operated inefficiently or was dysfunctional other than that the plaintiff was incompetent. The department may have lacked resources or it may have lacked strategic direction from its Minister. The department may have been inefficient and dysfunctional when the plaintiff became director general. The point is that inefficiencies and failures of the DAA do not of themselves prove that the plaintiff was incompetent. The defendants are not entitled to plead facts or allegations that, or from which it may be inferred that, the department was inefficient and failing unless they also plead facts which link the plaintiff to, or implicate the plaintiff in, those inefficiencies and failings.

1. I will now consider whether the particulars of justification, which are subjoined to [8] of the FAD, are defective in substance or form.

1. These particulars plead conduct alleged to be expected of a competent head of a government department. The plaintiff complains that there is no plea of how the expectation is said to arise or who holds the expectation. The defendants respond that the particulars set out conduct which a competent head of government can reasonably be expected to meet or comply with.
2. Particulars (a), (b) and (c) are impermissible. The defendants are entitled, and obliged, to plead the facts on which they rely. The defendants are neither obliged nor entitled to plead opinions or arguments. Particulars (a), (b) and (c) do not plead facts. They are a jumble of opinion, argument and rhetoric.
3. A plea that certain conduct or standards is or are 'expected' is, in effect, a plea of community standards. Competence is a concept of fact to be determined by the jury or trier of fact. Whether a person is competent must be measured against some standard.
4. A defendant may be entitled to rely upon and prove a particular standard, such as standards established by a code of conduct in relation to a particular profession or organisation. Thus, in Bokova the defendant advanced its case, in part, on the basis that it was incumbent on the plaintiff, as Director General of UNESCO, to adhere to the organisation's professional and ethical codes of conduct.
5. In this case, the defendant does not rely upon any professional or organisational code of conduct. The jury or trier of fact must determine whether the defendant is incompetent by the standards of ordinary, reasonable members of the Australian community. Evidence of community standards is not permitted see for example, Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375, 395 396, 399 (Windeyer J); Vokalek v Commonwealth of Australia [2008] SASC 256 [49] [50] (Gray J).
6. Particulars (a), (b) and (c) may prejudice, embarrass or delay the fair trial of the action. They introduce false issues whether it is 'expected', that is in accordance with community standards, that a competent head of government department should meet the standards, objectives and results set out in (a), (b) and (c). If those particulars are allowed to stand they will obscure the issues or questions of fact and law which are in dispute between the parties, they will arguably impermissibly expand the ambit and range of discovery and the range of admissible evidence which the defendants are entitled to adduce at trial. The action may be tried by a jury. To permit the particulars to stand is likely to not only cause confusion but mislead the jury in approaching its task of determining on the facts in evidence whether the plaintiff was incompetent as a head of a government department by the standards of ordinary, reasonable members of the community.

1. Particular (d) sets out in six subparagraphs allegations of conduct by the plaintiff. The conduct is set out at too high a level of generality. The allegations fail to state dates, persons or identifiable events or incidents. Subparagraphs (i) to (iv) lack sufficient precision to enable the plaintiff to know the case he has to meet and enable him to prepare to meet it.
2. Subparagraph (v) alleges the plaintiff engaged in bullying and intimidation of DAA staff. The subparagraph goes on to say that the plaintiff engaged in that conduct to the extent that industrial relations lawyers had to be consulted in response to bullying carried out by the plaintiff. Those words are irrelevant and embarrassing. The bullying, if proven, is the factual matter relevant to justification. The engagement of lawyers adds nothing to the substantive factual allegation. It raises an irrelevant side issue who decided to engage lawyers and why? To the extent that the particular invites the jury to conclude that the person or persons who engaged the lawyers thought the plaintiff had engaged in bullying or otherwise had engaged in conduct adversely reflecting on him, that is an inadmissible assertion of the opinion or beliefs of others.
3. Subparagraph (vi), that further particulars will be provided after discovery, does not justify the lack of particularity of the other particulars. The defendants must state the particulars in their defence so that the plaintiff knows the case he has to meet and the proper ambit of discovery and the court can properly manage interlocutory steps such as discovery. The statement that further particulars are noted in the Survey and Mr Bryant's report is an impermissible pleading. The defence must state the particulars relied upon not that they are to be found, or inferred from other documents.
4. Particular (d) may prejudice, embarrass or delay the fair trial of the action.

1. This paragraph contains a hotchpotch of statements about reports, feelings, intentions and opinions of DAA staff. Subparagraphs (i) and (ii) refer to job satisfaction of staff members and their intention to leave the DAA. They breach the conduct rule. That a large number of staff were not satisfied with their job is not capable alone, or in combination with, other facts in the particulars of establishing that the plaintiff was incompetent. The particulars do not set out any link between the plaintiff and a large number of DAA staff not being satisfied with their job. Subparagraphs (ii) and (iv) refer to reports of staff and levels of staff satisfaction with senior leaders and DAA leadership respectively. These particulars do not refer to the plaintiff as distinct from other leaders or senior leaders within the department. Again, they do not state any conduct of the plaintiff; there is no stated link between those matters and the plaintiff. Subparagraph (vi) refers to management by the executive and leadership being given a low rating. Again, this does not refer to conduct of the plaintiff. It impermissibly pleads the opinion and beliefs of others. The underlying facts are the acts or omissions of the plaintiff which caused staff to give the executive and leadership of the DAA a low rating, not the fact that they gave the plaintiff a low rating that is merely the statement of the opinion of third parties which offends the repetition rule.
2. Subparagraph (vii) is that a number of staff reported, as was the case, being subjected to bullying in the workplace. Insofar as the subparagraph refers to staff reporting matters, it pleads the statements of others; it offends the repetition rule. Insofar as the subparagraph pleads as a fact that staff had been subjected to bullying this does not refer to conduct of the plaintiff. The particular may be permissible if it asserted that the bullying had been drawn to the attention of the plaintiff and he had unjustifiably done nothing about it. However, the particular does not say that the alleged bullying was drawn to the attention of the plaintiff and what he did or did not do about it. Further, the particular does not say when the bullying occurred, who was bullied, or the nature of the bullying. The particular lacks specificity.
3. Subparagraphs (viii) to (xviii) follow a similar format. They say that a number of staff witnessed, as occurred, certain conduct. The conduct is described in the most general of terms. It might include criminal behaviour for example 'corrupt behaviour' and 'unauthorised use of vehicles or corporate credit cards'. None of the subparagraphs describe the conduct with sufficient specificity for the defendant, or the court, to know what is being alleged. The particulars do not say in what way the behaviour was corrupt, what was the racial discrimination or sexual harassment etc. The assertions do not say who engaged in the behaviour, who were its victims or when such behaviour is alleged to have occurred. The behaviour is not linked in any way to the plaintiff. It is not said that the plaintiff knew of these matters or that they were drawn to his attention. In short, the alleged particulars fail to state any conduct of the plaintiff or establish any link with the plaintiff.
4. Particular (xxii) is that a minimum of 1,356 breaches of the Public Sector Code of Ethics or the Department's Code of Conduct took place. This assertion fails to state the who, when and what the defendant would need to know in order to know the case he has to meet and how to prepare to meet it. The assertion fails to state the underlying facts which are said to constitute the alleged breaches. Again, the alleged particular does not plead any conduct of the plaintiff. There is nothing pleaded to establish, or from which it might be inferred, that the plaintiff is responsible for these breaches occurring or continuing, or link or implicate the plaintiff in those things.
5. Particular (xxiii) is that staff reported, as was the case, that they were incessantly bullied, humiliated and intimidated by the plaintiff. This is a serious allegation against the plaintiff but lacks any particularity. Who is it alleged the plaintiff bullied, humiliated and intimidated? When is it alleged he did one of those things, all of them or some combination of them? What is it that the plaintiff is alleged to have done? These are serious allegations and the plaintiff is entitled to proper particulars of them.
6. Particular (e) may prejudice, embarrass or delay the fair trial of the action.

1. This particular does not plead any facts. It is a combination of argument and bald assertion. Insofar as the particular asserts that the 'matters' and 'results' in subparagraph (e) reflect upon and were attributable to the plaintiff's performance as Director General for the reasons set out in subparagraphs (g) and (n), that is an assertion without stating the facts on which it is based. There are no facts pleaded from which it may be inferred that the actions or omissions of the plaintiff brought about the matters set out in (e), or that those matters otherwise implicate the plaintiff.
2. Subparagraph (g) is that the issues within the DAA referred to in subpar (e) is such that a consultant, Mr Bryant, was engaged by the Public Services Commission to further investigate the issues raised in the Survey. Insofar as this is an implied assertion that the Public Services Commission believed the 'issues' were attributable to the plaintiff or that they warranted a consultant being engaged to look into them, that is an impermissible pleading of the opinion or assertions of a third party in this case the Public Services Commission.
3. Particular (n) is that Mr Bryant's report will be relied upon as demonstrating that the plaintiff had failed to meet the incidents described at subpar (a) and (b) and failed to achieve what is expected of a competent head of government department, as those results reflected upon him were attributable to the plaintiff's performance as Director General and manifested incompetence on the plaintiff's part. Insofar as the plaintiff is relying upon Mr Bryant's report to establish that the matters in subparagraph (e) were attributable to the plaintiff's performance as Director General, that is an impermissible reliance upon the opinion or assertions of a third party in this case Mr Bryant. Furthermore, the argument in subpar (f) that the matters and results in subpar (e) were attributed to the plaintiff's conduct for the reasons set out in subpar (n), is circular. Subparagraph (f) fails to state the underlying facts upon which the defendants contend that the 'matters' and 'results' in subpar (e) were attributable to the plaintiff's performance as Director General.
4. Subparagraph (f) may prejudice, embarrass or delay the fair trial of the action.

1. I have already referred to this alleged particular. The fact that the Public Services Commission engaged Mr Bryant to investigate the issues referred to in subpar (e) does not set out any conduct of the plaintiff. Furthermore, insofar as it is an implied assertion that the Public Services Commission considered the 'matter' and 'results' were attributable to the plaintiff, it is the impermissible pleading of the opinion of a third party. The assertion that the issues referred to in subpar (e) were brought to light by the Survey is irrelevant. That does not plead any conduct by the plaintiff. Further, it does not set out any underlying facts, just implied assertions at a high level of generality.
2. Particular (g) may prejudice, embarrass or delay the fair trial of the action.

1. Particulars (h), (i), (j) and (k) set out steps towards Mr Bryant undertaking and completing his review. Subparagraph (k) lacks specificity. It refers to interviews with 'a select crosssection of employees', 'relevant members of Boards of Aboriginal Organisations' and 'associated Directors General'. That lacks sufficient precision. More fundamentally, the assertions are dependent on particular (l). For the reasons set out below particular (l) is impermissible. It follows that particulars (h), (i), (j) and (k) are irrelevant and may prejudice, embarrass or delay the fair trial of the action.

1. Subparagraph (l) commences with the words 'Mr Bryant noted in his report, as was the case' and is followed by 15 subparagraphs only one of which refers to the plaintiff. The words 'Mr Bryant noted in his report' may prejudice, embarrass or delay the fair trial of the action. What Mr Bryant noted in his report is irrelevant. It is the underlying facts, if any, which are relevant. Furthermore, it is the conduct of the plaintiff which is relevant not observations made or conclusions drawn by Mr Bryant. Mr Bryant's observations and conclusions offend the repetition rule. Insofar as the words 'as was the case' amount to pleading the matters in the subparagraphs as facts, they should be pleaded as facts not as matters noted in Mr Bryant's report. I will consider the subparagraphs of particular (l) insofar as they assert the matters in those subparagraphs as facts rather than as matters noted by Mr Bryant in his report.
2. Subparagraph (ii) is that the 'DAA appeared disconnected from the core responsibilities required of a service delivery agency'. The subparagraph offends the conduct rule it does not plead any conduct by the plaintiff. There are no facts pleaded which implicate the plaintiff in the DAA being disconnected from the core responsibilities required of a service delivery agency, whatever that means. Further, the subparagraph lacks specificity, it is vague at best and meaningless at worst.
3. Subparagraph (iii) is that the plaintiff rarely addressed all agency employees as a group. There are no facts pleaded which establish, or from which it can be inferred, that it was part of the plaintiff's duties to address all agency employees as a group or from which it can be inferred that his failure to do so manifests incompetency.
4. Subparagraphs (iv) and (v) refer to feelings of and concerns expressed by employees about change within the department. They offend the conduct rule and the repetition rule, are vague, lack precision and on the face of it are irrelevant.
5. It is unnecessary to go through the remaining subparagraphs one by one. They all offend the conduct rule, the repetition rule, are vague, and lack precision.
6. Particular (l) may prejudice, embarrass or delay the fair trial of the action.

1. Particular (m) is similar to particular (l). It is introduced with the words 'it was the case (as was referred to in Mr Bryant's report) that' and then sets out various matters in 12 subparagraphs. Again, what was referred to in Mr Bryant's report is irrelevant and offends the repetition rule.
2. Subparagraph (i) is that 'the Survey results were valid, employee satisfaction levels of DAA had decreased in the 2013 to 2016 period'. The statement that the Survey results were valid appears to be a mixture of argument and evidence it is not a proper particular. That employee satisfaction levels at DAA had decreased in the 2013 to 2016 period does not plead conduct by the plaintiff or conduct from which it can be inferred that the plaintiff was incompetent.
3. Subparagraphs (ii) and (iii) are vague and arguments. They do not plead conduct of, or which implicates, the plaintiff.
4. Subparagraph (iv) is argument and assertion, it does not plead any facts.
5. Subparagraph (v) lacks any particularity. It does not enable the plaintiff to know the precise nature of the case against him or to prepare to meet it. The allegations are so loose and ineffective that they obscure, rather than elucidating or clarifying the issues.
6. Subparagraph (vi), that the plaintiff lacked presence within the DAA and amongst his fellow Directors General, is so vague that it is meaningless. It does not inform the plaintiff of the nature of the case against him.
7. Subparagraph (vii), that the plaintiff's capacity to manage the agenda of the AACC was, as described by his colleagues, inept, offends the repetition rule insofar as it relies upon the description or allegation of the unnamed colleagues. Insofar as it is an assertion that the plaintiff's capacity to manage the agenda of the AACC was inept, the allegation lacks any particularity and fails to inform the plaintiff of the case against him and give him a proper opportunity to meet it.
8. Subparagraph (viii) insofar as it says that the plaintiff never addressed the entire staff of the DAA as a group is a repetition of the earlier particular and is defective for the same reasons. Insofar as the subparagraph refers to the matter being 'noted' it offends the repetition rule. Insofar as the subparagraph refers to sending an executive director at the eleventh hour, it lacks particularity who, when and what? And, so what?
9. Subparagraph (ix) - the plaintiff had no gravitas as a leader and was invisible within the DAA is argument and opinion without any facts. Furthermore, its meaning is obscure.
10. Subparagraph (x) says that 'secretive behaviour was taking place within the DAA including spying on staff by the plaintiff's squirrels'. That is vague. In so far as it relies upon secretive behaviour other than spying on staff by squirrels, it does not specify what that other secretive behaviour is. On the assumption that squirrels refers to people rather than rodents, the particular fails to identify the alleged spies, and when and what they did.
11. Subparagraph (xi) lacks particularity. It refers to unidentified 'people', gives no particulars of how and when they were excluded and from what. Insofar as it refers to one member of staff working as a member of the executive, the plaintiff is entitled to know who is the alleged member of the executive so that he knows the case he has to meet and can prepare to meet it.
12. Subparagraph (xii) lacks sufficient specificity. The plaintiff is entitled to know the colleagues being referred to and when he is alleged to have made the enunciation.
13. Subparagraph (xiii) is argument and conclusion, it fails to state the facts on which it is based.
14. Particular (m) may prejudice, embarrass or delay the fair trial of the action.

1. This is a statement of reasons and argument. It does not plead facts. Insofar as it says that Mr Bryant's report will be relied upon, that is impermissible. Insofar as it relies upon the fact of Mr Bryant's report, that is irrelevant. It offends the repetition rule as being statements, arguments and conclusions of Mr Bryant. Insofar as it is intended to rely upon the facts in Mr Bryant's report, if the report can be said to contain facts, that offends the repetition rule. It is merely repeating the assertions of others.
2. Particular (n) may prejudice, embarrass or delay the fair trial of the action.

1. Subparagraphs (ii) to (vi) appear under the heading 'Threats'. Subparagraph (vi) is an argument, not a statement of facts. It is not a proper pleading.
2. Subparagraphs (vii) to (ix) appear under the heading 'Improper use of parking spots'. Subparagraph (ix) is an argument or conclusion, not a statement of fact. It is not a proper pleading.
3. Subparagraphs (x) to (xii) appear under the heading 'Promotion and remuneration of particular employees'. Subparagraph (xii) is a statement of reasons and argument, not fact. It is not a proper pleading.
4. Subparagraph (xiv) is reasons and argument, not facts. It is an impermissible pleading, it may prejudice, embarrass or delay the fair trial of the action.

1. Particulars (r) to (u) refer to the decision of this court in Robinson v Fielding in which it was found that the DAA had wrongly removed 36 sites from the Aboriginal Heritage Site Register, that it took over a year for the DAA to reassess and reinstate some of those sites, that in mid2016 approximately 1,600 sites were waiting to be assessed by the DAA and that the DAA seriously mishandled a reassessment of a Broome site. Particular (v) then says that the matters described in (r) to (u) reflected the plaintiff's mismanagement of responsibilities under the Aboriginal Heritage Act 1972 (WA) and attracted significant public criticisms and publicity which was damaging to the DAA and to confidence in it and the performance of its duties. The particular fails to identify conduct of the plaintiff or facts establishing his responsibility, or from which it can be inferred that he was responsible, for the matters set out in pars (r) to (u). There are no facts pleaded which link the plaintiff to, and implicate him in, the failings referred to. The reference to criticisms and publicity damaging the DAA and confidence in it is argument and conclusion at such a high level of generality that it does not inform the plaintiff of the case he has to meet and give him a fair opportunity to meet it.
2. Particular (w) sets out reasons and arguments not facts.
3. Particulars (r) to (w) may prejudice, embarrass or delay the fair trial of the action.

1. Particular (x) is that the plaintiff failed to engage constructively with the PSC in the process regarding the plaintiff's status and status of his contract, which was noted in a letter from the PSC dated 28 October 2016. Insofar as the particular refers to something noted in the PSC letter, it infringes the repetition rule. Insofar as the paragraph says that the plaintiff failed to engage constructively with the PSC and the process regarding his status and the status of his contract the allegation lacks particularity and specificity. What is it alleged the plaintiff did or did not do?
2. Particular (y) says that the failure described at (x) will be relied upon by the defendants as demonstrating that the plaintiff had failed to meet stated criteria and to conduct himself in the manner expected of a competent head of government described at pars (a), (b) and (c). That is just a statement of reasons and argument. It contains no facts.
3. Particulars (x) and (y) may prejudice, embarrass or delay the fair trial of the action.

1. This particular states that further particulars will be provided after discovery and subpoena. The defendants may apply for leave to deliver further particulars at a later time. However, foreshadowing inspection of discovered documents and the subpoena of documents does not entitle the defendants to maintain a defence of justification which is insufficiently particularised.

1. At [9] of their defence the defendants plead that if the article is defamatory of the plaintiff in the meanings alleged, then the publications were made on an occasion of qualified privilege pursuant to s 30 of the Defamation Act and equivalent sections in the Defamation Acts in all States and Territories and alternatively at common law. The defendants give three sets of particulars. The third set of particulars are particulars of reasonableness.
2. Particular (i) of the particulars of reasonableness is that the defendants' conduct in publishing the article was reasonable in the circumstances set out in subpars (i) to (xi). Subparagraph (v) is that the defendants satisfied themselves on reasonable grounds as to the fairness of the language and the manner in which the article was composed. That is embarrassing. It asserts that there are unspecified reasonable grounds on which the defendants satisfied themselves. The plaintiff is entitled to know what are the reasonable grounds which the defendants rely upon. Subparagraph (v) is impermissible, it may prejudice, embarrass or delay the fair trial of the action.

1. The defendants opposed the plaintiff's application on the further ground that the plaintiff is seeking to revisit pleas that were the subject of challenge in the February strike out application, which were not upheld or which were not the subject of previous objection. As a result, the defendants argue that the plaintiff's current application is an abuse of process or otherwise should not be permitted.
2. The plaintiff says that most of his objections are to matters not previously objected to by the plaintiff or pleaded by the defendants. I find it unnecessary to go through the plaintiff's objections one after another to determine which objections were the subject of earlier unsuccessful challenges or which were not the subject of previous objections because, for the reasons which follow, I have decided that the plaintiff's objections should be upheld in any event.
3. The plaintiff says that to the extent he now applies to disallow some paragraphs of the FAD that were not previously objected to and have not been amended, the intention behind the pleas and therefore the need for the application has only become apparent during conferral in respect of the FAD.
4. It is not necessarily an abuse of process for a plaintiff to apply to strike out paragraphs of a defence which were not objected to in an earlier strike out application. Whether it is an abuse of process and whether the court should allow such an application will depend upon the circumstances of the case, including the merits of the application and the consequences of disallowing or not allowing the challenges to the pleading for the efficient and expeditious resolution of the proceedings. It is essentially a case management decision.
5. I set out earlier in these reasons the history of the previous strike out application. In the circumstances, it is not an abuse of process for the plaintiff to challenge paragraphs of the defence which were previously allowed to stand or were not challenged. This is the first occasion on which parts of the pleaded defence have received proper scrutiny because the defendants' February minute was delivered on the eve of the February hearing. In February 2018 the plaintiff expressly reserved his position in relation to matters relating to the pleading of the Survey and Mr Bryant's report.
6. The most important point is that the paragraphs of the defence which I have identified would prejudice, embarrass or delay the fair trial of the action if they are allowed to stand. They will do so in a number of ways. First, the plaintiff will not know the proper ambit of the matters in dispute for the purposes of discovery and the court will not be able to properly manage the discovery process. Secondly, the plaintiff will not be able to prepare his case and marshal the necessary witnesses and documentary evidence unless and until the proper scope of the matters in dispute have been resolved. Thirdly, if the challenged particulars are allowed to stand the court will not be able to properly determine the evidence that will be admissible at trial or arguably may allow irrelevant and inadmissible evidence to be adduced at trial because of the pleading. Those matters will be exacerbated if the matter is tried by jury. A trial by jury on the current pleadings is likely to cause confusion, the pursuit of false issues and the receipt of evidence which is not relevant to the real issues in dispute.

1. The particulars of justification subjoined to [8] of the FAD should be struck out. I have found that most of the particulars are impermissible and should not be allowed to stand. It is sensible to strike out all of the particulars of justification and allow the defendants to start again unhampered by any of the existing structure of the justification pleading. The particulars subjoined to [8] will be struck out. Particular (v) of the particulars of reasonableness subjoined to [9] of the defence will be struck out.

1. The plaintiff says that the defendants have had five attempts at pleading justification, that enough is enough and the defendants should not be given leave to replead. The defendants have reformulated their defence in the course of conferral with the plaintiff. This is only the second strike out application and the second time that paragraphs of the defence have been struck out or disallowed. I am not satisfied that the defendants are unable to properly plead justification.
2. I will give the defendants leave to replead. However, it should not be assumed that the defendants will repeatedly be given leave to replead until they get it right. The issues concerning the conduct rule, the repetition rule and the need for precision of pleading have been well canvassed. The time has come for the defendants to plead their defence in accordance with the law and practice and procedure of the court. The defendants will have leave to replead particulars of justification and particulars of reasonableness subjoined to [9].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.