FEDERAL COURT OF AUSTRALIA

Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    The Respondents’ interlocutory application filed on 9 June 2017 is dismissed.

2.    The Applicant’s interlocutory application filed on 22 June 2017 is allowed.

3.    Paragraphs [13(a)] and [14] of the Amended Defence be struck out.

4.    The Respondents have leave to file and serve an Amended Defence by 26 July 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns pleading disputes in a defamation proceeding.

2    The applicant alleges that he was defamed by articles published in the print and website versions of the Sunday Telegraph on 26 March 2017. The first respondent is the publisher of each article and the second respondent their author.

3    The applicant is a solicitor. He appeared for a Mr Bell in courts in New South Wales on an application brought by the New South Wales Police for an interim apprehended violence order (AVO) concerning Mr Bell’s estranged wife, Ms Landry.

4    Paragraph [5] of the Statement of Claim alleges that the print article conveyed four defamatory imputations concerning the applicant. Paragraph [8] alleges that the website article conveyed the same four imputations, namely:

(a)    the Applicant used dishonest smear tactics to destroy women in cases they brought against his male clients;

(b)    the Applicant made knowingly false allegations in court cases against women so as to gain a tactical advantage for his male clients;

(c)    the Applicant, knowing the allegation was not true, alleged that Kelly Landry was a nut and had an alcohol problem;

(d)    the Applicant breached his duties as an advocate and officer of the court by making deliberately misleading submissions to the court.

5    There were minor differences between the two articles but these are immaterial for present purposes. It is convenient in what follows to refer to the articles as thought they were one article.

6    By their Amended Defence, the respondents deny that the article was reasonably capable of conveying, or had in fact conveyed, any of the pleaded imputations. They then plead a number of defences, being contextual truth (s 26 of the Defamation Act 2005 (NSW), honest opinion (s 31 of the Defamation Act), and the common law defence of fair comment on a matter of public interest.

7    By an interlocutory application filed on 9 June 2017, the respondents sought, in the first four paragraphs, an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (the FCR) for the separate determination of a number of questions in the proceedings. These included questions as to the capacity of the article to convey the alleged defamatory meanings, whether the pleaded imputations differ in substance, and whether the pleaded defamatory meanings are bad in form or ambiguous.

8    In the alternative, the respondents sought orders pursuant to r 16.21 of the FCR striking out paras [5] and [8] in the Statement of Claim containing the pleaded imputations.

9    By an interlocutory application filed on 22 June 2017, the applicant sought an order pursuant to r 16.21 striking out the whole of the plea of contextual truth contained in [13(a)] of the Amended Defence.

10    This judgment concerns both applications.

The relationship between rr 16.21 and 30.01

11    Rule 30.01 of the FCR provides:

30.01    Application for separate trials

(1)    A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.

(2)    The application must be made before a date is fixed for trial of the proceeding.

Note 1 The Court may order that a party state a case and the question for decision.

Note 2 The Court will give any directions that are necessary for the hearing of the separate question.

12    The difference between the procedure contemplated by r 16.21, on the one hand, and by r 30.01, on the other, is not just a matter of form or convenience. They are conceptually distinct procedures. The Court’s starting position is that, ordinarily, all issues of fact and law arising in a proceeding should be determined at the one time. Rule 30.01 allows for exceptions to that position when it is just and convenient to do so, but only by order of the Court. An application by a party for such an order requires its own separate consideration and the authorities identify a number of matters to be considered in relation to the appropriateness of the making of the order.

13    When the Court orders that a question be heard separately from other questions in the proceeding, the determination of that question is, subject to appeal and possibly other exceptional circumstances, the final determination of that issue in the proceedings. Hence, there are two stages when r 30.01 is invoked: the interlocutory decision on whether it is appropriate to determine the identified issue separately; and then (and usually later) the final determination of that question in a trial.

14    In contrast, an application under r 16.21 for striking out of a pleading and the order on the application, are undoubtedly interlocutory in nature. The decision on such applications involves the exercise of a discretionary judgment having regard to the criteria found in r 16.21 itself. Necessarily, this decision engages different principles than does a decision on a r 30.01 application.

15    In the present case, although the substantive part of the respondents’ interlocutory application sought orders pursuant to r 30.01, they did not provide any evidence to support the making of an order for some questions in the proceedings to be heard and determined separately from the remaining questions in the proceedings. Nor did the respondents’ outline of submissions provided in support of their interlocutory application address those matters.

16    Ultimately, and following some discussion with counsel about the difference between the two procedures, counsel for the respondents indicated that they pursued only the application for strike out pursuant to r 16.21.

Strike out applications – principles

17    Rule 16.21(1) of the FCR provides:

16.21    Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

18    Counsel for the respondents indicated that they relied upon subrr (1)(c) and (d). However, in relation to the contention that the article was not reasonably capable of conveying the pleaded defamatory meanings, counsel’s submissions seemed directed more to subr (1)(e), namely, that the applicant’s pleading failed to disclose a reasonable cause of action. In particular, counsel did not contend, in relation to the capacity submission, that the applicant’s pleaded imputations were likely to cause prejudice, embarrassment or delay in the sense that they were susceptible to various meanings, were inconsistent or confusingly intermixed: Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] ATPR 41-434, or that the pleaded imputations were embarrassing in the sense of being unintelligible, ambiguous, vague or too general: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 at [18].

19    Hence, I consider it appropriate to determine the respondents’ application based on the alleged lack of capacity of the article to convey the pleaded imputations by reference to r 16.21(1)(e).

20    The principles applicable to strike out applications pursuant to that sub-rule are well known. The discretionary power to strike out a pleading is exercised sparingly and only in clear cases. The Court is careful to ensure that it does not, by striking out a pleading, prevent a party from making a case which it is entitled to make: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175. The Court accedes to applications for the striking out of a pleading on the basis that it discloses no reasonable cause of action only in plain and obvious cases and when it is apparent that no reasonable amendments can cure the alleged defects: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97 at [43], and see the cases cited therein.

21    These principles are equally applicable in defamation proceedings, including those cases in which a respondent seeks a striking out on the basis that the pleaded imputations do not arise from the publication of which complaint is made. Thus, in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, the plurality at [6] approved the following statement of principle by McPherson JA:

[6]    Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:

“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.”

22    In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134], McColl JA (with whom Gleeson JA agreed) referred to this passage in Favell and continued:

[135]    Accordingly, the capacity determination is “an exercise in generosity not parsimony”; while it involves a “matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant”: Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is “what a jury could sensibly think [the words] meant” to the ordinary reasonable reader.

[136]    One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be ‘perverse’ for any jury to do so”: … .

[137]    Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised: … . The significance of the jury’s role warrants the application of a “high threshold of exclusion”: … .

(Citations omitted)

In the same case, at [2], Bathurst CJ referred to “the relatively low threshold at which the issue of capacity is to be decided”.

23    The underlying principles bearing on whether a publication is defamatory are well known and do not have to be repeated presently. It is sufficient to refer to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-7; Favell at [9]-[11]; and Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [16]-[19].

Capacity – the assertion of dishonesty in the imputations

24    The respondents’ first submission was that each of the pleaded imputations involves dishonesty on the part of the applicant and that the article could not reasonably be understood as conveying such a meaning.

25    Plainly, the pleaded imputations do involve allegations of dishonesty. Imputation (a) refers to “dishonest smear tactics” and imputations (b), (c) and (d) involve the form of dishonesty in the knowing making of a false allegation or in the knowing making of a misleading submission to a court. It may be that the dishonesty to which imputation (a) refers is of a different kind from that involved in imputations (b), (c) and (d) but neither counsel sought, for present purposes, to draw such a distinction. The argument proceeded on the basis that the respondents’ submissions concerning capacity either succeeded, or failed, in relation to all four pleaded imputations.

26    The articles must of course be read as a whole and both counsel addressed submissions to their entirety. It is not practical in a judgment of the present kind to set out the whole of the article so as to provide the background to the summary of the submissions which follows. I consider it is sufficient for present purposes to indicate that the article is in the nature of an opinion piece. Its principal headline is: “How lawyers use nutty labels to crack women”. The sub-headline is: “Cases involving high-profile men seem to repeat the tactic of bringing down their female accusers”.

27    There then followed seven paragraphs referring to cases in which males, typically males with high profiles are “pitched in a battle against a woman” and in which it is said that a particular approach is adopted by counsel for the male, namely:

Generally to strengthen the male’s argument the woman is portrayed in court as either a “nut” or a “slut”.

The applicant is not mentioned in any of these seven paragraphs but the article did at its centre include a large photograph of him.

28    After the first seven paragraphs, there followed eight paragraphs referring to the applicant in particular. I set these paragraphs out using the numbering in the copy of the article provided by the applicant’s counsel:

[11]    In recent weeks, Chris Murphy, the lawyer for “celebrity accountant” Anthony Bell has attempted to position Bell’s estranged wife Kelly Landry as a “nut” by suggesting to a court that Landry’s fears her estranged husband was stalking and spying on her – something that could only be possible, Murphy ventured, if Bell was a cross-dresser – were irrational, or so it was implied.

[12]    On scrapper Murphy’s watch, the insults didn’t end there.

[13]    In challenging an interim AVO put in place by police in January to protect mother of two Landry, Murphy also claimed in court that the former TV reporter had an “alcohol problem”.

…

[15]    His plan has been to discredit Landry and turn public sympathy against her.

[16]    He’s still trying. Murphy is no stranger to the “nut” argument.

[17]    He used it to great success in 2011 to defend actor Matthew Newton by arguing Newton was mentally unstable when he breached an AVO relating to his ex-fiancée Rachael Taylor, who had been violently attacked by Newton in Rome in 2008.

[18]    Murphy said Newton was a man with “a psychiatric illness” – not a problem with addiction.

[19]    Within a year Newton had common assault charges dismissed under the Mental Health Act after punching a taxi driver in the head and was charged with battery after attacking a US hotel receptionist (the charge was later dismissed on the condition that Newton perform community service). … .

29    There then followed 15 paragraphs concerning other cases or instances (not expressed to have involved the applicant) in which it was said that a similar tactic had been adopted. The concluding paragraph of the article was:

The challenge for other women in future cases is to play men at their own game in legal matters, target their reputation – even their egos – and ultimately attempt to portray them as “nuts” and “sluts” instead.

30    Counsel for the respondents accepted that the article was disparaging of the applicant but not in the way that the applicant alleges. He submitted that the article did not make any charge that the applicant was fabricating the matters which he had submitted to a court or that he was otherwise engaging in dishonesty in the tactics which he adopted. Instead, he submitted that the article was “overwhelmingly” concerned with the language used, the labels applied and the tactics adopted by lawyers acting for males engaged in litigation with females. On this basis, counsel submitted that the article could not be understood reasonably as conveying any of the pleaded imputations.

31    I consider that there is some force in these submissions, but I am not persuaded that they should be accepted so as to justify the striking out of the pleaded imputations. More particularly, and applying the caution which is necessary on applications of the present kind, I consider that an ordinary reasonable reader could have understood the article to be conveying that the applicant had engaged in a form of dishonesty. It is possible that such a reader may have understood the article to be suggesting that the applicant was willing, as a tactic in litigation by which to advance his own client’s interests, to portray a female opponent of his male client as a “nut” (ie, mentally disturbed) or a “slut” (I infer in the sense of sexually promiscuous) even when that was not accurate. Much may depend on the emphasis which the ordinary reasonable reader perceived in different aspects of the article, in particular, in the reference in [6] to lawyers “portraying” the female as “a nut or a slut”, in the reference in [10] to women being “framed” as either “nut” or “slut”, in the reference in [11] to the applicant’s attempts to “position” Ms Landry as a “nut”, in the reference in [12] to the applicant’s “insults”, in the reference in [13] to the applicant having “claimed” that Ms Landry had an “alcohol problem”, in the reference in [15] to the applicant’s “plan” to “discredit” Ms Landry, and in the reference in [30] to the “smearing of women’s characters in courts of law [being] as commonplace as it is in the locker room”.

32    On one view, the article’s reference to the applicant’s submissions concerning Mr Newton is discordant with the stated theme of the article, as Mr Newton was the applicant’s own client and is in any event not female. However, in context, it is possible in my opinion that this aspect of the article could be understood by a reasonable reader as conveying that the applicant was willing to adopt the “nut” argument to advance his own client’s interests even when it did not reflect the reality of the case in which he was engaged. In this way, the otherwise seemingly discordant reference to Mr Newton may have reinforced the impression drawn by the ordinary reasonable reader.

33    Counsel for the respondents may well be correct in the submission that the imputations pleaded by the applicant are not the most obvious imputations conveyed by the article. However, I do not consider that it should be concluded at this stage that the ordinary reasonable reader could not have understood the article in the way pleaded. Accordingly, this aspect of the strike out application fails.

Capacity – women

34    The next submission of the respondents concerning the question of capacity was that imputations (a) and (b) referred to women in the plural whereas only one of the two cases involving the applicant to which the article had referred had involved a female. On this basis, the submission was that the article could not reasonably be understood as conveying an imputation concerning the applicant’s conduct in relation to women litigants generally.

35    I do not accept this submission. Again, the article should be read as a whole. This includes the two headlines quoted above. The first uses the term “women” and the second the term “female accusers”. The body of the article referred to a tactic adopted generally in relation to female litigants and, with specific reference to the applicant, describing him in [16] as being “no stranger to the ‘nut’ argument”. The prominent photo of the applicant in the middle of the article is also pertinent in this respect. In my opinion, these matters indicate that the ordinary reasonable reader could have understood the article to be referring to the applicant’s tactics in relation to women generally, and not just in relation to Ms Landry.

Use of slang – “nut”

36    Initially the respondents complained of the applicant’s term of “nut” in imputation (c) as being slang and insufficiently precise. However, the respondents accepted the applicant’s explanation that he had used the term “nut” in the pleading in the sense of “mentally disturbed” and did not pursue this submission.

Imprecision or ambiguity – the word “destroy”

37    The respondents submitted that the applicant’s use of the word “destroy” in imputation (a) was insufficiently precise and left unclear what was intended. I do not accept that submission. It is evident that in using the word “destroy” the applicant has sought to distil the meaning conveyed by the respondents in the two headlines: “to crack women” and “bringing down their female accusers”. In context, the meaning of the word destroy should be able to be understood by the respondents without him including yet further synonyms in the pleading.

Difference in meaning between the pleaded imputations

38    The respondents submitted that a number of the pleaded imputations did not differ in substance with the consequence that one or another of them, at the applicant’s election, should be struck out. They submitted that imputation (b) does not differ from imputation (a), that imputation (c) does not differ from imputations (a) and (b), and that imputation (d) does not differ from imputations (a) and (b).

39    The principle that the pleaded imputations in an action for defamation should differ in substance from one another seems to have been developed in New South Wales during the currency of the Defamation Act 1974 (NSW), under which each defamatory imputation gave rise to a separate cause of action. The purpose of the rule was to preclude a plaintiff from pleading in the one action many shades and gradations of substantially similar imputations: Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 771; Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 676. Hence, the need for each pleaded imputation to be different in substance. However, that is no longer the position as the uniform defamation legislation provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation is carried by the matter – see s 8 of the Defamation Act 2005 (NSW).

40    This may make it appropriate to question the continued utility of the principle requiring pleaded imputations to be different in substance. That may be especially so in those jurisdictions in which the trial of the action is to be by judge alone and, accordingly, when a jury does not need to be instructed in relation to the separate imputations. The potential of the principle to give rise to unhelpful interlocutory activity may be another matter warranting an examination of the continued utility of the principle.

41    Nevertheless, the principle does have continuing currency, at least in New South Wales, see by way of example Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13; and Toben v Milne [2014] NSWCA 200 at [8]-[19]. Various tests have been developed to assist in the determination of whether pleaded imputations do differ in substance, see John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 at [87]-[88], Toben v Milne at [11]-[19] and Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 at [67].

42    The applicant did not contend that the principle that pleaded imputations should differ in substance was inapplicable in the present case. Instead, his submission was that the application of the principle did not warrant the striking out of his pleadings.

43    The applicant submitted that the imputations in (a) and (b) differ in substance because imputation (a) includes a reference to the effect on the women involved and imputation (b) does not, and because imputation (b) includes an allegation of motive, namely, the obtaining of a tactical advantage for his male clients, and imputation (a) does not. That submission should be upheld. In addition to these matters, I observe that imputation (a) refers to the tactics of the applicant in cases in which women have brought proceedings against his male clients, whereas imputation (b) refers to cases “against” women.

44    Plainly, imputation (c) is different in substance from imputations (a) and (b). It refers to the applicant’s conduct in a particular case, that is, involving Ms Landry, whereas imputations (a) and (b) are directed the applicant’s conduct more generally. A specific imputation differs in substance from a general imputation. Examples of this proposition are seen in Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [83] and John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [99]. I also accept the applicant’s submission that different evidence would be required from the respondents to justify these respective imputations and that, on the authorities, this is an indication that the imputations differ in substance.

45    Finally, I consider that imputation (d) differs in substance from imputations (a) and (b). The gist of this imputation is the breach of the applicant’s duties as an advocate and as an officer of the Court, an element which is missing from imputations (a) and (b).

46    Accordingly, I consider that whichever of the tests stated in the authorities is applied, these imputations are sufficiently different with the consequence that none should be struck out.

Inference upon inference

47    The respondents’ outline of argument included a submission that imputation (b) was bad because it was based on inference upon inference. However, counsel did not make any oral submission to that effect, and I took the argument to have been abandoned. In any event, it is doubtful that the pleaded imputation suffers from the defect which the respondents attributed to it.

Conclusion on respondents’ strike out application

48    In summary, and for the reasons stated above, I consider that the respondents’ strike out application fails.

The plea of contextual truth

49    By [13(a)] of the Amended Defence, the respondents raised, pursuant to s 26 the Defamation Act, a defence of contextual truth. Section 26 provides:

26 Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a)    the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and

(b)    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

50    The respondents’ plea of contextual truth is that:

The Applicant acted inappropriately by making serious allegations in open court about Kelly Landry in order to publicly discredit her.

51    The particulars provided by the respondents in support of this plea are lengthy and it is not practical to attempt a summary of them in these reasons.

52    The applicant’s first challenge to this pleading focused on the respondents’ use of the word “inappropriately”. He submitted that this made the pleading imprecise because of the variety of meanings, with different levels of seriousness, conveyed by the word “inappropriately”. Counsel also submitted that the word “inappropriately” is a “weasel” word such as “improperly” and “wrongfully”, each of which has drawn criticism in the authorities: Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 271. Finally, the applicant submitted that the want of precision involved in the use of the word “inappropriately” was not made good by the particulars which followed.

53    The respondents did not dispute the applicant’s characterisation of their use of the word “inappropriately”, but submitted that the necessary particularity was found in the contextual imputation itself, namely, that the applicant had acted in a way which was inappropriate by making serious allegations in open court about Ms Landry in order to publically discredit her.

54    In my opinion, the applicant’s submission should be accepted. The ambiguity in the respondents’ pleading is made more apparent if it is understood as an assertion that the applicant’s conduct in making serious allegations in open court about Ms Landry in order to publically discredit her was inappropriate. Expressed in that way, the need for particularity becomes more obvious.

55    A number of matters confirm that conclusion. First, counsel for the respondents acknowledged in the course of submissions that the respondents’ case is that the applicant made serious allegations in open court about Ms Landry in order to publically discredit her when that was not a proper purpose of the proceedings in which he was then engaged. A plea in those terms, properly particularised, may be unobjectionable. The focus at trial would then be on the allegations said to have been made, the purposes of the proceedings and the purpose for the applicant making the allegations. However, the respondents’ particulars introduce a different concept, namely, the absence of any necessity for the applicant to have made the statements concerning Ms Landry on which the respondents rely. The particulars do this by identifying a number of statements said to have been made by the applicant, and the circumstances in which they were made, and then alleging that “it was not necessary nor appropriate” for those statements to have been made. Insofar as this formulation repeats the word “appropriate” it does not provide further particularisation of the plea of contextual truth. Insofar as it incorporates the concept of necessity, it incorporates imprecision because of the apparent shift from the purpose of the statements to the necessity for them to have been made.

56    It is possible that the plea of the lack of necessity has been made in order to provide one particular of the matters relied upon for an allegation of improper purpose, but that does not emerge clearly from the respondents’ pleading.

57    Further still, the respondents allege, in [14.11] and [14.19] of the Amended Defence that it can be inferred that “a” purpose of the applicant in making the pleaded statements was to publically discredit Ms Landry. This seems to imply an acknowledgment by the respondents that the applicant had, or may have had, more than one purpose in making the statements. The respondents’ acknowledgement that the applicant may have had another purpose or purposes, with the possibility that such other purpose may have been legitimate, tends to reinforce the need for the respondents to provide proper particularisation of the inappropriateness which they allege.

58    At one stage during the course of the submissions, counsel for the respondents indicated that they would seek leave to amend further the Amended Defence in order to address these issues but did not, ultimately, press that application. Accordingly, the applicant’s strike out application is to be determined by reference to the pleading as it currently stands.

59    For the reasons just given, I consider that the applicant’s submission succeeds and that [13(a)] and the supporting particulars in [14] of the Amended Defence should be struck out. The respondents should, however, be given the opportunity to re-plead.

60    This conclusion makes it unnecessary and inappropriate to address the applicant’s second criticism of the respondents’ plea of contextual truth.

Summary

61    For the reasons given above, the respondents’ interlocutory application filed on 9 June 2017 is dismissed. On the applicant’s interlocutory application filed on 22 June 2017, there will be an order that [13(a)] and [14] of the Amended Defence be struck out but that the respondents have leave, by 26 July 2017, to file and serve an amended defence. I will hear from counsel as to any consequential orders.

Associate:

Dated:    11 July 2017