District Court New South Wales Medium Neutral Citation: Gaynor v Burns [2015] NSWDC 194 Hearing dates: 03 September 2015 Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen). (2) Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days. (3) Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial. (4) Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am. (5) The defendant is to pay the costs thrown away by reason of the amendments to the defence. (6) The defendant is to pay the plaintiff's costs of today. Catchwords: TORT - defamation - defences - application to strike out defence of contextual justification based solely on the plaintiff's imputations - defendant concedes defence unavailable in that form - whether defence should be struck out - defence of qualified privilege fails to identify whether defence pleaded pursuant to s 30, at common law, or both - defence struck out with liberty to replead Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 and 30 Cases Cited: Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) [2015] NSWDC 23 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode (2011) 81 NSWLR 157 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 Category: Procedural and other rulings Parties: Plaintiff: Bernard Gaynor Defendant: Garry Burns Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms M Curry Solicitors: Plaintiff: Robert Balzola & Associates Defendant: James Leaver Lawyer File Number(s): 2014/269572 Publication restriction: None Judgment 1. These are reasons for the striking out of the defence of contextual justification pleaded in paragraph 7 of the Further Amended Defence and for requiring the defendant to file a First Further Amended Defence clarifying whether the defence of qualified privilege is pleaded solely at common law and/or s 30 Defamation Act 2005 (NSW). 2. The plaintiff initially commenced proceedings by summons filed on 12 September 2014. The proceedings were case managed by the Judicial Registrar, during which time the plaintiff filed a statement of claim on 23 April 2015. The defendant, who appeared in person, filed a series of defences claiming "public interest" and "the public's right to know", defences unknown to law. 3. Following transfer to the Defamation List on 5 June 2015, the defendant filed an "Amended Defence" on 16 June 2015 which added a defence of contextual justification based on the plaintiff's imputations, which is impermissible (Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode (2011) 81 NSWLR 157). Given this unsatisfactory history of inadequately pleaded defences, I referred the defendant on 30 July 2015 to a barrister on the pro bono panel for the purpose of providing a further amended defence and the proceedings were stood over to today, with a warning that unless a defence in proper form was filed, the defence most recently filed may be struck out. 4. A "Further Amended Defence" was filed on 11 August 2015. Although the fourth defence filed, it is the first to be prepared by a legal practitioner. It is a significant improvement on the previous defences, but two of the defences pleaded were the subject of challenge by Mr Rasmussen, namely the defences of contextual justification and qualified privilege. The defence of contextual justification 1. The defence of contextual justification was pleaded as follows: "7. Further and in the alternative, the defendants say that insofar as and to the extent that it may be found that the matters complained of were defamatory of the plaintiff (which is denied), the imputations pleaded were published contextually to the other imputations pleaded in the Statement of Claim and by reason of the substantial truth of the contextual imputations such of the plaintiff's imputations as may be found to arise did not further injure the reputation of the plaintiff." 1. Mr Rasmussen submitted, and Ms Curry conceded, that a defence of contextual justification as set out in paragraph 7 is impermissible, for the reasons explained in Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode. The question is now whether the defence should be struck out on that basis, or whether that is a step which should not be taken until the trial. 2. Mr Rasmussen has asked me to strike it out now, and also requested me to provide short reasons for doing so, by reason of an imminent application in the New South Wales Court of Appeal in other proceedings for leave to appeal the striking out of this defence at an interlocutory stage rather than at the trial. 3. Mr Rasmussen's reasons for this request arise from what is asserted to be an apparent conflict of authority between Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 and Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode as to whether such a defence can be struck out prior to trial, or at all. This argument arose following the handing down of Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) [2015] NSWDC 23, where the plaintiff's application to "plead back" the defendant's contextual imputations was granted, which meant that the defence of contextual justification based on those contextual imputations was no longer available. The s 26 defence was not, however, struck out, and the decision which is currently the subject of an application for leave to appeal is whether it should be struck out. 4. The argument about whether the s 26 defence should be struck out at all, Mr Rasmussen tells me, proceeds on two alternative bases. The first is that the approach taken by the trial judge (and endorsed on appeal) in Born Brands Pty Ltd v Nine Network Australia Pty Ltd require that the s 26 defence, although not tenable in itself, must remain in the pleadings until the trial. The second is that the defendant in Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) intends to argue that Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode is wrongly decided. 5. Mr Rasmussen tells me (and it is evident from the contents of the judgment) that neither of these points was argued before the trial judge in Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063). However, he seeks to protect his client in these proceedings in the event that the appeal proceeds regardless, and accordingly I note my reasons as follows. 6. Firstly, both counsel agreed that I am bound to accept the correctness of Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode, and that the course in such circumstances is for such contextual imputations to be struck out, for the reasons explained by McCallum J in Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991. 7. Secondly, where a s 26 defence relies only upon the plaintiff's imputations, either because the defendant proposes no other imputations (as is the case here) or because the plaintiff obtains leave to "plead back" the defendant's contextual imputations, the invariable practice of the court has been to strike out the defence: see, for example, Rose v Allen & Unwin Pty Ltd at [27]. Where a defence is not tenable at law, the appropriate course generally is to strike it out, not to leave it in the pleading where it can cause confusion or uncertainty at the trial. Comity, case management principles and the desirability of clear pleadings, particularly in relation to a complex and difficult defence such as s 26, are the second set of reasons for my decision. 8. Thirdly, it is not necessary for the s 26 defence to remain in the pleading for the defendant to be able to argue, in the event that the s 25 defence of justification succeeds in relation to one or more of the plaintiff's imputations, that damages may be mitigated by reason of the truth of that imputation. The belief that the s 26 defence needs to be pleaded in order to preserve this right conflates s 26 both with s 25 and issues of mitigation of damages. 9. Fourthly, counsel for the defendant says that she accepts that I am bound by Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode, and she consents to this course. Where a party consents to a case management order, courts generally do not look behind that consent, but I acknowledge Mr Rasmussen's concerns about the uncertainty of the law in this area. 10. Having noted these reasons, I also set out my reasons for requiring the defendant to replead the defence of qualified privilege. The qualified privilege defence 1. Paragraph 4 of the Further Amended Defence merely states that the matters complained of were "published under qualified privilege", without identifying whether the defence is pleaded at common law, pursuant to s 30, or both. (The paragraph also includes a defence of "comment" [sic], which appears to owe much to the form of the defence under the repealed legislation.) 2. The particulars of qualified privilege are as follows: "Particulars of Qualified Privilege (a) The matters were published to their recipients who had an interest or apparent interest in matters of discrimination, including discrimination against homosexual Australians; (b) The matters were published in the course of giving information on that subject to the recipients; (c) The defendant's conduct was, in the circumstances, reasonable; and (d) The defendant repeats the above particulars of public interest." 1. The particulars of public interest, referred to in subparagraph (d), are as follows: "Particulars of Public Interest (a) The rights of homosexual Australians; (b) Anti-discrimination law in Australia; (c) The plaintiff's conduct in vilifying and/or permitting the vilification of persons by reason of their sexual orientation." 1. These rolled-up particulars do not assist in identifying whether the defence is published on an occasion of qualified privilege at common law, pursuant to s 30, or both. Ms Curry told me that the defence was pleaded at common law only but, given the reference to "reasonableness" and the difficulties of pleading such a defence to a website publication, that seems unlikely. 2. The desirability of parties identifying with precision which qualified privilege defence is pleaded has long been regarded as essential. In Hanrahan v Ainsworth (1990) 22 NSWLR 73 Clarke JA (at 100A) stated: "Notwithstanding, where both types of qualified privilege are pleaded it is imperative, in my view, that the trial judge, who concludes that the defence has been made out, express clearly whether he is upholding the defence of statutory or common law privilege. The reasons why he should do so are, if I might respectfully say so, obvious and are similar to those outlined by Moffitt P in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701 et seq, when dealing with the duty to give reasons." 1. In those proceedings, the defence had accurately pleaded both common law and statutory qualified privilege, and the failure to identify whether the successful defence was statutory or at common law was the failure of the trial judge. That failure resulted in the proceedings being remitted for retrial. It must follow that it would be equally unacceptable for a defendant to plead a defence of qualified privilege without identifying whether the defence was pleaded at common law, pursuant to s 30, or both. 2. The defence must be repleaded with precision to identify, both in relation to pleading and particulars, which of the defences is relied upon, together with the appropriate particulars for each such defence. Costs 1. This is the fourth defence provided by the defendant. A fifth defence will be required. 2. While I note that the defendant represented himself until recently, and that this was the reason for the defects in the previous defences, the current defence has repeated the flawed s 26 pleading in the third defence as well as failing to articulate the basis for the qualified privilege defence, and amendment is necessary. Additionally, Ms Curry has foreshadowed a challenge to the form and capacity of imputations (a) – (d), an application which should have been brought while the proceedings were before the Judicial Registrar, or first placed in the Defamation List on 5 June 2015. That application must be heard before the proceedings can go further. 3. In those circumstances, the defendant must not only pay the costs thrown away by reason of the amendments required, but also the costs of today Orders 1. Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen). 2. Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days. 3. Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial. 4. Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am. 5. The defendant is to pay the costs thrown away by reason of the amendments to the defence. 6. The defendant is to pay the plaintiff's costs of today. ********** 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: 07 September 2015