District Court New South Wales Medium Neutral Citation: Whitehall v Oxborough [2020] NSWDC 781 Hearing dates: 3 December 2020 Date of orders: 15 December 2020 Decision date: 18 December 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to file the amended Defence, save for the defences of justification and contextual truth at paragraphs 15, 16 and 17, which I struck out with leave to replead by 17 December 2020. (2) Reserve the issues of costs. Catchwords: TORT – defamation Legislation Cited: Defamation Act 2005 Cases Cited: Chau v The Australian Broadcasting Corporation [2019] FCA 1856 Fogarty v Nationwide News Pty Ltd [2013] WASC 477 Gobban v WA Newspapers [1968] WAR 113 Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472 McCauley v John Fairfax (1933) SR (NSW) 339 Penton v Calwell (1945) 70 CLR 219 Peters v Bradlaugh (1884) 4 TLR 467 Saraceni v Mentha [2013] WASC 95 Category: Procedural and other rulings Parties: Plaintiff: Mr Nathaniel Whitehall Defendant: Mr Terry Oxborough Representation: Counsel: Plaintiff: Mr N G Olson Defendant: Mr B Goldsmith (Solicitor) Solicitors: Plaintiff: Mr Whitehall (Self-represented) Defendant: Mr B Goldsmith, Goldsmith Lawyers File Number(s): 2020/121692 Judgment Introduction 1. On 3 December 2020 I struck out the defences of justification and contextual truth set out at paragraphs 15,16 and 17 of the defence, with leave to replead. These are my reasons for making those orders. The pleading the subject of challenge 1. The imputations pleaded as arising from the first matter complained of (which are not in the usual order as they have been the subject of amendment) are as follows: "(a) The plaintiff, a professional airline pilot, is a danger to aviation safety because he is mentally unstable. (b) The plaintiff is a bankrupt. (c) The plaintiff a professional airline pilot, is a danger to aviation safety because of his financial and domestic problems. … (f) The plaintiff is an irresponsible person, in that he engages trade persons and does not pay them. (g) The plaintiff is so abusive towards his partner that their arguments are often overheard by the neighbours. … (i) The plaintiff, a professional airline pilot, is so mentally unstable that he is liable to commit suicide by deliberately crashing an aeroplane full of passengers and crew." 1. The plea of justification is made only as to imputation (g). The particulars provided are as follows: "The defendant cannot now recall the particulars of the occasions when the plaintiff was so abusive to his partner, Tania, that their arguments were often overheard by the neighbours, nor can he recall which particular neighbours overheard each argument in which the plaintiff was abusive. The defendant recalls that the occasions occurred regularly and the plaintiff was frequently heard shouting and yelling, including shouting and yelling abusive language." 1. A plea of contextual justification pursuant to s 26 of the Defamation Act 2005 (NSW) is brought. The following contextual imputation is a pleaded: 1. The plaintiff was believed to have serious financial and domestic issues which may have an adverse effect on his well-being and mental health and an impact on his ability to act as a pilot with Qantas (lines 11 – 14). 2. The plaintiff was presumed to still be bankrupt (lines 31 – 33). 3. The plaintiff was believed not to have paid some tradies (lines 38 – 39). 4. The plaintiff and his partner had a hostile relationship in May 2017 which included shouting abuse at each other (lines 43 – 44). 5. The plaintiff was believed to require psychiatric assessment to determine whether or not his financial and domestic woes had affected his well-being (lines 52 – 54). 1. The particularised imputations in support of each of these particulars is as follows: 1. As to contextual imputation 17 A, it is asserted that the defendant "at the very least" held this belief based upon his view of the plaintiff's conduct and the personal and financial information of the plaintiff of which he was aware. 2. As to contextual Imputation 17 B, the defendant says he was aware of the plaintiff's bankruptcy in 2012, that he "believed" that the plaintiff owed "millions of dollars to creditors", that the plaintiff's property was in a state of disrepair and that he also believed the plaintiff had not paid "some tradespersons". 3. As to contextual imputation 17 C , all that is provided is that "the defendant had received information that he had not paid some". 4. As to contextual imputation 17 D, it is asserted that the defendant "at the least, regularly heard the plaintiff and his (then) partner shouting abuse at each other and displaying hostility in both tone and content." 5. As to contextual imputation 17 E, all that is asserted is that "the defendant, at the least, held that belief." The second matter complained of 1. The imputations pleaded to arise from the second matter complained of are as follows: 1. The plaintiff assaulted the defendant with a saw. 2. The plaintiff, a professional airline pilot, is a danger to aviation safety because he is mentally unstable. 3. The plaintiff is not a fit and proper person to be an airline pilot, because he sends emails to his neighbours boasting about the fact that he assaulted the defendant. 1. The plea of justification is made only to imputation (a). That particular consists merely of the date for the occasion of the assault. 2. The following contextual imputation is pleaded: "The plaintiff was believed to be suffering from some sort of mental issues such that he should not be allowed on the flight deck of an aircraft without first undergoing a full and thorough mental assessment." 1. The only particular of justification provided in support of his contextual imputation is that "the defendant, at the least, held that belief." The basis of the challenge 1. Mr Olsen submitted that, apart from the particularisation of 6(a), the whole of the particularisation of the defence of justification should be struck out as failing to amount to proof of the imputation. For example, there is no explanation as to what "abusive language" was used or when or in what circumstances the plaintiff's partner was the subject of abuse. 2. Mr Olsen also submitted that the contextual imputations were incapable of satisfying the requirements of s 26 and the particularisation relied upon was defective for the same reason as the pleading of justification. For example, there was no particularisation of the "conduct" or the "personal and financial information of the plaintiff" (contextual imputation A) or of the "state of disrepair" of the premises. In addition, these were matters of "belief" rather than fact. 3. Mr Goldsmith submitted that if the particulars were unsatisfactory, further and better particulars could be sought, or alternatively the matter could be left to trial. The relevant principles of law 1. As to the particulars of justification, it is often said that these must be pleaded with the precision of an indictment. Mr Goldsmith concedes that this is not the case here. 2. As to the form of the contextual imputations and the particulars provided, the defendant must prove that the defamatory imputation is true, not that he believes it to be true. As noted in Gatley (12th Edition at [11.4]: "It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only" 1. in Peters v Bradlaugh (1884) 4 TLR 467, the Court stated: "If I say of a man that I believe he committed murder, I cannot justify by saying and proving that I did believe it. I can only justify by proving the fact of the murder." 1. The same is the case if the defendant says he is only repeating what others say, or that it is a rumour: McCauley v John Fairfax (1933) SR (NSW) 339, affirmed by the High Court in Penton v Calwell (1945) 70 CLR 219; see also Gobban v WA Newspapers [1968] WAR 113. Similarly, it is not enough to prove an imputation of guilt by saying that the plaintiff was suspected, for example of an offence, or that he has a general reputation for committing such offences; there must be evidence that the plaintiff did in fact commit the offence for the particulars of justification to succeed. 2. The test for striking out particulars is set out by Kenneth Martin J in Fogarty v Nationwide News Pty Ltd [2013] WASC 477 at [14]: "[14] There was no dispute between the parties as to applicable principles of law underlying this strikeout application insofar as a challenge grounded on arguments that the pleaded defence does not disclose an arguable defence (ie, basis for the plea of justification or substantial truth) is to be evaluated. A relatively low interlocutory threshold arising out of principles well established in cases such as General Steel Industry Inc v Cmr of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 applies. In other words, the plaintiff needs to make out an overwhelming case on this application that the particulars of truth as pleaded by the defendants are essentially untenable as regards a justification defence concerning this imputation." 1. There are similar observations in a number of other decisions in State courts: see Saraceni v Mentha [2013] WASC 95 at [50]; Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448–449 and Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472. While the test has been greatly relaxed by a series of decisions in the Federal Court of Australia, such as Chau v The Australian Broadcasting Corporation [2019] FCA 1856, none of these decisions have permitted so obviously inadequate a particular as the reliance upon the defendant's own belief as the basis for the justification pleaded. 2. While the real vice is that the mere fact of the defendant's belief is insufficient, Mr Olsen's additional observation that such a belief could hardly be capable of affecting the plaintiff's reputation, in circumstances where no conduct providing any real basis for the defendant to hold these beliefs, is just as compelling. Paragraphs 16 and 17 of the proposed defence are incapable of disclosing any defence of contextual justification capable of satisfying 26(b) and will be struck out. Additional matters and orders 1. Mr Olsen also raised, in relation to the first matter complained of, whether pleading justification only to imputation 4A(g) given the seriousness of the other imputations is permissible. As I propose to strike out the whole of the plea of justification and contextual truth, with leave to replead, I would prefer to wait to see the particularisation of the defence of justification to this imputation before making any such ruling. 1. Grant leave to file the amended Defence, save for the defences of justification and contextual truth at paragraphs 15, 16 and 17, which I struck out with leave to replead by 17 December 2020. 2. Reserve the issues of costs. ********** 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: 22 December 2020