Munsie v Dowling (No 4) [2015] NSWSC 37

Supreme Court New South Wales

Medium Neutral Citation: Munsie v Dowling (No 4) [2015] NSWSC 37 Hearing dates: 2 February 2015 Decision date: 11 February 2015 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: The Amended Defence filed 18 August 2014 is struck out. The defendant is granted leave to file a further Amended Defence within 21 days. At this time I decline to make orders for discovery and interrogatories as requested by the defendant. The defendant is to pay the plaintiffs' costs of the motion to strike out the Amended Defence. I grant liberty to the parties to apply to the Court on 7 days' notice. Catchwords: PRACTICE AND PROCEDURE – Application to strike out defence – defence containing scandalous material – failure to comply with UCPR – defence struck out – leave granted to re-plead defence – defendant's application for interrogatories and discovery refused. Legislation Cited: Defamation Act 2005 (NSW) Cases Cited: Lange v The Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 Munsie v Dowling [2014] NSWSC 458 Category: Procedural and other rulings Parties: Justine Munsie – First Plaintiff Representation: Counsel: Mr ATS Dawson - Plaintiffs Defendant appeared in person

Solicitors: File Number(s): 2014/114469

Judgment 1. HIS HONOUR: Nature of Applications 1. The plaintiffs by Notice of Motion filed 14 October 2014 seek the following orders: 1. An order to pursuant to UCPR Regulation 14.28(1) that the Amended Defence be struck out on the basis that: 1. No reasonable defence is disclosed; and/or 2. The Amended Defence has a tendency to cause prejudice, embarrassment or delay in the proceedings. 1. Costs. 1. There was also before the Court an application by the defendant for orders that the plaintiffs separately provide answers to interrogatories and that the plaintiffs separately give discovery of certain specified documents. 2. The interrogatories were expressed as follows: "(i) Are you aware of any payments that were made to Schappelle Corby this year (2014) by you Channel 7 or any associated companies? If so how much was it. (ii) Are you aware of any payments that were made on behalf of Schappelle Corby this year (2014) by you, Channel 7 or any associated companies? If so how much was it. (iii) Are you aware of any payments that were made for accommodation and any other expenses on behalf of Schappelle Corby this year (2014) by you, Channel 7 or any associated companies? (iv) Who organised the Ex parte hearing with Justice McCallum and how was it organised? Who instructed the Ex parte hearing to be organised with Justice McCallum?" 1. The documents in respect of which an order for discovery was sought were described as: "All notes file notes diary notes emails receipts invoices letters and other relevant communication regarding any payment negotiation or discussion of payment to Schappelle Corby." 1. The plaintiffs were represented by Mr Dawson of counsel and the defendant appeared for himself. Factual Background 1. The factual background to the proceedings is set out in considerable detail in these judgments: Munsie v Dowling [2014] NSWSC 458 (Harrison J); Munsie v Dowling [2014] NSWSC 598 (Hall J); and Munsie v Dowling [2014] NSWSC 1508 (Adams J). The following summary of the factual background is taken from those judgments. 2. The plaintiffs are Mr Stokes, the chairman of a company whose assets include the Seven Network Ltd which broadcasts news, current affairs and other programs throughout Australia, and Ms Munsie, a solicitor and partner in the law firm Addisons retained by Mr Stokes and/or the Seven Network Ltd`. The defendant is the registrant of the domain name kangaroocourtofaustralia.com and the publisher of a website connected to that domain name called Kangaroo Court of Australia. 3. The plaintiffs have brought proceedings against the defendant by an Amended Statement of Claim, filed on 25 July 2014, which pleads a cause of action by each of them against the defendant in defamation. The plaintiffs do not claim damages from the defendant but seek permanent injunctive relief. 4. The Amended Statement of Claim alleges that an article published by the defendant on his website in February 2014 carried imputations which were defamatory of them. 5. As against Ms Munsie the imputations were that she lied to the Australian Federal Police (AFP) about Channel 7's ability to comply with a search warrant, that she attempted to assist Channel 7 dishonestly to avoid revealing documents caught by an AFP search warrant and that she had repeatedly committed perjury. 6. As against Mr Stokes, the imputations were that he had used threats and intimidation against the AFP to avoid having to reveal documents caught by an AFP search warrant, that he had lied to the AFP about Channel 7's ability to comply with the search warrant, that he had made dishonest threats against the AFP in respect of their raid on Channel 7, that he had repeatedly committed perjury and that he was delusional. 7. The Amended Statement of Claim pleaded that on 4 June 2014 a film clip was posted on the website which made further scandalous allegations about the plaintiffs. 8. Both Harrison J and Hall J found that the publication on the website in February 2014 was prima facie defamatory of the plaintiffs. Adams J found that the film clip published on the website on 4 June 2014 was also prima facie defamatory. It is not necessary to repeat that material which has been set out in the judgments referred to. It should be noted, however, that I respectfully agree with the conclusions of their Honours on that issue, i.e. that the imputations raised in the Amended Statement of Claim are prima facie defamatory of the plaintiffs. Plaintiffs' motion to strike out the Amended Defence 1. In order to understand the plaintiffs' submissions, it is not necessary to set out the defence in its entirety. It is sufficient for an understanding of the document to set out parts of it. "1 Below is my defence. For a full defence I am still waiting for the written reasons from Justice Michael Adams as the complaints Statement of Claim is about 90 percent related to a judgment of Justice Adams. He made me take down numerous pots [sic] and videos. Justice Adams has failed to publish his written reason at this point in time. It must be noted that Justice Adams is himself suing Fairfax Media because they accused him of being corrupt which I suspect has influenced his failure to publish his written reasons in my matter because I have also accused him of being corrupt on my website and have also repeated the Fairfax Media allegations on my website. 2 It must also be noted that Justice Lucy McCallum is listed to hear a directions hearing on 29 August 2014 even though she has a personal interest in the matter. Justice McCallum is good friends with the first applicant Justine Munsie and also knows the applicants' barrister Sandy Dawson on a personal basis. 3 Justice Lucy McCallum is also named in the applicants' Statement of Claim and is a witness and even a possible applicant in the matter so it makes one greatly disturbed that Justice McCallum is hearing the directions hearing as she is almost literally hearing her own case. … 8 Section 27 Defence of Absolute Privilege (b) The matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) The publication of matter in any document filed and lodged with, or otherwise submitted to, the court or tribunal (including any originating process) and (ii) The publication of matter while giving evidence before the court or tribunal; and (iii) The publication of matter in any judgment, order or other determination of the court or tribunal, 9 Section 29 – Defences of Fair Report of Proceedings of Public Concern 10 Section 30 – Defence of Qualified Privilege for Provision of Certain Information Also see High Court precedents, Lange v ABC [1997] and Coleman v Power [2004] …." 1. The plaintiffs submitted that the defence should be struck out because it disclosed no reasonable defence. They submitted that those paragraphs which refer to a defence provided in the Defamation Act 2005 (NSW) (the Act) did no more than repeat a section of the Act or refer to a decided case. They submitted that a defence pleaded in that form did not comply with the requirements of the Uniform Civil Procedure rules (UCPR) and did not put the plaintiffs on notice of the case they had to meet. They submitted that other paragraphs of the defence contained material which was scandalous and embarrassing and which should be struck out on that basis. 2. While making due allowance for the fact that the defendant is not legally qualified, he has failed to establish any basis for the Amended Defence to be allowed to remain in its present form. In support of the Amended Defence, he placed before the Court paragraphs 385 – 398 of the judgment of Sackville J in Seven Network Ltd v News Limited [2007] FCA 1062. There was nothing in those paragraphs which was relevant to the maintenance of his Amended Defence. He also relied upon a series of extracts from the internet which set out opinions of various journalists as to whether Ms Schappelle Corby was paid for her interview with Channel 7. Apart from being irrelevant to this application, the material was of no probative value. 3. The defendant relied upon written and oral submissions. The written submissions were not assisted by scandalous and unsubstantiated assertions of judicial corruption and of personal impropriety on the part of the plaintiffs. 4. The written submissions were largely irrelevant to the Court's consideration of the plaintiffs' strike out application. Section 1 of the submissions comprised unsubstantiated assertions that the proceedings were an abuse of process and that the plaintiffs had no intention of bringing the matter to Court. The defendant submitted that a two months' delay between the publication of the defamatory material on his website and the commencement of the proceedings established that the plaintiffs had no intention of bringing this matter to Court. I do not accept that submission. To the extent that it was relevant, the asserted delay was not excessive and the inference sought to be drawn by the defendant is not available. 5. The second section of the written submissions comprised an application for the proceedings to be transferred to the Federal Court because the Judges of this Court were so biased that the defendant would not receive a fair hearing. Such an application was irrelevant to the question of whether the Amended Defence should be struck out. Moreover, apart from scandalous and unsubstantiated assertions of judicial misconduct, no basis for such a transfer was made out. 6. Section 3 of the written submissions comprised an application to have the proceedings dismissed because of a failure by the plaintiffs to prosecute the proceedings and to have Mr Stokes declared a frivolous and vexatious litigant. This application was irrelevant and was based on unsubstantiated assertions. 7. The fourth section of the written submissions sought an order dismissing the plaintiffs' strike out motion as an abuse of process. The defendant submitted that he was ready to go to a hearing at the present time and only required that the plaintiffs discover the documents which he sought and answer his interrogatories. He submitted that as a result of the decision in Lange v The Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 it was not necessary for him to particularise his defence beyond identifying the statutory defences under the Act upon which he relied. These submissions are not made out. The decision in Lange is not authority for the proposition relied upon by the defendant. 8. The defendant's oral submissions were of a similar kind. They raised issues which were irrelevant. The defendant submitted that the contempt proceedings pursued by the plaintiffs during 2014 supported his submission that this application was an abuse of process and that the plaintiffs had no genuine intention for the matter to proceed to a hearing (T.13.40 – 15.10). Such a conclusion does not necessarily follow and the submission is not made out. 9. The defendant submitted that there was no need for him to further particularise his Amended Defence because the plaintiffs well knew what that defence was. He submitted that this application was nothing more than an attack on his right to free speech and was otherwise without merit (T.18.40 – 19.18). That submission is not made out. No factual basis was identified for it. The defence or defences upon which the defendant relies are simply not disclosed in his Amended Defence. 10. The plaintiffs' application to strike out the defendants' defence must succeed. Paragraphs 1 – 3 are scandalous and embarrassing and should be struck out. Paragraphs 4 – 5 comprise surplusage and are irrelevant. Paragraphs 13 – 17 also comprise surplusage and should be struck out. In relation to paragraph 1, despite the delivery of judgment by Adams J on 30 October 2014, the defendant has done nothing to further amend his Amended Defence. 11. Apart from those paragraphs, the defence purports to raise the following defences: 1. Justification (para 6). 2. Contextual truth (para 7). 3. Absolute privilege (para 8). 4. Fair report of proceedings of public concern (para 9). 5. Qualified privilege (para 10). 6. Honest opinion (para 11); and 7. Triviality (para 12). 1. For the defences of justification, contextual truth, absolute privilege, honest opinion and triviality, the defendant has simply reproduced the words of the relevant sections of the Act. For the defence of fair report, he has referred to s 29 of the Act and its heading but nothing else. 2. For the defence of qualified privilege the defendant has referred to s 30 of the Act and its heading and to two cases in which the High Court has considered the common law defence so far as it protects the publication of government and political matter. The defendant must therefore be understood to intend to raise both statutory and common law defences of qualified privilege. 3. The nature of the Amended Defence as pleaded is such that it fails to inform the plaintiffs, let alone the Court, of the case to be put forward by the defendant. For example, there is no reference to the individual paragraphs of the amended statement of claim. There is no indication as to whether the relevant defences are raised in relation to every matter complained of or only some. It is insufficient merely to refer to each of those defences in the manner pleaded, e.g. the justification defence does not reveal to which imputations it is directed and the contextual truth defence does not plead a single contextual imputation said to be conveyed in addition to the plaintiffs' imputations. Finally, there are no particulars of the facts, matters and circumstances on which the defendant relies to prove any of these defences. 4. It is quite unclear how a number of the defences could apply. For instance, the defence of absolute privilege could not apply to any of the matters complained of, none of which were published in the course of the proceedings of a parliamentary body or a court or tribunal. 5. In relation to defamation defences generally, the pleading requirements are set out at UCPR Pt 14 rule 14.31 – 14.40. There has, for example, been a failure by the defendant to comply with UCPR 14.31(2)(b) which provides: "(2) If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded: … (b) a defence under section 25 or 26 of the Defamation Act 2005." (i.e. the defences of justification and contextual truth where the truth of the imputations is the issue). 1. Similarly, there has been a failure to comply with UCPR 14.32(2) which provides: "(2) A defence of justification under s 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true." That has not been done. 1. UCPR Pt 15 r 15.21 – 15.30 set out the requirements for particulars in defamation defences generally. There has been no compliance with those rules. 2. UCPR Pt 15.22(2) requires: "(2) Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of justification under section 25 of the Defamation Act 2005 or at common law must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true." In relation to contextual truth, there is the same requirement (UCPR 15.23(2). 1. These requirements for particulars have not been complied with despite "truth" apparently being a significant part of the defendant's defence. 2. It follows that the plaintiffs have succeeded in their motion and that the defendant's defence should be struck out. 3. Given the nature of the proceedings and the fact that the defendant is not legally represented, I propose to grant leave to the defendant to file and serve a further Amended Defence within 21 days. It is to be hoped that if the defendant avails himself of that leave, he will comply with the Uniform Civil Procedure Rules relating to defences in defamation matters. 4. I note that in the course of the proceedings the plaintiffs submitted that should the defendant be given leave to re-plead his defence, that a final hearing date should be allocated so that further delay could be avoided. I am not prepared to accede to that submission unless and until a further Amended Defence has been filed and it is known whether as a result further interlocutory applications will be made. Defendant's applications for interrogatories and discovery 1. It is the practice of the Court (see Practice Note SC CL 4 – Defamation List) to order discovery and interrogatories only where the Defamation List Judge forms the view that such orders are necessary for the resolution of the real issues in dispute in the proceedings. The difficulty with making such orders as have been sought by the defendant is that the real issues in dispute in the proceedings are not known and will not be known until a proper defence has been filed and served. 2. It follows that unless and until a proper defence is filed and served, the defendant will not be in a position to demonstrate that he is entitled to the orders for discovery and interrogatories which he seeks. At this time because the Amended Defence has been struck out, I am not prepared to make the orders sought by the defendant. Conclusion 1. The orders which I make are as follows: 1. The Amended Defence filed 18 August 2014 is struck out. 2. The defendant is granted leave to file a further Amended Defence within 21 days. 3. At this time I decline to make orders for discovery and interrogatories as requested by the defendant. 4. The defendant is to pay the plaintiffs' costs of the motion to strike out the Amended Defence. 5. I grant liberty to the parties to apply to the Court on 7 days' notice.