Federal Court of Australia

Aljazeera International (Malaysia) SDN BHD v Hun [2026] FCAFC 22

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be allowed.

2.    The appeal be allowed.

3.    Order 2 of the orders of the primary judge made 31 October 2024 be set aside and in lieu it be ordered that the respondent’s interlocutory application that paragraphs 31 and 34(a) of the appellant’s defence be struck out be dismissed.

4.    Orders 2 and 3 of the primary judge made 18 November 2024, by which the appellants’ subpoena to the AFP for the production of documents was dismissed with costs, be set aside.

5.    Counsel for the parties are to confer and the parties shall email to the Chambers of the members of the Court by 4.00 pm on 25 March 2026 an agreed minute of orders for the Court’s consideration concerning the question of costs, and if the parties are unable to agree on costs, the agreed minute is to provide for a timetable for the filing of any supporting affidavits and written submissions not exceeding three pages and for the question of costs to be considered on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

1    The applicants seek leave to appeal interlocutory orders of the primary judge by which their defence of justification in a defamation proceeding was struck out. They also seek leave to appeal a consequential order that a subpoena directed to the Australian Federal Police (AFP) be dismissed.

Leave to appeal is granted

2    We have determined to grant leave to appeal to the applicants, and we will hereafter refer to the parties as the appellants and the respondent. We grant leave to appeal because the subject matter of the application raises questions of principle and is fairly arguable, and because although the application raises a question of practice and procedure relating to a discretionary decision to strike out a pleading, there is a likelihood of substantial injustice to the appellants on the supposition that the order striking out the pleading was wrong because the appellants would be deprived at trial of a defence and the ability to adduce evidence in justification of one of the respondent’s claimed defamatory meanings.

Background

3    The matter on which the respondent has sued is a documentary film titled “Forced to Scam, Cambodia’s Cyber Slaves”. The respondent alleges that the second, third, and fourth appellants were responsible for the production and promotion of the documentary and that it was uploaded on or about 15 July 2022 to two Al Jazeera websites and an Al Jazeera YouTube Channel from where it was downloaded by people located in Australia. The appellants’ defence and their chronology in this appeal allege that publication took place later, on 11 August 2022, but nothing turns on this. The respondent alleges that the three online platforms from which the documentary was available for downloading constituted separate publications. The parties’ pleadings concerning the liability of the first appellant for the publications are complicated and not in issue on the appeal.

4    The documentary refers to the respondent by name, stating at about the 39-minute mark of the 45-minute program –

But perhaps of greater significance is another director of several Heng He companies, including a bank, Prime Minister Hun Sen’s nephew, Hun To, reportedly suspected by Australian police of drug trafficking.

5    The respondent pleads four imputations based upon the natural and ordinary meaning of the words. Imputation 10(c) is in the following terms –

[The respondent] is suspected on reasonable grounds by Australian police of drug trafficking;

6    The appellants denied that the documentary conveyed this imputation. In the alternative, the appellants alleged that the documentary in the above meaning was substantially true and relied on the common law defence of justification and the corresponding statutory defence under s 25 of the Defamation Act 2005 (Vic).

The appellants’ particulars in support of their justification defence

7    In support of their justification defence directed to imputation 10(c) the appellants gave particulars in a schedule to the defence which are reproduced as a schedule to this judgment.

8    By their particulars the appellants alleged the existence of a joint task force between about 2002 and 2004 conducted by the National Crime Authority (NCA) and the AFP known as Operation Illipango. The appellants alleged that the NCA obtained telephone intercept warrants under the Telecommunications (Interception and Access) Act 1979 (Cth) and that as a result of those intercepts the NCA formed a reasonable suspicion that the respondent was knowingly involved as a financier in relation to a shipment of heroin transported from Cambodia to Australia concealed in loads of timber.

9    The appellants alleged in their particulars that the NCA, or alternatively the AFP, obtained a warrant under the Crimes Act 1914 (Cth) for the arrest of the respondent and that the warrant could only have been issued if information had been laid before an issuing officer, on oath, setting out the reasons for which the respondent was believed to have committed offences, and that the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant. The appellants alleged that it was to be inferred from the fact that the arrest warrant was issued that such information had been laid before the issuing officer and that the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant. The appellants alleged that it was further to be inferred that reasonable grounds in fact existed for the suspicion that the respondent was knowingly involved as a financier in relation to the shipment of heroin transported from Cambodia to Australia. The particulars alleged that the respondent was not ultimately arrested or charged with offences relating to drug trafficking in Australia, as his application for a visa was denied by the Australian government in about 2003 and he did not enter the jurisdiction around that time so as to be able to be arrested and charged.

10    The appellants’ particulars of justification did not descend into the identification of, or the basis for, any reasonable grounds for the suspicion but alleged the existence of reasonable grounds. The state of the appellants’ pleadings arose in the following circumstances.

11    Upon the application of the appellants the Court issued a subpoena to produce documents directed to the Australian Criminal Intelligence Commission (ACIC), which is a prescribed name for the Australian Crime Commission (ACC) and is the successor to the NCA: see Australian Crime Commission Regulations 2018 (Cth), reg 8(a). The subpoena to ACIC was set aside after it raised an objection under s 51(3) of the Australian Crime Commission Act 2002 (Cth), which provides a statutory exemption to a person to whom the section applies from a requirement to produce certain documents to a court.

12    The Court also issued subpoenas at the request of the appellants to the Department of Home Affairs and the AFP. The documents produced by the Department of Home Affairs included –

(a)    a notice of cancellation of visa dated 28 November 2003 which informed the respondent that his Subclass 676 (Tourist (Short Stay)) visa was cancelled because “the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian Community”;

(b)    a letter dated 20 April 2005 notifying the respondent that his application for a tourist visa was refused because he failed to satisfy the delegate of the Minister that he had passed the character test; and

(c)    a document dated 31 December 2009 which informed the respondent that the Minister had decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse his Partner (Provisional) (Class UF) visa application.

13    The AFP produced 17 documents with redactions and objected to full access on the grounds of relevance and public interest immunity. A Registrar of the Court made orders for the filing of affidavits and written submissions in relation to the AFP’s claim of public interest immunity which the appellants sought to test. The AFP filed affidavits and the AFP, the appellants, and the respondent filed written submissions. Eventually, upon the adjourned return of the subpoena to the AFP on 13 November 2023, and after hearing from counsel for the parties and the AFP, a Registrar of the Court determined that the AFP’s claim for public interest immunity should be adjourned to a date to be fixed following a mediation and the hearing and determination of the strike-out application before the primary judge that is the subject of this appeal. Accordingly, the public interest immunity claims were not tested before the subpoena to the AFP was dismissed.

14    The documents that were produced by the AFP included three with the titles –

(a)    “ACC Intelligence on HUN To (19.12.1977) re Op ILOPANGO”;

(b)    “PENH26NOV03OLC NEPHEW OF CAMBODIAN PM EMERGING AS DRUG SUSPECT”; and

(c)    “PENHOLC16JUL07EVENTS INVOLVING HUN TO BN.19.12.77”.

15    In an affidavit filed in support of the claims of public interest immunity, Assistant Commissioner Nigel Ryan of the AFP stated at [31] that the role of the AFP in Operation Ilopango (referred to in other material as Operation Illopango and Operation Illipango) was limited to assisting the ACC, as ACIC was formerly known, in making international inquiries of foreign law enforcement agencies on behalf of the ACC. Assistant Commissioner Ryan stated that the documents which the AFP had identified as being potentially relevant to the subpoena contained information provided to the AFP by either the ACC in order to obtain such assistance, or from a foreign law enforcement partner in response to the request for assistance. He stated at [32] that disclosure of the information in the documents would severely undermine the relationship between Australia and the foreign law enforcement agency and that the deterioration in that relationship would prejudice the ability of Australian law enforcement agencies – primarily the AFP but also others – to combat serious transnational crime.

The primary judge’s decision

16    The primary judge held that the appellants’ particulars of justification were vague, evasive and ambiguous, did not disclose a reasonable defence, and would cause prejudice, delay and embarrassment in the proceeding. In support of these conclusions, his Honour reasoned as follows.

17    First, the primary judge held at J [13] that a claimant should be permitted to go to trial with knowledge not merely of the general case to be met but of the specific acts which it is alleged the claimant had committed. The primary judge accepted a submission on behalf of the respondent that particulars of justification must be set out with the same precision as an indictment, citing Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 (Rush) at [52] (Wigney J), Crosby v Kelly [2013] FCA 1343 at [35]–[36] (Rares J), Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [9]–[12] (McCallum J), and Wing v Australian Broadcasting Corporation [2018] FCA 1340 (Wing v ABC) at [78] (Rares J). At J [14], his Honour accepted the respondent’s submission that a striking feature of the case was the conspicuous absence in the appellants’ particulars of justification of any allegation about what the respondent actually did, when he did it, or how he knew about any of the matters alleged against him. His Honour held that there were no direct allegations of material fact in relation to any such conduct by the respondent.

18    Secondly, at J [15] the primary judge referred to the authorities which hold that while in an appropriate case a defendant may augment particulars of a defence of justification after coercive processes such as discovery and subpoenas, a defendant which pleads a justification defence must do so on the basis of information in the defendant’s possession when the defence is delivered and if the defendant is unable to plead the necessary facts without invoking such coercive processes, then the defence cannot be maintained. However, his Honour held that the present case was not one where all that the appellants had sought to do was to augment a properly pleaded justification defence.

19    Thirdly, at J [18] his Honour accepted a submission on behalf of the respondent that to justify imputation 10(c) the appellants had to adduce evidence at trial of the following essential matters –

(a)    that Australian police hold a suspicion that the respondent engaged in drug trafficking;

(b)    the grounds on which Australian police hold such a suspicion; and

(c)    that those grounds are reasonable, in the sense that a reasonable person might suspect that the respondent engaged in drug trafficking based on those grounds.

20    Fourthly, his Honour held at J [20] that it was not sufficient for the appellants to prove only that the police or the person who issued the warrants subjectively believed at one point in time that there were grounds for investigation or for the issue of the warrants. Rather, his Honour held that justification of the imputation required proof, based on a particular set of facts, that Australian police formed a suspicion that the respondent engaged in drug trafficking and that those facts, viewed objectively, provided a reasonable basis for forming such a suspicion.

21    Fifthly, at J [21] the primary judge accepted the respondent’s submission that the appellants’ particulars of justification were incapable of supporting the defence because they failed to disclose the relevant and necessary underlying facts. Specifically, his Honour held that the particulars did not identify with any degree of precision what it was that the respondent was alleged or suspected to have done, when he was alleged or suspected to have done it, in what circumstances, and how those circumstances provided a reasonable basis for suspecting that the respondent engaged in drug trafficking.

22    Sixthly, at J [24] the primary judge held that the effect of the appellants’ particulars was that the respondent was left in a position where he did not know the case he had to answer at trial. This was for reasons including the absence of identification of any grounds on which the suspicion was said to be held, such as what the NCA allegedly suspected the respondent of having said or done, and when and where, and based upon what information. What lay behind this issue was a claimed temporal element to imputation 10(c), which was that the suspicion of the respondent remained current at the time of publication. The primary judge rejected a submission of the appellants that absent a change of circumstances a reasonable suspicion did not evaporate because of the effluxion of time. His Honour stated that the flaw in this reasoning was that whether a reasonable suspicion remained depended on the particular grounds for holding the suspicion, and that it was only once those grounds were identified that an assessment could be made as to whether they were reasonable, and whether there has been any change in circumstances which resulted in the suspicion either no longer being held or the reasonable grounds no longer existing.

23    Seventhly, throughout his Honour’s reasons, the primary judge emphasised that to justify the imputation the appellants’ defence had to extend to the reasons for which the suspicion was alleged to have been held and on what the suspicion was reasonably based.

The appellants’ grounds of appeal

24    The appellants’ notice of appeal raises three grounds –

1.    The primary judge erred in holding at J [18], [20]-[21] that the Appellants are required to plead, particularise, and then prove at trial, facts, matters and circumstances capable of establishing the grounds on which Australian police hold the suspicion that the Respondent engaged in drug trafficking and that those grounds are reasonable.

2.    The primary judge erred in failing to distinguish between what is required to prove a defence of justification at trial and what constitutes a sufficient pleading of justification that may be augmented by the forensic processes of the court.

3.    The primary judge erred in concluding at J [28]-[29] that particulars [1] to [10] of Schedule 1 to the Appellants’ defence did not disclose a reasonable defence, were vague, evasive and ambiguous, and would cause prejudice, delay and embarrassment in the proceeding.

25    The appellants accepted that the fate of grounds 2 and 3 turned on ground 1. For the respondent’s part, it was accepted that if the appellants were successful on ground 1, then success for the appellants on ground 2 would follow.

26    The appellants submitted that the primary judge erred in his approach.

27    First, one of the foundations of the appellants’ submissions was the text of the imputation that the respondent had alleged. The appellants submitted that the imputation was not to the effect that there are reasonable grounds to suspect the respondent of drug trafficking, or that the respondent had conducted himself in such a way as to warrant suspicion by police. It was submitted that instead the imputation focused upon the state of mind of the police. The appellants submitted that, contrary to the primary judge’s reasoning, proof of the defence did not require an articulation of the grounds for suspicion held by the police, and that the imputation could be proved substantially true by establishing, on the balance of probabilities, that Australian police in fact suspected the respondent of drug trafficking, and that it could be inferred from all the circumstances that the grounds for suspicion must have been reasonable.

28    Secondly, and relatedly, the appellants submitted that there is a substantive distinction between an imputation of guilt of criminal conduct and an imputation of suspicion. It was submitted that suspicion is a state of conjecture or surmise where proof is lacking, involving less than reasonable belief, and that a reasonable suspicion may be based on inadmissible hearsay. By parity of reasoning, it was submitted that a reasonable suspicion may be based upon the drawing of inferences as to which minds might differ, and that what is required to justify an imputation of suspicion on reasonable grounds must reflect those realities.

29    Thirdly, the appellants submitted that at trial the Court could infer from the facts alleged in the particulars of justification that there must exist reasonable grounds for the suspicion by Australian police of the respondent’s involvement in drug trafficking, and that it was neither here nor there whether they could be articulated if the inability to articulate them was due to a matter beyond the control of the appellants. It was submitted that, as a matter of law, a warrant for the arrest of the respondent could have been issued only if objectively there were reasonable grounds for doing so (see Crimes Act 1914 (Cth), s 3ZA), which afforded a viable foundation for the justification defence. Senior counsel for the appellants clarified that the appellants were not seeking to rely on the fact that an arrest warrant was issued as evidence of an opinion that there were reasonable grounds to suspect the respondent of drug trafficking, but as supporting the objective existence of reasonable grounds. It was submitted that there was nothing inappropriate about the appellants then using the Court’s processes to seek documents that might lead to the augmentation of their particulars. In elaboration, the appellants submitted that at trial they would seek to argue that the objective existence of reasonable grounds to suspect the respondent of drug trafficking can be inferred from nine matters –

(1)    The AFP has a file – a virtual file – in relation to the respondent which contains 17 documents.

(2)    The respondent was a subject of interest to the ACC, being the body entrusted with combatting transnational and serious organised crime.

(3)    One of the documents in the possession of the AFP described the respondent as an emerging drug suspect.

(4)    Another document in the possession of the AFP was described as setting out events involving the respondent from which it could be inferred that there was conduct involving the respondent that was known to the authorities in connection with his emergence as a drug trafficking suspect.

(5)    The contents of the affidavit of Assistant Commissioner Ryan, which the appellants submitted confirmed that the respondent was the subject of interest to the ACC and a foreign law enforcement agency, and that in connection with that interest the AFP became involved.

(6)    The fact that a warrant for the arrest of the respondent on drug trafficking charges had been issued.

(7)    The fact that to seek an arrest warrant the informant was required by s 3ZA(1)(b) of the Crimes Act to set out in an affidavit the reasons why it was believed that the person had committed an offence.

(8)    The fact that, as a matter of law, the warrant could not have been issued unless the issuing officer, being a Magistrate, or a Justice of the Peace, or other authorised person employed in a court, was satisfied that there were – objectively – reasonable grounds for the issue of the warrant. In oral argument senior counsel for the appellants acknowledged the difference between this proposition and the text of s 3ZA(1)(d) of the Crimes Act which required that the issuing officer be satisfied that there were “reasonable grounds for the issue of the warrant”, submitting that this was a distinction without a difference in light of the requirement in s 3ZA(1)(b) that the informant give the issuing officer an affidavit setting out the reasons why the warrant was sought, which must include the reasons why it was believed – not merely suspected – that the person committed the offence.

(9)    In the absence of any challenge to the arrest warrant, the presumption of regularity.

30    Fourthly, the appellants submitted that the inference that the respondent was suspected on reasonable grounds of drug trafficking did not turn on whether they were able to particularise the grounds of suspicion, particularly when their ability to do so had been hindered by a public interest immunity claim which they had not been able to test. We note in that regard that even if a claim of a public interest immunity is upheld, it might not apply to all documents or all parts of one or more documents, and a redacted version of one or more documents might nonetheless be required to be produced. The appellants submitted that the primary judge had therefore erred at J [18] and [20] in his Honour’s formulation of what had to be demonstrated by way of justification by holding that the appellants had to show the grounds on which Australian police held their suspicion, and that viewed objectively those grounds provided a reasonable basis for the formation of the suspicion.

31    Fifthly, the appellants submitted that policy favoured the conclusion that where an imputation is of a suspicion held by police on reasonable grounds, a defendant should be able to justify by proving that police in fact held a suspicion, and that from the surrounding circumstances it must have been held on reasonable grounds. It was submitted that otherwise, in cases such as the present where warrants had been issued but public interest immunity claims hampered access to the evidentiary material, the media would be significantly constrained in their ability to report on that objective fact. It was submitted that the consequence would be that defences of justification would fail in respect of imputations which are objectively true. It was submitted that there is nothing in s 25 of the Defamation Act which compelled such an outcome, and nor would such an outcome be consistent with the objects in s 3 of that Act.

32    Sixthly, the appellants submitted that the primary judge’s statement that the ongoing existence of a reasonable suspicion held by Australian police required the identification of their grounds for suspicion at an earlier point in time (J [24]) was not correct as a matter of logic. The appellants submitted that the question whether the matter conveyed a past suspicion or a continuing suspicion was a question for trial. Senior counsel for the respondent confirmed in argument that the respondent’s case was that the documentary conveyed the existence of suspicion at the time of publication, and that this meaning was captured by the use of the present tense verb “is” in imputation 10(c). On the assumption that the matter conveyed suspicion at the time of publication the appellants submitted that a previously held suspicion might cease to be held, or cease to be reasonable, when additional information emerges and that it was not the existing information and grounds that were determinative, as otherwise the reasonable suspicion would not have arisen in the first place. The appellants further submitted that if the evidence at trial were that, (a) Australian police suspected the respondent in 2003 on reasonable grounds of drug trafficking, and (b) there is no evidence of a change in circumstances since that time, then the Court would readily conclude on the balance of probabilities that the reasonable suspicion is still held. The appellants submitted that the primary judge was in error to hold that the state of their particulars had deprived the respondent of the ability to point to a change of circumstances, submitting that at trial the respondent could rely on facts such as the fact that he was subsequently granted a visa to enter Australia.

33    Seventhly, the appellants submitted that imputation 10(c) must be read in light of the words used in the documentary, citing Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 54 NSWLR 165 at [13]–[14] (Mason P, Wood CJ at CL agreeing). It was submitted that those words conveyed no more than the bare existence of a suspicion held by the police, as reported by others. It was submitted that nothing in the words supported an interpretation of imputation 10(c) that would require the appellants to prove the specific grounds on which the police held their suspicion concerning the respondent.

34    Eighthly, the appellants submitted by reference to their second ground of appeal that they had a proper basis to plead justification to imputation 10(c) and then to use the Court’s processes to augment the defence. The appellants submitted that the effect of the order striking out the defence is that they have been shut out from being able to explore the defence further. However, the appellants also submitted that even if what had been particularised was all the evidence that the appellants had at trial the appellants would invite the Court to conclude that although they are unable to particularise the precise conduct in which the respondent is alleged to have engaged, one can infer that that conduct, in fact, objectively occurred, and has characteristics that meet the imputation.

Discussion

35    There are many authorities that have considered the capacity of a publication to convey an imputation of suspicion. In assessing the applicability of the authorities, it is necessary to pay close attention to the issues that were in dispute, the form of the imputation under consideration, and the context in which the issues arose. It is also necessary to recall that while the capacity of a matter to convey an imputation is often referred to as a question of law, what is meant is that it is a question for the judge to decide for the purposes of ruling on pleadings, or for defining issues for the purpose of giving directions to a jury, or for defining the issues for the judge’s own decision at trial. Although in addressing capacity issues the court directs itself to a question posed by a rule of law, the capacity of a matter to convey a defamatory imputation is determined by reference to the facts, namely the content of the matter and the circumstances in which it was published: see in an allied context Glass H H and McHugh M H, The liability of employers in damages for personal injury (The Law Book Company, 1966) p 234. Therefore, care should be taken to treat authorities concerning questions of capacity as setting out guiding principles and affording illustrations, but not as laying down universal rules of law about the meaning of words.

36    In Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis v Daily Telegraph) at 258, Lord Reid explained that often the sting of a libel is not so much in the words themselves, but in what the ordinary person will infer from the publication. Therefore, a publication which states that an inquiry is being conducted into the affairs of a person might convey suspicion. A publication that states that a person has been charged with a crime might be capable of implying that the police have concluded that there are grounds to support the charge. A publication which refers to suspicion might imply that there are reasonable grounds for the suspicion because “loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”: Lewis v Daily Telegraph at 285 (Lord Devlin). And a publication which states that there are grounds for suspicion might imply guilt. A person “who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done”: Lewis v Daily Telegraph at 285 (Lord Devlin), cited in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [11] (Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ). As Glass JA stated in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 (Sergi v ABC) at 677 –

Distinctions of exquisite delicacy will have to be made depending on small differences in the language employed but it will be remembered that they do not, any more than rulings on whether negligence can be inferred, constitute the stuff of law and should after the trial be relegated to decent obscurity.

37    The differences between imputations of suspicion, reasonable grounds for suspicion, and guilt are significant. One area of significance is the question of what facts must be proven to justify the imputation. There is an essential difference between a rumour that a person is guilty of a crime and an imputation of suspicion of a crime: Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 (Mirror Newspapers) at 300 (Mason J). To say that there is a rumour of guilt may involve endorsing the rumour thereby amounting to a republication which can only be justified by proof of the underlying charge: Lewis v Daily Telegraph at 260 (Lord Reid), 274–275 (Lord Hodson), 284 (Lord Devlin). On the other hand, to say that someone is suspected of committing a crime might imply no more than that the relevant authority had grounds for the suspicion, or further that there are reasonable grounds for suspicion. A rumour that a person is suspected of a crime would be in the same position: Mirror Newspapers at 300 (Mason J); Lewis v Daily Telegraph at 275 (Lord Hodson), 284 (Lord Devlin).

38    In this case, the documentary expressly stated that the respondent was “reportedly suspected by Australian police of drug trafficking”. By itself this may have been capable of being defamatory of the respondent without further elaboration. But the respondent’s imputation 10(c) goes further and relies on a claimed implication that the suspicion of the Australian police was based upon reasonable grounds. There has been no challenge by the appellants to the capacity of the documentary to convey imputation 10(c). Whether it did convey imputation 10(c) is a question for trial.

39    The central issues raised by this appeal are fourfold –

(1)    How is the respondent’s imputation 10(c) to be understood?

(2)    What generally would be required to justify imputation 10(c)?

(3)    Did the primary judge err in deciding that the appellants’ particulars of justification were incapable of supporting their defence in justification of imputation 10(c)?

(4)    Did the primary judge err in ordering that the relevant paragraphs of the defence be struck out?

Issue (1):    How is the respondent’s imputation 10(c) to be understood?

40    At common law the burden on a publisher seeking to justify a defamatory meaning that is found to have been conveyed is to demonstrate that the relevant sting or stings conveyed by the matter were true in substance and in fact: Sutherland v Stopes [1925] AC 47 at 79 (Lord Shaw). Immaterial aspects need not be justified. The statutory defence of justification under s 25 of the Defamation Act is substantially the same, although the elements of the statutory defence are found in the text of the legislation. To determine whether the appellants’ plea of justification is capable of meeting the sting of the respondent’s imputation 10(c), the starting point is to consider how the imputation is to be understood.

41    The framing of defamatory imputations in a pleading is an area of choice for a claimant within proper limits and the imputations will delimit the boundaries within which a proceeding will be fought: see Advertiser-News Weekend Publishing Company Ltd v Manock [2005] SASC 82; 91 SASR 206 at [76] (Doyle CJ, with whom Vanstone J and White J agreed). The scope of a pleaded imputation is not itself a question of fact to be tried: see the remarks of McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 433–436, and in particular at 435E. The question of fact at trial is whether the matter was defamatory in a meaning that is fairly within the pleaded imputations. Any dispute about the scope of an imputation is normally a question for the court as a matter of case management or in framing the issues for resolution. If there is any material ambiguity or other defect in an imputation, then the proper course for a defendant or respondent is to apply to have it struck out on the ground that it is embarrassing.

42    In Australian Broadcasting Corporation v Wing [2019] FCAFC 125; 271 FCR 632 (ABC v Wing) at [28] the Full Court in the context of alternative Hore-Lacey suspicion imputations raised by the defence referred to differences of meaning, such as strong suspicion, reasonable suspicion, or mere suspicion, and whether the imputation is active or passive. An active suspicion imputation is one that expressly focuses on the conduct of a plaintiff. An example of an active suspicion imputation is the type favoured by Hunt J in Jackson v John Fairfax & Sons [1981] 1 NSWLR 36 (Jackson v John Fairfax) where his Honour held, for the purposes of an action subject to the Defamation Act 1974 (NSW), that an imputation must plead the precise act or condition asserted of or attributed to the plaintiff which involved casting an imputation in terms that the plaintiff had done something that warranted suspicion. Examples of such an imputation are that –

(a)    the plaintiffs “had so conducted themselves in connection with political contributions as to be suspected of illegal conduct in that regard” (Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 (Ainsworth) at 824);

(b)    “the plaintiff so wrongly conducted himself that he was suspected by a police unit of…” (Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 (Whelan v John Fairfax) at 159–160); and

(c)    “the plaintiff had so conducted herself as to give rise to a suspicion, on reasonable grounds, that she had killed her husband” (Ronci v Nationwide News Pty Ltd [2001] WASC 239 at [18]).

43    In Sergi v ABC, Hutley JA at 671 and Glass JA at 675 did not agree that an imputation could not be expressed in the passive voice, although Hutley JA stated that where the passive voice is used it is necessary to specify the accuser. Glass JA did not agree that the condition to be attributed to a plaintiff had to be due to the plaintiff’s own conduct and stated that the condition might be the result of the conduct of others or a non-human agency. At 678, Glass JA expressed the view that it might be defamatory to say of a person that the fraud squad is conducting an inquiry into his or her affairs without suggesting that good grounds existed, or without importing reasonable grounds for suspicion. His Honour held that in some cases, a passive verb might capture the meaning best and that an imputation couched in the passive voice is unobjectionable in form provided that it is clearly expressed and involves no duplication.

44    In Whelan v John Fairfax at 160, Hunt J addressed the judgments of Hutley JA and Glass JA in Sergi v ABC, stating that the plaintiff in the case before him had “wisely, refused to be attracted by the seductive views of the majority of the Court of Appeal in [Sergi v ABC], in effect that plaintiffs may be encouraged to plead imputations in the passive voice”. Hunt J stated that the point that he had sought to establish in Jackson v John Fairfax was that –

… if the plaintiff simply pleaded an imputation that he was suspected by the police of having committed a crime, the defendant could justify that imputation as true merely by proving that the police did in fact harbour such a suspicion. On the other hand, if the plaintiff pleaded the imputation in the active voice (that he had so conducted himself as to have warranted that suspicion), the defendant would have to establish such conduct — a somewhat more difficult task.

45    However, Hunt J noted that the defendants in Jackson v John Fairfax had conceded that an assertion of such a suspicion by the police necessarily implied that the plaintiff had so conducted himself as to warrant that suspicion. Hunt J accepted that a statement of suspicion, without more, is at least capable of suggesting that the suspicion was warranted but stated that it would not necessarily convey that suggestion.

46    A passive suspicion imputation can take different forms. Some do not specify an accuser or a person alleged to have held the suspicion, as was the position with the imputation set out in S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60 at [24] to which we will refer later. There are several English cases where passive suspicion imputations in this form were advanced as Lucas-Box meanings by way of defence: see for example the defendants’ meanings set out in Shah v Standard Chartered Bank [1999] QB 241 (Shah) at 256D, and Bokova v Associated Newspapers Ltd [2018] EWHC 2032 (QB); [2019] QB 861 (Bokova) at [18]. The references in the English cases to Lucas-Box meanings allude to Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 which sanctioned a practice of defendants pleading meanings to which the particulars of justification were directed in circumstances where, at least at that time where jury trials of defamation proceedings were more common, a jury was not confined to the meanings pleaded by a plaintiff. The corresponding practice in Australia is more limited in its scope because it is the position in Australia that at trial the court is generally confined to making findings by reference to a plaintiff’s pleaded meanings or meanings not different in substance: see ABC v Wing at [15]–[22].

47    The potential significance of the difference between an active and passive suspicion imputation is illustrated by Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10 (Rakhimov). In that case, a television broadcast said of the plaintiff that the FBI “suspect him of drug trafficking”. The plaintiff pleaded as an imputation that he had “behaved in such a way as to deserve to be suspected by the FBI of drug trafficking”. Levine J, who had appeared as counsel in Jackson v John Fairfax and in Ainsworth, held on the trial of a separate question that the publication was not capable of conveying to the ordinary reasonable viewer that the existence of the FBI’s suspicion was based on any conduct of the plaintiff. Levine J deprecated the use of artificial imputations in the active form and suggested that they were driven by what the defendant had to prove by way of justification, stating at [23] –

The evolution of the imputation in the form here pleaded or in a similar form (the plaintiff so conducted himself/so misconducted himself) has in my respectful view been the result of a preoccupation with technical matters of form (active/passive voice) and with the application of a test (“the real test”) namely, what would the defendant have to prove, which test, in my view, is not a sole test but no more than an available test. The evolution has been at […] the expense of common sense in regard to the fundamental question of what the matter complained of “means”.

48    Levine J held at [28] that the matter was capable of conveying simply that “the plaintiff is suspected by the FBI of drug trafficking” which was a statement of a condition of the plaintiff which could be defamatory. His Honour held that the conversion to the active voice by stating that the suspicion was based on conduct of the plaintiff introduced a “speculative gloss”. At [30], Levine J left open “the extraordinarily interesting questions” as to the practicalities of the defendant justifying an imputation framed as his Honour suggested. The conclusions of Levine J in Rakhimov were a departure from Jackson v John Fairfax which was based upon the concession that his Honour had made as counsel for the defendants and recorded at 41F of the report, namely that “to say that a person is suspected of something necessarily implies that he has so conducted himself as to have warranted that suspicion”.

49    Shea v News Ltd [2015] WASC 1 was another case involving a contested imputation in the passive form, but with the police identified as the persons who believed that the plaintiff was guilty of a crime. The imputation was set out by Kenneth Martin J at [21], and was advanced by the defendant as a permissible alternative meaning that was less serious than the plaintiff’s “guilt” imputations in reliance on West Australian Newspapers Ltd v Elliott [2008] WASCA 172; 37 WAR 387, which the Full Court of this Court in ABC v Wing did not follow to the extent that it held that a “suspicion” imputation was a permissible variant of a “guilt” imputation.

50    In the present case, the form of the respondent’s imputation 10(c) is passive, but with the identification of Australian police as the persons who suspect the respondent of drug trafficking. The existence of reasonable grounds on which the suspicion is based is an implication or inference from the publication on which the respondent relies. As we have mentioned, the capacity of the matter to convey the existence of reasonable grounds for the suspicion is not in issue for present purposes, and whether it does convey that meaning is a triable issue.

51    The respondent’s case is that imputation 10(c) amounts to claiming that the words meant that the respondent was suspected by the police of drug trafficking, and that the grounds on which the police suspected the respondent of drug trafficking were objectively reasonable grounds. It is not the respondent’s case that the publications conveyed merely that the police suspected the respondent of drug trafficking: cf, Rakhimov; Independent Newspapers Holdings Ltd v Suliman [2004] ZASCA 57; [2004] 3 All SA 137 at [30] and [37] (Marais JA, Scott JA and Mthiyane JA concurring). Nor does the respondent allege that the documentary conveyed only that the police believed that there were grounds to support their suspicion, or that in suspecting the respondent of drug trafficking Australian police acted reasonably. They would be distinctly different meanings not far removed from the bare imputation that the police held a suspicion which is only one element of imputation 10(c). If there were any doubt about this, then it is clear from the submissions advanced on behalf of the respondent to the primary judge and to this Court that the respondent is prosecuting the case on the unambiguous premise that the reference in imputation 10(c) to reasonable grounds is to an objective quality of reasonableness. The respondent has thereby “nailed his colours to the mast as to the meaning of which he complains”: Broadcasting Corporation of New Zealand v Crush [1988] NZLR 234 at 239 (Cooke P). At trial, the respondent should be held to imputation 10(c) as so understood: see Browne v Dunn (1893) 6 R 67 at 76 (Lord Halsbury); Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; 22 CLR 490 at 517 (Isaacs and Rich JJ); Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). If the respondent does not establish by the application of the single meaning rule that the documentary conveyed imputation 10(c) in the sense which he has advanced before the primary judge and this Court, then the respondent’s case to the extent that it relies on that imputation should fail, because the respondent has not conducted his case on the basis that any alternative to imputation 10(c) in the precise sense advanced to this Court is in issue.

Issue (2):    What generally might be required to justify imputation 10(c)?

52    In Lewis v Daily Telegraph at 260 Lord Reid stated that there was a great difference between saying that a person has behaved in a suspicious manner and saying that the person is guilty of an offence and stated that he was not convinced that you can only justify the former statement by proving guilt. In Mirror Newspapers, Mason J stated at 302 that if a publisher wishes to justify a report that a plaintiff has been arrested and charged with an offence which carries an imputation that an informant suspects with reasonable cause that the claimant has committed an offence, it would be sufficient if the defendant proves the arrest, that a charge has been laid, and that the plaintiff is suspected by police, with reasonable cause, of having committed the offence. In Sergi v ABC, Glass JA suggested at 678 that an imputation of suspicion by police – without implying reasonable grounds for suspicion – could be justified by proving simply that a charge had been brought against the plaintiff. Glass JA stated that in relation to an imputation that a person had been charged with an offence and also that the police had reasonable cause for their suspicion, the publisher would not justify such a statement merely by proving that the plaintiff was in fact charged with that offence but must call the police officer in question to justify that additional suggestion.

53    In the United Kingdom, the principles relating to the justification of a reasonable suspicion imputation are settled. Many of the authorities that examine the question of meaning and justification use as a tool of analysis the three levels of meaning referred to by the Court of Appeal (Brooke LJ, Rix LJ and Keene LJ agreeing) in Chase v News Group Newspapers Ltd [2003] EMLR 11 (Chase) at [45]. The Chase levels of meaning are: (1) a level one meaning that the plaintiff in fact committed a crime; (2) a level two meaning that there are reasonable grounds to suspect that the plaintiff was responsible for a crime; and (3) a level three meaning that there are grounds to investigate whether the plaintiff was responsible for a crime. While the Chase levels of meaning are a convenient tool of analysis, they cannot be allowed to dictate meaning because they are not a straitjacket into which all possible dimensions and nuances of meaning can be forced. Everything depends on the precise words used, and the context in which they are used: see Brown v Bower [2017] EWHC 2637 (QB); [2017] 4 WLR 197 at [17] (Nicklin J); ABC v Wing at [28]–[29], approving Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 at [45] (White J); APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93; [2010] 1 NZLR 315 (APN New Zealand) at [16].

54    In Shah, Hirst LJ held at 261 that the sting of a reasonable suspicion imputation was that the plaintiff had by his conduct brought suspicion upon himself, and that it was an essential requisite of a defence of justification of reasonable suspicion that it should focus on some conduct on the plaintiff’s part giving rise to a reasonable suspicion. In support of this conclusion, Hirst LJ cited the decisions of Hunt J in Jackson v John Fairfax and Whelan v John Fairfax and two passages from the speeches of Lord Reid and Lord Devlin in Lewis v Daily Telegraph. This element has become known in the authorities as the conduct rule.

55    Hirst LJ also held in Shah that a defence of justification directed to the existence of reasonable grounds for suspicion was subject to the repetition rule. That rule is not so much a rule, but a label that refers to the long-standing principle that a publication which repeats an underlying charge can only be justified by proof of the underlying charge. The principle was the subject of consideration by the Privy Council in “Truth” (New Zealand) Ltd v Holloway [1960] 1 WLR 997 at 1001–1002 and by Lord Reid in Lewis v Daily Telegraph at 260. A simple example of an application of the repetition rule is that the publication of a rumour imputing guilt of a crime can only be justified by proving the truth of the commission of the crime and not the existence of the rumour. And at common law, the truth of an imputation that a person was guilty of a crime could not be established by proving that the person was convicted of the crime: Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 415 (Mason JA), citing Hollington v F Hewthorn & Co Ltd [1943] KB 587; see now Defamation Act, s 42, and Evidence Act 1995 (Cth), s 178.

56    The question whether justification of a reasonable suspicion imputation requires a focus on the conduct of the plaintiff was the subject of further consideration in Bennett v News Group Newspapers Ltd [2002] EMLR 39 (Bennett) at [6], [27], and [32] where the Court of Appeal observed that the facts that were before the Court in Shah directed attention to the conduct of the plaintiffs because their conduct was called into question. In Bennett, the Court at [36] drew a distinction between Lucas-Box meanings that there were “serious grounds for investigating” and that the plaintiff was “reasonably suspected of involvement”, holding that the latter called the plaintiff’s conduct into question in a way that the former did not.

57    The relevant principles were the subject of further examination in Chase. Brooke LJ referred at [48] to May LJ’s formulation in Shah at 269G, that “[t]he defendant has to establish that there are objectively reasonable grounds to suspect the plaintiff” and then stated at [50]–[51] (set out below) that there may be cases in which, depending upon the terms of the publication, a defendant may rely on matters which do not directly focus on some conduct on the plaintiff’s part as giving rise to a relevant suspicion. His Lordship then stated that a defendant may rely on strong circumstantial evidence implicating the plaintiff which might amount, objectively speaking, to the requisite grounds for reasonable suspicion –

50    I would accept, however, Mr Spearman’s further submission that the language used by the members of this court in Shah should not be treated as if they were the words of a statute. There may be cases, of which this is unquestionably not one, in which, depending on the terms of its publication, a defendant may rely on matters which do not directly focus on some conduct on the plaintiff’s part giving rise to a relevant suspicion.

51    A defendant may, for example, rely on strong circumstantial evidence implicating the claimant which might amount, objectively speaking, to the requisite grounds for reasonable suspicion. It is not, however, necessary to explore this possibility on the present appeal.

58    The principles were brought together by the Court of Appeal in Musa King v Telegraph Group Ltd [2004] EWCA Civ 613; [2004] EMLR 23 (Musa King) where at [22] Brooke LJ set out the following formulation of Eady J at first instance ([2003] EWHC 1312 (QB) at [32]) –

(1)    There is a rule of general application in defamation (dubbed the “repetition rule” by Hirst L.J. in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation—not merely the fact that the allegation has been made;

(2)    More specifically, where the nature of the plea is one of “reasonable grounds to suspect”, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;

(3)    It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty;

(4)    A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact – but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;

(5)    Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion (the so-called “conduct rule”).

(6)    It was held by this court in Chase at paras [50]–[51] that this is not an absolute rule, and that for example “strong circumstantial evidence” can itself contribute to reasonable grounds for suspicion;

(7)    It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.

(8)    A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).

(9)    … [T]he defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.

(10)    A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.

59    The formulation of principles set out by Brooke LJ in Musa King was subsequently adopted by the Court of Appeal in Miller v Associated Newspapers [2014] EWCA Civ 39 at [13] (Moore-Bick LJ, Kay VP and Lloyd-Jones LJ agreeing). Principle (2) does not refer in terms to any requirement that the primary facts must be directly concerned with the conduct of the plaintiff, but subsequent authorities have explained the relationship. Thus, in Bokova Nicklin J stated at [24] –

While it is an essential requisite of a Chase level 2 defence (Chase v News Group Newspapers Ltd [2003] EMLR 11) that the particulars must focus on the conduct of the claimant said to give rise to the suspicion, in a complicated case it may be necessary to portray some of the background and to connect the main facts relied upon. But the fundamental and ultimate question is: whether taken as a whole the particulars demonstrate conduct of the claimant that gives rise to the suspicion: in other words, on the facts pleaded, a person could suspect that the claimant was implicated: Miller v Associated Newspapers Ltd [2012] EWHC (QB) at [14]—[15], 3721 per Sharp J; and Miah’s case, paras 33—34, per Warby J.

60    At [25], Nicklin J explained further the relationship between circumstantial evidence and the conduct rule, and we emphasise and respectfully endorse the latter part of what his Lordship said –

I have no difficulty with the interplay between circumstantial evidence and the “conduct rule”. To take an example, in a drugs importation conspiracy it is usual for the prosecution to rely upon a number of sources of evidence including, typically: (1) cell-site analysis showing the presence of mobile telephones at various locations; (2) calls and messages passing between those telephones; and (3) ANPR and CCTV “hits” of various vehicles at particular places. If the same factual issues arose in defence of a libel claim, including alleged facts from these three categories, there would be some evidence in each that did not focus on the conduct of the claimant; indeed, there is likely to be evidence relating to the activities of the other alleged conspirators. However, the strength of the case, and why it gives rise to suspicion falling on the claimant is that, cumulatively and taken together, the evidence implicates the claimant because of his connection to the evidence as a whole. What matters, and what would be essential for the truth defence to have a realistic prospect of success, is the evidential link to the claimant. Without that, the rest of the evidence cannot give rise to a reasonable suspicion.

(Emphasis added.)

61    Shah and Chase were applied by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117 and S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60. In the proceeding that was the subject of those appeals the plaintiff alleged that the promotion of a current affairs television program conveyed the following meanings –

(a)    the plaintiff is a suspect in a murder case arising from the death of Corrina Marr,

(b)    there are grounds to so suspect him, which are reasonable.

62    This was held to be a composite imputation requiring proof that the plaintiff was a suspect in a murder case and proof of objective facts or objective conduct which gave rise to reasonable suspicion. Both Full Courts held that a defence of justification to an imputation of reasonable grounds to suspect must plead the conduct of the plaintiff said to justify the reasonable suspicion, but that this could be achieved by pleading circumstantial facts from which conduct can be reasonably inferred: see [2007] SASC 117 at [35] (Perry J, Duggan J and David J agreeing); [2008] SASC 60 at [18] (Bleby J, Duggan J and Layton J agreeing). A pleading that amounted to no more than a repetition of what others thought or said was held to be inadequate.

63    In the later trial judgment, Bleby J acted on the principle that reasonable grounds for suspicion may include conduct of the plaintiff but may also include other facts and circumstances: Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [113]. In support, Bleby J cited Brooke LJ in Chase at [50] and [51] which we extracted at [57] above. Bleby J explained at [114] the distinction between objective facts that might support a reasonable suspicion, such as the time of death of the deceased and, on the other hand, the pleaded facts that had earlier been disallowed by the Full Court which involved pleading the fact that certain statements had been made and events reported to the police. His Honour stated that those facts might indicate that the police had grounds to suspect but it did not follow that, objectively, there were reasonable grounds for the suspicion, and it was for that reason that it was necessary to allege the plaintiff’s conduct and other relevant circumstances by way of justification.

64    In addressing the defence of justification at trial Bleby J emphasised at [136]–[137] that the second limb of the plaintiff’s imputation which we have set out at [61] above did not relate to the grounds on which the police suspected the plaintiff of murder and whether the grounds of their suspicion was reasonable, but that the imputation was that objectively there were grounds to suspect the plaintiff. This required the defendant to prove on the balance of probabilities that objectively there were grounds on which the plaintiff could be suspected of murder and that such grounds were reasonable. His Honour drew a distinction between grounds to suspect and grounds to believe, holding at [138] that belief is a higher standard than suspicion, and that more slender evidence will justify a finding of reasonable grounds to suspect than of reasonable grounds to believe. His Honour noted at [139] that most of the reported cases in which the words “suspicion” or “suspect” were discussed involved the construction of statutory provisions rather than what is required to justify a defamatory statement that a person is a suspect. Having made that important observation, his Honour cited the following passage from the joint judgment of the High Court in George v Rockett [1990] HCA 26; 170 CLR 104 at 115–116 in relation to the distinction between belief and suspicion –

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (63), “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees (64), a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (65):

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”

(63)    [1970) A.C. 942, at p. 948.

(64)    (1966) 115 C.L.R. 266.

(65)    (1966) 115 C.L.R., at p. 303.

65    After citing George v Rockett, Bleby J stated at [142] that the defendant did not have to prove guilt or reasonable grounds to believe that the plaintiff was involved in the murder. The defendant was required to prove only the existence of reasonable grounds to suspect. Upon applying these principles, Bleby J upheld the defendant’s defence of justification. An appeal from his Honour’s decision was dismissed: Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202, with Gray J (Nyland J and Vanstone J agreeing) holding at [70] that there was ample evidence to support the judge’s conclusions on justification.

66    Many of the authorities relating to what must be proven to justify an imputation of reasonable grounds to suspect were reviewed and applied by McClellan CJ at CL in Greig v WIN Television NSW Pty Limited [2009] NSWSC 632. After the conclusion of evidence, his Honour decided to withdraw a defence of justification from the jury in relation to the following imputations which his Honour set out at [3] –

…

b.    The plaintiff conducted herself in such a way as to give rise to the reasonable suspicion that in handling a planned councillor technology upgrade for the Shellharbour City Council she had acted corruptly in accepting BlackBerry devices from private communications representatives;

…

e.    The plaintiff conducted herself in such a way as to provide reasonable grounds for the Shellharbour City Council to refer her conduct to the Independent Commission Against Corruption;

f.    The plaintiff conducted herself in such a way as to provide reasonable grounds for the Independent Commission Against Corruption to refer her conduct to the Shellharbour City Council’s Code of Conduct Committee.

67    It is to be noted that the above imputations were in the active form and referred specifically to conduct of the plaintiff. In relation to imputation (b), McClellan CJ at CL held at [89] –

The essential element of each imputation is that it was the conduct of the plaintiff which gave rise, in the case of imputation (b) to the “reasonable suspicion”, and in the case of imputations (e) and (f) “so as to provide reasonable grounds” for the relevant reference. Although the conduct of the plaintiff cannot be separated from the context in which it occurs, it is her conduct that the defendant must prove to have had the pleaded outcome. It cannot be proved by the statements of others.

68    At [102], his Honour drew a similar conclusion in relation to imputations (e) and (f), holding that the imputations were concerned with the plaintiff’s conduct and that when the conduct was examined there was nothing that the plaintiff did which a jury could reasonably find justified the imputations.

69    The Supreme Court of New Zealand considered the question of the adequacy of the particulars of a pleading of justification of a suspicion imputation in APN New Zealand, to which we referred earlier. The relevant imputation was that the publications meant that “there were serious grounds for believing” that the plaintiffs were corrupt. The particulars in support of the defence included statements by third parties comprising statements of judges in court judgments, allegations in Parliament and elsewhere by a prominent politician, statements in a report commissioned by the Solicitor-General, statements in affidavits of former employees of one of the plaintiffs and the Ministry of Fisheries, and notes of interviews with those deponents and fishing and legal experts: see the judgment of the Court given by Tipping and Wilson JJ at [6]. The Supreme Court adopted the principles set out in Musa King to the pleading of particulars of justification of an imputation of reasonable suspicion, subject to noting that Lucas-Box meanings were not available to defendants in New Zealand to plead justification to meanings of less gravity than the meanings alleged by the plaintiff. In relation to circumstantial evidence, the Court stated at [35] that circumstantial evidence cannot contribute to reasonable grounds for suspicion unless it gives rise to an available inference concerning the conduct of the plaintiff. The Court at [35] emphasised that ultimately the particulars had to be directed to some conduct of the plaintiff as giving rise to the grounds for reasonable suspicion –

For these reasons, we conclude that the law of defamation in this country should (subject to one elaboration) require particulars pleaded in support of a defence of truth to an allegation of reasonable suspicion to comply with the principles formulated by the Court of Appeal in Musa King. The elaboration concerns the sixth principle and is implicit within it. Circumstantial evidence cannot contribute to reasonable grounds for suspicion unless it gives rise to an available inference concerning the conduct of the plaintiff. The circumstantial evidence suggestion was first made by Brooke LJ himself in Chase, where he said that a defendant could “rely on strong circumstantial evidence implicating the [plaintiff]” as grounds for reasonable suspicion. The circumstantial evidence could hardly have any value unless it “implicated” the plaintiff by means of an available inference as to the plaintiff’s conduct. This is why we have said that our elaboration represents something which was already implicit in the sixth principle.

70    In summary, the authorities establish that to justify a matter which conveys that there are reasonable grounds to suspect that a person is guilty of a crime, it is necessary to adhere to the distinction between rumour and suspicion. The application of the principle captured by the repetition rule means that it is not sufficient to plead rumour, or second-hand reports of suspicion, or the assertion of them, or the mere fact that someone else believed or suspected the person was guilty of a crime, or that some third party said something that, if true, would cast suspicion on the person. What is required are facts which objectively afford reasonable grounds to suspect the person.

71    Some imputations focus expressly on the plaintiff’s conduct as an element of the imputation and therefore invite a greater degree of focus on direct conduct. However, depending on the terms of the publication and the form of the imputation the facts need not be limited to or focused upon direct allegations of conduct. Where the conduct of a plaintiff is relevant to the existence of reasonable grounds to suspect, then “to prove the reaction of others to the plaintiff’s conduct does not prove the conduct itself”: Jackson v John Fairfax at 41G; Corse v Robinson (unreported, Supreme Court of Western Australia Full Court, 8 December 1997) at 14. Otherwise, we express our general agreement with the analysis of Nicklin J in Bokova at [24]–[25] to which we referred earlier. Justification of a reasonable grounds to suspect imputation of the type pleaded in this case requires evidence of facts that implicate the respondent in drug trafficking because of his connection to the evidence as a whole.

Issue (3):    Did the primary judge err in deciding that the appellants’ particulars of justification were incapable of supporting their defence?

72    At J [13] the primary judge accepted a submission made on behalf of the respondent that the appellants’ particulars of justification should be set out with the same level of precision as an indictment citing, inter alia, Rush at [52] (Wigney J) and the first instance decision of Rares J in Wing v ABC at [78] which was the subject of appeal to the Full Court in ABC v Wing to which we have referred. The respondent made a similar submission to this Court. It is important to note the following.

73    First, the genesis of the idea that a pleading of justification should state the charge with the same precision as an indictment is a statement attributed to Alderson B during argument in Hickinbotham v Leach (1842) 10 M & W 361 at 363; 152 ER 510, which was then cited in Zierenberg v Labouchere [1893] 2 QB 183 at 187 (Lord Esher MR), which in turn was cited in Wootton v Sievier [1913] 3 KB 499 at 503 (Kennedy LJ). The authorities cited by the respondent on this point were instances where some unlawful or disreputable conduct of the claimant was directly in issue. They did not concern a plea that there were reasonable grounds to suspect that the claimant was guilty of some offence. For instance, in Wing v ABC at [78] Rares J addressed the sufficiency of the respondent’s particulars to prove the truth of the applicant’s “guilt” imputations, and not the respondent’s alternative “suspicion” imputations which were struck out. The same is true of the Full Court’s own consideration of that issue on the appeal in ABC v Wing at [148]–[149] where Wootton v Sievier was cited.

74    Secondly, it follows that it may not be apt to frame the level of precision required for particulars of justification of a reasonable suspicion imputation by reference to the requirements of a criminal indictment. What is in issue is not a charge of unlawful conduct but the existence of grounds on which suspicion of the commission of an offence is reasonably based. Those grounds may include circumstantial facts which implicate a claimant in the unlawful conduct. The principle that underlies Hickinbotham v Leach and the other cases cited is that a person is entitled to know clearly the case that must be met. When there are allegations as serious as suspicion on reasonable grounds of the commission of an offence, the requirement of precision in pleading is a valuable safeguard, but the level of precision that is required will vary according to the circumstances of the case. The facts in support should ordinarily be pleaded in accordance with the guiding principles referred to by the Full Court in ABC v Wing at [147] which have regard to the purposes of pleadings identified in Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ) and which comply with the requirements of the Federal Court Rules 2011 (Cth), rr 16.02(1)(d) and (2), 16.03(1) and 16.41 to 16.43.

75    The primary judge did not err in his conclusion that the material facts alleged in schedule 1 of the appellants’ defence, as far as they went, were not capable of justifying imputation 10(c). As we have explained, the form of imputation 10(c) was an area of choice for the respondent, and the way that he has chosen to frame the imputation is to import as a necessary element that the grounds on which Australian police suspected him of drug trafficking were objectively reasonable. If that imputation is found to have been conveyed, then any defence of justification must be directed to establishing that the grounds for the suspicion were objectively reasonable.

76    We have considered the combined force of the appellants’ particulars when taken at their highest. The high points of the appellants’ particulars are at paragraphs (3), (4), (6), (7) and (8). The substance of those particulars is –

(a)    the NCA obtained the issue of telephone intercept warrants which gives rise to an inference that the judge or other person who issued the warrants was given information that justified the issue of the warrants;

(b)    as a result of the telephone intercepts obtained by the NCA pursuant to the warrants, the NCA formed a reasonable suspicion that the respondent was knowingly involved as a financier in relation to a shipment of heroin transported from Cambodia to Australia concealed in loads of timber; and

(c)    the NCA or the AFP obtained a warrant under the Crimes Act for the arrest of the respondent from which it can be inferred that the warrant was issued on the basis of information on affidavit that the respondent was believed to have committed offences, that the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant, and that reasonable grounds in fact existed for the suspicion of the respondent.

77    The primary judge was correct to conclude at J [24]–[25] that the appellants’ particulars, as far as they were at that point developed, went only to the fact of the suspicion. That is because the particulars of the material facts alleged by the appellants went no further than pointing to inferences that unnamed persons involved in an investigation by the NCA in which telephone intercept warrants were obtained and those responsible for the issue of an arrest warrant formed a subjective belief, on unstated grounds, that the respondent had committed some offence. The provisions of s 3ZA(1) of the Crimes Act concerning the issue of an arrest warrant on which the appellants relied do not take the appellants’ pleaded case beyond an allegation of subjective belief. The conditions for the issue of a warrant include that the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including the reasons why it is believed that the person committed the offence: s 3ZA(1)(b)(i). To establish an inference that the informant or other person making the affidavit in support of the issue of the warrant believed that the respondent committed an offence is not capable of supporting a case that grounds on which police suspect the respondent of drug trafficking were objectively reasonable. The same applies to the inference that the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant: s 3ZA(1)(d). That inference is capable of speaking only to the issuing officer’s subjective state of satisfaction that a warrant should be issued and does not meet the sting of which the respondent complains, namely that the grounds on which the suspicion was based were objectively reasonable. In substance, the appellants’ particulars plead only the opinions and reactions of others to unpleaded facts and do not allege any circumstances with an evidential link to the respondent that could potentially implicate him in the commission of any offence of drug trafficking: see Bokova at [25] (Nicklin J) which we set out at [60] above.

78    The appellants’ resort to policy considerations to which we referred at [31] above to meet the current deficiencies in their defence of justification does not advance matters. The situation that is presented by this appeal is not novel, as Lewis v Daily Telegraph and the long line of cases that have followed demonstrate. The assumption on which the issues in this appeal arise is that the appellants published a documentary which conveyed that Australian police suspected the respondent on reasonable grounds of drug trafficking. On its face, a widespread publication which conveyed that meaning is capable of injuring the reputation of the respondent. There is a public interest in giving persons who have suffered serious harm because of the publication of a defamatory matter an effective and fair remedy. There is a competing public interest in ensuring that the law of defamation does not place unreasonable limits on freedom of expression: Defamation Act, s 3. But the answer does not lie in altering the established approach to justification defences. The common law of Australia does not recognise a “neutral reportage privilege”: see Kutner P B, What is Truth?: True Suspects and False Defamation 19 Fordham Intell Prop Media & Ent LJ 1 (2008) at 60–66. However, a report of the fact of an arrest or a criminal charge or the fact of suspicion of an offence might be capable of attracting the public interest defence under s 29A of the Defamation Act if the elements of that defence are established: compare Roberts v Gable [2007] EWCACiv 721; [2008] 1 QB 502 at [60] (Ward LJ) and [76] (Sedley LJ), and Charman v Orion Group Publishing Group Ltd [2007] EWCA Civ 972 at [48]–[50] (Ward LJ). The statutory public interest defence can balance the competing interests more directly than the law relating to justification: see Kutner P B, Suspicion, Investigation and Truth: A Continuing Evolution in English Defamation Law (2011) 3(1) Journal of Media Law 61 at 86–87.

Issue (4):    Did the primary judge err in ordering that the relevant paragraphs of the defence be struck out?

79    It does not follow from the above conclusions that the appellants’ defence should have been struck out before the appellants had the opportunity to exhaust reasonable coercive processes to augment their case. Before the primary judge the appellants relied on the decision of Kenneth Martin J in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 (Kingsfield) at [44], [47]–[48] to support a submission that this was not an instance where the appellants had “put up nothing” and were seeking to fish around for some basis to support a defence. Instead, it was submitted that this was a case where the appellants had put up enough to allow them forensically to probe for documents, including those that might expose some of the detail of the circumstances in which the warrant was issued. The appellants submitted to the primary judge that it was legitimate for them to augment their case through the forensic processes of the Court.

80    By their second ground of appeal the appellants claim that the primary judge erred in failing to distinguish between what is required to prove a defence of justification at trial and what constitutes a sufficient pleading of justification that may be augmented by forensic processes of the court. In submissions before this Court, senior counsel for the appellants emphasised that the effect of the orders under appeal was that the appellants had been shut out from being able to pursue further their justification defence, including by obtaining access to subpoenaed documents, when there was a sufficient indication that there was something to the appellants’ defence.

81    At J [15] the primary judge accepted a submission by the respondent that a publisher which pleads a justification defence must do so on the basis of the information in the publisher’s possession when the defence is delivered, and that a publisher should not be permitted to invoke the compulsory processes of the court in order to fish for documents or information which might support a proper justification plea. The primary judge reasoned that “if a respondent says they are unable to plead the necessary facts without the benefit of discovery or subpoenas then the plea of justification cannot be maintained”, citing Zierenberg v Labouchere, where at 189 Kay LJ stated –

If the defendant says that he is unable to state any such facts without discovery, the answer is simple and conclusive – he ought not to have published the libel, and cannot plead any justification for having done so.

82    After citing Zierenberg v Labouchere the primary judge qualified his conclusion by stating –

This is not to deny the right to augment, in an appropriate case; but the present case is not, in my assessment, one where all the respondents have sought to do is augment a properly pleaded justification defence.

83    The foundation for statements of the kind found in the reasons of Kay LJ in Zierenberg v Labouchere, the historical context in which they were made, and current practice, require examination.

84    Before the enactment of the Common Law Procedure Acts, in Macauley v Shackell (1827) 1 Bligh NS 96; 4 ER 809 Lord Eldon held that a defendant to a common law libel action could file a bill of discovery in the Court of Chancery in support of a plea of justification. Following the procedural reforms of the mid-19th century, the common law courts were given discretionary powers to make orders for discovery, but caution was exercised so as not to sanction applications that were of a fishing character. There are several 19th century authorities concerning pleas of justification in libel cases to general charges where no particulars were given and discovery was refused. The authorities include Metropolitan Saloon Omnibus Company Ltd v Hawkins (1859) 4 H & N 146; 157 ER 792 (Metropolitan Saloon), which was a libel case concerning a publication which imputed insolvency and mismanagement of a company. Pollock CB stated at 150 that –

A person who ventures to publish a libel, or utter slander, should be in a condition to justify his conduct, and not come to the Court to ask for assistance to get up some proof.

85    The vice that was addressed was the prospect that a defendant would be able to make claims of insolvency and then be permitted to search the plaintiff’s books to get up a defence of justification. Thus, at 151 Martin B stated –

If a person thinks fit to publish a libel a upon merchant, that he should have a right, on pleading a justification, to go to the merchant’s counting-house, have all his books brought down and submitted to him, and thus get information as to all his affairs, seems to me so repugnant to every idea of right, that it would require the strongest possible ground to induce any Court to accede to such an application.

86    And at 152 Watson B stated –

It is a monstrous proposition that, if a person chooses to libel any mercantile firm, large or small, and then pleads a justification to an action, he has a right to inspect and take extracts from every book or document they possess.

87    There was a similar outcome in Gourley v Plimsoll (1873) LR 8 CP 362, where leave to administer interrogatories in a libel action before particulars of the defence had been delivered was refused. At 375, Brett J stated –

If the interrogatories were allowed, it would be to enable him to look for a case, not to support his defence, or see if he has a defence which can be supported. When he has disclosed as far as he can the real circumstances on which he means to rely for his justification, then will arise another question of discretion, viz. whether the interrogatories should be allowed, to enable him to support the case thus presented.

88    Brett J had earlier alluded at 374 to a principle that interrogatories could be administered before pleading if special circumstances were shown. Millar v Harper (1888) 38 Ch D 110, which was not a defamation case, was illustrative of the application of the principle that the provision of particulars might be deferred until discovery was given where the relevant facts were likely to be within the knowledge of the opposing party. Later examples of this course include Ross v Blakes Motors Ltd [1951] 2 All ER 689 and Egg and Egg Pulp Marketing Board v KH Korp Tocumal Trading Co Pty Ltd [1963] VR 378 where discovery preceding particulars was ordered.

89    Zierenberg v Labouchere was a libel action in which the defendant had pleaded justification generally to the whole of the publication and had given some particulars but sought discovery by way of interrogatories and inspection of books before being called upon to give other particulars. Lord Esher MR, with whom Bowen LJ agreed, held that the particulars that had been given were almost as general as the statement in the alleged libel and that discovery should not be ordered because there were no exceptional circumstances, unlike the position in Leitch v Abbott (1886) 31 Ch D 374 where discovery was allowed before particulars of a general allegation of fraud were ordered because there had been a relationship of principal and agent: see the reasons of Bowen LJ at 377 and 379.

90    There followed further cases where discovery was refused to a defendant in a libel action where full particulars of a justification defence had not been given: Arnold v Bottomley [1908] 2 KB 151; Nelson v Bradstreet (1917) 2 WWR 1191. In Goldschmidt v Constable & Co [1937] 4 All ER 293 at 294, Greer LJ applied the following principle –

… in a libel action the party who alleges that the defamatory statements are true must make out his case on the information which he had in his possession at the time when the defence was delivered. He is not entitled to wait for discovery in order to complete his attack, but must give full particulars before discovery.

91    As we will identify below this statement of principle, if taken literally, does not reflect modern practice.

92    In October 1948, the Report of the Committee on the Law of Defamation Cmd 7536, which was chaired by Lord Porter, was presented. The Porter Committee referred at [178]–[181] to the “rigid exception” to the general rules of discovery in defamation actions, and the practice of not allowing a defendant general discovery of documents in libel actions where justification was pleaded. The Porter Committee recommended that discovery of documents in actions for defamation should be granted in accordance with the same rules of practice that applied to discovery in actions of fraud which was described at [178] in the following terms –

In cases of fraud, discovery is normally limited to the particulars of fraud given in the pleadings, but this is not an inflexible rule and there is power in the Court in a proper case to give a wider discovery.

(Emphasis added.)

93    Following the report of the Porter Committee the Rules of the Supreme Court 1883 (UK) were amended by the Rules of the Supreme Court (No 1) 1949 (UK) which inserted the following sentence in O 31, r 12 –

In an action for libel or slander the court or a judge may grant discovery of documents relating to any issue raised in the action.

94    The fourth edition of Gatley on Libel and Slander (1953) noted at p 540–541 the former practice of limiting discovery of documents relating to a defence of justification –

Before 1949, a defendant who pleaded justification was not entitled to general discovery of documents, but discovery was limited to such documents as related to the specific facts and instances alleged in the particulars of justification. If he pleaded justification without giving proper or sufficient particulars, he was not allowed inspection as a means of discovering evidence to support his plea.

95    Gatley then referred to the amendment to O 31, r 12 stating that it gave to the court in actions for defamation the same discretion as it enjoyed in all other actions. This statement was qualified by a footnote which cited Zierenberg v Labouchere and Wootton v Sievier for the proposition that where a general charge of misconduct was made, a defendant who pleaded justification must still give particulars of the specific instances of misconduct relied on.

96    It does not appear that the recommendation of the Porter Committee and the amendment to the Rules had an immediate effect, because in Ross v Blakes Motors Ltd, which upheld an order refusing to order particulars before a defence, Jenkins LJ referred at 694 to Zierenberg v Labouchere, describing it as “a very special case”, without referring to the amendment to the Rules or the Porter Committee report.

97    Some decades later, two decisions of the Court of Appeal concerning discovery in defamation cases recognised a change in practice. In Evans v Granada Television Ltd [1993] EMLR 429, Stuart-Smith LJ stated at 433 that “[t]here are no special rules of discovery in defamation actions, though the arcane niceties of pleading and procedure in such actions might sometimes lead those not initiated in this art to think the contrary”. And in rejecting one of the submissions, Stuart-Smith LJ remarked that “[t]he rules of discovery are designed to achieve justice and not to defeat it”.

98    Subsequently, the practice of discovery relating to a justification defence in defamation proceedings attracted consideration in McDonald’s Corp v Steel [1995] 3 All ER 615 (McDonald’s). At 621 Neill LJ (who was one of the authors of Duncan and Neill on Defamation and with whom Steyn LJ and Peter Gibson LJ agreed) rejected a submission that justification should be pleaded only if there was “clear and sufficient evidence”, stating –

It is true that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available. But, as counsel for the plaintiffs recognised in the course of the argument, there will be cases where, provided a plea of justification is properly particularised, a defendant will be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories.

(Emphasis added.)

99    Neill LJ then proposed the following formula, recognising that it would not meet all occasions –

Actions for defamation take many forms. The allegations complained about may vary from the moderately serious to the very grave. It may therefore be unwise to put forward a formula which will match all occasions. Nevertheless I am satisfied that before a plea of justification is included in a defence the following criteria should normally be satisfied: (a) the defendant should believe the words complained of to be true; (b) the defendant should intend to support the defence of justification at the trial; and (c) the defendant should have reasonable evidence to support the plea or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.

(Emphasis added.)

100    These principles were referred to by Eady J in Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB) at [28] –

In order to plead a defence of justification, a defendant needs to believe that the words complained of are true in the relevant defamatory meaning or meanings, must intend to support that defence at trial, and have reasonable evidence to support the plea or reasonable grounds to suppose that sufficient evidence will be available by the time of trial. It would seem to follow that, if a defendant has no evidence at the time of pleading the defence, and there is no solid basis for assuming that evidence will emerge by way of disclosure of documents or the supply of further information pursuant to a request, the court should be astute to prevent a weak plea going forward and thus wasting everyone’s time and money. There must be something going beyond bare Micawberism.

101    The third limb of Neill LJ’s formula in McDonald’s aligns with the rules of conduct that were referred to by the Full Court in ABC v Wing at [140] which provide that a legal practitioner should not allege any fact in a court document unless there is a belief on reasonable grounds that the factual material already available provides a proper basis to do so: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 64; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 21.3.

102    In McDonald’s, Neill LJ also remarked at 622 that –

It is to be remembered that the defences of justification and fair comment form part of the framework by which free speech is protected. It is therefore important that no unnecessary barriers to the use of these defences are erected, while at the same time the court is able to ensure that its processes are not abused by irresponsible and unsupported pleadings.

103    In Australia, one of the objects of the largely uniform defamation legislation is “to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance”: see Defamation Act 2005 (Vic), s 3(b).

104    Several Australian cases have cited the dicta of Kay LJ in Zierenberg v Labouchere to which we referred at [81] above. They include the decision of the Full Court of the Supreme Court of Western Australia in TCN Channel Nine Pty Ltd v Berrigan (1996) Aust Torts Reports 81-404 (Berrigan) at 12, Kingsfield at [39] (Kenneth Martin J), and Rush at [172] (Wigney J), which in turn was cited by the Full Court in ABC v Wing at [140]. The Full Court in ABC v Wing went on to say at [140] –

However, as other authorities cited by Wigney J in Rush v Nationwide News Pty Ltd make clear, proof of a defence of justification which has a sufficiently pleaded underlying factual basis may be augmented after invoking processes of discovery and production of documents by subpoena: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 at [19] (McCallum J).

105    Other cases, such as Sunday Times Newspaper Co Ltd v Sun Newspaper Co Ltd (1919) 36 WN (NSW) 72, which was cited in Berrigan, rely on older English authority such as Metropolitan Saloon to support the principle that fishing enquiries have always been discountenanced by the courts. The Full Court in Berrigan also cited Owen J in Associated Dominions Assurance Pty Ltd v John Fairfax and Sons Pty Ltd (1955) 72 WN (NSW) 250 (Associated Dominions) at 254 for this principle. However, what Owen J said in Associated Dominions at 254 was more elaborate –

Obviously in a libel action in which justification has been pleaded in general terms and without sufficient particularity to enable the issues to be defined, inspection will not be ordered. To make an order in such a case would be improper and unjust. The authorities cited in argument on the point are conveniently collected in Gatley on Libel and Slander, 2nd ed. (1929), pp. 635-637. The same principle is to be found in the English cases dealing with the administration of interrogatories on behalf of a defendant who has pleaded justification.

“The Court will not allow the defendant to administer interrogatories in order that he may be able to make out a defence of justification of which he is altogether ignorant’’. (Gatley on Libel and Slander, 2nd ed. (1929), p. 618).

“The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case ... of which at present he knows nothing ... the rule against ‘fishing’ interrogatories applies “: Hennessy v. Wright (No. 2) (26); Russell v. Stubbs Ltd. (27). But, in my opinion, this is not such a case.

(Footnotes omitted.)

106    In Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 (Pahuja), which was cited in Rush at [174] and in ABC v Wing at [140], McCallum J stated at [19]–[20] –

19    The plaintiff relied, in this context, on the decision of the Full Court of the Supreme Court of Western Australia in TCN Channel Nine Pty Ltd v Berrigan where the Court said (overturning an order for further discovery) “a defendant who pleads justification or truth must do so on the basis of the information which it has in its possession when the defence is delivered”. I would not understand that decision to hold that, after the defence has been filed, no further material can be sought to support the defence; that would be heresy. There is an important distinction to be drawn between a case in which the defendant is unable to state any facts to support the defence (requiring discovery and interrogatories to find out if he has a defence, which is not permitted) and a case in which the pleaded facts are spare, but capable of sustaining the defence.

20    As Newton’s Third Law holds in a different context, each principle concerning the obligation to provide particulars is met in law with an equal and opposite principle. To avoid oppression to the plaintiff, a defendant pleading a defence of justification is obliged to provide sufficient particulars to put the plaintiff on notice of the case he or she has to meet but, conversely, the requirement for particulars must not itself become oppressive. The defendant must specify the particulars relied upon “with the same precision as in an indictment” but, conversely, is only ever obliged to give the best particulars he or she can give at the time of giving the particulars.

(Footnotes omitted, emphasis added.)

107    The above extracts from Pahuja correctly convey that there are no rigid rules about the required content of particulars of justification, or the extent to which discovery or other coercive processes may be deployed in aid of a justification defence. Earlier, in Cheikho v Nationwide News Pty Ltd (No 3) [2015] NSWSC 146 at [15] McCallum J accepted that it is established that in an appropriate case particulars relied upon in support of a truth or contextual truth defence may fall so far short of being capable of supporting the truth of the imputations that it could be justified to strike them out. McCallum J cited Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 (Hayson), which was also cited by Wigney J in Rush at [49], where Hodgson JA (Tobias JA and Santow JA agreeing) stated at [20]–[21] –

For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.

I am not persuaded at this stage that the particulars in this case fall so far short of being able to permit evidence that could establish the truth of the contextual imputations that the contextual imputations should be struck out.

108    After referring to Hayson, McCallum J went on to state at [17] –

… it is equally established that particulars are not to be regarded as the evidence, rather that they denote the topics of which evidence will be adduced. To allow the particulars to stand says nothing as to whether the evidence sought to be adduced in support of them will be admitted. That is a matter for the trial judge. …

109    Returning to McDonald’s, the passage from the judgment of Neill LJ set out at [98] above was cited with approval by John Dixon J in Sali v Australian Broadcasting Corporation (Ruling No 2) [2013] VSC 719 at [26] in the course of rejecting a submission by subpoenaed parties that documents sought by the defendant in aid of a justification defence were being used for the purpose of fishing.

110    Further, the issue was the subject of consideration by White J in Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164. At [23], White J referred to the passage from the judgment of Greer LJ in Goldschmidt v Constable which we set out at [90] above and then stated at [24] (inter alia) –

Insofar as the Commissioner relied upon the proposition that a defendant must make out a plea of justification on the information in its possession at the time when the defence was delivered, I do not accept that submission. I doubt very much whether that is what Greer LJ intended. There is no reason in principle why a defendant pleading justification cannot seek additional evidence supporting that plea after the defence has been filed. Were it otherwise, there would be little point to the provision of discovery in such cases at all, whether from the plaintiff or from a non-party. In any event, the statement of Greer LJ in Goldschmidt is inconsistent with the later Court of Appeal decision in McDonald’s Corp v Steel.

111    White J then referred to the three limbs of Neill LJ’s formula and stated that was the proper principle to be applied.

112    It is important to recognise that defamation cases should not be treated as a special class of case which attracts exceptions to the ordinary principles of practice and procedure relating to discovery or subpoena of documents. Outside defamation cases, procedural decisions concerning whether discovery or subpoenas are being used for the purposes of “fishing” are abundant. In Trade Practices Commission v CC (New South Wales) Pty Ltd [1995] FCA 556; 58 FCR 426 at 438, Lindgren J stated at 438 –

What does the reference to a “fishing expedition” mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: [citations omitted].

113    And in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 Merkel J stated at [21] –

In my view it is necessary to distinguish between a proceeding which is issued for the purpose of determining whether a party has a case or not, from a proceeding where a party, acting bona fide, commences the proceeding for the purpose of obtaining the relief sought but at the date of issue may not be aware of the evidence and the material facts which will be necessary to support the various elements of the causes of action relied upon. In the former case there are substantial grounds for contending that the proceeding has not been issued for the purpose of the applicant obtaining the relief sought, but for the collateral purpose of what has been described in the cases as a “fishing bill”. However, in the latter case the proceeding is not an abuse of process, as such. Rather, it is a case where the pleading may be struck out on the ground that it is inadequately particularised with leave being granted to deliver a properly particularised statement of claim. In some cases, such as where the relevant facts are known only by the respondent, the Court may order limited discovery before requiring particulars or striking out the Statement of Claim: see Egg and Egg Pulp Marketing Board v Korp Tocumal Trading Co Pty Ltd [1963] VR 378 at 381-382 per Adam J and Lyons at 124-131 per Fitzgerald J.

114    Another way of putting the position is that if a proceeding is commenced or a defence is filed without a proper basis then there is an abuse of process. And if discovery or the subpoena of documents is sought to ascertain whether a case exists when there is no evidence or reasonable expectation that a case does exist, then the documents will not be sought for a legitimate purpose and in that situation there will also be an abuse of process: see Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185 at [38] (Wheelahan, Anderson and Jackman JJ), citing Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.

115    Returning to the primary judge’s reasons, at J [15] his Honour stated the relevant principles in the following terms –

It is also relevant in the present context, as the applicant observes, that a respondent who pleads a justification defence must do so on the basis of the information in their possession when the defence is delivered and, if the defence is improperly pleaded, the defendant should not be permitted to invoke the compulsive processes of the court in order to fish for documents or information which might support a proper justification plea: Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148 at 153-4; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 (Owen J); Rush at [172]; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); ABC v Wing at [139]- [140]. If a respondent says they are unable to plead the necessary facts without the benefit of discovery or subpoenas then the plea of justification cannot be maintained: Zierenberg v Labouchere [1892] 2 QB 183 at 188-9. This is not to deny the right to augment, in an appropriate case; but the present case is not, in my assessment, one where all the respondents have sought to do is augment a properly pleaded justification defence.

116    The statement that “a respondent who pleads a justification defence must do so on the basis of the information in their possession when the defence is delivered and, if the defence is improperly pleaded, the defendant should not be permitted to invoke the compulsive processes of the court in order to fish for documents or information which might support a proper justification plea”, and the statement in reliance on Zierenberg v Labouchere that “[i]f a respondent says they are unable to plead the necessary facts without the benefit of discovery or subpoenas then the plea of justification cannot be maintained”, are too absolute. They must be qualified by the recognition that the pleadings set out the topics for evidence, that discovery and access to documents in defamation cases do not attract special principles, and that the statements in Zierenberg v Labouchere must be qualified by the more recent authority to which we have referred including McDonald’s, Commissioner of Police v Channel Seven Adelaide Pty Ltd, and Pahuja. The difference in the modern approach is material to the question whether the relevant paragraphs of the appellants’ justification defence should have been struck out before the question of access to subpoenaed documents had been determined.

117    As the authorities recognise, each case is fact dependent. In the present case, the appellants’ particulars contained express reservations at (5) and (9) that further particulars would be provided after the issue and return of subpoenas. The question is whether there was some basis to conclude that a case existed which made it in the interests of justice to allow the appellants to pursue full access to the subpoenaed documents before striking out the relevant paragraphs of the justification defence.

118    As counsel for the appellants submitted, this was not a case where the appellants “put up nothing”: cf, Kingsfield at [47]. The affidavit evidence provided a reasonable basis to think that full access to the subpoenaed documents, which was disputed and had not been tested, might have revealed information to support the existence of reasonable grounds on which Australian police suspected the respondent of drug trafficking as alleged in (6) of the appellants’ particulars. And if it be the case that a warrant was issued for the arrest of the respondent, then having regard to the requirements of s 3ZA(1)(d) and s 3ZA(1)(b) of the Crimes Act, access to the subpoenaed documents might have identified the grounds on which the warrant was sought, which might then have provided a basis for the appellants to give better particulars of their allegations of the fact and grounds of suspicion and that the grounds of suspicion were objectively reasonable. Nor was this a case where the appellants put up a general plea of justification and then sought discovery from the respondent. Discovery of documents from a claimant in a defamation proceeding by reference to a generalised plea of justification is more prone to be characterised as an abuse of process or fishing. The subpoenaed documents sought in this case were targeted, were sought on an informed premise, were sought on the basis that there was a reasonable basis to think that the documents were in the possession of the AFP, and that it was “on the cards” that the documents sought could throw light on the material facts that had been pleaded, as the defence had expressly foreshadowed.

119    In our view, it was premature to strike out the justification defence relating to imputation 10(c) before the appellants had the opportunity to have their challenge to the claims of public interest immunity heard and determined and to take any other reasonable consequential steps which that train of inquiry might have revealed. In so doing, we respectfully consider that the primary judge erred in principle by applying the dicta of Kay LJ in Zierenberg v Labouchere in a way that was too rigid. The appellants’ pleading identified topics for evidence and not the evidence itself and expressly stated at (5) and (9) that further particulars could not be provided until after the return of subpoenas. If, after having exhausted further processes of document production that is the best that the appellants can do, then the adequacy of their pleading can be revisited. At that point, the questions whether the respondent has fair notice of the case that he must meet at trial and whether the particulars are capable of justifying imputation 10(c) can be addressed again.

Conclusions

120    The appeal should be allowed. Order 2 of the primary judge made 31 October 2024 should be set aside and in lieu it should be ordered that the respondent’s interlocutory application that paragraphs 31 and 34(a) of the appellant’s defence be struck out be dismissed.

121    It follows that orders 2 and 3 of the primary judge made 18 November 2024, which dismissed the appellants’ subpoena to the AFP for the production of documents with costs, should also be set aside.

122    The parties will be directed to confer and propose a timetable for any submissions, and any necessary evidence, as to costs, unless agreement can be reached as to appropriate orders, with any disagreement to be resolved on the papers.

Associate:

Dated:    18 March 2026

SCHEDULE

The appellants’ particulars of substantial truth of imputation 10(c)

(1)    Between about 2002 and 2004, the National Crime Authority (NCA) conducted a joint task force with the Australian Federal Police (AFP) known as Operation Illipango, by which it investigated the importation into Australia of illicit drugs and money laundering (Operation Illipango).

(2)    The Applicant was a person of interest to Operation Illipango.

(3)    The NCA obtained telephone intercept warrants under the Telecommunications (Interception and Access) Act 1979 (Cth) in connection with Operation Illipango.

(4)    Pursuant to section 46 of that Act, the warrants could only have been issued by a Judge of the Federal Court of Australia or nominated member of the Administrative Appeals Tribunal, and only where the Judge or nominated member was satisfied, on the basis of information provided to them, that information that would be likely to be obtained by intercepting communications made to or from the service the subject of the warrants would be likely to assist in connection with the investigation of a serious offence, or serious offences. It is to be inferred from the fact that the warrants were issued that the Judge or nominated member was provided with information that satisfied that requirement and justified the issue of the warrants.

(5)    Further particulars of the matters referred to in paragraphs (3) and (4) cannot be provided until after the issue and return of subpoenas.

(6)    As a result of telephone intercepts obtained by the NCA pursuant to the warrants, the NCA formed a reasonable suspicion that the Applicant was knowingly involved as a financier in relation to a shipment of heroin transported from Cambodia to Australia concealed in loads of timber.

(7)    The NCA or alternatively the AFP obtained a warrant for the Applicant’s arrest under the Crimes Act 1914 (Cth).

(8)    Pursuant to Part 1A, Division 4 of that Act, the warrant for the arrest of the Applicant could only have been issued if information had been laid before the issuing officer, on oath, setting out the reasons why the warrant was sought, including the reasons why the Applicant was believed to have committed offences, and if the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant. It is to be inferred from the fact that the arrest warrant was issued that such information was provided to the issuing officer and that the issuing officer was satisfied that there were reasonable grounds for the issue of the warrant. It is further to be inferred that reasonable grounds in fact existed for the suspicions referred to in paragraph (6) above.

(9)    Further particulars of the matters referred to in paragraphs (7) and (8) cannot be provided until after the issue and return of subpoenas.

(10)    The Applicant was not ultimately arrested or charged with offences relating to drug trafficking in Australia, as his application for a visa was denied by the Australian government in Phnom Penh in about 2003 and he did not enter the jurisdiction at or around that time so as to be able to be arrested and charged.

SCHEDULE OF PARTIES