Supreme Court New South Wales Medium Neutral Citation: Doe 1 v Dowling [2018] NSWSC 1278 Hearing dates: 14 June 2018 Date of orders: 17 August 2018 Decision date: 17 August 2018 Jurisdiction: Common Law Before: Walton J Decision: The plaintiffs are directed to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. Catchwords: PRACTICE AND PROCEDURE – application for strike out – r 14.28 Uniform Civil Procedure Rules 2005 (NSW) – whether a reasonable defence is disclosed – whether the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings – whether the court may strike out pleadings – defences in defamation proceedings – whether the court should permit the defendant to re-plead the defence – defence of absolute privilege – defence of qualified privilege – defence of truth – defence of triviality – defence of honest opinion – absence of viable defence – whether it is inappropriate to make orders for discovery or interrogatories prior to the pleadings closing – defence struck out – defendant not permitted to re-plead Legislation Cited: Courts Suppression and Non-publication Orders Act 2010 (NSW) Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Doe v Dowling [2017] NSWSC 1793 Jane Doe 1 v Dowling (No 5) (Unreported, Supreme Court New South Wales, Fagan J, 10 February 2017) Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909 Texts Cited: Supreme Court of New South Wales, Practice Note SC CL 4 – Defamation List, 5 September 2014 Category: Procedural and other rulings Parties: Jane Doe 1 (First Plaintiff) Jane Doe 2 (Second Plaintiff) Jane Doe 3 (Third Plaintiff) Jane Doe 4 (Fourth Plaintiff) Shane Dowling (Defendant) Representation: Counsel: S Dawson SC (Plaintiffs) Solicitors: Addisons Lawyers (Plaintiffs) File Number(s): 2016/383575 Publication restriction: Pseudonym and non-publication orders have been made in respect of the true names of the plaintiffs in these proceedings Judgment 1. HIS HONOUR: By a notice of motion filed on 10 May 2018, the plaintiffs sought an order that a defence filed by Shane Dowling ("the defendant") filed on 30 April 2018 ("the amended defence") be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules (NSW) ("UCPR") on the basis that no reasonable defence was disclosed and/or the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings. 2. That description of the subject matter of this judgment requires explanation by recourse to the history of the proceedings. That history is set out extensively in the judgment of McCallum J in Doe v Dowling [2017] NSWSC 1793 at [1]-[26]. 3. An action for defamation was commenced by two plaintiffs by statement of claim on 21 December 2016. Those proceedings arose out of the publication of material on a website operated by the defendant. At that time the plaintiffs were Jane Doe 1 and Jane Doe 2 (Campbell J made an order pursuant to s 7 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publications of the names of the first and second plaintiffs: see Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909). 4. There were injunctive proceedings which were described in the judgment of McCallum J. On 21 February 2017, following the publication of further material on the defendant's website, an amended statement of claim was filed joining two additional plaintiffs under the pseudonyms Jane Doe 3 and Jane Doe 4. The plaintiffs on the present motion are Jane Doe 1, 2, 3 and 4, respectively. 5. The defendant filed a defence to the statement of claim brought by Jane Doe 1 and Jane Doe 2 ("the first and second plaintiffs") but that was struck out by Fagan J on 10 February 2017 for reasons stated by his Honour in Jane Doe 1 v Dowling (No 5) (Unreported, Supreme Court New South Wales, Fagan J, 10 February 2017). A second defence produced by the defendant was the subject of a further strike out application but the filing of the amended statement of claim intervened. 6. The present application relates to the amended defence filed on 30 April 2018. The applicable rules 1. The Court may strike out the whole or any part of a pleading under r 14.28 of the UCPR, which rule is in the following terms: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 1. Defences in defamation proceedings must comply with the general pleading rules and those specifically dealing with pleading and particularising defamation defences pursuant to Pts 14 and 15 of the UCPR. Given the wholesale deficiency in the pleadings in the amended defence, it is unnecessary to refer to particular aspects of those rules. In short, as I will discuss, the amended defence fails to comply with any of the basic rules or principals of pleading a defence. Legal principles 1. There was no dispute about the legal principals encapsulated in the written submissions of the plaintiffs. In my view they are correct and I extract them below: No reasonable cause of action or defence 8. It may be accepted that the power to strike out pleadings because they disclose no reasonable cause of action or defence should be exercised in only plain and obvious cases. The test has been variously expressed, including "so obviously untenable that it cannot possibly succeed" and "manifestly groundless": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel) at 128-129 per Barwick CJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 per Dixon J. 9. The function and importance of properly pleaded and particularised defences in defamation proceeings was explained by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321-330. 10. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the defendant a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited [1999] NSWSC 1273 at [37] (citations removed): [37] The question for determination, in accordance with the authorities, seems to me to come down to the question whether a reasonable cause of action is disclosed, ie a cause of action which has some chance of success, or which could conceivably give the plaintiff a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good … [38] It is one thing to strike out a case which is clearly doomed to failure. The jurisdiction to do so was properly described by Kirby P in Edwards (at 7) as a "beneficial one … designed to relieve parties of the expense, anxiety and distraction of meritless litigation". It is another thing, however, to deprive a litigant of having an arguable case heard at trial. As Kirby P also said, in the same case (at p8): "Unless the remedy is effectively confined to cases 'for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile', it would have the consequence of substituting summary judicial impression for determination on the merits, having heard both evidence and argument in the normal way of our courts..." Embarrassment 11. A pleading is embarrassing if it is unintelligent, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]-[35]: [30] A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him" […]. [31] In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings: "Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434." [32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to […] [33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet […]. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading […]. [34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules […]. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend […]. [35] It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out […]. [Emphasis added and citations omitted by the plaintiff.] Consideration 1. Neither party called evidence on the motion but that deficiency is of no consequence given that the fundamental deficiencies in the pleadings within the amended defence. 2. At the broadest level, the amended defence merely replicates or paraphrases the provisions of the Defamation Act 2005 (NSW) as constituting the defences. At best, it may be concluded that the defendant has identified the subject matter of the defence. 3. None of the requirements for the pleading and the particularisation of the defences as set out in UCPR rr 14.31-14.4 and 15.21-15.30 were complied with in the amended defence. Nor is there any reference to particular paragraphs of the amended statement of claim and, therefore, there is no indication as to whether the relevant defences were raised in relation to every matter complained of or only some. An illustration of this non-compliance is the "justification" defence, as pleaded by the defendant, which does not traverse the imputations to which it is directed. Similarly, the "contextual truth" defence does not plead a single contextual imputation conveyed in addition to the plaintiffs' imputations. Further, there are no particulars of factors, matters and/or circumstances which the defendant relies upon to prove the defences. 4. As the plaintiffs submitted, this is not a case where the amended defence simply fails to disclose a reasonable defence. The omission rises to the level of failing to disclose a defence such as to perform the very basic obligation of informing the plaintiffs of the case they would be required to meet. 5. In many respects, these difficulties were anticipated by the defendant who contended, at the outset of the hearing of the notice of motion, that the Court should permit him to re-plead the defence in the event that it was struck out. The balance of the proceedings then occupied argument as to that question. In the result, at the close of the hearing, the Court indicated that it intended to strike out the amended defence but to reserve the question of whether the defendant would be permitted to re-plead. 6. The preceding components of these considerations constitutes the foundation for the conclusion that the amended defence is so obviously untenable that it cannot possibly succeed and the reasons for the determination that the amended defence should be struck out. The balance of these considerations deals with that question and the additional question of whether the defendant should be granted leave to re-plead in those circumstances. 7. The plaintiffs submitted that, given the history of the litigation and the nature of the present pleadings, there is little chance that leave to re-plead "will result in a document that complies with the relevant rules and principles". It was submitted that, in the light of McCallum J's reasons in Doe v Dowling, it was apparent that the defendant had no defence. 8. In reply to the submissions developed by the defendant, to which I will return to momentarily, the plaintiffs submitted that the defendant's reliance upon discovery or interrogatories demonstrated the absence of an available defence for the defendant (the plaintiffs contending that it was inappropriate to make orders for discovery or interrogatories prior to the pleadings closing). Further, the defendant had been given every opportunity to articulate his position. 9. The defendant contended that he was in a position to improve the form of the pleadings having acquired an example of the pleading of a defence from another proceeding. 10. He was asked to indicate what the substance of his defence might be, with a view to ascertaining whether, irrespective of particular form requirements of a defence, a re-pleading may produce, in substance, a defence. 11. In response to that inquiry the defendant traversed a number of aspects of his pleadings but ultimately came to the submission "[m]y view point is that I need interrogatories and discovery first to re-plead" and "so that's why my view point is: if you were minded to do anything, leave is granted for me to file, if need be, the interrogatories and discovery, and a notice of motion to have them issued". 12. As to particular aspects of the defence, the defendant placed primary reliance upon absolute privilege. That submission was predicated upon the basis that the document published on his website had been deployed elsewhere in circumstances that would attract absolute privilege and in particular he relied upon the fact that the document was deployed in proceedings in the Australiana Human Rights Commission. He contended that all "[he] did was repeat what was in that Australian Human Rights Commission legal document". 13. The defendant also referred to the defences of truth and triviality. He referred to statements made by Ms Amber Harrison in an article in "the Telegraph". Reference was made to honest opinion (it was submitted that "it's highly likely it's true") and qualified privilege. 14. None of the submissions took up the invitation of the Court to add to submissions that had been made before McCallum J in Doe v Dowling or re-characterise those submissions or to expand upon the basis for them. That said, having regard to the submissions of the parties, it is necessary to spend some little time further considering the judgment of McCallum J in Doe v Dowling. 15. The starting point of that consideration must be to note that her Honour was dealing with the question as to whether the fifth order made by the Court, as presently constituted, granting injunctive relief should be continued. One of the considerations undertaken by her Honour in that respect was whether, on the evidence and having regard to the circumstances of publication, there was any real ground for supposing that the defence might succeed. This was necessary to determine because, if the publication may be defensible, an injunction should not be granted because of the public interest in free speech. That issue involved both a consideration of the nature and quality of the evidence (see Doe v Dowling at [19]) and the prospect that the circumstances of publication, without more, might point to the prospect of a good defence (Doe v Dowling at [21]). 16. It is also important to note that her Honour stated that "nothing in this judgment determines the fate of any future defence". The only question, her Honour observed, at that stage of proceedings was whether there appears to be a viable defence; if there is, the plaintiffs application must fail (Doe v Dowling at [26]). 17. Turning to the primary submission advanced by the defendant as to absolute privilege, her Honour observed (Doe v Dowling at [34]): [34] Mr Dowling contends that the defence of absolute privilege would be available to him on the basis that the defamatory document published on his website has been deployed elsewhere in circumstances which would attract absolute privilege. In particular, he relies on the fact that the document was deployed in proceedings in the Australian Human Rights Commission. Separately, and with some ingenuity, he relies on the fact that it was pleaded by him in his original defence. The submission misconceives the defence. Even if either of those occasions was one of absolute privilege, it would not follow that the repetition of the contents of the document on Mr Dowling's website enjoyed the same protection (as I endeavoured to explain to Mr Dowling at T29-30). 1. In substance, the defendant's contention is that the document published on his website had been deployed elsewhere in circumstance that attract absolute privilege such that the document enjoyed the "same protection". 2. The difficulty with that defence, so formulated, was, as her Honour observed, a defence of absolute privilege does not arise by reporting something which is the subject of absolute privilege. In any event, the reporting of that which was said under absolute privilege may at its highest attract a qualified privilege. 3. The amended defence relied upon by the defendant did not actually plead qualified privilege but the Court received, without objection, submissions from him in that respect. 4. As to qualified privilege, McCallum J stated in Doe v Dowling (at [36]-[39]): [36] As to s 30(1)(a), Mr Dowling said "I have email followers on my web site. They subscribe to my web site. They want the information that I write about." As to s 30(1)(b), he said "that's why I publish it, I'm giving the people information on my web site" (T45). The fact that Mr Dowling publishes information to people on subjects they want to read about could not satisfy those elements of the defence. It is well established that having an "interest" in having information means more than merely being interested in the information. The interest must be founded in some legitimate concern, not mere prurience. [37] As to s 30(1)(c), if I have understood the submission, Mr Dowling's position is that he is "covered" (presumably by s 30) because "it's been raised in the Australian Human Rights Commission" (a reference to Ms Harrison's claim). Mr Dowling said: "I believe I have the right to publish it. Whether I'm right or wrong is neither here nor there in relation to (c), I believe. Was my conduct reasonable in the circumstances? Yes." [38] A difficulty with that submission is that, as Mr Dowling frankly acknowledges (in the exchange set out above), he has no direct or reliable information as to the truth or otherwise of the rumours repeated in his articles and did not speak to any of the plaintiffs prior to publication to obtain their version of events. That is fatal to the defence: cf Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364C. [39] For those reasons, I am not persuaded that there is any real prospect of a viable defence of qualified privilege. 1. There was no change in the circumstances described in those paragraphs identified in the submissions by the defendant in these proceedings. I respectfully concur with the substance of her Honour's remarks. Some further observations in relation to interrogatories and discovery will be made below. 2. As to the defence of truth, or what the defendant described as "contextual truth", this brings to consideration the discussion at [27], [29], [31]-[33] of Doe v Dowling, which I extract below: [27] I am satisfied that there is little prospect that the defendant will be in a position to prove the truth of the imputations at trial. The solicitor for the plaintiffs swore an affidavit on information and belief that the imputations are untrue. The prospect of proving otherwise arises from Mr Dowling's reliance upon a statement by Ms Harrison in which she repeated rumours as to the truth or falsity of which she evidently had no personal knowledge. … [29] It is clear from that exchange that this is a case falling squarely within the scope of the remarks of Ormiston J in the decision referred to above. In the circumstances of this case, it is not sufficient for Mr Dowling to assert that he proposes to plead truth and to seek to prove the truth of the allegations at trial. He has no rational basis for thinking that will be achievable. His information is unsubstantiated rumour from unknown sources. … [31] Other exchanges with Mr Dowling confirmed my impression that, although he is clearly intelligent and passionate about freedom of speech, he is prone to drawing extravagant conclusions on the strength of scant evidence, applying little intellectual discipline or forensic rigour. For example, in respect of the resignation of a director of Seven West following a "so called independent investigation" into the Amber Harrison dispute, he said: …she resigned because she thought it was a dodgy. Well, she hasn't said, but I assume, and everyone's surmising, that she thought it was a dodgy investigation, it was just a cover-up. [32] On the strength of the bare fact that a director resigned after an investigation, Mr Dowling was prepared to attribute her with the opinion that the investigation was dodgy and was "just a cover-up". Yet when the plaintiffs invited the Court to draw inferences, he was quick to accuse them of speculating (T80.9). It is fair to observe that there was a measure of speculation in the relevant submission by the plaintiffs (considered below). My point here is to note the mercurial quality of Mr Dowling's rhetoric. His preparedness to adopt an intellectually rigorous approach varies according to his immediate objective. [33] On the evidence before me, I am not persuaded that Mr Dowling has any proper basis for asserting that the imputations concerning the third and fourth plaintiffs are substantially true. The matter complained of does no more than to repeat rumours. As noted by Mr Smark in his submissions, it is no defence for a defendant to a defamation action to say he was merely repeating a rumour. A defence of justification in respect of the repetition of a rumour requires proof of its truth. 1. In these proceedings, the defendant continued his complaint about evidence being put on in the form of a solicitor's affidavit and further submitted that the plaintiffs case was weak because they had not, themselves, gone into evidence. As the counsel for the plaintiffs properly contended this misconceived the nature of proceedings and where the onus of proof lies. 2. I make no general observations about the use of affidavits put on by solicitors on the information and belief basis. It is sufficient to note that the onus fell upon the defendant to articulate the defence of truth. There is no further evidence put on in the proceedings or identified as being available to him in that respect (or, if available, the content of any such evidence). The defendant's submission that a lot of people "look at my website, all people opt in" and "they're all interested in what I write and have a genuine interest in what I say" does not overcome these obstacles. The position as identified by McCallum J at [33] of her judgment has not changed. 3. In relation to the defence of triviality (and also in relation to the question of qualified privilege) the defendant submitted that, with the "me too" movement there was a strong argument in favour of finding qualified privilege because it is a "political issue" and there has been the lobbying of governments to change laws so there is no "sexual harassment". It was necessary, therefore, to have discussion about such things. 4. I have earlier remarked on the question of qualified privilege but it appropriate to deal with those submissions in the context of triviality, having regard to McCallum J's decision at [40]-[41], which was in the following terms: [40] As to the prospect of a defence of triviality, Mr Dowling said: "these type of rumours fly around in the entertainment industry all the time". He sought to establish that worse things have been said about the plaintiffs. That may be so, but it hardly establishes a viable defence. The defence of triviality under s 33 of the Defamation Act focusses on whether "the circumstances of publication were such that the plaintiff was unlikely to sustain any harm". To establish that the plaintiff had suffered more serious harm by other conduct would not establish that he or she was unlikely to sustain any harm by reason of the publication of the matter complained of. [41] I do not share Mr Dowling's view as to the triviality of the imputations. Ironically, one of Mr Dowling's criticisms of Channel Seven management is their poor treatment of Ms Harrison, yet Mr Dowling's treatment of the plaintiffs scarcely shows any more tender concern. I am not persuaded that there would be a viable defence under s 33 of the Defamation Act. 1. The observations by McCallum J at [41] are apposite in the context of the submission made by the defendant as to the "me too" movement. The logic of the submission appears to be that the "me too" movement converted the subject matter of the defamatory document into a matter of governmental or political content thereby attracting the defence of qualified privilege at common law. However, that defence is conditioned on the requirement of reasonableness. It is difficult to conceive how a campaign which is designed to vindicate and protect those who have been victims of sexual harassment might be advanced by the publication of arguably defamatory comments about the treatment of four women employed or formerly employed by the Seven Network. It is difficult to delineate between the alleged (and unproven) treatment of the women by the management of the Seven Network from the treatment afforded them by the publication of the material in question. 2. The defence provides no particulars at all in relation to the defence of honest opinion. 3. The defendant did contend that it was his honest opinion because it was highly likely that the imputations were true. However, that does not establish in and of itself the defence of honest opinion. As McCallum J observed (and no further submissions were made by the defendant about the matter) he does not hold the opinion expressed in the imputations. In that sense, whether the opinion is true or not is irrelevant. 4. As mentioned above, there was no further evidence produced by the defendant over that which was discussed in McCallum J's judgment. Nor are there any submissions advanced, of substance, which provided for any differentiation or advancement over that which was previously put by the defendant as to what might support a determination in favour of re-pleading. The amended defence suffers the deficits which I have described above. 5. In substance, the defendant sought to overcome those deficiencies by the issuing of interrogatories and discovery. The subject matter of the interrogatories and the discovery sought are set out in paras 11-12 of the amended defence. I do not repeat them. The fundamental difficulty with the procedure contended for by the defendant is that it sits contrary to the procedure prescribed for the defamation list which has the practical effect of having pleadings close before orders for evidence and, particularly in the present circumstances, orders for interrogatories or discovery are made (Supreme Court of New South Wales, Practice Note SC CL 4 – Defamation List, 5 September 2014). Further, as submitted by the plaintiffs, the procedure advanced by the defendant merely exposes the absence of a viable defence or material upon which such a defence may be formulated or advanced. 1. It is unnecessary, in the light of those findings, to rule upon the second limb of the notice of motion, namely, the defence has a tendency to cause prejudice, embarrassment or delay; although I note there is some substance to the plaintiffs' submissions in that respect. Conclusion 1. In the circumstances, the Court considers that the first prayer for relief in the notice of motion should be granted and that the defendant not be permitted to re-plead. Costs should be reserved. Direction 1. The plaintiffs are directed to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. ********** 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: 17 August 2018