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Lin v Fairfax Digital Australia & New Zealand Pty Ltd[2021] QDC 179

Lin v Fairfax Digital Australia & New Zealand Pty Ltd[2021] QDC 179

DISTRICT COURT OF QUEENSLAND

CITATION:

Lin v Fairfax Digital Australia & New Zealand Pty Ltd [2021] QDC 179

PARTIES:

JOHNSON LIN

(Plaintiff/Respondent)

v

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD ACN 087887456

(Defendant/Applicant)

FILE NO:

4124 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2021

JUDGE:

Farr SC DCJ

ORDER:

  1. The application is granted to the following extent:
    1. (a)
      Paragraph 1(b) of the Further Amended Statement of Claim is struck out
    2. (b)
      Imputations 4(c), (d) and (e) are struck out
  2. The balance of the application is dismissed
  3. The plaintiff is granted liberty to re-plead paragraph 1(a) and imputations 4(c), (d) and (e) within 14 days of this decision
  4. I will hear submissions as to costs

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff/respondent has been dilatory in the prosecution of the matter but has not failed to take an act or to comply with a step required under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) or an order of the court – whether the discretion to dismiss the proceedings for want of prosecution under UCPR r 280 is enlivened

PLEADINGS – STRIKING OUT – GENERALLY – whether the imputations subject to the strike out application differ in substance – whether the imputations subject to the strike out application distil any defamatory act or condition on the part of the plaintiff

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, considered

Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273, applied

Farquhar v Bottom [1980] 2 NSWLR 380, applied

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52, applied

Greek Herald Pty Ltd v Nikolopoulas (2001) 54 NSWLR 165; [2002] NSWCA 41, distinguished

Gross v Weston & Anor (2007) 69 NSWLR 279; [2007] NSWCA 1, considered

Grubb v Bristol United Press Ltd [1963] 1 QB 309, considered

Harrigan v Jones [2000] NSWSC 814, considered

Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, applied

Lewis v Daily Telegraph Limited [1964] AC 234, considered

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50, considered

NHB Enterprises Pty Ltd v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163, considered

Palmer v Turnbull [2019] 1 Qd R 286; [2018] QCA 112, applied

Queensland Newspapers v Palmer [2012] 2 Qd R 139; [2011] QCA 286, followed

Sims v Wran [1984] 1 NSWLR 317, distinguished

Triggell v Pheeney (1951) 82 CLR 497, considered

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, considered

COUNSEL:

J Blundell for the applicant

N H Ferrett for the respondent

SOLICITORS:

Banki Haddock Fiora, solicitors for the applicant

Chris Toogood Legal, solicitors for the respondent

  1. [1]
    The defendant in these proceedings (the applicant on the present application), seeks the following orders:
    1. 1.1
      Pursuant to Rule 280 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), the proceedings be dismissed for want of prosecution and the plaintiff pay the defendant’s costs of the within proceeding and the within application:
    2. 1.2
      In the alternative to Order 1 above, pursuant to Rule 171 UCPR, the following paragraphs of the Further Amended Statement of Claim (“FASOC”) be struck out:
    1. (a)
      Imputations 4(a) – (e); and
    2. (b)
      Paragraphs 1(a), 1(b), 9, 9B and 9C
    1. 1.3
      Such further and other order as the court deems fit.
  1. [2]
    The plaintiff (the respondent on this application) opposes the orders sought other than the order to strike out Paragraph 1(b) of the FASOC.

Nature of Claim

  1. [3]
    This is a claim for general and aggravated damages arising from statements made by the defendant in an online newspaper article on 30 July 2017 which are alleged by the plaintiff to be defamatory.
  2. [4]
    That publication was focussed on allegations of inappropriate activity by the former Mayor of Ipswich, Paul Pisasale (“Pisasale”) which included:
    1. (a)
      his attendances at both licensed and unlicensed brothels whilst he was Mayor;
    2. (b)
      his inappropriate use of an official car and driver to attend such venues; and
    3. (c)
      the conduct of business meetings at such venues with property developers.
  3. [5]
    In that context the publication initially stated that the plaintiff had met with Pisasale at a licensed brothel on the Gold Coast in 2015. 
  4. [6]
    The plaintiff was identified in the publication as “… developer Johnson Lin”.  Further into the publication it said of him:

“Mr Lin’s family company Cherish Enterprises owns 250 hectares of land in Springfield in the Ipswich Council District where it hopes to build up to 1,800 homes, according to Mr Lin.”[1]

  1. [7]
    The publication then goes on to state that Pisasale’s driver had said that in late 2015 he had driven Pisasale to the Gold Coast so as to enable Pisasale to play golf with the plaintiff.  The driver, Mr Potts, then later joined them for dinner at a restaurant at Southport.  After that, on Pisasale’s instructions, when they left the restaurant Mr Potts followed the car being driven by the plaintiff to a licensed brothel at Molendinar.  The plaintiff then drove away without entering the brothel and Pisasale went in alone while Mr Potts waited in the mayoral car.
  2. [8]
    Earlier in the article though, the following passage appears:

“Mr Potts was able to point out to Fairfax Media, parlours in Woolloongabba in Brisbane, Redbank near Ipswich, Tallebudgera on the Gold Coast and at Tweed Heads just across the NSW border where he had taken Mr Pisasale on one or more occasions, as well as a licensed brothel at Molendinar on the Gold Coast where he said he had taken the Mayor to meet developer, Johnson Lin in 2015.”

  1. [9]
    In his FASOC the plaintiff alleges that by their natural and ordinary meaning, the words of the article meant and were understood to mean that he:[2]
  1. “(a)
    engaged in the immoral practice of arranging business or political meetings at a licensed brothel;
  1. (b)
    engaged in the immoral practice of conducting business or political meetings at a licensed brothel;
  1. (c)
    plied Councillor Paul Pisasale with prostitution services for the purpose of persuading Pisasale to bestow an advantage on the plaintiff;
  1. (d)
    plied Pisasale with prostitution services for the purpose of persuading Pisasale to bestow an advantage on the plaintiff’s family company, Cherish Enterprises Pty Ltd;
  1. (e)
    plied Pisasale with prostitution services for the purpose of persuading Pisasale to facilitate the granting of permission by the Ipswich City Council to Cherish Enterprises to build 1,800 homes on land owned by the company at Springfield.”
  1. [10]
    In the FASOC the plaintiff admits to having had dinner with Pisasale at a restaurant on the Gold Coast, after which Pisasale asked him for directions to a brothel at Molendinar.  The plaintiff then drove to that brothel with Pisasale following but the plaintiff did not enter it.  The plaintiff also denies visiting that brothel on any other occasion.  Paragraph 7 of the FASOC states:

“The plaintiff:

  1. (a)
    did not, on the occasion in question, enter the brothel;
  2. (b)
    has not visited the brothel on any other occasion or attended it or any other such establishment either on his own or in company with anyone, including Pisasale; and
  3. (c)
    has never sought to obtain any advantage from Pisasale by provision of prostitution services;
  4. (d)
    has never sought to provide, or in fact provided, prostitution services to Pisasale;
  5. (e)
    has never used prostitution services.”
  1. [11]
    Finally, under the heading “Loss and Damage”, the FASOC states in paragraphs 9, 9A, 9B and 9C the following:
  1. “9.
    The defendant has not, at any time material to the proceeding, held any reason to believe that any of the defamatory imputations was true.
  1. 9A.
    Each defamatory imputation was one plainly conveyed by the article.
  1. 9B.
    At all times material, the defendant either knew, or being an experienced publisher, should have known of the truth of the matters pleaded at paragraphs 9 and 9A above.
  1. 9C.
    In the premises set out at paragraphs 9 – 9B above, the defendant in publishing the defamatory meanings, acted without regard to whether or not they were true.”

Dismissal for want of prosecution

  1. [12]
    The defendant seeks an order dismissing the complaint for want of prosecution pursuant to UCPR r 280.
  2. [13]
    That rule relevantly provides as follows:

“(1) If —

  1. (a)
    the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
  2. (b)
    the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

(2) The court may dismiss the proceeding or make another order it considers appropriate.”

  1. [14]
    The defendant has also referred the court to a UCPR r 444 letter it wrote to the plaintiff on 4 December 2020.  However, such a letter is only required if the application is to be an application under UCPR Chapter 10, Parts 1 or 2 or an application relating to a failure to comply with an order or direction of the court.[3]
  2. [15]
    This application is not brought under Chapter 10, Parts 1 or 2, nor is it alleged that the plaintiff has failed to comply with an order or direction of the court. 
  3. [16]
    Therefore, the UCPR r 444 letter is of little relevance other than for forming part of the chronology and, contrary to the defendant’s submissions, UCPR r 371 has no application.
  4. [17]
    The defendant submitted that the factors that the court must take into account when determining an application to dismiss proceedings for want of prosecution were summarised in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2].  The defendant then related each of those factors to the circumstances in this matter in support of the application.
  5. [18]
    However, before consideration of such factors becomes necessary, pursuant to UCPR r 280 the defendant must first identify whether any of the following have occurred:
    1. (a)
      a step required by the rules was not taken within the required time; or
    2. (b)
      an order of the court was not taken within the required time; or
    3. (c)
      an act was not taken within the time required for doing the act.
  6. [19]
    In other words, before the discretion to dismiss for want of prosecution can be exercised, the discretion to do so must first be enlivened.
  7. [20]
    In this matter, the defendant has not identified any failure on the part of the plaintiff to take an act or to comply with a step required under the rules or with an order of the court.  That is not to say that the plaintiff has not been dilatory in his prosecution of this matter.  He quite obviously has been, but he has not breached UCPR r 280(1)(a) or (b). 
  8. [21]
    It follows that I do not need to assess each of the considerations as identified in Tyler v Custom Credit Corp Ltd & Ors because the discretion to dismiss pursuant to UCPR r 280 has not been enlivened.
  9. [22]
    Given that is the basis upon which the application is brought, the application to dismiss the proceeding is therefore dismissed. 

Application to strike out paragraphs 4(a)-(e)

  1. [23]
    I will hereinafter refer to paragraphs 4(a)-(e) as imputations 4(a)-(e). 
  2. [24]
    Imputations 4(a) and (b) are attacked on two bases:
    1. (a)
      that they do not differ in substance; and
    2. (b)
      that, in each case, the pleading fails to distil any defamatory act or condition on the part of the plaintiff.
  3. [25]
    In relation to the first ground, whilst the plaintiff accepts that authority does exist against pleading substantially similar imputations,[4] he submits that such a problem does not arise here.  I agree.
  4. [26]
    There is a significant and relevant difference between arranging a meeting and conducting a meeting; that being that the latter involves actual participation in a meeting.  When it is alleged that such a meeting is conducted in a brothel (as alleged by this suggested imputation), that distinction becomes even more significant.  In my view, this is a distinction of substance and the pleadings do not offend against the authorities and are not inconsistent with UCPR r 149(1)(a) which requires the pleadings to be as brief as the nature of the case permits. 
  5. [27]
    The defendant has also submitted that imputations 4(a) and 4(b) both fail to distil any defamatory act or condition on the part of the plaintiff.  It is submitted that “the inclusion of the words ‘immoral practice’ does not necessarily render the act of meeting (or arranging to meet) at a brothel defamatory”,[5] and that the imputations should be struck out as lacking a defamatory sting.[6]
  6. [28]
    The plaintiff has noted that the defendant’s submission hinges on the proposition that the words ‘immoral practice” do not necessarily add anything to the allegation that a meeting at a brothel is defamatory.[7]  In the plaintiff’s submission, the imputations in 4(a) and 4(b) identify that arranging meetings or participating in meetings at a brothel (even if it is a licensed brothel), is immoral.  The plaintiff submits that the defamatory sting is obvious: that the plaintiff engaged in conduct that was immoral.
  7. [29]
    In Greek Herald Pty Ltd v Nikolopoulas, the court considered the efficacy of the following pleaded imputation:

“The plaintiffs lied to members of the Canterbury/Marrickville Olympic Soccer Football Club.”

  1. [30]
    The defendant had argued that “merely to be accused of lying was not defamatory, without specification of what the lie was about, why it was told, or its effect”.[8]  The debate in the appeal was whether the jury should have been directed not to look at the article containing the imputation in considering whether the imputation was conveyed.  At para [24], Mason P said:

“This pleading may well have been ambiguous and embarrassing, if so it should have been objected to on that basis.  Had the objection been taken and upheld, the plaintiffs would have been forced to greater specificity, with possible consequences as regards the defences open to the defendants and the jury’s determination on the matters reserved for them.  But these points were not taken at trial and they are not issues before this court.”

  1. [31]
    To better understand how his Honour would have regarded the pleading of the imputation as having been improved, it is useful then to refer to para [29] of his Honour’s reasons:

“In the present case it would have been better if the content of the lie imputed to the plaintiffs was spelt out.  For one thing, this would have placed in proper focus the defendant’s argument to the jury that some types of lying may be morally justifiable, with the possible consequence that the instant accusation was not defamatory.  There are lies and lies, just as every accusation of theft is not defamatory (cf Broome v Agar (1928) 138 LT 698 at 702).  Nevertheless, it remains generally true that accusations of lying or theft are defamatory.  The upshot is that judge and jury are entitled to a true joinder of issue in pleadings if a naturally defamatory meaning is in genuine dispute (cf Supreme Court Act 1970, s 63).”

  1. [32]
    So, his Honour’s view was that, although he did not consider that the imputation was so badly pleaded that it should have been struck out, the criticism to be levelled at the imputation was that it did not go into why the particular lie was not morally justifiable. 
  2. [33]
    In this case, the imputations in question identify that the plaintiff arranged for business meetings to be conducted in a brothel and/or participated in business meetings conducted in a brothel.
  3. [34]
    The plaintiff has submitted that it is difficult to think that the defendant needs further guidance as to why such a practice is immoral.  This is a vastly different proposition to that in Greek Herald Pty Ltd v Nikolopoulas and I agree with the plaintiff’s submission.  I do not accept the defendant’s submission that imputations 4(a) and 4(b) do not disclose a reasonable cause of action and would lead to confusion in relation to the meaning for which the plaintiff contends.  Nor do I accept that they would tend to prejudice or delay the fair trial of the proceeding.[9]
  4. [35]
    I am therefore of the view that there is no merit to this attack on imputations 4(a) and 4(b).
  5. [36]
    The defendant has also submitted that the imputations contained in paragraphs 4(a) and 4(b) are incapable of being conveyed by the matter complained of.  In support of that submission, the defendant firstly submits that there is no suggestion in the article complained of that the plaintiff attended the brothel in question – rather that he simply drove off without entering. 
  6. [37]
    This submission is premised on the basis that the article only speaks of one occasion that the plaintiff and Pisasale attended at that brothel, that being the occasion after they played golf and had dinner together and when the plaintiff did not enter the brothel.
  7. [38]
    Yet, as I have already noted, this article is unclear as to whether it refers to one or two occasions that the plaintiff and Pisasale had contact with each other in the context of attending at or outside a brothel.  It is difficult to reconcile the two passages as referring to just the one event.  No stretch of the english language would allow for the interpretation whereby the plaintiff had spent the afternoon and evening playing golf and dining with Pisasale, after which Pisasale followed the plaintiff to the brothel, which the plaintiff did not enter, as being the same event that was described as Pisasale being taken to meet the plaintiff at the brothel in question.  It is readily apparent, that to the ordinary, reasonable reader, the article may well have been describing two separate events.  
  8. [39]
    Accordingly, the defendant’s submission on this point is rejected. 
  9. [40]
    It also follows that I am not of the view that the alleged imputations in paragraphs 4(a) and 4(b) require a ‘strained, forced or utterly unreasonable interpretation of the matter complained of.’[10]

Application to strike out imputations 4(c); 4(d) and 4(e)

  1. [41]
    The defendant has submitted that each of these imputations should be struck out because the article is incapable of imputing that the plaintiff ‘plied’ Pisasale with prostitution services. 
  1. [42]
    The defendant further submits that imputations 4(c) and 4(d) are also “bad in form” in that the term “bestow an advantage” is imprecise and ambiguous, in that it fails to identify the nature or extent of the “advantage” to be purportedly bestowed.
  2. [43]
    The plaintiff has submitted that the mere fact the plaintiff is not expressly alleged to have plied Pisasale with prostitution services for the identified purpose in the article, does not prevent the implication arising. The plaintiff submits that in that regard, the Court must put itself in the place of the ordinary reader and take into account the consideration that the ordinary reasonable reader’s capacity for implication is far greater than that of a lawyer[11] and that such a reader looks to the broad impression conveyed by the words, not the meaning of each word under analysis.[12]
  3. [44]
    To determine this matter, the definition of the word “plied” needs to be understood. The Collins English Dictionary relevantly defines it to mean “to provide with repeatedly or persistently”. The Oxford English Dictionary relevantly defines it as “offer something to a person frequently or persistently; to supply persistently”. 
  4. [45]
    Even when adopting the approach as identified in Farquhar v Bottom, I am nevertheless unable to conclude that the article imputes that the plaintiff “plied” Pisasale with prostitution services. To draw such an imputation requires a forced, strained or utterly unreasonable interpretation. The article does not allow the interpretation that the plaintiff provided any prostitution services to Pisasale, let alone did so repeatedly or persistently. As I have already said, the article is written in such a way that may cause an ordinary reasonable reader to infer that the plaintiff met with Pisasale at a brothel once and on another occasion, directed Pisasale to that brothel without entering it himself.  In relation to the latter, it is impossible to impute that the plaintiff provided that prostitution service to Pisasale. In fact, the overwhelming inference is that Pisasale merely asked for directions as to how to get to the brothel from the restaurant, and the plaintiff obliged by allowing Pisasale to follow him.
  5. [46]
    So, even if an ordinary, reasonable reader inferred that the article spoke of two separate events, the imputation that the plaintiff “plied” Pisasale with prostitution services could only be drawn by adopting a spectacularly imaginative and utterly unreasonable interpretation.
  6. [47]
    Notwithstanding that conclusion, I should nevertheless also assess the second argument advanced by the defendant as to why imputations 4(c) and 4(d) should be struck out.
  7. [48]
    The defendant submits that the term “bestows an advantage” fails to identify the nature and extent of the advantage to be purportedly bestowed and, due to its imprecision and ambiguity, would unfairly prejudice the defendant, by failing to identify the case that the defendant must meet at trial. 
  8. [49]
    The plaintiff submits that the article is imprecise as to the nature and extent of the imputed advantage, and that therefore the pleading cannot be more particular or precise. The plaintiff further submits that to conclude otherwise would mean that unless the article itself was precise (whether expressly or impliedly) as to the sort of advantage that might have been bestowed, it cannot be regarded as defamatory.
  9. [50]
    The degree of precision required in respect of a pleading of an imputation is a matter of judgment and will vary according to the circumstances of the case.[13]
  10. [51]
    In Drummoyne Municipal Council v Australian Broadcasting Corporation,[14] Gleeson CJ stated:

“In any case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology …”

  1. [52]
    The New South Wales Court of Appeal in Fairfax Media Publications Pty Ltd v Alex[15] stated:

“The issue which has to be decided in the particular case as to whether there is ambiguity in an imputation is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 (at 155) per Hunt J. Gleeson CJ agreed with Hunt J's formulation of the question in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (at 138); see also Priestley JA (at 155) where his Honour expressed the issue as depending "on the long-established (and probably always self-evident) rule that a pleading must be sufficiently clear to the opposing party to enable that party to plead substantially in answer to it (if the party can) and to prepare for a trial in which the case proved by the evidence will not come as a surprise”.

  1. [53]
    Of course, the real issue is how the ordinary reasonable reader would interpret what the defendant said.[16] The plaintiff alleges that the words used would cause the ordinary reasonable reader to impute that the plaintiff provided prostitution services to Pisasale in an attempt to persuade him to bestow an advantage on either the plaintiff personally or on his family company. The plaintiff does not allege however that an ordinary reader would have been able to reasonably impute an identifiable advantage. In other words, the plaintiff does not allege that the words used would reasonably allow for such precision in the mind of the reader.
  2. [54]
    When looked at in that context, I am not of the view that the term “bestow an advantage” is imprecise or ambiguous such that the defendant would be unfairly prejudiced or be caught by surprise at trial.

Application to strike out paragraphs 9, 9B and 9C

  1. [55]
    The defendant submits that:
    1. (a)
      paragraph 9 is “devoid of any detail of the facts, matters and circumstances upon which it is to be proven that the defendant had no reason to believe that the imputations contended for were true;
    2. (b)
      the plaintiff’s assertion that the defendant knew that the matter set out in paragraphs 9 and 9A were true, based solely on the status of the defendant as an “experienced publisher”, does not amount to adequate particularisation and contravenes UCPR r 157; and
    3. (c)
      the allegation in paragraph 9B that the defendant should have known that each of the imputations was “plainly” conveyed by the article and that the defendant did not hold any reason to believe the truth of such imputations, has been inadequately particularised, contrary to UCPR rr 150(1)(k) and (2) and 157.
  1. [56]
    It is submitted that the defendant is entitled to know the factual basis, including the specific words and acts of the defendant, on which the plaintiff relies to establish the defendant’s alleged state of mind.[17]  It is submitted that the plaintiff’s failure to specify such matters amounts to conduct that is improper, unjustifiable or lacking in bona fides and cannot therefore form the basis for an award of aggravated damages.[18]
  2. [57]
    The plaintiff submits that:
    1. (a)
      in relation to paragraph 9, he is not obliged to plead facts which amount to circumstantial evidence and that the only fact that needed to be pleaded was that the defendant did not have any reason to believe that any of the alleged imputations were true;
    2. (b)
      in relation to paragraph 9B, if it is accepted that the defamatory imputations were plainly conveyed by the article, then the defendant’s status as an experienced publisher surely placed it in a position to judge whether that is so; and
    3. (c)
      in relation to paragraph 9C, the allegations in paragraphs 9-9C make the point that:
      1. the defendant lacked any reason to believe the imputations;
      2. the defendant must have known that the imputations would be conveyed; and
      3. for that reason, it may be inferred that the defendant published the article without regard to whether they were true or not.

Consideration

  1. [58]
    Whilst I intend to order that imputations 4(c), (d) and (e) should be struck out because of the use of the word “plied” for reasons I have already given, I am nevertheless of the view that I should also order that the plaintiff have liberty to re-plead in relation to them.  Whilst it is a matter for the plaintiff, I envisage that the re-pleading of those imputations would simply follow the lead of the wording in imputations 4(a) and 4(b) i.e.: the words “plied … with” would be replaced by “engaged … in”.  I will therefore consider the application to strike out paragraphs 9, 9B and 9C in that context, in an attempt to avoid the potential for a further application of this nature.
  2. [59]
    Relevant to paragraph 9, I note that Hunt J made the following observation in Sims v Wran:[19]

“The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet … the object of particulars is to save expense in preparing to meet a case which may never be put … and to make the party’s case plain so that each side may know what are the issues of fact to be investigated at the hearing … It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet …”

  1. [60]
    In this case, the fact alleged is that the defendant did not have any reason to believe that any of the imputations were true.  The defendant submits that that is an allegation of a conclusion not a fact.  I disagree.  I note that in the FASOC at paragraph 5, it is alleged that each of the imputations were untrue.  In my view, that provides a proper basis for pleading the allegation in paragraph 9.  It must be remembered that paragraph 9 alleges a negative i.e.: an absence of any reason.  Therefore, the defendant’s complaint that paragraph 9 is devoid of any actual detail is without merit.  One cannot have factual detail when the allegation is that there is an absence of factual detail, i.e.: that the defendant had no basis for believing that the imputations were true.
  2. [61]
    I turn now to the defendant’s complaint that paragraph 9B offends UCPR rr 157 and 150(1)(k) and (2).  Rule 157 states:

“A party must include in a pleading particulars necessary to—

  1. (a)
    define the issues for, and prevent surprise at, the trial; and
  1. (b)
    enable the opposite party to plead; and
  1. (c)
    support a matter specifically pleaded under rule 150.”
  1. [62]
    Rule 150(1)(k) states:

“(1) Without limiting rule 149, the following matters must be specifically pleaded –

…

(k) motive, intention or other condition of mind, including knowledge or notice.”

  1. [63]
    Rule 150(2) states:

“Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.”

  1. [64]
    In Triggell v Pheeney,[20] Dixon, Williams, Webb and Kitto JJ made the following observation:

“It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper.  A bona fide defence raised properly or justifiable in the circumstances known to the defendant and evidenced honestly given in support of such a defence doubtless cannot be used for such a purpose.  But the decision of the majority in McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as for instance in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable.”

  1. [65]
    The allegations in paragraphs 9-9C make the points that:
    1. (a)
      the defendant lacked any reason to believe the imputations;
    2. (b)
      the defendant must have known that the imputations would be conveyed; and
    3. (c)
      for that reason, it may be inferred that the defendant published without regard to whether or not the imputations were true.
  2. [66]
    Therefore, the plaintiff has pleaded defined issues in such a way that the defendant could not be taken by surprise at the trial and with a clarity that enables the defendant to plead.  The plaintiff has also pleaded, pursuant to UCPR r 150(1)(k), the defendant’s alleged condition of mind, and pursuant to UCPR r 150(2), the fact that no facts or information existed to cause the defendant to believe that the purported imputations were true.
  3. [67]
    Of course, whether the purported imputations have been proved is a matter for determination at trial, provided I am of the view that such imputations are capable of being drawn by the ordinary, reasonable reader.[21]  I am of the view that such a potential does arise.
  4. [68]
    Finally, the defendant’s submissions relating to paragraph 9C are dependent on the success of its submissions relating to paragraphs 9 and 9B.  For the reasons given, the application to strike out those paragraphs (on the understanding that imputations 4 (c), (d) and (e) will be re-pleaded as I envisage) must fail.

Application to strike out paragraphs 1(a) and 1(b)

  1. [69]
    The plaintiff does not argue against an order striking out paragraph 1(b). 
  2. [70]
    In relation to paragraph 1(a), the plaintiff argues that whilst it should not be struck out, leave should nevertheless be granted allowing the plaintiff to re-plead it by replacing the words “is, and at all times material been” with “was at all material times”.  This would then accord factually with the statutory licence the plaintiff held as a real estate agent.
  3. [71]
    Given that this paragraph relates only to the plaintiff’s status as a licenced real estate agent, the plaintiff’s approach is reasonable and is not prejudicial to the defendant.

Leave to re-plead

  1. [72]
    As I have already noted, the plaintiff has been dilatory in his prosecution of this matter.  Notwithstanding that fact, I am nevertheless of the view that it is in the interests of justice to allow the plaintiff to re-plead imputations 4(c), (d) and (e).  This is because the basis for the order to strike out those imputations is technical in nature i.e.: the definition of the word “plied”.  Given the plaintiff’s tardiness in his prosecution of this matter however, it is appropriate that a strict compliance date should form part of the order.
  2. [73]
    Orders
  1. The application is granted to the following extent:
    1. (a)
      Paragraph 1(b) of the Further Amended Statement of Claim is struck out.
    2. (b)
      Paragraphs 4(c), (d) and (e) are struck out.
  2. The balance of the application is dismissed.
  3. The plaintiff is granted liberty to re-plead paragraphs 1(a) and 4(c), (d) and (e) within 14 days of this decision.
  4. I will hear submissions as to costs.

Footnotes

[1] See annexure to FASOC.

[2] Paras 4(a) – (e), FASOC.

[3] UCPR r 443.

[4] Lewis v Daily Telegraph Limited [1964] AC 234 at 261; Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 329, 330.

[5] Paragraph 26 of defendant’s outline of submissions.

[6] Greek Herald Pty Ltd v Nikolopoulas (2001) 54 NSWLR 165; [2002] NSWCA 41 at [28] (‘Greek Herald’); NHB Enterprises Pty Ltd v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163 at [27]-[31].

[7] I infer that the word “meeting” means “business meeting”.

[8] Greek Herald at [6].

[9] UCPR rr 171(1)(a) and (b).

[10] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 at [9].

[11] Farquhar v Bottom [1980] 2 NSWLR 380 at 385.

[12] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 304; [1982] HCA 50.

[13] Palmer v Turnbull [2019] 1 Qd R 286; [2018] QCA 112 at [36].

[14] (1990) 21 NSWLR 135 at 137.

[15] [2014] NSWCA 273 at [23].

[16] Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [129].

[17] Gross v Weston & Anor (2007) 69 NSWLR 279; [2007] NSWCA 1 and Harrigan v Jones [2000] NSWCA 814.

[18] Triggell v Pheeney (1951) 82 CLR 497.

[19] [1984] 1 NSWLR 317 at 321.

[20] (1951) 82 CLR 497.

[21] Queensland Newspapers v Palmer [2012] 2 Qd R 139; [2011] QCA 286 at [19 – [21].

Close

Editorial Notes

  • Published Case Name:

    Lin v Fairfax Digital Australia & New Zealand Pty Ltd

  • Shortened Case Name:

    Lin v Fairfax Digital Australia & New Zealand Pty Ltd

  • MNC:

    [2021] QDC 179

  • Court:

    QDC

  • Judge(s):

    Farr SC DCJ

  • Date:

    12 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Broome v Agar (1928) 138 LT 698
1 citation
Jump To
Cite 1 - (1928) 138 LT 698
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
3 citations
Jump To
Cite 1 - (1990) 21 NSWLR 135
Cite 2 - (1990) 21 NSWLR 135
Cite 3 - (1990) 21 NSWLR 135
Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273
2 citations
Jump To
Cite 1 - [2014] NSWCA 273
Cite 2 - [2014] NSWCA 273
Farquhar v Bottom [1980] 2 NSWLR 380
2 citations
Jump To
Cite 1 - [1980] 2 NSWLR 380
Cite 2 - [1980] 2 NSWLR 380
Favell & Anor v Queensland Newspapers Pty Ltd & Anor [2005] HCA 52
2 citations
Jump To
Cite 1 - [2005] HCA 52
Cite 2 - [2005] HCA 52
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
2 citations
Jump To
Cite 1 - (2005) 79 ALJR 1716
Cite 2 - (2005) 79 ALJR 1716
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41
2 citations
Jump To
Cite 1 - [2002] NSWCA 41
Cite 2 - [2002] NSWCA 41
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
2 citations
Jump To
Cite 1 - (2001) 54 NSWLR 165
Cite 2 - (2001) 54 NSWLR 165
Gross v Weston & Anor (2007) 69 NSWLR 279
2 citations
Jump To
Cite 1 - (2007) 69 NSWLR 279
Cite 2 - (2007) 69 NSWLR 279
Gross v Weston & Anor [2007] NSWCA 1
2 citations
Jump To
Cite 1 - [2007] NSWCA 1
Cite 2 - [2007] NSWCA 1
Grubb v Bristol United Press Ltd (1963) 1 QB 309
2 citations
Jump To
Cite 1 - (1963) 1 QB 309
Cite 2 - (1963) 1 QB 309
Harrigan v Jones [2000] NSWSC 814
1 citation
Jump To
Cite 1 - [2000] NSWSC 814
Harrigan v Jones [2000] NSWCA 814
1 citation
Jump To
Cite 1 - [2000] NSWCA 814
John Fairfax Publications Pty Ltd v Rivkin [2005] NSWCA 255
2 citations
Jump To
Cite 1 - [2005] NSWCA 255
Cite 2 - [2005] NSWCA 255
Lewis v Daily Telegraph Ltd (1964) AC 234
2 citations
Jump To
Cite 1 - (1964) AC 234
Cite 2 - (1964) AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
2 citations
Jump To
Cite 1 - (1982) 149 CLR 293
Cite 2 - (1982) 149 CLR 293
Mirror Newspapers Ltd v Harrison [1982] HCA 50
2 citations
Jump To
Cite 1 - [1982] HCA 50
Cite 2 - [1982] HCA 50
NHB Enterprises Pty Ltd v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163
2 citations
Jump To
Cite 1 - [2013] NSWSC 1163
Cite 2 - [2013] NSWSC 1163
Palmer v Turnbull[2019] 1 Qd R 286; [2018] QCA 112
4 citations
Jump To
Cite 1 - [2018] QCA 112
Cite 2 - [2018] QCA 112
Cite 3 - [2019] 1 Qd R 286
Cite 4 - [2019] 1 Qd R 286
Queensland Newspapers Pty Ltd v Palmer[2012] 2 Qd R 139; [2011] QCA 286
4 citations
Jump To
Cite 1 - [2011] QCA 286
Cite 2 - [2011] QCA 286
Cite 3 - [2012] 2 Qd R 139
Cite 4 - [2012] 2 Qd R 139
Sims v Wran (1984) 1 NSWLR 317
2 citations
Jump To
Cite 1 - (1984) 1 NSWLR 317
Cite 2 - (1984) 1 NSWLR 317
Triggell v Pheeney (1951) 82 CLR 497
3 citations
Jump To
Cite 1 - (1951) 82 CLR 497
Cite 2 - (1951) 82 CLR 497
Cite 3 - (1951) 82 CLR 497
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
1 citation
Jump To
Cite 1 - (1988) 12 NSWLR 148

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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