Whiting v Herald and Weekly Times Pty Limited

District Court of NSW|2018-11-29|Before: Hunt J

The applications before the court

The two applications before the court are as follows: 1. The defendant brings an application to strike out the Amended Reply filed on 7 September 2018. 2. The plaintiff brings an application to strike out the particulars of honest opinion set out in paragraph 10 of the Amended Defence filed on 21 May 2018.

The application to strike out the Amended Reply

The plaintiff sets out two bases to assert malice on the part of the defendant, as set out in paragraph 2 of the Amended Reply: 1. Particulars 2A to 2J: The defendant did not believe that the opinion was honestly held by its employee or agent, namely Ms Panahi (the journalist), at the time the defamatory matter was published (as to both publications); 2. Particulars (d) and (e): The defendant had reasonable grounds to believe that the opinions of "L Jones of Greensborough Victoria and Ally of Reservoir Victoria" were not honestly held by them at the time the defamatory matter was published (the first matter complained of).
The claims of malice are put forward on the following bases: 1. The "plagiarism" allegation: The article written by Ms Panahi has been, to use Mr Rasmussen's term, "plagiarised" from another article in the Daily Telegraph on 15 and 16 September 2016, as both the text and the photograph of the plaintiff is used. The defendant is asserted to know that just copying another article means that there has been no inquiry made by its journalist, and that accordingly the journalist can have had no belief in the truth. 2. The "fake content" allegation: Two opinions appear in the column headed "Text Talk" as "Letters to the Editor" are apparently referred to (in these days of modern technology) which purport to comment on the matter complained of. Since it would not be possible for members of the public to contribute to "Text Talk" prior to publication of the matter complained of, the two entries in the "Text Talk" column are not real comments by genuine readers at all, but fake entries for fake persons made up by the defendant's employed journalists and/or Ms Panahi.

The "plagiarism" allegation

The matter complained of refers directly to, and quotes from, the previous article by the Daily Telegraph as follows: "7. Dubbed NEETs (not in employment, education or training), there are more than half-a-million of these able-bodied teenagers and young adults who feel no compulsion to contribute to society. 8. According to an OECD report released this month, a staggering one in eight aged 15 to 29 is neither working nor studying. 9. The most worrying aspect of the data isn't just the considerable size of the group but that the research indicates most are not even looking for a job. Only 41 per cent are seeking employment; the remainder are either inactive or unwilling to work or look for a job. 10. At 12.8 per cent, the youth unemployment rate is more than twice the figure of the official jobless rate of 5.6 per cent. 11. Last week, we were introduced to a couple of NEETs in the form of dole-bludging duo Ashleigh and Amy (pictured right). 12. "I don't want to work my whole life and just die … I want more than that," said 21-year-old Ashleigh. "I would tell you it's hard to get a job, but to be honest, I don't even try. 13. "Centrelink pays my rent and that's all I need." 14. The joyfully jobless Ashleigh sees no appeal in joining the workforce and is on the way to achieving her stated goal of never getting a job. "We normally go driving or chill at Macca's but I'll die before I spend my time in an office," she said. 15. Her pal, Amy, miraculously managed to find work but was sacked when she failed to show up. 16. "They pay you nothing so why would I rock up?" she said. 17. "I call in sick when I'm over it and then they just get rid of me. Not fair, really, because I just want to have a good time and chill. But I don't want to be fired." … 28. One doubts the likes of Ashleigh and Amy could maintain their carefree existence on paltry unemployment benefits were it not for well-meaning parents allowing their indolent offspring to scrounge off them. … 31. Australian Bureau of Statistics figures reveal half of those aged 18 to 24 have not left their parents' side; one in three 18- to 34-year-olds has never left home. … 36. That we have raised 580,000 NEETs is cause for considerable concern. But let's not overlook the many youngsters keen to seize the opportunities on offer in the lucky country. …"
Essentially what the plaintiff is putting is that the failure by Ms Panahi and/or the defendant to make independent inquiries as to whether or not the previous Telegraph article was correct means that the opinion expressed in the extract from that article cannot be honestly held. Mr Rasmussen submits that this is merely lazy "churnalism", namely lifting whole slabs of another article without making any inquiries in circumstances where the journalist in question neither knew nor care whether what she was copying was correct or not.
This submission misconceives both the nature of the matter complained of and the law in relation to honest opinion.
First, Ms Panahi is not simply reciting the same facts as the previous article, but using them as an illustration of two sets of statistics concerning "NEETS", namely the OECD Report entitled "Investing in Youth: Australia" dated 12 September 2016 and data held by the Australian Bureau of Statistics. Both the OECD report and figures kept by the Australian Bureau of Statistics are set out (albeit in what could be called an unobtrusive fashion) at the beginning and the end of the extract concerning the plaintiff, who appears to be used as the "bad example" designed to make an opinion columns about the OECD "Investing in Youth: Australia" Report and Australian Bureau of Statistics data interesting to read.
There is no secret that this material has already been published; the reference to the plaintiff is acknowledged to be a repeat of previously published material concerning the plaintiff but which did not refer to the same statistics. Ms Barnett stated that this was not only the Telegraph article but an additional article published in the Herald Sun on Thursday 15 September, headed "Our NEET New Class", which similarly referred to the OECD report and went on to give the specific example of the plaintiff.
In this context, Ms Panahi's addition to these two previous articles is to refer to Australian Bureau of Statistics figures about children in migrant families remaining at home, but for a very different reason, namely to save for homes. She refers to what happened when she was growing up "last century" in this regard.
Does this mean that, because Ms Panahi's article includes repetition of other material, she is incapable of holding the opinion and that this is known to the defendant?
What the plaintiff appears to be attempting to do is to attack what has been called "the new high speed churnalism" (Nick Davies, "Flat Earth News", Vintage Publications 2008, Chapter 2, pp 59 and 69-73). Mr Davies refers to journalists writing stories before they happen (as famously occurred in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643), "robot writing" and recycling second hand stories.
Making up a story, especially if it involved statements of fact known to be false or in a situation of reckless disregard, might amount to evidence of malice. To take an extreme example, inventing a feud between members of the Royal family and using this as an example of "NEET" behaviour, might be evidence of this kind.
However, analysis of the matter complained of demonstrates that this is an opinion piece based on two sets of documentary data and previous articles about the plaintiff. The material concerning the plaintiff is contrasted with Ms Panahi's analysis of Australian Bureau of Statistics figures about young persons, particularly in migrant communities, staying home not for the purpose of being layabouts but for the purpose of saving for a home.

Flaws common to both bases of asserted malice

The particulars in support of both bases for malice fail to apprise the defendant of the nature of the case to meet on the issue of improper motive in that they merely assert various states of mind on the part of the first defendant as conclusions. The defendants are entitled to know the detailed factual basis on which the plaintiff relies to establish those states of mind (but not the means by which that factual basis is to be proved). Only in that way will the defendants then know "the issues of fact to be investigated at the hearing" (Gross v Weston [2007] NSWCA 1 at [32] per Hunt AJA).
The particulars is support of both bases for malice fail to explain how the defendant is asserted to know that either Ms Panahi or the two commentators in "Text Talk" did not hold the opinion.
These are fundamental problems of particularisation. In addition, each of the bases upon which malice is pleaded is misconceived.

Was it necessary for Ms Panahi to make inquiries as asserted by the plaintiff?

As has been acknowledged in a number of decisions dealing with the administering of interrogatories, inquiries are irrelevant to a defence of honest opinion: Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 486E; Lewis v Page (Supreme Court of New South Wales, Hunt J, 19 July 1989). Although in this case Ms Panahi has adopted the factual matter (and any implied opinion) from other sources as her own, even that would not be necessary on the "Letters to the Editor" line of cases discussed in Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Thomson Reuters) at 15.4). This is an opinion piece based on factual material reported in sister publications.
While there may be circumstances where absence of belief might be inferred from lazy journalism, this is not one of them. Any such claim would require careful and cogent pleading and particularisation. A claim of copying other material is incapable of amounting to a proper particular of malice per se.
As noted above, there is an additional problem as to how it is that the defendant is on notice that Ms Panahi did not have the belief. If Mr Rasmussen's references to the phone hacking scandal and the Leveson Inquiry are in some way intended to suggest that misconduct is rampant at News Limited, to the knowledge to the defendant, that is a very serious allegation to make, particularly since there is no suggestion such conduct has occurred in Australia. Any particular of this kind would require the kind of careful particularisation set out by Hunt AJA in Gross v Weston at [23] - [52].

The comments in the "Text Talk" section of the newspaper

The particulars provided (including struck-through portions) are as follows: "(d) L Jones of Greensborough and Ally of Reservoir did not exist at the time of publication. L Jones of Greensborough could not be expressing an opinion in respect of the matter complained of unless she/he was shown a draft of the article before publication. The matter complained of at A1 and A2 were published in the print edition of the Herald Sun at the same time. As such it is to be inferred that the name used was fictitious and was a device used by the defendant to convey the impression to its readers that they were genuine readers expressing an opinion in respect of the matter complained of when in fact they were not. (e) The Defendant knew that persons who made comments in its newspaper such as L Jones of Greenborough and Ally of Reservoir had no genuine belief in the truth of what they wrote. Ally of Reservoir could not be expressing an opinion in respect of the matter complained of unless he/she was shown a draft of the article before publication. The matter complained of at A1 and A2 were published in the print edition of the Herald Sun at the same time."
By way of background, by the time Ms Panahi's opinion piece appeared in the defendant's newspaper on 19 September 2016, there had already been other coverage of the article extracted in Ms Panahi's column, namely the Daily Telegraph article on 15 and 16 September 2016 referred to in the particulars of the Reply and the article attached to Ms Wotton's affidavit of 23 November 2018, namely an article "Our NEET New Class", which similarly referred to Ms Whiting, also published on 15 September 2016.
The text of each of the entries in "Text Talk" is as follows: "NEETS? Why a fancy new acronym? Why don't we just call tem by the names they've always been known - burns or leeches. L Jones, Greensborough NEETS are bludgers and proud of it. Their parents are probably the same. How else would they learn it's fine to screw the working public that feeds their pathetic mentality? Get off your backsides and start contributing. Then you may actually feel some self-worth. Ally, Reservoir"
As can be seen by the other entries in "Text Talk", these are comments sent by readers referring to prior articles in the Herald Sun. They do not refer to any specific feature of Ms Panahi's article, so the basis upon which it is asserted that these are fictitious comments aimed at the plaintiffs, as opposed to being comments about the article "Our NEET New Class" which was published on 15 September 2016 (a date similar to the dates referred to other entries) is not made out.
If these specific text messages from "L Jones" and "Ally" had been sought by the plaintiff and either not provided or were revealed on investigation to be false, that could amount to evidence of malice. However, the particulars as presently pleaded are mere conjecture, based on these text messages being asserted to refer to the matter complained of.
There must be particularisation of the facts and circumstances to assert that one or both of these persons do not exist and the basis upon which this is known to the defendant. The mere assertion that these texts refer to the matter complained of is insufficient. As Debelle J in Kay v Cunningham [1995] SASC 5242 at [46] notes: "Malice must be proved positively, by credible evidence; mere conjecture does not suffice: Spautz v Williams (supra) at 520"

Whether the Reply should be struck out now or go to trial

In his written submissions, Mr Rasmussen has set out in full the relevant passages from the New South Wales Civil Trials Bench Book about striking out pleadings. He submits that these particulars should be determined at the trial and not struck out now. However, none of the principles set out in those paragraphs entitled a plaintiff to take to trial particulars of conduct not capable of amounting to malice.
In Harrigan v Jones [2000] NSWSC 814, Levine J stated: "[13] It is trite to state that the purpose of particulars is to inform the recipient of the case that will be made against it on the relevant issue. Particulars should be clear, concise, non-argumentative, not rhetorical and not constituted merely by a statement of a conclusion (see Humphreys v John Fairfax & Sons Pty Ltd (unreported, 18 April 1980, per Hunt J at 12); NRMA Insurance Ltd v Flanagan (1982) 1 NSWLR 585 at 603B). [14] Provided that a party has particularised the facts, matters and circumstances which it proposes, by evidence, to prove, it may state, having done so, the conclusion which it will assert the matter which the evidence on those particulars will establish or the submission that will be made on those matters upon their being proved by evidence. [15] Applying these general principles, for the moment, it is unarguable that the particulars both of malice and aggravated damages are insufficient and are amenable to being struck out as embarrassing."
Mr Rasmussen's submission that these particulars should be "taken at their highest" and that I should assume that they are to be proven at trial misconceives the point. These are not capable of amounting to particulars of malice.
The inadequacies of the particulars currently pleaded are such that the Reply must be struck out. The question is whether liberty to replead should be granted. A Reply in defeasance of malice is an essential part of a plaintiff's case in reply. The matter complained of is of the "opinion" variety and the absence of a Reply particularising malice would cause serious difficulties for the plaintiff at trial.
Given the hearing date is not until September 2019, I consider the plaintiff should be granted one last opportunity to particularise malice, but this will be the last opportunity. Moreover, leave should only be granted on the proviso that the Reply be served on the defendant so that objections can be taken if necessary. If the plaintiff remains unable to particularise proper heads of malice in accordance with the principles set down by Levine J in Harrigan v Jones, no further leave to file a Reply will be granted.

The plaintiff's application to strike out the defence of honest opinion

The plaintiff, pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW), seeks orders striking out the defence of honest opinion principally because it is asserted to conflate the defences in respect of the two matters complained of when these are distinctly different.
The defendant, by its Amended Defence, pleads that the expressions of opinion in the two matters complained of were based upon the facts and matters set out in paragraph 10(1) of the Amended Defence. The defendant then alleges that those facts and matters referred to in paragraph 10(1) were proper material for comment because they were substantially true (Amended Defence at paragraph 10(2)). It is then alleged that the material referred to was proper material because it was sufficiently referenced within the matters complained of (Amended Defence at paragraph 10(3)). Mr Rasmussen submits that this cannot be a proper plea as each matter is distinct and the opinions in each article must be based upon different material.
An additional complaint by the plaintiff is that particulars of honest opinion in the current Defence do not refer to the article by Ms Bita, namely the article dated 15 September 2016 headed "Our Neet New Class".
The short answer to the first complaint is that the two matters complained of are identical, save that the heading is different and the "Text Talk" appears in the same print edition of the Herald Sun on the opposite page to the Opinion page. I was not informed whether the "Text Talk" also appears in the online edition of the Herald Sun, but I would not be surprised if that was indeed the case. I will not order the defendant to plead honest opinion to each separately, but it may be advisable to check the "Text Talk" point.
Whether or not the defendant proposes to rely upon the text of the article by Ms Bita as being material for comment is a matter which might be resolved by the seeking and obtaining of particulars, but the better course, if this article is also the source for the OECD material, is that it should be referred to as part of the material for the opinion. However, if this is the basis for the assertion by Mr Rasmussen in his outline of submissions that the defendant "has not fully disclosed or pleaded its defences", this is overstating the position.
I note Ms Barnett concedes that particular 3 in the particulars of honest opinion should be struck out, as it refers to the common law defence.
I also consider that paragraph 5 could be more felicitously drafted to identify that the persons identified in paragraphs (b) and (c) hold the opinions set out in "Text Talk".
I have accordingly granted the defendant leave to file a Further Amended Defence, in order to accommodate these minor changes.

Costs

Both sides sought orders for indemnity costs.
The defendant has been successful in the principal issues before me and an order should be made for costs to follow the event. I do not consider that the success of the defendant on either issue warrants the award of those costs on an indemnity basis, particularly as the defendant has had some limited success in relation to the complaints about the pleading of the honest opinion defence. The issue of indemnity costs may, however, arise again if the plaintiff is not able to provide proper particulars of malice in the new draft Further Amended Reply.

Orders 1. Amended Reply struck out. 2. Leave to serve (but not file) a draft Further Amended Reply by 14 February 2019. 3. Leave to the defendant to file a Further Amended Defence. 4. Plaintiff pay the defendant's costs of both applications. 5. The parties have liberty to bring in Short Minutes of Order reflecting a timetable.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2018

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Judgment (11 paragraphs)

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Cases Cited (4)