In this case Mr Clive Palmer sought to appeal the strike-out of two paragraphs in his statement of claim for defamation against Malcolm Turnbull MP. Notably, the Court of Appeal held that the primary judge had erred in finding that Mr Palmer was required to plead the applicable Chinese law. The court held that Mr Palmer was entitled to rely on the presumption that foreign law is the same as local law. The court also considered, but rejected, an argument that there was error by the primary judge in requiring an imputation of fraud to be pleaded with more precision.
Fraser and Gotterson JJA and Brown J
5 June 2018
At a press conference held in Beijing on 15 April 2016, the Hon. Malcolm Turnbull commented on the liquidation of Queensland Nickel and said that: “Mr Palmer’s role in this is disgraceful. As you know, he’s been taking money out of that company for his own purposes and that has played a major part in the dire state the business is in”. –.
Mr Palmer now sues for defamation in respect of the publication of those comments. In an interlocutory decision, the primary judge (Douglas J) struck out two paragraphs of his statement of claim: para 3 on the basis that it failed to comply with r 149(1)(b) of the Uniform Civil Procedure Rules 1999 “in failing to plead a material fact on which the plaintiff relies, namely, a foreign law”; and paragraph 7(a) on the basis that the pleaded defamatory imputation of the plaintiff having “acted fraudulently” was “so imprecise a to justify being struck out”. –.
Mr Palmer applied for leave to appeal, alleging error by the primary judge in striking out both of those paragraphs. Leave was required because the appeal was filed out of time. .
Whether the applicant was obliged to plead Chinese law
It was not in contention that the applicable law was that of China. , . However, Mr Palmer contended that the primary judge erred in concluding that he was required to plead the foreign law, as he did not seek to rely on it. Instead, he sought to rely on the presumption that foreign law is the same as local law. , .
The disagreement between the parties turned largely on the correct understanding of obiter from the High Court in Regie Nationale des Usines Renault SA v Zhang (2002) 2010 CLR 491. . Brown J (with whom Fraser and Gotterson JJA agreed) considered what was said in that case to be “highly persuasive”. .
Her Honour also quoted from Dyno Wesfarmers Ltd v Knuckey  NSWCA 375, where Mason P, summarising Zhang, said that “[i]If the plaintiff refrains from pleading the foreign law … then he or she will be taken to have invoked the principle that foreign law is presumed to be the same as local law”. . Brown J considered that analysis to be correct and applicable to the current case. . If the respondent wished to claim that the action was not maintainable due to some difference in Chinese law, or to assert a defence under Chinese law, then that was something he could allege in his defence. .
Mr Palmer was not required to plead Chinese law in the circumstances. It followed that the primary judge had erred in striking out para 3. That order was set aside. .
Whether the pleaded imputation of fraud was too imprecise
Mr Palmer contended that the primary judge also erred in requiring him to plead anything further about the imputation of fraud. He argued that a further distillation was not able to be provided because the published comments did not identify the manner in which he had allegedly acted fraudulently in taking money from Queensland Nickel. , . The respondent contended that the primary judge was correct to strike out the imputation, emphasising that “the vice in the use of the word ‘fraudulently’ is that it potentially involves a range of conduct”. .
Justice Brown noted that the “degree of precision required in respect of the pleading of an imputation is a matter of judgment and will vary according to the circumstances of the case”. . In the circumstances of this case, her Honour concluded that there had been no error in striking out the imputation (with leave to re-plead). Her Honour noted that “‘fraudulent’ can carry a number of meanings and taking money out of Queensland Nickel is not of itself necessarily fraudulent and could be fraudulent on a number of different bases”. . As a result, the phrase could be “productive of confusion” and so should be further clarified by Mr Palmer. .
In the result, leave to appeal was granted and the appeal allowed in part (concerning the pleading of Chinese law issue). .