Supreme Court New South Wales Medium Neutral Citation: Allan v The Migration Institute of Australia Limited [2012] NSWSC 42 Hearing dates: 11 May 2011 Decision date: 07 February 2012 Before: McCallum J Decision: Defendants ordered to provide further particulars of defence Catchwords: DEFAMATION - defences - honest opinion - qualified privilege - adequacy of particulars Legislation Cited: Defamation Act 2005 Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Haddon v Forsyth [2010] NSWSC 123 Kemsley v Foot [1952] AC 345 Sims v Wran [1984] 1 NSWLR 317 Texts Cited: Tobin & Sexton, Australian Defamation Law and Practice Category: Interlocutory applications Parties: Liana Justine Allan (plaintiff) The Migration Institute of Australia Limited (first defendant) Representation: Counsel A Henskens (for the plaintiff) D P O'Dowd (for the defendants) Solicitors Christopher Levingston & Associates (for the plaintiff) Moray & Agnew (for the defendants) File Number(s): 2011/25235 Publication restriction: None Judgment 1HER HONOUR: These are proceedings for defamation arising out of the publication of an item in an email newsletter distributed by The Migration Institute of Australia Limited (the Institute). The newsletter was distributed to the members of the Institute, who are mostly registered migration agents or solicitors practising in the field of migration. 2Any person providing immigration assistance in Australia must be registered as a migration agent under the Migration Act 1958 (Cth). The statutory authority responsible for the registration of migration agents is the Migration Agents Registration Authority, known as MARA. The office of the authority is commonly referred to as OMARA. One of the requirements of registration of migration agents is that they undertake continuing professional development (CPD). 3The article sued on by the plaintiff appeared under the heading "Scare Marketing on MARA CPD Framework". It responded to "recent marketing statements" made by the plaintiff, Ms Liana Allan. Ms Allan is a director of Migration Training Australia Pty Limited, a company which competes with the Institute in the business of providing professional development seminars to migration agents. 4The proceedings are brought against the Institute and its Chief Executive Officer, Ms Maureen Horder. 5Apart from denying that the article was defamatory of the plaintiff, the defendants have pleaded substantive defences of honest opinion under s 31 of the Defamation Act 2005, qualified privilege under s 30 of the Act and the defence of triviality under s 33 of the Act. A series of disputes has arisen between the parties as to the adequacy of the particulars provided in support of those defences. This judgment determines those disputes. 6The matter complained of is in the following terms: Scare Marketing on MARA CPD Framework Recent marketing statements by Migration Training Australia (MTA) Director Liana Allan about CPD changes should not be heeded. The Institute recently attended a forum with MARA staff and all CPD providers and can report it is untrue that any final changes have been decided. The tactics used by this commercial organisation are simple marketing ploys. "These statements are inappropriate and unprofessional," said Institute CEO Maureen Horder. "It is quite contrary to the values of the Institute to fear monger about changes to CPD requirements." Members can be assured the Institute will keep them updated on any changes to their CPD requirements. The MARA has released a set of FAQ's and answers in response to this erroneous campaign. 7The plaintiff alleges that the article conveyed the following imputations defamatory of her: (a) that the plaintiff acted unscrupulously by engaging in scare marketing for MTA, of which she is a director; (b) that the plaintiff made false statements to migration agents about changes to CPD rules; (c) that the plaintiff has acted inappropriately in making statements about CPD requirements; (d) that the plaintiff acted unprofessionally in making statements about CPD requirements; (e) that the plaintiff made false statements about CPD requirements as a marketing ploy to benefit MTA, an organisation of which she is a director; (f) that the plaintiff has engaged in fear mongering; (g) that the plaintiff has acted contrary to the values of the Institute. 8The defendants do not appear to have raised any preliminary issue in respect of those imputations. It ought nonetheless be noted that it seems doubtful whether imputation (g) is capable of being defamatory. Further, as to some of the imputations, the plaintiff should indicate whether they are relied upon as alternatives, as it appears they may be (see imputations (a) and (f); (b) and (e)). Defences of honest opinion 9The defence alleges (in paragraph 7) that the statements sued on were based on an opinion honestly held by the second defendant, Ms Horder, who was the Chief Executive Officer of the Institute. The particulars given in support of the defence are as follows. 10On 27 October 2010, Ms Horder attended a workshop held by OMARA. The workshop was convened to discuss proposed changes to the CPD requirements for migration agents. It was attended by a number of registered migration agents including the plaintiff. The defendants allege that, whilst a number of potential changes were discussed at the meeting, no changes were in fact made or proposed by OMARA. 11Following the meeting, the plaintiff sent an email to registered migration agents in the following terms: In a nutshell, as a migration agent you need to know that it is very likely that OMARA are moving towards a 20 CPD point system in the future ... ... All in all this means that it is highly likely that CPD providers are going to have to invest money developing a mix of products that will allow agents to attend a cross-section of CPD activities to meet the OMARA requirements. This means that the cost to you as an agent to attend CPD is likely to rise. MTA have developed as many 10 point blitz CPD activities as we possibly can which will run from now until March 2011. 12OMARA subsequently circulated a notice on 9 November 2011 (sic: presumably 9 November 2010) including the following information: Will the Office of the MARA implement a 20 point CPD requirement in January 2011? The Office of the MARA does not intend to implement a 20 point CPD requirement in January 2011 ... ... Will I still be able to accrue 5 CPD points in a day? Yes. There has been no discussion about such a limitation. It is possible that some activities involving more participation and interaction could attract more points. Will there be a transition period to any new system and how long will this transition period be? As we are still in a consultation phase, there has been no discussion of any transition period or its length. Where any change is proposed, a reasonable transition period will be worked out... 13In those circumstances, the defendants allege that the article stated the honest opinion of Ms Horder based on the information she had received at the OMARA meeting on 27 October 2010 and in the notice from OMARA dated 9 November 2010. 14By letter dated 14 March 2011, the plaintiff sought 16 categories of further particulars of the defence. The parties' disputes as to the adequacy of the existing particulars were developed in the subsequent exchange of correspondence between their solicitors (Ex A). The argument before me adopted the numbering of the initial 16 requests. Common law defence 15In the last letter in the exchange of correspondence, the defendants stated that, in addition to the defence of honest opinion under s 31 of the Defamation Act , they also rely upon the defence of fair comment at common law. The plaintiff's first complaint (request 1(a) in the correspondence) is that no particulars have been supplied in support of the common law defence. The plaintiff is plainly entitled to particulars of that defence, which in my view ought properly to have been introduced by way of amendment to the defence. 16The particulars required to be provided in support of the defence (as stated in Tobin & Sexton , Australian Defamation Law and Practice at [25,195]) are: (a) the facts as stated in the matter complained of which the defendant asserts are the basis of the comment; (b) any facts outside the matter complained of sufficiently referred to or identified to in it which the defendant asserts are the basis of the comment; (c) the facts and matters identifying the public interest. 17As considered further below, the defence in the present case appears to rest, at least in part, on facts outside the matter complained of. If that is the case, the defendants will have to identify those facts and give particulars of the basis on which it is contended that the recipients of the publication were sufficiently acquainted with those facts as to be able to assess the opinion expressed: cf Kemsley v Foot [1952] AC 345. Statutory defences 18The plaintiff's next complaint (requests 1(b) and (c) in the correspondence) related to the defendants' failure to nominate with specificity which provision of s 31 they would rely upon at trial. The defence specified that the opinion was that of Ms Horder. However, in response to a request to identify the particular subsection relied upon, each defendant asserted reliance on "sections 31(1) and/or 30(2)". 19In my view, the use of the rogue conjunction "and/or" should be avoided in pleadings and particulars. Section 31 of the Act creates three discrete defences in subsections (1), (2) and (3) respectively. Relevantly for present purposes, the defence under s 31(1) is that the defamatory matter was an expression of opinion of the defendant rather than a statement of fact. The defence under s 31(2) is that the defamatory matter was an expression of opinion of an employee or agent of the defendant (rather than a statement of fact). 20The need for the plaintiff to know which of the three defences is invoked is amply demonstrated by the provisions of subsection (4), which specifies what the plaintiff must prove in order to defeat each defence. In the case of each defence, the matter for proof in defeasance of the defence is different. Plainly, therefore, a plaintiff cannot be expected to plead a reply to a defence under s 31 unless he or she knows which defences under that provision are invoked. 21During the hearing of argument in the present case, Mr O'Dowd, who appeared for the defendants, confirmed (as clearly pleaded in any event) that the only relevant opinion is that of Ms Horder. He stated that the Institute would rely upon both s 31(1) (on the basis that Ms Horder's opinion was the opinion of the Institute) and s 31(2) (on the basis that Ms Horder was an employee or agent of the Institute). Mr O'Dowd stated further that Ms Horder would rely only upon s 31(1) on the basis that the matter complained of was an expression of her opinion. Whilst those matters ought to have been pleaded in the defence or indicated unambiguously in writing, there is no need for any further response to the plaintiff's request in the circumstances. 22Separately, the plaintiff complained that the defendants have not given the necessary particulars of the statutory defences. In particular, Mr Henskins, who appeared for the plaintiff, submitted that particulars ought to have been given of the matters relied upon in order to establish that the opinion was based on proper material and related to a matter of public interest (each of which is an element of the defence). The Uniform Civil Procedure Rules 2005 expressly require the inclusion of particulars of those matters: see rule 15.21(1)(a) and 15.28(2)(a) and (b). 23The content of the obligation to provide such particulars is clearly explained in the decision of Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 322 to 326. That decision is well known to practitioners in this list. The reason it is cited with such frequency is that it provides a clear and complete exposition as to how adequately to plead and particularise the relevant defences. I can only conclude that the guidance it provides must have been overlooked in the defendants' decision not to provide the further particulars sought by the plaintiff in the present case. 24It should not be necessary to repeat those principles. In order to understand them, all that is required is to actually read Sims v Wran . 25As to whether the opinion related to a matter of public interest, the defence in the present case asserts only that the matters upon which the comments were made were matters of public interest. Mr O'Dowd submitted that the public interest is "self evident". He submitted that the case concerns the activities of a body (OMARA), which "purports to influence the conduct and activities of migration agents, whose very activities impact directly upon the general public insofar as they influence who is permitted to settle in the community". 26Whilst there may be cases in which the public interest in the matter to which the relevant opinion relates will be manifest, it remains incumbent upon a defendant, in my view, to articulate the way in which his case is put on that issue. The purpose of the obligation to provide particulars is to ensure that the parties have a common understanding in advance of the trial as to the way in which a claim or defence is put by the party propounding it. 27The defendants will have to establish at trial that the matter to which the opinion related was such as to invite, either inherently, expressly or inferentially, public criticism or discussion or was such as to affect people at large: Haddon v Forsyth [2010] NSWSC 123 at [288] to [290] per Simpson J. The matter of that kind to which the opinion related can probably be articulated in relatively brief terms in the present case but the plaintiff is nonetheless entitled to have that information. 28The next complaint (requests 2 and 8) is that the defendants have not adequately identified the proper material for comment (see section 31(5) of the Act). Such particulars are expressly required under rule 15.28(2)(a) and (b) of the UCPR. The defence asserts that the comment was based on "the information that [Ms Horder] received at the OMARA meeting on 27 October 2010 and in the notice from OMARA dated 9 November 2011" but fails to identify what that information was. In response to the plaintiff's request for further particulars, the only additional information provided was that the matters discussed at the meeting were set out in the OMARA workshop documents at pages 4 to 13. 29As effectively conceded by Mr O'Dowd in argument, the defendants should give further particulars on that issue. The particulars should identify with specificity the information given at the meeting, or otherwise, which is alleged to amount to proper material (or, as suggested in argument, any matter as to which the discussion at the meeting was silent, if the fact of silence on an issue is part of the material on which Ms Horder's opinion was based). 30I note, however, that the plaintiff sought separate particulars of that kind for each imputation pleaded by the plaintiff. A request in such terms is probably an anachronism. The defences under s 31 are directed to the circumstance where the defendant proves that the defamatory matter (not any imputation conveyed by the matter) was an expression of opinion. In my view, the defences do not raise any issue of fact as to any separate basis for the relevant opinion by reference to the imputations pleaded by the plaintiff. I do not think the defendants should be required to respond in the manner requested. 31Separately, it was submitted on behalf of the plaintiff that Ms Horder should identify those parts of the matter complained of which were published or composed by her. I do not think that is a necessary particular. The relevant distinction is between the parts of the matter complained of alleged to be an expression of Ms Horder's opinion and the proper material upon which that opinion was based (including material within the matter complained of itself and any extraneous material relied upon). I do not think there is any separate obligation on Ms Horder to identify those parts of the article composed by her. 32The next complaint (request 4) relates to paragraph 7(c) of the defence, which states: A number of potential changes were discussed at the meeting however no changes were made or proposed at the meeting. 33The plaintiff contends that, to enable her to ascertain whether the opinion arose from substantially true material, the defendants must specify what were the "proposed changes to CPD requirements". In my view, that request is misconceived. It assumes that "proposed changes to CPD requirements" were part of the proper material relied upon by the defendants as the basis for the opinion. However, the words quoted do not accurately quote the defence. 34As I understand the case put by the defendants, it is that no changes to CPD requirements were in fact proposed at the meeting, and that Ms Allan's email to registered migrations agents, asserting (in her own commercial interest) that changes were "very likely" and inviting agents to attend "ten point blitz CPD activities" while the opportunity was still available before the predicted changes were introduced, misrepresented what was said at the meeting in that respect. 35It nonetheless remains the position that the defendants have failed to particularise the "proper material" upon which Ms Horder's opinion was allegedly based. The defendants should provide further particulars as to both the common law defence and the statutory defences in accordance with rules 15.28(2) and (3) of the UCPR. 36The next complaint (request 7) relates to a request that the defendants specify by name the persons to whom the Institute published the matter complained of and the address to which each publication was sent. The basis for that request was the contention that, in order to establish the defence, the defendants must prove that the material on which the opinion was based was known to the reader of the matter complained of. 37The defendants have refused to provide that information as being unnecessary and on the further basis that they should not have to supply a list of their members to a person who conducts business in competition with the first defendant. 38It is well established that, at common law, the defence of comment cannot succeed unless the material on which the comment was based was stated expressly or impliedly in the matter complained of or was a matter of contemporary history or general notoriety such that it "was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based on that material": Sims v Wran [1984] 1 NSWLR 317 at 322 per Hunt J. 39I do not think it has yet been determined in any decision of this Court whether that is a requirement of the defences of honest opinion under the 2005 Act. That issue was not argued on the present application. In light of the fact that the defendants rely on the common law defence in addition to the statutory defences, it does not need to be considered further at this stage. In support of the common law defence, particulars will have to be given as to the proper material for comment, including particulars from which the plaintiff can understand how the defence will be put as to the principle stated above. 40The defendants should state whether it is asserted that the material on which the comment was based was stated expressly or impliedly in the matter complained of or was a matter of contemporary history or general notoriety. To that I would add that the defence could arguably be based on material of notoriety to the particular class of persons to whom the alleged opinion was published. To the extent that the defendants rely upon material outside the matter complained of, those particulars should identify the basis for the contention that such material was known to the persons to whom the publication was made. 41However, I do not think it is necessary to that end for the defendants to provide the list of names and addresses sought by the plaintiff. Assuming the "proper material" relied upon includes information extraneous to the matter complained of, it would be sufficient, in my view, to describe the class of persons to whom the newsletter was sent, coupled with particulars as to the basis for the contention that the "proper material" was known to that class of persons. 42The way in which the defence is presently put is that Ms Horder formed the opinion that Ms Allan, in her email to migration agents, had misrepresented what was said at the OMARA meeting in October 2010. However, the detail as to what was (or was not) said at the meeting which was then allegedly misrepresented is not set out in the matter complained of. It is not said how the recipients of the matter complained of might have known the information on which Ms Horder's opinion was based so as to enable them to assess her opinion. Particulars should be provided on that issue. 43The next complaint relates to request 9 in the correspondence, which sought particulars of the contention that the material commented upon was substantially true. Such particulars are expressly required under rule 15.21(1)(d) of the UCPR. The defendants have acknowledged that better particulars will have to be given as to the "proper material" on which the opinion was based. Those particulars should include a statement of the facts, matters and circumstances relied upon to establish that any such material was a matter of substantial truth. 44That said, it may be anticipated that the particulars will be within relatively narrow scope in the circumstances of the present case. The existing particulars provided in paragraph 7(h) of the defence indicate that Ms Horder's statements were directed to the fact that the plaintiff (on behalf of MTA) was offering "as many 10 point blitz CPD activities as we possibly can" on the basis that "it is very likely that OMARA are moving towards a 20 CPD point system in the future", whereas the defendants contend that while changes had been discussed, no move towards a 20 point system was proposed by OMARA at that stage. The defence may thus be based principally on what was said at the relevant times (by both the plaintiff and OMARA) rather than the underlying events. 45The next complaint relates to request 10 in the correspondence, which sought particulars of the contention that the material upon which the comment was made was published on an occasion of qualified privilege. The material potentially relied upon as "proper material" includes the statements made at the workshop meeting of 27 October 2010, the fact that the plaintiff had then sent her email referred to above and the notice subsequently circulated by OMARA on 9 November 2010. As already explained, the defence appears to be based largely on the truth of the fact that all of those statements had been made. However, the defendants allege, in the alternative, that the material upon which the comment was made was published upon an occasion of qualified privilege. 46The defendants have refused to provide any particulars of the occasion relied upon in each instance (if indeed that contention is relied upon in respect of all of the material in question - it seems unlikely that the defendants would seek to establish that the plaintiff's email was published on such an occasion). The plaintiff is entitled to have particulars of the facts, matters and circumstances relied upon to establish the existence of the occasion of qualified privilege asserted by the defendants in each instance. Defence of qualified privilege 47The defence pleads the defence of qualified privilege under section 30 of the Defamation Act . The particulars in support of that defence go no further than to recite the elements of the defence as specified in the section. The correspondence between the parties takes the matter no further, the defendants stating that they also rely upon the defence at common law, but otherwise refusing to provide almost all of the further particulars sought. 48The correspondence reveals a wholesale failure on the part of the defendants to grapple with their obligation to provide the necessary particulars. Again, the content of the obligation is clearly set out in Sims v Wran. 49As to the defence at common law, the obligation is to provide the following particulars (at 326G to 327A): If the defendant claims that the publication took place upon an occasion of qualified privilege at common law, the particulars which are to be subscribed to his pleading in accordance with Pt 67, r 181(1)(b), should be sufficient o enable the plaintiff (and the trial judge) to identify the nature of the occasion of qualified privilege relied upon: Leslie v Mirror Newspapers Ltd (1969) 91 WN (NSW) 648 at 652; Packer v Mirror Newspapers Ltd [1972] 2 NSWLR 68 at 78; but the plaintiff is not entitled to have identified in the particulars the specific right or duty to publish, or the specific interests of those to whom the publication was made in receiving the information conveyed, for which the defendant contends: Waterhouse v Mirror Newspapers Ltd (Reynolds J, 2 July 2969, unreported). As his Honour said in that case, it is not helpful, having regard to the objects for which particulars are required, to order a defendant to state what are really conclusions argumentatively drawn from the essential facts and matters which have already been specified by way of particulars in accordance with the rules. 50As to the statutory defence, the defendants are obliged to provide particulars of their conduct which it is contended was reasonable in the circumstances: Sims v Wran at 327F to 328B. It is not enough to say, as asserted by Mr O'Dowd, that the reasonableness of the defendants' conduct is self-evident. As noted on behalf of the plaintiff, the particulars should include a statement as to whether the defendants believed in the truth of what was published and identification of the nature and sources of information they possessed. It may be that such particulars can be stated briefly and will reveal nothing further than what can be gleaned from the material outlined above. It does not follow that there is no obligation to provide such particulars. Triviality defence 51The defendants rely upon the defence of triviality under section 33 of the Defamation Act . In correspondence, they provided the following particulars of that defence: "16. The publication of the matter complained of, in its context as the opinion of the defendants commenting upon the statements made (set out in the statement of claim), would be simply seen and interpreted by the ordinary reasonable reader as a correction of an erroneous statement which ensured that the recipients were properly informed of the CPD requirements, without any necessary defamatory meaning attributable to the plaintiff. In any event, even if some defamatory meaning was found to have been conveyed, it would have been so trivial, in a commercial context, that no damage would be suffered by the plaintiff." 52The plaintiff complains that those are no more than generalised assertions which fail to specify the facts, matters and circumstances upon which the defendants rely: cf Sims v Wran at 329E. 53The plaintiff is entitled to have specified the circumstances of the publication relied upon by the defendants. I note, however, that it is regarded as sufficient specification of those matters to state that the defendants rely upon the circumstances in which it is established at trial that the matter complained of was published. That, in effect, is what the defendants have said. I do not think any further particulars are required of that defence. Orders 54The defendants are ordered to provide further particulars of the defence in accordance with these reasons within 14 days. The plaintiff having been substantially successful in the application, the appropriate order would appear to be that the defendants pay the plaintiff's costs of the application. There will be an order to that effect unless the defendants notify the Court within 14 days that they wish to be heard on that issue. ********** 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: 08 February 2012