Rush v Nationwide News Pty Ltd [2018] FCA 357
Table of Corrections | |
The name of the Solicitor for the Media Respondents in the Suppression Application has been inserted. |
ORDERS
Applicant | ||
AND: | First Respondent JONATHON MORAN Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to r. 16.21(1) of the Federal Court Rules 2011 (Cth), paragraphs 13(a), 14 to 28 and 36.9A to 36.9C of the respondent’s amended defence filed on 15 February 2018 be struck out.
2. Pursuant to r 24.15 of the Federal Court Rules 2011 (Cth), the respondent’s subpoena issued on 14 February 2018 and served upon the Sydney Theatre Company Limited be set aside.
3. The respondents to pay the applicant’s costs thrown away by reason of amendments to the defence and arising from the filing of the amended defence.
4. The respondents to pay the applicant’s costs of and associated with the interlocutory application filed on 2 February 2018 and the amended interlocutory application filed on 20 February 2018.
5. The parties jointly contact the associate to Wigney J to arrange for the matter to be listed for a further case management hearing on a mutually convenient date.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WIGNEY J:
1 Mr Geoffrey Rush is a well-known Australian actor. On 30 November 2017 and 1 December 2017, Nationwide News Pty Limited, the publisher of both a newspaper known as the Daily Telegraph and its associated website, published material concerning Mr Rush. The first publication was on a billboard which advertised or promoted a story which appeared in the Telegraph on 30 November 2017. The second publication was a series of articles that appeared in the Telegraph and the Telegraph’s website on 30 November 2017. Mr Jonathon Moran was the author of parts of those articles. The third publication was a series of articles, again authored at least in part by Mr Moran, which appeared in the Telegraph and the Telegraph’s website on 1 December 2017. The relevant articles concerned a complaint which had been made to the Sydney Theatre Company alleging that Mr Rush had engaged in “inappropriate behaviour” during a performance or performances of that theatre company’s production of the Shakespeare play “King Lear”.
2 Mr Rush claims that the billboard and articles that were published on 30 November and 1 December defamed him. He has commenced proceedings in this Court seeking damages, including aggravated damages, in respect of the hurt and harm occasioned, he alleges, by defamatory meanings or imputations that he contends were conveyed by the billboard and stories.
3 Nationwide and Mr Moran filed a defence to Mr Rush’s claims. They deny that the billboard and the Telegraph stories conveyed, or were reasonably capable of conveying, the defamatory imputations alleged by Mr Rush. Perhaps more importantly, at least for present purposes, they also claim the benefit of the defence of justification and the defence of qualified privilege in, respectively, ss 25 and 30 of the Defamation Act 2005 (NSW). In simple terms, to make out the defence of justification, Nationwide and Mr Moran have to prove that the defamatory imputations of which Mr Rush complains were substantially true. To make out the defence of qualified privilege, Nationwide and Mr Moran have to prove that the recipient of the published material had an interest in having information on a particular subject, that the stories were published in the course of giving the recipient information on that subject and, importantly, that their conduct in publishing the stories was reasonable in the circumstances.
4 By interlocutory application filed on 2 February 2018, Mr Rush applied to have those parts of Nationwide and Mr Moran’s defence which raise the defence of justification and qualified privilege struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth). That rule gives the Court power to strike out all or part of a pleading if it, relevantly, contains scandalous, frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, fails to disclose a reasonable defence, or is otherwise an abuse of process. Mr Rush also sought an order that the defence filed by Nationwide and Mr Moran be treated as confidential and not be distributed to any third party.
5 When Mr Rush first moved on his interlocutory application, Nationwide and Mr Moran’s response was, amongst other things, to seek leave to amend their defence. Following argument, they were granted leave to amend and the interlocutory application was adjourned. An Amended Defence was, in due course, filed. It should be noted in this context that interim confidentiality orders were made in relation to the original defence. Those orders only extended until the further hearing of the interlocutory application.
6 In the meantime, Nationwide, by leave, issued a subpoena to the Sydney Theatre Company. In short terms, the subpoena sought the production of documents relating to a complaint made to the Sydney Theatre Company in relation to alleged inappropriate conduct by Mr Rush during the production of King Lear.
7 Mr Rush’s response to the Amended Defence was to amend his interlocutory application. In his amended interlocutory application, Mr Rush sought: an order that Nationwide and Mr Moran’s justification defence and the particulars thereto, as well as three new paragraphs in the Amended Defence that purported to relate to Nationwide and Mr Moran’s qualified privilege defence (paragraphs 36.9A to 36.9C), be struck out; orders that would require the original defence to be treated as confidential and not made available to third parties; orders the effect of which would be that certain paragraphs of the Amended Defence would remain confidential; an order that the subpoena issued and served on the Sydney Theatre Company be set aside; and an order that Nationwide and Mr Moran pay his costs thrown away as a result of the amendment of the defence, and his costs of the interlocutory application and amended interlocutory application. Mr Rush no longer sought further particulars and no longer sought to strike out the entirety of the qualified privilege defence.
8 At the conclusion of the hearing of Mr Rush’s amended interlocutory application on 19 February 2018, I indicted that I would not extend the interim confidentiality orders that were made on the first return date and that I would not make the further confidentiality orders sought by Mr Rush. My reasons for declining to make the confidentiality orders are explained later in these reasons.
9 The critical issues that remain for consideration and determination are: first, whether the particulars of Nationwide and Mr Moran’s justification defence are inadequate and insufficient to support the defence and, accordingly, that the justification defence and the particulars thereto should be struck out; second, whether paragraphs 36.9A to 36.9C of the Amended Defence plead facts and allegations that are irrelevant to Nationwide and Mr Moran’s defence of qualified privilege and should accordingly be struck out; and third, whether the subpoena issued to the Sydney Theatre Company should be set aside on the basis that it has no legitimate forensic purpose or is otherwise an abuse of process. Before dealing with those issues, it is necessary to briefly summarise the key components of Mr Rush’s case and Nationwide and Mr Moran’s defence to it.
Mr Rush’s case
10 As has already been noted, Mr Rush’s claim concerns three publications, or “matters complained of”, each of which he contends contained numerous defamatory imputations.
11 The first matter complained of was a billboard which was allegedly displayed outside newsagencies throughout Australia on 30 November 2017. The billboard advertised a story or article that appeared in the Telegraph that day. It contained the words: “World Exclusive Geoffrey Rush in Scandal Claims” and “Theatre Company Confirms ‘Inappropriate Behaviour’”. Mr Rush claimed that this publication conveyed the following two defamatory meanings or imputations:
(a) The applicant [Mr Rush] had engaged in scandalously inappropriate behaviour in the theatre.
(b) The applicant had engaged in inappropriate behaviour of a sexual nature in the theatre.
12 Mr Rush also alleged that, by reason of certain “extrinsic facts”, the billboard conveyed two further defamatory imputations, being:
(a) The applicant had committed sexual assault in the theatre.
(b) The applicant had engaged in inappropriate behaviour of a sexual nature in the theatre.
13 The alleged extrinsic facts, in summary, were that in the weeks preceding the publication, a number of famous actors and movie and television producers and personalities had been portrayed in the media and on social media as sexual predators who had committed acts of sexual assault and/or sexual harassment. Those actors, producers or personalities included a famous Hollywood film producer, Harvey Weinstein, a famous Hollywood actor, Kevin Spacey, and the perhaps somewhat less famous, and arguably less notable, home-grown “celebrity gardener” and “TV personality” Don Burke.
14 The second matter complained of was a series of articles published in the Telegraph on 30 November 2017. Those articles appeared on the front page and pages 4 and 5. Those articles, or the substance of them, were also published on the Telegraph’s website and tablet app.
15 In short terms, the front page of that edition of the Telegraph published on that day contained a large head and shoulders photograph of Mr Rush made up in the character of King Lear. That photograph appeared above a large headline “King Leer” and the words “World Exclusive Oscar-winner Rush denies ‘inappropriate behaviour’ during Sydney stage show”. The article on the first page stated, amongst other things, that Mr Rush had been accused of “inappropriate behaviour” during the Sydney Theatre Company’s recent production of King Lear. It noted that Mr Rush vigorously denied the claims.
16 The main article on pages 4 and 5 appeared under the large headline “Star’s Bard Behaviour”.
17 It would seem that the sub-editors, or whoever it was who was responsible for the headlines and sub-headlines, simply could not help themselves.
18 The main article on pages 4 and 5 itself stated, amongst other things that:
The Daily Telegraph can today reveal that one of the country’s most successful actors was the subject of a complaint during the production of King Lear. It is understood the allegations of inappropriate behaviour occurred over several months. The local production of the classic William Shakespeare play ran from November 2015 to January 2016 at the Roslyn Packer Theatre.
19 The article notes that Mr Rush denied the claims and quoted extensively from a letter written by Mr Rush’s lawyer to that effect.
20 It is worth noting that, immediately adjacent to the article on page 5 was an article concerning allegations that had been made against Don Burke, who, it was noted, had been described as a “sexual predator” and “psychotic bully” during his tenure as presenter of “Burke’s Backyard”.
21 Mr Rush alleged that the second matter complained of conveyed the following defamatory imputations:
(a) The applicant is a pervert.
(b) The applicant behaved as a sexual predator while working on the Sydney Theatre Company’s production of King Lear.
(c) The applicant engaged in inappropriate behaviour of a sexual nature while working on the Sydney Theatre Company’s production of King Lear.
(d) The applicant, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear.
22 Mr Rush also alleged, in the alternative, that the second matter complained of conveyed those four defamatory imputations by reason of the same extrinsic facts referred to earlier in the context of the billboard.
23 The third matter complained of was a series of articles published in the Telegraph on 1 December 2017. Those articles appeared on the front page and pages 4 and 5. Those articles, or the substance of them, were also published on the Telegraph’s website and tablet app.
24 The front page of that edition of the Telegraph contained the words “Unscripted Drama: the Oscar Star Scandal” and the large headline “We’re With You” and “Theatre cast back accuser as Rush denies ‘touching’”. The first few paragraphs of the article stated:
Two Sydney Theatre Company actors yesterday spoke out in support of the actress who has accused Oscar winner Geoffrey Rush of touching her inappropriately during the stage production of King Lear.
Rush - one of Australia’s biggest stars - was yesterday continuing to vehemently deny the claims.
Meyne Raoul Wyatt, who also appeared in King Lear, said he believed the allegations: “I believe (the person who) has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand,” Wyatt said.
25 The front page article also stated:
Two STC sources said the company stood by her claims. Both said the company wouldn’t work with Rush again. Despite denials, Rush was told who made the claims in a phone call with Executive Director Patrick McIntyre weeks ago. Mr McIntyre last night said the STC had ‘is reviewed policies’ is about ‘is inappropriate behaviour’.
26 Another article on page 4 quoted a “tweet” by another actor, Mr Brandon McClelland, who was said to have worked alongside the woman at the centre of the alleged complaint. That tweet stated: “It wasn’t a misunderstanding. It wasn’t a joke”. That tweet was said to have been “reposted” by several other Sydney theatre actors.
27 Mr Rush alleged that the third matter complained of conveyed the following defamatory imputations:
(a) The applicant had committed sexual assault while working on the Sydney Theatre Company’s production of King Lear.
(b) The applicant behaved as a sexual predator while working on the Sydney Theatre Company’s production of King Lear.
(c) The applicant engaged in inappropriate behaviour of a sexual nature while working on the Sydney Theatre Company’s production of King Lear.
(d) The applicant, an acting legend, had inappropriately touched an actress while working on the Sydney Theatre Company’s production of King Lear.
(e) The applicant is a pervert.
(f) The applicant’s conduct in inappropriately touching an actress during King Lear was so serious that the Sydney Theatre Company would never work with him again.
(g) The applicant had falsely denied that the Sydney Theatre Company had told him the identity of the person who had made a complaint against him.
28 Mr Rush also alleged, in the alternative, that the third publication conveyed the same six defamatory imputations referred to in paragraphs (a) to (f) above, by reason of the extrinsic facts referred to earlier.
29 Mr Rush contended that by reason of the publication of the first, second and third matters complained of, and by reason of further republication of those matters, he had been brought into hatred, ridicule and contempt, had been gravely injured in his character and reputation as an actor, and had suffered hurt and embarrassment and had suffered and would continue to suffer, loss and damage.
Nationwide and Mr Moran’s defence
30 Nationwide admitted that it published the three matters complained of, though it denied that it published the billboard otherwise than in New South Wales.
31 Both Nationwide and Mr Moran denied that the relevant publications, in their natural and ordinary meanings or otherwise, were reasonably capable of conveying, or in fact conveyed, any of the imputations that Mr Rush alleged that they conveyed. They also denied that Mr Rush had been brought into hatred, ridicule or contempt, or had been gravely injured in his character or reputation, or had suffered hurt or embarrassment as a result of the publications.
32 As noted earlier, Nationwide and Mr Moran relied on the defence of justification under s 25 of the Defamation Act. They contended that the following imputations were substantially true:
(a) The applicant [Mr Rush] had engaged in scandalously inappropriate behaviour in the theatre.
(b) The applicant, a famous actor, engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear.
(c) The applicant, and acting legend, had inappropriately touched an actress while working on the Sydney Theatre Company’s production of King Lear.
(d) The applicant’s conduct in inappropriately touching an actress during King Lear was so serious that the Sydney Theatre Company would never work with him again.
33 Nationwide and Mr Moran did not contend that the other imputations were substantially true. It follows that their justification defence will fail, even if they establish that the four imputations the subject of the defence are substantially true, if it is found, contrary to their denials, that the publications are reasonably capable of conveying the other pleaded imputations.
34 The particulars of truth provided in the Amended Defence are addressed later in these reasons.
35 Nationwide and Mr Moran also relied on the defence of qualified privilege pursuant to s 30 of the Defamation Act. They no longer rely on the defence of qualified privilege at common law.
36 Nationwide and Mr Moran contended, in summary, that the recipients of the relevant publications had an interest in having information on certain subjects because those subjects were matters of proper and legitimate public interest. Those subjects were:
(a) The alleged misconduct of Mr Rush, an Oscar-winning Australian actor;
(b) The response of the Sydney Theatre Company to an allegation of misconduct by Mr Rush;
(c) Mr Rush’s response to the allegation;
(d) The alleged misconduct of Mr Rush, an Oscar-winning Australian actor, in inappropriately touching an actress during the Sydney Theatre Company’s production of King Lear;
(e) The public support of the actress by Meyne Wyatt, an actor who appeared with Mr Rush and the actress in King Lear; and
(f) The public support of the actress by Mr McClelland, an actor who had worked with the actress in another production and was working in the Sydney Theatre Company’s production of The Three Sisters at the time of the publication of the matters complained of.
37 Nationwide and Mr Moran asserted that their conduct in publishing the matters complained of was reasonable in the circumstances for a number of reasons. Those reasons are set out in considerable detail in paragraph 36 of the Amended Defence and its many subparagraphs. They include that: the matters complained of were published in the context of widespread reporting in Australia and internationally in relation to allegations of sexual misconduct, bullying and harassment in the entertainment industry and allegations to the effect that the misconduct was known in the industry but covered up, silenced or protected; the matters complained of related to the subjects referred to earlier; the matters complained of related to the alleged public activities of Mr Rush performing in the theatre; and they were involved in the business of providing information to the public.
38 Perhaps more significantly, Nationwide and Mr Moran claimed that their conduct in publishing the matters complained of was reasonable because, prior to publishing the matters complained of, they had certain specified information which they had obtained from certain specified sources. It is unnecessary, for present purposes, to list that information or the sources of it. Nationwide and Mr Moran asserted that: they were reasonably satisfied about the integrity, authenticity and accuracy of the sources of the information; they believed that what they published was true; they were reasonably satisfied as to the fairness of the language and the manner in which the matters complained of were composed; they took certain steps to verify the information; they took reasonable care to distinguish between suspicions, allegations and proven facts; they reported Mr Rush’s side of the story; and they made clear that the allegations were unproven.
39 The contentious paragraphs in the Amended Defence of qualified privilege, paragraphs 36.9A, 36.9B and 36.9C are discussed in detail later.
The justification defence - ADEQUACY AND sufficiency of the particulars of truth
40 Mr Rush contended that the particulars of the justification defence in the Amended Defence were both inadequate by reason of their lack of precision and insufficient in the sense that they were not capable of supporting the substantial truth of the imputations they purport to justify. They were, in Mr Rush’s submission, ambiguous, embarrassing or prejudicial and failed to raise a reasonable defence. He contended that both the particulars and the justification defence itself should accordingly be struck out.
41 Before addressing the specific arguments advanced by Mr Rush in relation to the particulars, it is necessary to briefly discuss the principles that should be applied in respect of such an application.
Striking out pleadings or particulars in a defamation case - relevant principles
42 The general principles that apply when considering an application to strike out all or part of a pleading are well-settled and were not in dispute as between the parties here. In short, the power to strike out pleadings or portions of pleadings on the basis that no reasonable cause of action or defence is disclosed is discretionary, and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175. In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said (at 575-576) that “[o]rdinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes” and that, while the test has been expressed in a number of ways, “all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.
43 In the context of defamation proceedings, in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484, McColl JA said (at [112]), after referring to the statements in Agar v Hyde that have just been referred to, as follows:
These observations echo Starke J’s statement in Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 at 418 that the jurisdiction to strike out a defence in a defamation case “should be exercised with great care and a plea should not be struck out unless it is perfectly clear that it cannot succeed — that it ‘has not a solid basis capable of proof’ …” and Evatt J’s statement (at 424) that “[w]here the defendant in a libel action pleads truth and public benefit the defence cannot be struck out unless the case presents exceptional features”.
44 In relation to the adequacy of particulars, r 16.41 of the Rules provides that “[a] party must state in a pleading … the necessary particulars of each claim, defence or other matter pleaded by the party”. The degree of particularity required by this general obligation depends on the circumstances of the case and the nature of the allegations: Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 at [17]; Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 3) [2011] FCA 539 at [10]. In that context, although trite, it is worth recalling that the basic purpose of a pleading, including particulars, is to clearly define the issues to be tried, and to allow the other party an opportunity to know the case that they are required to meet: Dare v Pulham (1982) 148 CLR 658 at 664; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [49]-[52]. If the particulars that are provided in a pleading are sufficient to achieve that objective, it is difficult to see why they should be regarded as being deficient and liable to be struck out, even if it is possible to conceive of ways the pleading could perhaps be improved.
45 There are no specific rules in this Court concerning particulars in defamation cases. Nor is there a specific practice note. That is undoubtedly because, at least until very recent times, virtually all defamation proceedings were commenced and determined in State courts. It is common ground, and in any event a matter of common sense and comity, that in those circumstances, the Court should have regard to and generally apply the jurisprudence, rules and practices in the State courts concerning particulars in defamation cases, at least unless there is some good reason not to do so.
46 Particulars provided in support of a defence of justification must generally satisfy two requirements. First, they must be shown to be capable of proving the truth of the defamatory meaning sought to be justified. Second, they must be sufficiently specific and precise to enable a claimant to know the case they are required to meet. In Khan v Fairfax Media Publications Pty Limited (No 3) [2015] WASC 400 at [21], Le Miere J referred, with approval, to the following passage from the judgment of the Court of Appeal of England and Wales in Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25 at [49]-[50]:
So far as the particulars are concerned, the vice of a vague and general meaning is that it is liable to lead to a loose and ineffective pleading with excessive and irrelevant particulars, a state of affairs which is not permissible and which has been deprecated, particularly in libel actions, for many years: see for example, Associated Leisure v Associated Newspapers Ltd [1970] 2 Q.B. 450 and Atkinson v Fitzwalter [1987] 1 All E.R. 483. Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it. As Lord Woolf pointed out in McPhilemy v Times Newspapers Ltd [1999] All E.R. 775 at 793c, a loose and ineffective pleading can achieve directly the opposite effect from that which is intended by obscuring the issues rather than providing clarification. In our judgment this is what has happened here, and we do not think the problem is curable by a request for further information or by simple pruning.
There are difficulties in managing a case justly to which a loose and ineffective pleading will give rise at each stage of the litigation. These include at the reply stage when a claimant must specifically admit or deny the allegations against him, giving the facts on which he relies: see CPR 52 PD 19 para.2.8, when disclosure takes place, when witness statements are prepared, and at the trial itself which may take place before a jury. Time and money will almost inevitably end up being wasted over matters which have little to do with the overall merits of the litigation.
47 In relation to the first requirement, sufficiency, in Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475, Kenneth Martin J referred to the difficulties often faced by the court in resolving interlocutory disputes concerning particulars of truth in defamation cases, and emphasised the caution with which the court should exhibit in resolving such disputes. His Honour said (at [39]):
With respect, that is the approach I would also assess as appropriate to follow on this application, necessarily recognising a high level of curial caution to be exhibited, towards not attempting to resolve at an interlocutory level, underlying disputes over what are, ultimately, disputed questions of fact - that of their very nature must require a proper resolution finally at a trial.
48 The difficulty faced by the court when asked to strike out a justification defence based on the insufficiency or inadequacy of the particulars, and the resulting need for caution, arises because in determining the strike out application, it is necessary to make “factual evaluations – which are difficult to render within the context of an interlocutory hearing, pitched at an evaluative (low) threshold of showing respectable arguability”: Gallagher at [33].
49 The need for caution also arises because the particulars are simply a summary of the relevant facts, and are therefore unlikely to be as fulsome as the evidence that may ultimately be led to prove those facts. In Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376, Hodgson JA (with whom Santow and Tobias JJA agreed), said (at [20]):
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.
50 The fact that the evidence ultimately adduced in support of a justification defence may be greater than the bare content of the “topics” outlined in the particulars plainly does not mean that particulars of a justification defence can never be struck out on the ground that they are not capable of proving the truth of the defamatory meanings sought to be justified: see the observations of McCallum J in Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 at [16]; and Gair v Greenwood [2017] NSWSC 1652 at [11]. In approaching such an application, the Court must determine whether the particulars that have been provided, taken at their highest, are capable of proving the truth of the defamatory imputations that are sought to be justified. In making that determination, the Court must not only bear in mind that the particulars are a bare outline of the facts that the claimant will seek to prove, but also exhibit the “curial caution” that must necessarily be exhibited in determining, at an interlocutory stage, factual issues that may be better finally determined on the basis of all of the evidence led at the trial.
51 In assessing the sufficiency of the particulars, it is also necessary to have regard to the cumulative effect of the particulars: Pahuja v TCN Channel Nine Pty Limited (No 2) [2016] NSWSC 1074 at [11]. In Gallagher, Kenneth Martin J said (at [54]):
The in-principle defect conceptually undermining the plaintiffs’ interlocutory challenge this time is that it seeks to wholly isolate, then pick off one by one, each of the particulars as being insufficient to support a plea of justification, as regards a particular imputation. That, on my assessment, is the incorrect evaluative approach, as a matter of principle. The materials assembled under particulars 5.1 through 5.37 need to be evaluated as a whole. Some of the areas indicated by the justification particulars will have greater or lesser importance towards the overall end product.
52 As for the second requirement, the requirement of specificity or precision, the common law rule is said to be that a defendant must specify the particulars of truth relied on with the same precision as in an indictment: Hickinbotham v Leach (1842) 152 ER 510 at 510; Zierenberg v Labouchere [1893] 2 QB 183 at 186-187; Wootton v Sievier [1913] 3 KB 499 at 503; Crosby v Kelly [2013] FCA 1343 at [33]; Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [9]-[12].
53 Like an accused in a criminal proceeding, who is entitled to be put on notice of the particulars of the Crown case in respect of each element of the offence with which he or she is charged, a plaintiff in a defamation action is entitled to be put on notice of the precise particulars of the facts or allegations that are said to be true. Indeed, the need for precision in a defamation case is perhaps even more acute, given that ordinarily the plaintiff gives evidence first. The importance of the provision of precise particulars by a publisher who seeks to justify a statement in a defamation case was recognised as long ago as 1787. In J’Anson v Stuart (1787) 99 ER 1357, the defendant was alleged to have made a libellous statement that the plaintiff was a swindler. The defendant sought to justify that statement by pleading that the plaintiff “had been illegally, fraudulently, and dishonestly concerned and connected with, and was one of, a gang of swindlers and common informers, and had also been guilty of deceiving and defrauding divers persons”. It was held that the plea was bad on account of its generality. Ashurst J said (at 1359):
The defendant is primâ facie to be considered as a wrong-doer. When he took upon himself to justify generally the charge of swindling, he must be prepared with the facts which constitute the charge in order to maintain his plea: then he ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to justify his whole life.
54 The requirement is one of specificity and precision. The issue is not how much information is provided in the particulars, but whether the information that is given is sufficient to give the plaintiff or applicant in a defamation action sufficient notice of exactly what the defendant or respondent alleges against him or her in the context of a defence of justification. As McCallum J said in Brooks at [12]:
That expression (“with the same precision as in an indictment”) is one which is capable of being misunderstood. It is a requirement of specificity rather than one going to the amount of information to be provided. As I observed during argument, the amount of detail in an indictment is often spare but the specificity provided should be such as to put an accused person on notice of the Crown case as to each element of the offence with which he or she is charged.
Are the justification particulars defective or deficient?
55 The question whether the particulars of truth in this matter are capable of proving the truth of the defamatory meanings sought to be justified is inextricably intertwined with the question whether the particulars are sufficiently specific and precise. That is because, as will be seen, the particulars are so imprecise and lacking in specificity, and their meaning is so unclear, that it is difficult to know exactly what it is that is alleged against Mr Rush. If it is not known exactly what is alleged in the particulars, it is not possible to conclude that the particulars are capable of proving the truth of the defamatory meanings or imputations that they are said to justify.
56 In those circumstances, it is perhaps best to start with the requirement of specificity and precision. Do the particulars enable Mr Rush to know the precise nature of the case against him? Or are they so “loose and ineffective” that they obscure, rather than elucidate or clarify, the issues?
Are the particulars sufficiently specific and precise?
57 It will be recalled from the earlier consideration of the Amended Defence that Nationwide and Mr Moran sought only to justify and prove the substantial truth of some of the alleged defamatory meanings, being the defamatory meanings pleaded in subparagraphs 4(a), 7(d), 8(d), 10(d), 11(d) and 11(f) of the Statement of Claim. The key element or “sting” in subparagraph 4(a) is that Mr Rush had engaged in “scandalously inappropriate behaviour in the theatre”. The defamatory meanings in subparagraphs 7(d) and 8(d) are in the same terms. The sting in those subparagraphs is that Mr Rush “engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear”. The common element in those imputations is “inappropriate behaviour”. The defamatory meanings in subparagraphs 10(d) and 11(d) are also in the same terms. The sting in those paragraphs is that Mr Rush had “inappropriately touched an actress while working on the Sydney Theatre Company’s production of King Lear”. The common element in those imputations is that Mr Rush “inappropriately touched” the actress. Finally, the sting in paragraphs 10(f) and 11(f), which are in the same terms, again involves Mr Rush “inappropriately touching the actress”, though it is also said that his conduct in so doing was “so serious” that the Sydney Theatre Company “would never work with him again”.
58 Given that Nationwide and Mr Moran contend that those meanings or imputations were substantially true, the following questions might reasonably be asked: what exactly was the “scandalously inappropriate behaviour” or “inappropriate behaviour” that Mr Rush was said to have engaged in? What exactly had he done which was said to meet those descriptions? If the inappropriate behaviour was said to be the inappropriate touching, how exactly had Mr Rush “inappropriately touched” the actress during the production of King Lear? Where had he touched her and in exactly what circumstances? Was it said that the touching was intentional? Why was the touching “inappropriate” and “so serious” that the Sydney Theatre Company “would never work” with Mr Rush again?
59 Those are just some of the questions that one might reasonably be expected to be answered or addressed in the pleaded particulars of the facts, matters and circumstances that were said to support the substantial truth of the defamatory meanings or imputations that Nationwide and Mr Moran sought to justify.
60 The particulars, which are in paragraphs 14 to 24 of the Amended Defence, are in the following terms (omitting the underlining and strike-through that appear in the document to identify the portions the subject of the amendment):
14. In around 2015, the Applicant began rehearsals for the Sydney Theatre Company Limited’s (Sydney Theatre Company) production of the play “King Lear”, in which the Applicant played the role of King Lear (the Production).
15. The role of King Lear’s daughter, Cordelia, in the Production was played by Eryn Jean Norvill (the Complainant).
16. In the period between around 24 November 2015 and 9 January 2016, the Production was performed at the Sydney Theatre Company.
17. In around November 2015, in an interview with Elissa Blake of the Sydney Morning Herald the Applicant described having a “stage-door Johnny crush” on the Complainant.
17 A. The phrase “stage-door Johnny” refers to a man who frequents a theatre for the purpose of courting an actress or chorus girl.
18. On or about 5 January 2016, the Applicant touched the Complainant in a manner that made the Complainant feel uncomfortable.
18A. The touch referred to in the preceding paragraph occurred during a performance of the Production and specifically during the final scene in which the Applicant walks on to the stage carrying the Complainant as she simulated the lifeless body of Cordelia, King Lear’s daughter.
19. The touch referred to in paragraph 18 above was not directed or scripted by any person or necessary for the purpose of the performance of the Production.
20. Following the performance referred to in paragraph 18A above the Complainant said to the Applicant words to the effect “stop doing it”.
21. Notwithstanding the Complainant’s demand referred to in paragraph 20, the Applicant repeated the conduct referred to in paragraphs 18 and 18A above on four occasions on 6, 7, 8 and 9 January 2016.
21A. Following each incident referred to in paragraphs 18, 18A and 21 above the Complainant was visibly upset.
22. On around 9 January 2016, the Applicant and the Complainant, attended an after party for crew and cast for the purpose of celebrating the conclusion of the Production at Walsh Bay Kitchen restaurant, which is co-located with the foyer of the Roslyn Packer Theatre where the Production was performed.
23. During the after party the Applicant entered the female bathroom located in the foyer of the Roslyn Packer Theatre, knowing that the Complainant was in there, and stood outside a cubicle that was occupied by the Complainant.
23A. The Complainant told the Applicant to “fuck off”, and he then left the bathroom.
23B. Following the incident referred to in paragraphs 23 and 23A above the Complainant was visibly upset.
24. The conduct referred to in the preceding paragraphs was inappropriate;
24.1 in a workplace, namely the Sydney Theatre Company; and
24.2 in a location regarded as a workplace for the purposes of characterising the Applicant’s conduct, in that the conduct occurred at the after party held immediately at the conclusion of the Production, at a restaurant co-located with the theatre, which was attended by the Applicant’s professional colleagues (cast and crew) involved in the Production, for the purpose of celebrating the end of the Production.
61 It can readily be seen that the critical allegations are the allegation in paragraphs 18 to 21A. Paragraphs 14, 15 and 16 would appear to be uncontentious and to simply put the following paragraphs in context. Paragraphs 17 and 17A also appear to be contextual. It is hard to see how the statement made by Mr Rush could itself amount to “inappropriate behaviour”. More will be said about those paragraphs in due course. Paragraphs 22 to 23B concern a separate incident and will be addressed in more detail later.
62 The immediate question, however, is whether the particulars of the incident or incidents referred to in paragraphs 18 to 21A are sufficiently specific and precise to fairly put Mr Rush on notice of the case that is sought to be made against him. Are the allegations particularised with the same degree of specificity and precision that one would expect if they were they particulars of a charge in an indictment?
63 The short answer to those questions is “no”. Indeed, the particulars raise more questions than they answer.
64 The central allegation is that contained in paragraph 18. The allegation is that Mr Rush “touched” the actress who was playing Cordelia “in a manner that made [her] feel uncomfortable”. Paragraphs 18A and 19 provide some further contextual detail about the circumstances in which the “touch” occurred. It occurred during the performance of King Lear when Mr Rush was carrying the actress across the stage as she simulated the lifeless body of Cordelia. The “touch” therefore occurred in circumstances where the actions of Mr Rush and the actress were being observed by the hundreds of patrons who were no doubt intently watching the performance. And, given that Mr Rush had to carry the actress during that scene, he obviously was required to be in contact with, and therefore touch, her. The alleged “touch” must, therefore, have been something more than the contact that must have been necessary for Mr Rush to carry the actress across the stage. The final detail is said to be that the “touch” was not “directed or scripted” by anyone and was not “necessary for the purpose of the performance”.
65 But what exactly was the “touch”? What part of Mr Rush relevantly touched the actress? Was it one or both of his hands or some other part of his body? And what part of the actress’ body was touched? What was the nature and duration of the “touch”? As has already been noted, plainly if Mr Rush was required to carry the actress, his arms and hands were likely to, and likely to be required to, touch parts of the actress’ body. What exactly distinguished the alleged “touch” from the contact that must otherwise have been made between Mr Rush and the actress during the scene?
66 The “touch” is said to have made the actress feel uncomfortable. But how so and why? Given that the scene required Mr Rush to carry the actress as she feigned being dead, it is possible to imagine many different ways in which the necessary contact between Mr Rush and the actress may have made her feel uncomfortable. Was it because Mr Rush held onto her tightly, or in a position that caused her some pain? Or was it the part of her body that was touched, or the particular nature or character of the touching? Was the discomfort physical or purely emotional?
67 As for the fact that the “touch” was not directed or scripted, exactly what did the script provide in relation to this scene? There was obviously a director of the play. What exactly did the director tell Mr Rush and the actress to do, or not to do, during this scene? Given that Mr Rush was a highly experienced and accomplished actor, was he given a degree of artistic licence? The relevance or materiality of the fact that the “touch” was not directed or scripted would plainly turn on such considerations. The same goes for what was or was not “necessary” for the performance. What exactly was said to be necessary for the performance and why exactly was the “touch” unnecessary? And unnecessary from what, or from whose perspective?
68 Other questions arise concerning what Nationwide and Mr Moran contend was Mr Rush’s motive, reasons or intentions in touching the actress in some way that was said to be beyond what was otherwise necessary for the purpose of the performance. That is important because the “touch” is said to justify the statement that it constituted, or was part of what was said to be, “scandalously inappropriate” or otherwise “inappropriate behaviour” on the part of Mr Rush. The “touch” itself is also said to be inappropriate. It is difficult to see how a touch could be inappropriate if it was accidental, or unintended, or indeed if, despite what others may have thought, considered by Mr Rush to be necessary for the performance. Do Nationwide and Mr Moran contend that Mr Rush intended to touch the actress for his own gratification, sexual or otherwise? If not, what is alleged to be his purpose or intention?
69 The question just raised is of some considerable significance because other paragraphs of the particulars hint at, but do not directly allege, that Mr Rush touched the actress because he was sexually attracted to her. Why else would the particulars include paragraphs 17 and 17A? There is nothing especially scandalous or inappropriate about the “stage-door Johnny crush” comment itself, particularly given the context in which it was made. That statement appears to have been made to a journalist in a promotional interview with Mr Rush and the lead actresses involved in the play. Read in context, the statement appears to have been intended to be humorous or in jest. The apparent intention of including the statement in the particulars, however, is to suggest that Mr Rush had a crush on the actress and wanted to court her. Is that why it is said that Mr Rush touched her as alleged? If so, why is that not included in the particulars so Mr Rush knows the case that he has to meet? If not, what is the relevance of paragraphs 17 and 17A?
70 Much the same can be said about the particulars of the bathroom incident in paragraphs 22 to 23B. More will be said about those particulars later, but the suggestion appears to be that Mr Rush entered the bathroom because he was attracted, if not smitten or infatuated, by the actress. Are those paragraphs included so as to suggest that Mr Rush touched the actress during the performance for that reason?
71 Paragraphs 18, 18A and 19 must be read in the context of paragraphs 20 and 21, which refer to events that occurred after, but relate to, the touching referred to in paragraph 18. Paragraph 20 states that after the performance the actress said words to the effect “stop doing it” to Mr Rush. While the apparent suggestion is that “it” is the touching referred to in paragraph 18, in the absence of further details about this conversation, it is difficult to know exactly what the actress was referring to. What exactly was “it”? Perhaps more significantly, in the absence of further detail, it is difficult to see how Mr Rush could respond to this paragraph. How long after the performance did this event occur? Where and in what context did it occur? Did the actress say anything else? Did Mr Rush say anything in response? If it is alleged that the actress was referring to the alleged touching, is it also alleged that Mr Rush knew what the “it” was?
72 Paragraph 21 states that after the “demand” referred to in paragraph 20, Mr Rush repeated “the conduct” referred to in paragraphs 18 and 18A on four subsequent occasions. That again begs the question: exactly what is “the conduct”? It may perhaps be inferred, though it is not expressly stated, that the four further occasions were during subsequent performances of the play. The reference to the actress’s “demand” suffers the same deficiencies as paragraph 20. The reference to the “conduct” being repeated suffers the same deficiencies as paragraphs 18 and 18A. Exactly the same questions arise. What exactly is it alleged that Mr Rush did on the subsequent occasions?
73 Paragraph 21A is that following each “incident” referred to in paragraph 18, 18A and 21, the actress was visibly upset. That particular also raises a number of questions. Accepting that the reference to the “incident” is a reference to the alleged touching that occurred during the performances, it is unclear exactly when and in what circumstances the actress was seen to be visibly upset. Was it while she was still on stage, or some time after the performance? If after the performance, how long after and where was she when she was visibly upset? Who saw her to be upset? Is it alleged that Mr Rush saw her in that state?
74 In my opinion, the particulars that have been provided in relation to the alleged “touch” during the performance on 5 January 2016, the alleged “demand” that occurred sometime after that performance, the alleged repetition of the “conduct” and the allegation that the actress was visibly upset are not sufficiently specific or precise. They are loose and ineffective and tend to obscure, not elucidate or clarify the issues. In terms of r 16.21(1) of the Rules, they are evasive and ambiguous. They are also likely to cause prejudice or embarrassment in the proceeding. That is because they do not give Mr Rush fair or reasonable notice of the case that is made against him.
75 Mr Rush is required to file, or consider filing, a reply to the Amended Defence. It is difficult to see how he could do that given the lack of specificity and precision in those paragraphs of the particulars. Nationwide and Mr Moran contended that it is open to Mr Rush to deny the allegations in the particulars. The problem is, however, that he is entitled to know exactly what it is he is denying. Perhaps more importantly, Mr Rush must also give consideration to what evidence he might marshal in response to the justification defence and what interlocutory processes of the Court he should utilise in that regard. The lack of specificity and precision of the particulars will undoubtedly prejudice Mr Rush in that regard. What evidence could he give in response to such vague allegations? How could he decide what witnesses to call?
76 The problems with the particulars in paragraphs 18 to 21 are not limited to lack of specificity and precision. As will be seen, there is also a real issue concerning their capacity to prove the substantial truth of the imputations that they are supposed to justify. Before addressing that issue, it is necessary to briefly consider whether the remaining particulars are similarly deficient in terms of their precision and specificity. It would, however, be fair to say that if paragraphs 18 to 21 are struck out, it is almost impossible to see how the remaining paragraphs of the particulars alone could be capable of making out the justification defence.
77 Paragraph 22 appears to be relatively uncontentious and seems to have been included to put the particulars of the following incident in context. Paragraphs 23 and 23A refer to an incident during which Mr Rush entered the female bathroom in the foyer of the theatre knowing that the actress was in the bathroom. He stood outside a cubicle occupied by the actress. She told him to “fuck off” and he then left.
78 Like the particulars of the “touching” incidents, the particulars of this incident raise a number of unanswered questions. How long was the actress in the bathroom before Mr Rush entered it? Was she in the cubicle at that time? What is the basis of, and what are the facts and circumstances that provide support for, the statement that Mr Rush knew that the actress was in the bathroom? Is it alleged that there was a conversation between Mr Rush and the actress beforehand? Or was Mr Rush seen to enter the bathroom immediately following the actress? How long was Mr Rush in the bathroom? Did he leave immediately after the actress said “fuck off”?
79 Perhaps most importantly, however, there is no allegation concerning Mr Rush’s purpose or intention in entering into the bathroom. Nor does the particular provide sufficient context to enable any relevant inference or deduction to be drawn about his purpose. That is critical in determining the relevance and materiality of the alleged incident. That is the case, particularly since this particular is supposedly provided to establish the substantial truth of the statements that Mr Rush engaged in “scandalously inappropriate” or otherwise “inappropriate” conduct. If, for example, Mr Rush was alleged to follow the actress into the bathroom to proposition or sexually harass the actress, that conduct might readily be characterised as inappropriate, particularly in a workplace setting. However, that is not what is asserted in the particulars. If Mr Rush had another reason or purpose for entering the bathroom, it might not be able to be characterised as “inappropriate”.
80 Another unanswered question in relation to the particulars of the alleged bathroom incident is whether Nationwide and Mr Moran contend that the incident is in some way associated with the earlier alleged touching incidents. Their submissions appeared to proceed on that basis, however the particulars themselves do not make that clear.
81 In the particular circumstances of this case, I would incline towards the view that the particulars of this bathroom incident are insufficiently precise and specific. The critical omission in my view is the absence of any allegation concerning Mr Rush’s purpose or intention, though that deficiency is made worse by the absence of the further detail, which could at least put the incident in some proper context.
82 Finally, additional particulars of truth are provided in relation to the imputations in paragraphs 10(f) and 11(f). They are directed to that part of the imputation concerning the seriousness of the complaint leading the Sydney Theatre Company to never work with Mr Rush again. The additional particulars in paragraph 28 are that the actress made a complaint to the Sydney Theatre Company in April 2016, the Sydney Theatre Company investigated the complaint, and following the investigation, the Sydney Theatre Company decided that it would never work with Mr Rush again.
83 Those additional particulars again raise some questions. First, the exact nature of the complaint is unclear. The complaint was said to relate to Mr Rush’s conduct towards the actress during the production. Did the complaint concern the “touching” incident in paragraphs 18 to 21, or did it relate or extend to the other alleged incidents, including the bathroom incident in paragraphs 23 and 23A? The nature of the investigation is also unclear. Who investigated the complaint and how was it investigated? Who was spoken to? Were records of the investigation created and maintained? Is it alleged that Mr Rush was advised of the complaint and asked to respond? What were the factual findings made by the person or persons who investigated the complaint? As for the decision by the Sydney Theatre Company, who made the decision? When and how was it made? Who was it communicated to?
84 I would again incline towards the view that the particulars in paragraph 28 are insufficiently specific and precise. The real difficulty, however, arises because those particulars cannot be looked at in isolation. They are inextricably entwined with the particulars relating to the touching incidents in paragraphs 18 to 21, assuming for present purposes that those incidents were the main focus of the investigation and findings. That is also revealed by the imputations that those particulars are said to justify or substantiate, which link the seriousness of the incidents with the decision not to work with Mr Rush again. The clear deficiencies with the particulars of the touching incidents flow through to and infect these additional particulars.
85 It follows that I am satisfied that the particulars in paragraphs 14 to 24 and 28 are insufficiently precise and specific to constitute proper particulars for a defence of justification in defamation proceedings. They are, in that specific context, evasive and ambiguous: r 16.21(1)(c) of the Rules. They are also likely to cause prejudice or embarrassment in the proceeding: r 16.21(1)(d) of the Rules. That is because they do not give Mr Rush fair or reasonable notice of the case that is made against him and are likely to prejudice his preparation and presentation of his case at trial. I should emphasise that, while I have to some extent dealt with some of the particulars separately, I have also considered the particulars as a whole.
86 These findings are not made lightly. They are made cognisant of the fact that if the particulars are struck out, the defence of justification defence must also be struck out as disclosing no reasonable cause of action. As discussed earlier, the authorities clearly show that the power to strike out a defence in a defamation case should be exercised with considerable care and caution and a defence should generally only be struck out in a clear, if not exceptional, case. For the reasons just given, this is such a case.
Are the particulars capable of proving the truth of the defamatory meanings sought to be justified?
87 The problems with the particulars of truth are compounded when consideration is given to the requirement that the particulars are capable of proving the truth of the defamatory meanings sought to be justified. The problem, in short terms, is that given the paucity of detail, ambiguity and lack of specificity in the particulars, it is difficult if not impossible to conclude that the particulars, taken at their highest, are capable of proving the truth of some, if not all, of the imputations in paragraphs 4(a), 7(d), 8(d), 10(d), 10(f), 11(d) and 11(f).
88 The difficulties are perhaps most acute in relation to the imputation in paragraph 4(a), that Mr Rush had engaged in “scandalously inappropriate behaviour in the theatre”. The ordinary meaning of “scandalous” is “grossly disgraceful, outrageous, shameful; improper” (Shorter Oxford English Dictionary) and “shameful or shocking” (Macquarie Dictionary). The ordinary meaning of “inappropriate” is “unsuitable” (Shorter Oxford English Dictionary). Are the particulars concerning Mr Rush’s conduct, considered as a whole, and taken at their highest, capable of proving that his conduct was “scandalously inappropriate”? Given the paucity of detail, in particular concerning the alleged touching, including where and how the actress was touched, why she felt uncomfortable, and what Mr Rush’s purpose or intention was, the answer must be “no”.
89 Of course, one can imagine some circumstances where the conduct could be so described, but those circumstances are not alleged. For example, if the particulars were that Mr Rush deliberately and repeatedly touched the actress’ genitals during the performance, without her consent, for the purpose of his own sexual gratification, or for the purpose of harassing or intimidating her, that could no doubt be described as “scandalously inappropriate”. But that is not what is alleged. It is not alleged in the particulars that Mr Rush touched the actress’ genitals, or that the touching was sexual in nature, or that Mr Rush’s purpose was his own gratification, or that he intended to harass or intimidate the actress. Indeed, it is clear from the Amended Defence that Nationwide and Mr Moran do not seek to establish that the imputations that suggest that Mr Rush’s conduct was sexual in nature are substantially true. The problem with the particulars is that one can equally imagine many scenarios that could fall within the general and unspecific conduct that is particularised which could not be described as “scandalous” or “inappropriate”.
90 Nationwide and Mr Moran contended that Mr Rush’s conduct, as particularised in paragraphs 14 to 24, could be described as “scandalously inappropriate” because the touching made the actress feel uncomfortable, she asked him to stop, he repeated the touching in the face of that demand, and the touching occurred in the workplace. In their submission, the repetition of the conduct in those circumstances, considered together with the bathroom incident, amounted to a course of conduct in the nature of harassment and intimidation. That, it was submitted, was sufficient to establish that the conduct was “scandalously inappropriate”.
91 Putting aside, for the moment, the fact that it is not known how the actress was touched and why she felt uncomfortable, it could perhaps be argued that the continuation of conduct in the face of a request or demand for that conduct to stop, particularly in a workplace, could in some circumstances be described as inappropriate. But again, that depends on the precise circumstances and nature of the touching, and the precise context in which it occurred. What if, for example, the touching was not in any respect sexual or intimate in nature, and Mr Rush was not aware that the touching made the actress feel uncomfortable, or how or why it made her feel uncomfortable? And what if Mr Rush considered that it was appropriate and necessary for the purposes of his performance? The conduct in those circumstances could scarcely be described as inappropriate, even if the actress asked Mr Rush to stop it. And if the actress did ask Mr Rush to stop, what if he believed that she was irrational or unreasonable to do so because he considered the touching to be artistically necessary? In those circumstances, his conduct could scarcely be described as scandalous.
92 The problem again comes back to the fact that the allegations are so general, and so lacking in detail and specifics, that they are capable of encompassing a range of different scenarios, some of which could not be said to involve scandalous or inappropriate conduct. They are so vague and general that it is not possible to conclude that, taken at their highest, they are capable of proving that Mr Rush engaged in “scandalously inappropriate” behaviour.
93 The same thing can be said about the bathroom incident. It is not difficult to imagine some circumstances where that incident could amount to “scandalously inappropriate” behaviour. But much would depend on the context and circumstances in which Mr Rush entered the female bathroom and, more significantly, his purpose and intentions in so doing. It would also depend on what, if anything, was said and done while Mr Rush was in the bathroom. The difficulty is that the particulars relating to the bathroom incident provide no detail whatsoever in relation to those matters. All that is said, in substance, is that Mr Rush entered the bathroom knowing that the actress was in there and left after the actress said “fuck off”. Even taken together with the particulars of the repeated touching, which for the reasons already given are themselves problematic, it is not possible to conclude that the particulars of the bathroom incident, taken at their highest, are capable of proving that Mr Rush engaged in “scandalously inappropriate” behaviour.
94 I should emphasise, in this context, that I accept that the particulars must be considered together and as a whole. As discussed earlier, it would be wrong to look at each particular in isolation. In my opinion, however, the particulars, considered together and as a whole, are not capable of proving the substantial truth of the imputation in paragraph 4(a) of the Statement of Claim. Taken at their highest, they are not capable of proving that Mr Rush engaged in “scandalously inappropriate behaviour in the theatre”.
95 It should also be noted, in this context, that I reject the submission advanced on behalf of Nationwide and Mr Moran that the particulars, taken together, amount to an allegation of a course of conduct of harassment and intimidation. For the reasons already given, the generality, lack of detail and imprecision of the particulars preclude any such finding.
96 In reaching that conclusion I have again borne in mind the caution that must be exercised in relation to strike out applications of this type. I accept that factual evaluations are often difficult at an interlocutory stage, and that the evidence led at trial may sometimes add context, detail and “colour” beyond what the bare particulars would otherwise suggest. In this case, however, the nature of the evidence that Nationwide and Mr Moran may adduce at trial to prove the substantial truth of the relevant imputations is a matter of pure speculation. In seeking to defend the particulars, Nationwide and Mr Moran did not reveal the witnesses that they would be likely to call, or the evidence that they intended to lead, to prove the facts in the particulars. There is no basis for any inference that the “full effect” of the evidence that is expected to be led at trial will be “greater than what the bare particulars themselves indicate”: cf. Hayson at [20]. Indeed, the fact that Nationwide and Mr Moran were unable to provide further particulars of the alleged incidents would tend to suggest that, at this stage at least, they do not expect to be able to lead any evidence beyond what the particulars indicate. That is particularly so given that the deficiencies in the particulars are manifest and were, in any event, identified by Mr Rush at an early stage.
97 The problems arising from the generality, lack of detail and imprecision of the particulars similarly preclude a finding that the particulars, taken at their highest, are capable of proving the substantial truth of any of the other pleaded imputations that are the subject of Nationwide and Mr Moran’s defence of justification. The deficiencies with the particulars are such that the particulars, taken together and at their highest, are not capable of proving that Mr Rush’s conduct was inappropriate, despite the workplace setting and the alleged demand that Mr Rush “stop doing it”. Nor are they capable of proving that Mr Rush “inappropriately touched” the actress.
98 The imputation in paragraphs 7(d) and 8(d) of the Statement of Claim is that Mr Rush “engaged in inappropriate behaviour against another person over several months while working on the Sydney Theatre Company’s production of King Lear”. While this imputation does not include “scandalously”, the same issues arise in determining whether the particulars are capable of proving that Mr Rush’s behaviour was inappropriate. There is, however, an additional problem in respect of the justification of this imputation. That problem is that one of the material elements of the imputation is that the inappropriate behaviour occurred over “several months”. The particulars, taken at their highest, are incapable of supporting the substantial truth of that allegation. At most, the conduct occurred over five days. An allegation that inappropriate conduct of the sort alleged occurred over several months is materially different to an allegation that the conduct occurred over five days. An allegation that such conduct occurred over several months is plainly more serious than an allegation that the conduct occurred over five days.
99 In order to prove the substantial truth of an imputation, it is necessary to prove that every material part of the imputation is true: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [138] (McColl JA; Spigelman CJ, Beazley JA, McClellan CJ at CL; Bergin CJ in EQ agreeing); O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338 at [172] (McColl JA, with whom Macfarlan and Leeming JJA relevantly agreed). The particulars are incapable of proving every material part of the imputation in paragraphs 7(d) and 8(d) of the Statement of Claim because they are not capable of proving that the alleged inappropriate conduct occurred over several months.
100 In my opinion, the particulars are not capable of proving the substantial truth of the imputation in paragraphs 7(d) and 8(d).
101 The position in relation to the imputation in paragraphs 10(d) and 11(d) is perhaps not so clear cut. The imputation is that Mr Rush “inappropriately touched” the actress while working on the production of King Lear. Are the particulars, taken at their highest, capable of proving that the touching was “inappropriate” in all the circumstances? The issue again comes back to the generality and lack of details concerning the alleged touching. In the absence of any clear details of how, where and in exactly what circumstances Mr Rush was said to have touched the actress, it cannot be concluded that the touching was inappropriate. While repetition of the touching in the face of a demand to stop may in some circumstances considered to be inappropriate, there is insufficient detail of the nature and circumstances of the demand and Mr Rush’s state of mind and intentions. For the reasons given above in the context of the imputation in paragraph 4(a) of the Statement of Claim, I am unable to find that the repetition of the touching in a workplace in the face of a demand to stop is alone sufficient to prove that the touching was inappropriate. Further and better particulars would be required to allow such a conclusion to be drawn.
102 In my opinion, the particulars are not capable of proving the substantial truth of the imputation in paragraphs 10(d) and 11(d).
103 The same can be said in relation to the imputation in paragraphs 10(f) and 11(f) of the Statement of Claim. That imputation again relates to Mr Rush inappropriately touching the actress, with the added element that the conduct was “so serious that the Sydney Theatre Company would never work with him again”. For the reasons already given, the particulars, taken at their highest, are incapable of proving the truth of the allegation that Mr Rush inappropriately touched the actress, let alone that the conduct was serious.
104 It follows that, upon careful analysis, the particulars in paragraphs 14 to 24 and 28, taken together and at their highest, are not capable of proving the substantial truth of any of the imputations that are sought to be justified. In terms of r 16.21 of the Rules, the deficiency or issue with the particulars is that they “fail to disclose a reasonable … defence … appropriate to the nature of the pleading”.
Should the particulars and the justification defence be struck out?
105 I have concluded that the particulars in paragraphs 14 to 24 and 28 of the Amended Defence are not sufficiently precise or specific to amount to proper particulars of the defence of justification defence pleaded by Nationwide and Mr Moran. The particulars are, in terms of r 16.21(1)(c) and (d) of the Rules, evasive or ambiguous and likely to cause prejudice or embarrassment in the proceeding. The deficiencies in the particulars in that regard are sufficient alone to justify striking them out pursuant to r 16.21 of the Rules. I note in that regard that Nationwide and Mr Moran have been given ample opportunity to supplement the particulars. A request for further particulars was first sent to their solicitors on 2 February 2018. On the first return date of the interlocutory application, leave to file the Amended Defence was granted for the purposes of allowing the particulars to be supplemented. There is no reason to suppose that Nationwide and Mr Moran are in a position to further supplement the particulars at this time.
106 The position in relation to striking out the particulars is made even clearer by the conclusions I have reached concerning the capacity of the particulars to prove the truth of the imputations that they are said to justify. In short, the particulars, taken at their highest, are not capable of proving the substantial truth of any of the imputations that are sought to be justified. That conclusion is to an extent intertwined with, or flows from, the findings that have been made concerning the lack of precision and specificity of the particulars. The lack of detail, generality and uncertainty of the allegations make it impossible to conclude that they are capable of proving the substantial truth of the relevant imputations. The problem, in short, arises as much from what the particulars do not include or allege, as much as from what they do.
107 In my opinion, the deficiencies and inadequacies in the particulars of truth are such that there is no alternative to striking them out. As noted earlier, there is no point in giving Nationwide and Mr Moran a further opportunity to supplement or bolster the existing particulars. They have been given that opportunity and, for whatever reason, were unwilling, or more likely unable, to answer the many unanswered questions that arise from the particulars. The effect of striking out the particulars is that there is no longer any reasonable basis for the contentions in paragraphs 25, 26, 27 and 28 and no reasonable basis for the defence of justification in paragraph 13(a) of the Amended Defence. Those paragraphs must also be struck out.
108 I reiterate that I am mindful of the care and caution that must be exercised when considering what amounts, in effect, to the summary dismissal of Nationwide and Mr Moran’s defence of justification. I accept that a defence of justification should generally only be struck out on the basis of the deficiencies and inadequacies of the particulars of truth in a clear case where there is a high degree of certainty about the outcome if the defence was allowed to be run at trial. This is such a case.
qualified privilege and PARAGRAPHS 36.9A TO 36.9C OF THE AMENDED DEFENCE
109 As has already been noted, Mr Rush did not seek to strike out the statutory defence of qualified privilege raised by Nationwide and Mr Moran in the Amended Defence. He accepted, though somewhat belatedly and apparently begrudgingly, that the qualified privilege defence is reasonably arguable. He did, however, apply to strike out three paragraphs – paragraphs 36.9A, 36.9B and 36.9C – on the basis that those paragraphs pleaded matters that are logically irrelevant to the defence of qualified privilege and therefore have no forensic purpose. In oral submissions, Mr Rush went so far as to submit that the paragraphs were an abuse of the process of the Court: cf. r 16.21(1)(f) of the Rules.
110 The key issue concerning paragraphs 36.9A to 36.9C hinges on the element of the defence of statutory qualified privilege that requires a defendant to prove that “the conduct of the defendant in publishing that matter is reasonable in the circumstances”. The question, in short, is whether the objective truth of what was published is relevant to the question whether the conduct of the defendant was reasonable in the circumstances. If the answer to that question is “no”, as Mr Rush contended, paragraphs 36.9A to 36.9C would appear to be logically irrelevant to the defence of qualified privilege. If the answer is “yes”, as Nationwide and Mr Moran contended, the facts pleaded in paragraphs 36.9A to 36.9C may assist it in its defence and should not be struck out.
111 Before addressing that key question, it is necessary to provide some context. As has already been noted, paragraph 36 (and it’s many subparagraphs) of the Amended Defence pleads the facts and circumstances that are said to have made the conduct of Nationwide and Mr Moran in publishing the matters complained of reasonable. Paragraph 36.6 states that prior to publishing the first and second matters complained of (the billboard and the articles in the 30 November 2017 edition of the Telegraph), Nationwide and Mr Moran had certain information. That information is set out in paragraphs (a) to (g) of paragraph 36.6. Paragraph 36.6A sets out the sources of the information in paragraphs 36.6(a) to (g). In similar fashion, paragraph 36.7 sets out the information that Nationwide and Mr Moran had prior to publishing the third matter complained of (the articles in the 1 December 2017 edition of the Telegraph) and paragraph 36.7A sets out the sources of that information. Paragraph 36.8 states that Nationwide and Mr Moran were reasonably satisfied about the sources of the information and the integrity, authenticity and accuracy of those sources. No complaint is made concerning those paragraphs of the Amended Defence.
112 Paragraph 36.9 of the Defence stated that Nationwide and Mr Moran “believed what it [sic] published to be true”. The Amended Defence adds the words “specifically the matters set out in paragraphs 36.9A and 36.9C” between the words “published” and “to be true”. Paragraph 36.9A, which was inserted in the Amended Defence, states as follows (omitting the underlining that appear in the document to identify the portions the subject of the amendment):
[T]he second matter complained of contained the following facts concerning the Applicant, each of which was a matter of substantial truth;
(a) the Applicant was an Oscar winning actor, having won the Academy Award for Best Actor in 1996 for his role as David Helfgott in the movie Shine;
(b) the Applicant was nominated an Oscar:
(i) in 1998 for in the Best Supporting Actor category for his role in Shakespeare in Love;
(ii) in 2000 for in the Best Actor category for his role in Quills;
(iii) in 2011 for in the Best Actor category for his role in The King’s Speech;
(c) the Applicant has found fame being one of the few people to have won acting’s triple crown - the Academy Award, the Primetime Emmy Award and the Tony Award;
(d) the Applicant was 66 years old and a married father of two;
(e) the Applicant is a Melbourne resident;
(f) the Applicant was the President of the Australian Academy of Cinema Television and Arts;
(g) the Applicant was expected to attend the annual AACTA Awards at The Star Event Centre the following week;
(h) the Applicant was one of the country’s most successful actors;
(i) the Applicant had been accused of ‘inappropriate behaviour’ during the Sydney Theatre Company’s production of King Lear;
(j) the Sydney Theatre Company had told The Daily Telegraph that it “received a complaint alleging that Mr Geoffrey Rush had engaged in inappropriate behaviour. The company received the complaint when Mr Rush’s engagement with the company had ended. The company continues to work with the complainant to minimise the risk of future instances of the alleged behaviour occurring in its workplace. The complainant has requested that their identity be withheld. STC respects that request and for privacy reasons, will not be making any further comments”;
(k) the Applicant, through his lawyers. vigorously denied the claims;
(l) the Applicant’s lawyers, HWL Ebsworth, said:
(i) the Applicant had “not been approached by the Sydney Theatre Company, the alleged complainant nor any representative of either. Further, he has not been informed by them of the nature of the complaint and what it involves. If such a statement has been issued by the STC it is both irresponsible and highly damaging”;
(ii) the Applicant’s “regard, actions and treatment of all the people he has worked with has been impeccable beyond reproach”
(iii) that the Applicant had not been involved with the Sydney Theatre Company or its representatives for more than 22 months;
(iv) that the Daily Telegraph’s understanding of what has occurred is fishing and unfounded and that “it does not warrant comment except that it is false and untrue”;
(m) the local production of King Lear ran from November 2015 to January 2016 at the Roslyn Packer Theatre;
(n) there were several months of rehearsals;
(o) the Applicant has worked with the Sydney Theatre Company many times, both acting and directing productions like Uncle Vanya, Oleanna, The Importance of Being Ernest, You Can’t Take It With You, King Lear and The Government Inspector;
113 The important point to note about paragraph 36.9A is that it includes two assertions concerning the information that is set out in paragraphs (a) through to (o). The first assertion is that the second matter complained of (the articles in the 30 November edition of the Telegraph) “contained” the “facts” in those paragraphs. The second contention is that each of the “facts” in paragraphs (a) to (o) “was a matter of substantial truth”. It may be of significance that the word “facts” is used in paragraph 36.9A, rather than “information”. That is in contrast to paragraphs 36.6 and 36.7 which state the “information” that Nationwide and Mr Moran possessed prior to publication.
114 Three further things should also be noted about paragraph 36.9A. First, the “facts” set out in paragraph 36.9A are far more extensive than, and do not precisely correspond with, the “information” which paragraphs 36.6 and 36.7 assert was possessed by Nationwide and Mr Moran prior to publication. Second, unlike with the information set out in paragraphs 36.6 and 36.7, the Amended Defence does not refer to the source of the facts in paragraph 36.9A. Third, while it is asserted that the “facts” in paragraphs (a) to (o) were matters of substantial truth, those facts are not relied on as particulars of truth in the context of the defence of justification.
115 Paragraph 36.9B states as follows (omitting the underlining that appear in the document to identify the portions the subject of the amendment):
[I]n support of the substantial truth of the matter set out in particular 36.9A(i), the Respondents rely upon the following facts, matters and circumstances:
(a) on 9 January 2016, following the incident referred to in paragraphs 23 and 23A above, Rachael Azzopardi, the Sydney Theatre Company’s Director of Programming and Artistic Operations, witnessed the Complainant crying and approached her to see if she was okay. The Complainant told Ms Azzopardi, in substance, that she was not ready to talk about it.
(b) on around 1 April 2016, the Complainant contacted Ms Azzopardi and asked to arrange a meeting between the two of them.
(c) on around 4 April 2016, the Complainant met with Ms Azzopardi and told Ms Azzopardi about the Applicant’s conduct towards her during the Production.
(d) on around 14 April 2016, a meeting was held between the Complainant, the Complainant’s agent, Lisa Mann, the HR Manager of the Sydney Theatre Company, Kate Crisp, and another employee of the Sydney Theatre Company whose identity is presently unknown to the Respondents. At that meeting the Complainant made a complaint about the Applicant’s conduct towards her during the Production.
(e) the substance of the complaint referred to in paragraphs (c) and (d) was that the Applicant had groped the Complainant “all over” during the Production.
(f) the Complainant stated at the meeting referred to in paragraph (d) that the main reason for her deciding to report the Applicant’s conduct was to bring the matter to the attention to the Sydney Theatre Company in order to minimise the possibility of such an experience occurring again. The Complainant also advised the Sydney Theatre Company that she did not want the Applicant to be informed of the Complaint for fear of repercussions against the Complainant;
116 Three points should be noted about paragraph 36.9B. First, the facts pleaded in this paragraph are said to support the “substantial truth” of only one of the “facts” set out in paragraph 36.9A: the “fact” in paragraph 36.9B(i). Second, the source of the “facts” in paragraph 36.9B(a) to (f) is not provided in the Amended Defence. Third, it is not asserted in the Amended Defence that the information in paragraph 36.9B was known to or possessed by Nationwide or Mr Moran prior to publication.
117 Paragraph 36.9C is in similar terms to paragraph 36.9A, though it relates to “facts” contained in the third matter complained of (the articles in the 1 December 2017 edition of the Telegraph). It states as follows (omitting the underlining that appear in the document to identify the portions the subject of the amendment):
[T]he third matter complained of contained the following facts concerning the Applicant, each of which was a matter of substantial truth:
(a) two Sydney Theatre Company actors had spoken out in support of the Complainant, namely:
(i) Meyne Raoul Wyatt, an actor who also appeared in King Lear, had said he believed the allegations concerning the Applicant and had posted the following statement o[n] his Facebook page: “I was in the show. I believe whoever has come forward. It’s time for Sydney Theatre Company and the industry in Australia and worldwide as a whole to make a stand on this behaviour!!!”;
(ii) Brandon McClelland, an actor who has worked alongside the Complainant, had posted the following statement on his Twitter account: “It wasn’t a misunderstanding. It wasn’t a joke”;
(b) the Applicant is one of Australia’s biggest stars;
(c) the Applicant was continuing to vehemently deny the claims that he had inappropriately touched the Complainant during the stage production of King Lear;
(d) Brandon McClelland’s tweet had been reposted by several other Sydney theatre actors;
(e) two sources from the Sydney Theatre Company had said that the company stood by the Complainant’s claims;
(f) the two sources referred to in the preceding particular had both said that the Sydney Theatre Company would not work with the Applicant again, with one saying: “There is no chance. How could we work with him again? That question doesn’t even need an answer. Another actor backed what she said ... we’ve taken this very seriously”;
(g) the source referred to in the preceding particular had also defended not naming the Complainant, saying “It is not our story to tell”;
(h) the Applicant had been told the identity of the Complainant in a telephone call with Sydney Theatre Company’s Executive Director, Patrick Mcintyre, two weeks earlier;
(i) the Sydney Theatre Company had revised its HR policies to try to ensure it maintained a safe environment for staff;
(j) Patrick Mcintyre, the Executive Director of the Sydney Theatre Company had stated the following:
(i) that it was important actors felt safe to speak up and that he believed maintenance of confidentiality was key;
(ii) the Sydney Theatre Company had “reviewed policies and procedures in place and that includes educating actors when they come in to the company about our intolerance of inappropriate behaviour, who they should speak to and encouraging them to speak up”;
(iii) the executive team at the Sydney Theatre Company had a duty of care to ensure all staff feel safe and respected in the workplace;
(iv) “This isn’t about creating drama and blame but if everyone holds each other accountable, we create the kind of workplace we all want to be in”;
(v) that it was a wide ranging issue for the industry to address in the wake of the Harvey Weinstein scandal;
(vi) “Many still view that speaking up comes with adverse repercussions. This is a trust issue that the industry needs to work towards resolving and the observance of confidentiality is key to this. If people don’t trust us with their stories, they won’t speak up”
(k) the Sydney Theatre Company had confirmed it had received a complaint by a staff member over allegations of inappropriate behaviour by the Applicant;
(l) an Actors Equity survey aimed at theatre actors had preliminary findings that 40% of respondents claimed they had directly experienced sexual harassment, bullying or misconduct;
(m) the Sydney Theatre Company production of King Lear ran from November 2015 to January 2016;
(n) the Applicant was 66 years old;
(o) the Applicant had stated the following:
(i) he had “immediately phoned and spoke to senior management” when he became aware of rumours there was a complaint;
(ii) “they refused to illuminate me with the details. I also asked why this information was being withheld, and why, according to standard theatre practice, the issue had not been raised with me during the production via stage management, the director, my fellow actors or anyone at management level. However, no response was forthcoming.”
(p) the Applicant’s lawyer. Nicholas Pullen of HWL Ebsworth, had stated the following:
(i) it was a “great disappointment” that the Sydney Theatre Company had “chosen to smear his name and unjustifiably damage his reputation. Not to afford a person their right to know what has been alleged against them, let alone not inform them of it but release such information to the public, is both a denial of natural justice and is not how our society operates”;
(ii) that the Applicant “abhorred any form of maltreatement of any person”;
(iii) “until there is the decency afforded to Mr Rush of what the ‘inappropriate behaviour’ actually is then there is nothing more than can be said at this stage”;
(q) the Applicant had worked with the Sydney Theatre Company both acting and directing productions including Uncle Vanya, Oleanna, The Importance of Being Ernest and The Government Inspector;
(r) the Applicant’s management had stated the following:
(i) that the Sydney Theatre Company had “chosen to smear his name and unjustifiably damage his reputation”;
(ii) “his treatment of fellow colleagues and everyone he has worked with is always conducted with respect and the utmost propriety. The allegation made against Mr Rush comes from a statement provided by the Sydney Theatre Company”;
(iii) that it is understood that the Sydney Theatre Company’s statement concerned a complaint made more than 21 months previously;
(iv) “to date, Mr Rush or any of his representatives have not received any representations from the STC or the complainant. In other words, there has been no provision of any details, circumstances, allegations or events that can be meaningfully responded to”;
(v) that Mr Rush reiterated that he denied being involved in any “inappropriate behaviour” whatsoever;
(s) the Sydney Theatre Company had stated the following:
(i) that it “was asked by a News Ltd journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint”;
(ii) that the Complainant had “requested the matter be dealt with confidentially, and did not want Mr Rush notified or involved” in any inquiry;
(iii) “STC complied, acting in the interest of the complainant’s health and welfare. As already stated, the Company received the Complaint after Mr Rush’s engagement had ended”;
(t) the Applicant was the star of the Pirates of the Caribbean.
118 The points that were made in relation to paragraph 36.9A apply equally to paragraph 36.9C. There is, however, one additional point to note about paragraph 36.9C. That is, that there is no equivalent to paragraph 36.9B in respect of the “facts” pleaded in paragraph 36.9C: there is no paragraph that pleads the facts, matters or circumstances that are said to prove the substantial truth of any of the facts identified in paragraph 36.9C.
119 Paragraphs 36.10 to 36.15 plead additional facts that are said to be relevant to the reasonableness of the conduct of Nationwide and Mr Moran in publishing the relevant matters. They are not the subject of complaint.
120 As indicated earlier, Mr Rush contended that the objective truth or otherwise of the published statements is irrelevant to the defence of statutory qualified privilege. He relied, in support of that contention, on the decision of Hunt J at CL in Makim v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 15 June 1990).
121 Makim primarily concerned whether the defendant was entitled to interrogate the plaintiff about certain matters, including matters that went only to the objective truth of what the defendant had published. The defendant sought to justify the interrogatories on the basis, inter alia, that they were relevant to its defence of qualified privilege under the Defamation Act 1974 (NSW). Section 22 of the 1974 Act provided a defence of qualified privilege if it was established, inter alia, that “the conduct of the publisher in publishing that matter is reasonable in the circumstances”.
122 In that context, Hunt J said:
As a matter of principle, the objective truth or falsity of what was said is irrelevant to the defence of qualified privilege. That defence (whether statutory or common law) proceeds upon the basis that the defendant was honestly mistaken in what he said; the authorities are collected in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 41-22. What the defendant must establish in relation to the statutory defence is that he took all reasonable steps to ensure that he got his facts right - to ensure that the published statements were true: Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 (PC) at 361, 363, 364. The defendant does not have to establish that they were objectively true in fact, and proof of such objective truth does not assist the defendant to establish that the steps which he took to ensure that truth were reasonable.
(Emphasis added.)
123 His Honour returned to that issue later, when he said:
A person’s belief in the truth of a particular fact is not established by showing that objectively the fact is true. That belief in the truth may be honestly held even though there is in fact objectively no truth at all in what was said. The defendant’s belief may be one engendered by carelessness, impulsiveness or irrationality. The defendant may hold that belief after being swayed by strong prejudice, or he may be obstinate and pigheaded, or stupid and obtuse in coming to the conclusion which he did. But if he nevertheless had an honest belief in the truth of what he said, the defendant will have established that particular ingredient of the defence of statutory qualified privilege, however objectively false that statement may be: Horrocks v Lowe [1975] AC 135 at 150-153.
What the defendant is entitled to do is to establish the matters upon which his belief was based. This is not done in order to show that his belief was a reasonable one, or that it was a belief that was based upon reasonable grounds, for that is never the test of the existence or non-existence of an honest belief: Clark v Molyneux (1877) 3 QBD 237 at 249. It is done simply to support the existence of his honest belief, by demonstrating what was present to the defendant’s mind at the time of the publication and what led to the existence of that belief on his part.
(Emphasis added.)
124 Finally, his Honour said:
There is authority for the proposition that, in some circumstances, evidence that a particular fact published is false is relevant to a plaintiff’s proof of the defendant’s knowledge of that falsity: Rigby v Associated Newspapers Ltd (No 2) at 736. It could be so where the circumstances were such that knowledge of the falsity could be inferred from them: Uren v Australian Consolidated Press Ltd (1965) 66 SR 271 at 296. But, as Walsh JA said in the former case, the circumstances would have to be unusual. It is certainly very difficult to suggest an example other than a very unusual one where such knowledge could be inferred from the mere fact of falsity.
But the converse does not hold good, even in unusual circumstances. Where a defendant seeks to establish that he believed in the truth of a particular fact, the only thing which is relevant is the defendant’s state of mind, and the circumstance that the fact turns out to have been true does not advance the proof of the defendant’s belief in the truth of that fact. The question of privilege only arises where the defendant has failed to establish a defence of truth. As I said earlier, this defence proceeds upon the basis that the defence was honestly mistaken in what he published. What the defendant must establish is what was in his mind. If the defendant is a corporation, it must do so by showing what was in the mind of the relevant servant or agent who was responsible for composing the matter complained of; the authorities are collected in Bickel v John Fairfax and Sons Ltd [1981] 2 NSWLR 474 at 499. See also Austin v Mirror Newspapers Ltd at 363.
(Emphasis added.)
125 Hunt J’s finding that the objective truth of the matters published was irrelevant to the statutory defence of qualified privilege was followed by Levine J in Sewell v National Australia Bank Ltd (unreported, Supreme Court of New South Wales, Levine J, 12 June 1997) and Alan Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210 at [59]; and Anderson AUJ in Rayney v The State of Western Australia (No 2) [2009] WASC 133 at [21]-[23]. The latter case was decided under the Defamation Act 2005 (WA). Anderson AUJ struck out paragraphs of a reply on the basis that they related only to the objective truth or falsity of the defamatory material.
126 The position would appear to be much the same in the United Kingdom. In Flood v Times Newspapers Ltd [2012] UKSC 11; 2 AC 273; 4 All ER 913, a decision of the United Kingdom Supreme Court, Lord Mance SCJ referred to the defence of public interest privilege and said (at [122]):
Its basic elements are ‘the public interest of the material and the conduct of the journalists at the time’. Whether the material is true is a ‘neutral circumstance’. In contrast, whether at the time the relevant journalists believed it to be true is (other than in cases of purely neutral reportage of allegations) highly material when considering their conduct. See, on these points, Jameel v Wall Street Journal Europe SPRL at [62] per Lord Hoffmann.
127 Nationwide and Mr Moran relied on a decision of White J in this Court in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33. An issue arose in that case whether the objective truth of certain facts in the relevant publications was irrelevant to the publisher’s defence of qualified privilege. The issue arose when objection was taken to questions put to the applicant, Mr Hockey, in cross-examination. His Honour deferred ruling on the objections and received the evidence on the basis that he would hear submissions in relation to the relevance of the evidence in final submissions. As events transpired, his Honour found that the publisher’s conduct was not reasonable. He nevertheless ruled that the evidence was relevant. His Honour was referred to Makim, Jones, Rayney and Flood. His Honour found (at 331]), however, that the decision in Makim, “while persuasive, is no longer decisive of the question of whether proof of the objective truth of facts comprising, or contributing to, a defamatory imputation is admissible in support of a defence of qualified privilege”.
128 His Honour’s reasoning hinged primarily on the terms of s 30(3) of the Defamation Act, which provides as follows:
In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
129 There was no equivalent provision in the 1974 Act at the time Hunt J decided Makim, though in 2002 the 1974 Act was amended to include s 22(2A), which was in relevantly the same terms as s 30(3) of the Defamation Act
130 White J reasoned as follows (at [328] to [330]).
It is appropriate to keep in mind that what the respondents must establish under s 30(1)(c) is not the reasonableness of the publication itself, but the reasonableness of their conduct in the circumstances in publishing the defamatory matter, ie, the defamatory imputations. Prima facie, this requires an objective assessment of the respondents’ conduct at the time of publication in the circumstances then known.
Again, the authorities to which counsel for Mr Hockey referred are not necessarily determinative of the issues which arise under s 30 of the 2005 Act. That is because subs (3) appears to enlarge the range of matters to which the Court may have regard in determining the reasonableness of a defendant’s conduct. In particular, it appears to indicate that courts may now have regard to matters going beyond the belief of the defendant in the truth of the defamatory imputation pleaded by a plaintiff, this being the principal consideration underpinning the reasoning of Hunt J in Makim. In addition to the listed matters, courts may have regard to any other matter which, considered objectively, may be relevant (subs (3)(j)).
If the Court may take these matters into account, the parties should be permitted to adduce evidence bearing on them. A defendant, in particular, should be able to put material before a court bearing upon its consideration of the matters enumerated in subs (3). As presently advised, I see no reason in principle why this may not, in some cases, include evidence establishing the objective truth of matters making out the defamatory imputation if, and to the extent to which, they bear on the Court’s evaluation of the s 30(3) matters. In some cases, evidence of the objective truth of some facts may have a material bearing upon the extent to which the “matter published” is in the public interest (subpara (a)), or on the extent to which the matter published relates to the performance of public functions or activities of the plaintiff (subpara (b)), or on the seriousness of the defamatory imputation carried by the matter published (subpara (c)). Evidence may possibly assist in the evaluation of a defendant’s investigation and attempts at verification if it demonstrates that there was no further information to be ascertained.
131 His Honour ultimately held that the evidence which had been objected to on the grounds of relevance was relevant to the Court’s consideration of the matters arising under s 30(3)(a), (b) and (c).
132 Mr Rush submitted that Makim should be followed and that White J in Hockey was plainly wrong to distinguish Makim on the grounds that he did. Nationwide and Mr Moran, on the other hand, argued that White J was correct to distinguish Makim, that it is at least arguable that Makim should not be followed and that White J was correct in finding that the objective truth of what was published is not always irrelevant to the defence of qualified privilege.
133 In my view, however, the parties’ submissions concerning Makim and Hockey mostly missed the point. The question whether paragraphs 36.9A, 36.9B and 36.9C of the Amended Defence should or should not be struck out is not answered by simply determining which of those two cases should be followed. The real issue, rather, is whether the objective truth of the matters pleaded in paragraphs 36.9A and 36.9C is reasonably capable of bearing upon the question whether the conduct of Nationwide and Mr Moran in publishing the matters complained of was reasonable in the circumstances. A subsidiary issue is whether paragraphs 36.9A to 36.9C otherwise fail to raise a reasonable defence, or are ambiguous or likely to cause prejudice, embarrassment or delay in the proceeding.
134 Before addressing those issues, in light of the detailed submissions that were advanced by the parties, the following points should be made concerning the decisions in Makim and Hockey.
135 First, neither Makim nor Hockey concerned the question whether parts of a pleading raising the defence of qualified privilege should be struck out. Makim concerned the question whether a defendant should be permitted to interrogate the plaintiff about the objective truth of some of the defamatory statements that had been published in the context of a defence of qualified privilege. Hockey concerned the admissibility of questions put to the plaintiff, Mr Hockey, in cross-examination that supposedly related to the objective truth of some of the published defamatory statements. The critical issue in both cases was the extent to which the objective truth of the relevant statements could bear on the question of whether the conduct of the defendant in publishing the matter complained of was reasonable in the circumstances.
136 Second, the reasoning of Hunt J in Makim primarily related to what is ordinarily the primary consideration in determining the reasonableness of the conduct of the publisher: whether the publisher believed and took all reasonable steps to ensure that what was published was true. The usual way that question is addressed is by the publisher pleading and providing particulars of the information that it possessed at the time the matter was published, the reasonableness of the sources of that information, and other steps that were taken to verify the truth and accuracy of the statements. In this case, those matters are pleaded at paragraphs 36.6, 36.6A, 36.7, 36.7A and 36.8 of the Amended Defence.
137 It was in that context that Hunt J stated that, as a matter of principle, the objective truth or falsity of what was said is irrelevant to the defence of qualified privilege and that proof of the objective truth does not assist the publisher to establish the reasonableness of the steps which were taken to ensure that what was published was true. The logic of Hunt J’s reasoning cannot be doubted. It may perhaps be doubted, however, that Hunt J intended to lay down a concrete rule that the objective truth of the published statements can never be relevant to the reasonableness of the publisher’s conduct in publishing, and can never be relevant to any issue that may arise in the context of the defence of qualified privilege.
138 Third, the defendant in Hockey did not seek to justify the relevance and admissibility of the questions concerning the objective truth of the relevant published statements on the basis that the evidence was relevant to the question whether it took reasonable steps to ensure that what was published was true. Rather, it was argued that the evidence was relevant because it went to the extent to which the matter published was of public interest and therefore fell within s 30(3)(a) of the Defamation Act. White J accepted that the evidence was relevant to that respect. His Honour also found that the evidence was relevant to the extent to which the matter published related to the performance of the public functions of Mr Hockey, and the seriousness of the defamatory imputations carried by the matter published, and therefore fell within s 30(3)(b) and (c) of the Defamation Act. White J did not question or query the reasoning of Hunt J in Makim to the effect that the objective truth does not assist the publisher to establish the reasonableness of the steps which were taken to ensure that what was published was true.
139 Fourth, while it is not a major point, I doubt that it is correct to say, as White J does at [329], that s 30(3) of the Defamation Act relevantly enlarged the range of matters to which the Court may have regard in determining the reasonableness of the defendant’s conduct. All that s 30(3) does it to provide a non-exhaustive list of considerations that the Court may, not must, take into account in determining the reasonableness of the defendant’s conduct. There is nothing to suggest that the Court could have not have had regard to those sorts of considerations when considering the reasonableness of the defendant’s conduct for the purposes of s 22(1)(c) of the 1974 Act, even before the amendment in 2002 which inserted s 22(2A), if they were considered to be relevant to the reasonableness of the defendant’s conduct. It was, for example, always open to the Court to have regard to the extent to which the matter published was of public interest if that relevantly bore on the reasonableness of the defendant’s conduct.
140 Fifth, with the greatest respect to White J, I have some considerable difficulty seeing how the objective truth of what was published can be relevant to the reasonableness of the defendant’s conduct for the purposes of a qualified privilege defence, even having regard to the range of matters in s 30(3). As Hunt J pointed out in Makim, the defence of qualified privilege proceeds on the basis that the relevant statements that were published were not true. If they were true, it is hard to see how the defendant would not have available to it a defence of justification, making a defence of qualified privilege largely unnecessary. The main question for determination in respect of the defence of qualified privilege is whether the defendant acted reasonably in publishing despite the fact that what was published turned out to be untrue.
141 It is equally difficult to see how the objective truth or falsity of the statements can have any real bearing on any of the s 30(3) matters.
142 In relation to s 30(3)(a), which appears to have provided the main basis for White J’s finding that the disputed evidence in Hockey was relevant, it is hard to see how the objective truth of the statements published can bear on the extent to which the matter published is of public interest. The extent to which the matter published is of public interest will depend on the background context and nature and character of the subject matter of the publication, rather than the objective truth of what is published.
143 That appears to be reflected in the way the public interest of the matter published has been pleaded by Nationwide and Mr Moran. They allege that the matters complained of were published in the “background context” of widespread reporting in Australia and internationally of sexual misconduct, bullying and harassment in the entertainment industry, as well as the covering up of those allegations by the industry: paragraph 29 of the Amended Defence. The relevant subjects of the matters complained of are alleged to be the alleged misconduct of Mr Rush, an Oscar-winning Australian actor; the response of the Sydney Theatre Company to that alleged misconduct; Mr Rush’s response to that allegation and the public support of the actress by Sydney Theatre Company actors: paragraphs 31 and 32 of the Amended Defence. Those subjects are alleged to be “matters of proper and legitimate public interest”: paragraph 33 of the Amended Defence. Alternatively, it is alleged that the recipients of the matters complained of had an apparent interest in having information on those subjects because Nationwide and Mr Moran believed that the subjects were matters of proper and legitimate public interest: paragraph 34 of the Amended Defence.
144 Nationwide and Mr Moran do not provide any particulars of the basis upon which it is asserted that the subjects were matters of proper and legitimate public interest. Their case appears to be that this follows from the very nature and character of the subjects, perhaps considered in the context of earlier reporting of allegations of sexual misconduct in the entertainment industry. Nowhere in the Amended Defence is it contended that the public interest in the subjects arose from the objective truth of what was published. It is certainly not readily apparent from the pleading why the objective truth of what was published could have had any bearing on the extent of the public interest in the subjects.
145 It is equally not readily apparent how the objective truth of the matters published could have any bearing on the other s 30(3) matters.
146 In the case of s 30(3)(b), the matters published either relate to the performance of the public functions or activities of the person, or they do not. The objective truth or otherwise of the published statements is unlikely to bear on that issue. In this case, the extent to which the matters published relate to the performance of the public functions or activities of Mr Rush will be the same irrespective of the truth or otherwise of the published statements. Nationwide and Mr Moran contend, in paragraph 36.3 of the Amended Defence, that the matters complained of related to the alleged public activities of Mr Rush whilst performing in the theatre. They do not suggest that that allegation depends on the objective truth of what they published.
147 The truth or otherwise of the published statements are, on close analysis, also highly unlikely to bear on the matters referred to in s 30(3)(d), (e), (f), (g), (h) and (i). Nor is it expressly stated in the pleading that the objective truth of the statements bear on any of those matters. As for s 30(3)(c), if the published statements are objectively true, the defendant will most likely have a defence of justification open to it, and the seriousness or otherwise of the defamatory imputations is unlikely to be an issue.
148 It follows from what has just been said that I have some doubts about the correctness of some of White J’s reasoning in Hockey. If I was required to decide whether to follow Makim or Hockey, I would be inclined to follow Makim. I do not consider, however, that I am required to make any such an election. As already noted, neither Makim nor Hockey concerned the striking out of particulars of a defence of qualified privilege. Hockey relevantly concerned the admissibility of evidence. I have no reason to doubt that White J was correct, in the particular and possibly unique circumstances of that case, in admitted the challenged evidence. I also accept, as White J effectively found, that Makim and the cases that have followed it are not necessarily determinative of whether the objective truth of the statements published can ever be relevant to a defence of qualified privilege. That is because Makim primarily concerned whether the objective truth of the statement could be relevant to the question whether the publisher reasonably believed that what it published was true. Hunt J did not specifically address the types of considerations that are now in s 30(3) of the Defamation Act. Nevertheless, the force and logic of Hunt J’s reasoning remains. It is difficult to see how the objective truth of what was published can be relevant to the reasonableness of the publisher’s conduct for the purposes of the defence of qualified privilege, even having regard to the list of possible considerations in s 30(3).
149 In any event, as has already been said, the important question here is not so much whether the reasoning in Makim or Hockey should be followed, but whether it is at least reasonably arguable that the objective truth of the facts or matters pleaded in paragraphs 36.9A and 36.9C can relevantly bear on the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matters complained of. In that regard it is important to emphasise that in Hockey, the defendant sought to justify the receipt of the evidence relating to the objective truth of some of the matters published by reference to a specific paragraph or paragraphs of s 30(3). No such attempt was made by Nationwide and Mr Moran in this case. They did not submit, for example, that the objective truth of the “facts” pleaded in paragraphs 36.9A and 36.9C was relevant to determining the extent to which the matter published was of public interest for the purposes of s 30(3)(a). Nor was there any specific reference to any of the other s 30(3) matters.
150 Nor is the relevance of the objective truth of the facts and matters pleaded in paragraphs 36.9A and 36.9C readily apparent from the pleading itself. It should also be noted in that context that paragraphs 36.1 to 36.8 and 36.10 to 36.15 specifically advert to the considerations in listed in s 30(3). That is not the case in respect of 36.9A to 36.9C.
151 The question remains, then, what is the possible relevance of the matters pleaded in paragraphs 36.9A and 36.9C to Nationwide and Mr Moran’s defence of qualified privilege? Can it be said that the objective proof of any of the facts pleaded in those paragraphs can or might bear on the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matters complained of?
152 Upon close analysis of those paragraphs, the short answer to that question is “no”. Moreover, paragraphs 36.9A to 36.9C are ambiguous, appear to repeat other parts of the pleading and lack appropriate clarity. It is difficult to see how they relate to or interact with the other parts of the pleading concerning the defence of qualified privilege.
153 As for the “facts” pleaded on paragraph 36.9A, it can readily be accepted that if Nationwide and Mr Moran were in possession of information concerning the matters referred to in paragraphs 36.9A(a) to (o) at the time of publication, and had obtained that information from apparently reputable and reliable sources, that could well be relevant to assessing the reasonableness of their conduct in publishing the second matter complained of. It is, however, unclear why the objective truth or otherwise of those matters could have a bearing on the assessment of the reasonableness of the conduct of Nationwide and Mr Moran. It is equally unclear why this information is pleaded separately to the information pleaded in paragraph 36.6 of the Amended Defence, and why there is no equivalent paragraph to paragraph 36.6A in respect of the information in paragraph 36.9A. There is no indication of the source or sources of the facts referred to in paragraph 36.9A, other than in those cases where the source is implicit in the fact itself: see for example paragraph 36.9A(j).
154 It would appear that the objective truth of many of the facts pleaded in paragraph 36.9A is unlikely to be in issue: see in particular paragraphs 36.9A(a) to (h) and (m) to (o). What is entirely unclear, however, is why the fact that the second matter complained of included those facts, and more particularly the objective truth of those facts, could have any bearing on the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matter. It is also unlikely that the objective truth of the facts pleaded in paragraphs 36.9A(k) and (l) will be in issue. Those facts are relevant to whether the matter published contained the substance of Mr Rush’s side of the story: s 30(3)(h). That very matter, however, is specifically addressed in paragraphs 36.12A to 36.14 of the Amended Defence. It is unclear what paragraphs 36.9A(k) and (l) add to what is already pleaded in paragraphs 36.12A to 36.14 and, more significantly, why the objective truth of the facts referred to in 36.9A(k) and (l) is also said to be relevant.
155 That leaves the somewhat more contentious paragraphs 36.9A(i) and (j). What is unusual about those paragraphs is that the facts or information referred to in them are already the subject of paragraphs 36.6(a1) and (b). Paragraph 36.6A(b) specifies the source of that information. The fact that Nationwide and Mr Moran obtained that information from a source who they contend was reputable and reliable is plainly relevant to the reasonableness of their conduct. That is no doubt why Mr Rush has not applied to strike out 36.6(a1) and (b). What is entirely unclear, however, is why that information is repeated in 36.9A(i) and (j), without any reference to the source of that information, and more significantly why the objective truth of that information is relevant to the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matter complained of.
156 As has already been noted, Nationwide and Mr Moran did not even attempt to demonstrate, how the objective truth of the facts pleaded in paragraph 36.9A, or the fact that the first matter complained of contained those facts, bore on any of the s 30(3) matters or, more particularly, the reasonableness of their conduct for the purposes of their defence of qualified privilege. The relevance of the objective truth of the facts referred to in paragraph 36.9A is not readily apparent from the pleading itself. And has already been explained, while it may be relevant that Nationwide and Mr Rush possessed some of the information referred to in paragraph 36.9A at the time of publication, and obtained it from identified sources, those matters are pleaded elsewhere in the Amended Defence in any event.
157 In all the circumstances, I am satisfied that the facts and matters pleaded in paragraph 36.9A do not disclose a reasonable defence.
158 I should note that I have given some consideration to whether it would be sufficient to simply srike out the words “each of which was a matter of substantial truth” as they appear in paragraph 36.9A. If that was done, however, that would mean that paragraph 36.9A would simply read as a list of “facts” contained in the relevant articles. That itself would not be capable of disclosing a reasonable defence. Paragraph 36.9 does now include the words “specifically the matters set out in paragraphs 36.9A and 36.9C below”. Those words, however, do not meaningfully add to the broader contention in paragraph 36.9 that Nationwide and Mr Moran believed all of what they published to be true. It should also be noted that no particulars are provided in relation to the contention that Nationwide and Mr Moran believed that the “facts” in paragraph 36.9A to be true.
159 I am also satisfied that paragraph 36.9A is ambiguous and is likely to cause embarrassment, prejudice or delay in the proceeding. The embarrassment and prejudice flows from the ambiguity and lack of clarity and apparent relevance of the matters pleaded in the paragraph. It is, in short, not possible to discern the relevance of the matters pleaded in paragraph 36.9A and how they intersect with or relate to the other paragraphs of the Amended Defence which plead and particularise the defence of qualified privilege in a more conventional and comprehensible way.
160 Prejudice and delay is also likely to flow from the fact that, if permitted to plead the objective truth of the matters in paragraphs 36.9A, Nationwide and Mr Moran will no doubt attempt to prove the truth of the matters pleaded at trial. If the paragraphs are permitted to stand, there will be a collateral inquiry into the truth of the statements made in the relevant publications in circumstances where, for the reasons already given, it is at best unclear how and why the objective proof of the statements is relevant to the reasonableness of the conduct in publishing and the defence of qualified privilege. For the reasons already given, the defence of justification currently pleaded by Nationwide and Mr Moran is to be struck out. An inquiry into the objective truth of the published statements cannot be justified by reference to that defence.
161 Nationwide and Mr Moran may also attempt to utilise the Court’s processes to obtain evidence to prove the truth of the matters pleaded in paragraph 36.9A. Indeed, they have already endeavoured to do so by having the Court issue a subpoena directed to the Sydney Theatre Company. That should not be permitted in circumstances where they have not demonstrated, in clear terms, how and why proof of the truth of the facts pleaded in paragraphs 36.9A can or might advance their defence of qualified privilege. Mr Rush went so far as to submit that paragraphs 36.9A to 36.9C were included for the purpose of justifying the subpoena and that they were therefore an abuse of process. I doubt that it is open to infer that the paragraphs were included for that purpose. Nor is it necessary to go that far. For the reasons given later in the context of the subpoena to the Sydney Theatre Company, it would be an abuse of process for Nationwide and Mr Moran to utilise the Court’s compulsory processes to undertake a “fishing expedition” in the hope of finding something that might provide it with a defence, particularly if no proper basis for that defence has been demonstrated.
162 For all those reasons it is appropriate to strike out paragraph 36.9A pursuant to r 16.21 of the Rules.
163 Paragraph 36.9B pleads certain facts that are said to substantial truth of paragraph 36.9A(i). As already noted, it is unclear why the substantial truth of the fact pleaded in that paragraph is relevant to the reasonableness of the conduct of Nationwide and Mr Moran. It is also unclear whether the facts pleaded in paragraph 36.9B were known to Nationwide and Mr Moran at the time of publication, and unclear what the source of the information was. Neither of those matters is pleaded. In any event, paragraph 36.9B must be struck out in circumstances where paragraph 36.9A is to be struck out. I am satisfied that paragraph 36.9B does not disclose a reasonable defence, is ambiguous and is likely to cause embarrassment, prejudice or delay in the proceeding.
164 Paragraph 36.9C has the same problems and deficiencies as paragraph 36.9A. It is at best unclear how the objective truth of the “facts” detailed in paragraphs 36.9C(a) to (t), or the fact that the third matter complained of contained those facts, bears at all on the issue of the reasonableness of the conduct of Nationwide and Mr Moran. Some of the facts referred to in paragraph 36.9C appear to repeat or expand upon the facts already pleaded in paragraph 36.7. As already noted, paragraph 36.7 details the information that was possessed by Nationwide and Mr Moran at the time of the publication of the third matter complained of. The sources of that information are pleaded in paragraph 36.7A. It may again be accepted that the fact that Nationwide and Mr Moran possessed certain information at the time of publication, and obtained that information from identified sources who are said to be reliable, may be relevant to the reasonableness of their conduct in publishing. It is, however, unclear why that information is repeated or expanded in paragraph 36.9C, or why the objective truth of that information bears on the reasonableness of Nationwide and Mr Moran.
165 To the extent that paragraph 36.9C refers to facts additional to those pleaded in paragraph 36.7, the sources of that information are not pleaded. Some of the facts referred to in paragraph 36.9C would also appear to be relevant to the reasonableness of the conduct of Nationwide and Mr Moran having regard to s 30(3)(h) (whether the matter published contained the substance of the person’s side of the story), but those facts are pleaded in any event in paragraphs 36.12A to 36.14. It is unclear why the repetition is necessary.
166 In all the circumstances, for effectively the same reasons as those given earlier in relation to paragraph 36.9A, I am satisfied that paragraph 36.9C does not disclose a reasonable defence. I am also satisfied that paragraph 36.9C is ambiguous and is likely to cause embarrassment, prejudice or delay in the proceeding. It is accordingly appropriate to strike it out pursuant to r 16.21 of the Rules.
167 The words “specifically the matters set out in paragraphs 36.9A and 36.9C below” as they appear in paragraph 36.9 of the Amended Defence should also be struck out.
168 I am again mindful of the care and caution that must generally be exercised when striking out parts of a pleading. I note, however, that striking out paragraphs 36.9A to 36.9C of the Amended Defence does not deny Nationwide and Mr Moran the opportunity to raise a defence of qualified privilege at the trial. The balance of their defence of qualified privilege remains. As has already been said, many of the facts pleaded in paragraphs 36.9A to 36.9C are already referred to in some way or another elsewhere in the pleading, as information that Nationwide and Mr Moran possessed at the time of publication and believed, based on the reliability of the sources, to be true. All that has been struck out is paragraphs that are unclear and ambiguous and raise matters that are not apparently relevant to the reasonableness of the conduct of Nationwide and Mr Moran or the availability of the defence of qualified privilege more generally.
THE SUBPOENA TO THE SYDNEY THEATRE COMPANY
169 The key issue in relation to the subpoena to the Sydney Theatre Company is whether, in all the circumstances, Nationwide and Mr Moran have a legitimate forensic purpose in requiring the production of documents which relate, in general terms, to the complaint concerning Mr Rush’s conduct and the investigation concerning that complaint. The relevant circumstances include the fact that, for the reasons just given, the justification defence and paragraphs 36.9A to 36.9C of the Amended Defence are to be struck out. In those circumstances, is the subpoena an exercise in “fishing” or third party discovery by Nationwide and Mr Rush? Are they seeking the production of documents by the Sydney Theatre Company for the purpose ascertaining whether they have a defence, as opposed to for the purpose of securing evidence in support of their defence?
170 The classes of documents that the Sydney Theatre Company would be required to produce in answer to the subpoena if it is not set aside are described in the schedule to the subpoena, which is in the following terms:
1. Copies of all documents comprising or recording a complaint made in relation to inappropriate conduct by Geoffrey Rush in connection with, or at or around the time of, the production of “King Lear”, which was performed by the Sydney Theatre Company Limited (STC) between November 2015 and January 2016 (the Complaint).
2. Copies of all documents comprising or recording a report or other conclusion following any investigation of the Complaint.
3. Copies of correspondence between Patrick McIntyre and other Board members of the STC regarding the Complaint including, but not limited to:
(a) email correspondence from Patrick McIntyre to STC Board members dated 10 November 2017; and
(b) email correspondence from Patrick McIntyre to STC Board members regarding a meeting at Gretel Packer’s house held on 3 December 2017.
4. Copies of correspondence between STC employees regarding the Complaint including, but not limited to, email correspondence between STC employees dated early April 2016.
5. Copies of correspondence between Eryn Jean Norvill (or her representative) and STC employees and/or STC Board members regarding the Complaint including, but not limited to, email correspondence from Eryn Jean Norvill (or her representative) to an STC employee dated early April 2016.
6. Copies of correspondence between persons contracted to the STC for the purpose of the production of “King Lear” and employees and/or Board members of the STC regarding the Complaint.
7. Copies of the nightly show report and/or any other report or log by stage management or production personnel relating to the production of “King Lear”, which was performed by the STC between November 2015 and January 2016.
8. Copies of any reports or notes prepared by or on behalf of the STC’s Human Resources personnel relating to the Complaint.
9. Copies of any documents, including Board minutes, emails or other correspondence recording or otherwise referring to the STC’s decision not to work with Geoffrey Rush again.
171 It can readily be seen that the class of documents that the subpoena requires to be produced are very broad. The apparent forensic purpose of requiring the Sydney Theatre Company to produce these documents is to support a defence of justification. The difficulty for Nationwide and Mr Moran is that, for the reasons that have been given, their justification defence has not been properly particularised and accordingly must be struck out. There is no apparent forensic purpose for the subpoena. Nor are Nationwide and Mr Moran permitted to subpoena documents for the purpose of supporting an improperly pleaded or particularised defence of justification.
172 A defendant who pleads justification must do so on the basis of the information which it has in its possession when the defence is delivered and is not permitted to undertake a fishing expedition in the hope of finding something in support of its plea: TCN Channel Nine Pty Ltd v Berrigan (1996) Aust Torts Reports 81-404; (unreported, Supreme Court of Western Australia Full Court, Kennedy, Rowland and Franklyn JJ, 17 June 1996) at p. 12; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254; Sunday Times Newspaper Co Ltd v Sun Newspaper Co Ltd (1919) 36 WN (NSW) 72 at 73. In Zierenberg, Kay LJ said (at 188-189):
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.
173 In Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, Kenneth Martin J referred to Zierenberg and Berrigan, along with some other authorities, and said (at [40]):
A position of principle seen taken in these cases is that a pleaded defence of justification in a defamation action ought be pleaded by reference to existing materials, rather than on a hope of later locating some material upon which the plea might be legitimately based. On the face of it, that presents as a completely orthodox proposition. Obviously, the application of this principle in practice then needs to be evaluated against the precise circumstances of every individual case. For instance, in a scenario of an allegation as to somebody’s asserted misconduct or criminality, it could never be legitimate to plead a defence of truth in an expectation that in due course the process of discovery, or answered subpoenas, will unearth some supporting evidence of criminality or misconduct. There must exist an underlying factual base to support the plea as it is made. But that does not mean a provided fact base which is sufficient cannot be augmented, to be proved at a trial, after properly invoking the forensic processes of the court. An example of this is found in Yorkshire Provident, which concerned a plea of an insurance company not meeting claims by its clients.
174 This passage was referred to with approval by Le Miere J in Marshall v Smith [2013] WASC 432 at [6]. Berrigan was also referred to with approval by McCallum J in Pahuja at [19]. Importantly, her Honour then said:
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.
175 In this matter, the particulars of the justification defence have been found to be deficient and not capable of sustaining the defence. It is for that reason that they are to be struck out. It follows that Nationwide and Mr Moran have no legitimate forensic purpose for the subpoena and cannot be permitted to rely on the subpoena to ascertain whether they may, upon production of documents by the Sydney Theatre Company, be able to properly plead and particularise a defence of justification. It should also be noted that this is entirely consistent with the general principle that a party should only be able to obtain by subpoena documents which are relevant to an issue on the pleadings: Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [28]; Marshall at [9]-[10].
176 For completeness it should also perhaps be noted that Nationwide and Mr Moran may also have intended to rely on the subpoena to prove the matters that it had pleaded in paragraphs 36.9A to 36.9C in the context of their defence of qualified privilege. For the reasons given earlier, those paragraphs must also be struck out on the basis that they do not raise a reasonable defence, and are ambiguous and likely to lead to prejudice, embarrassment and delay in the proceeding. The defence of qualified privilege pleaded in the Amended Defence, in the absence of paragraphs 36.9A to 36.9C, does not raise any issue in respect of which the documents sought by the subpoena could be relevant.
177 It follows that the subpoena issued to the Sydney Theatre Company must be set aside on the basis that no legitimate forensic purpose for requiring the production of the documents has been demonstrated by reference to the issues raised by the pleadings following the striking out of the justification defence and paragraphs 36.9A to 36.9C of the Amended Defence. In all the circumstances, the subpoena amounts to “fishing” or third party discovery in the hope of supporting a justification defence that has not been properly pleaded and particularised. It is therefore an abuse of process.
Confidentiality
178 As has already been noted, at the conclusion of the hearing of the amended interlocutory application, I declined to extend the interim confidentiality order, or to make the further confidentiality orders sought in the amended interlocutory application. Following are my reasons for declining to make confidentiality orders.
179 Mr Rush sought orders the effect of which was to ensure that the original defence and the Amended Defence would be “treated as confidential” and “not to be distributed to any third party outside of the proceedings”, and that no access to either the Defence or Amended Defence would be granted to any third party under r 2.32 of the Rules. He also sought orders the effect of which was to require Nationwide and Mr Moran to file a further amended defence which did not include any of the paragraphs struck out by the Court, as well as orders that certain paragraphs of the further amended defence be redacted to mask those paragraphs in any copy of that document that was to be distributed to any third party.
180 Mr Rush contended that the Court had power to make those orders under either r 2.32(3)(a) or r 16.21(2) of the Rules and s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It should perhaps be noted, however, that the orders sought by him were not expressed in the terms of those rules or that section. In any event, he submitted that the making of the orders was justified by reason of the fact that if some of the allegations made in the Defence and Amended Defence were released in the public domain, Mr Rush would suffer further damage to his reputation. That, it was submitted, would essentially defeat Mr Rush’s purpose in commencing these proceedings. He also submitted that if parts of the Amended Defence are struck out, they no longer form part of the pleadings and should either be removed from the file, or access to them by third parties should be denied.
181 Rule 2.32(2) of the Rules provides that a person who is not a party may inspect certain specified documents in the Registry. The specified documents include, in paragraph (c), a pleading or particulars of a pleading or similar document. Rule 2.32(3)(a) provides, however, that a person who is not a party is not entitled to inspect a document that the Court has ordered to be confidential. Rule 2.32 does not specify the circumstances in which the Court would order a document to be confidential for the purposes of r 2.32(3)(a).
182 Rule 16.21(2) provides that a party may apply for an order that a pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph 1(a) (“scandalous material”), 1(b) (“frivolous or vexatious material”) or 1(c) (“evasive or ambiguous”). Rule 16.21 does not, however, in terms set out the circumstances in which the Court would grant such an application. Nor does it expressly provide for the removal of part of a pleading or, more particularly, the redaction of the parts of a pleading that have been struck out pursuant to r 16.21(1).
183 Section 37AF(1)(b)(iv) of the FCA Act relevantly provides that the Court may, by making a suppression order or non-publication order on grounds permitted by Part VAA, prohibit or restrict the publication or other disclosure of information that relates to a proceeding before the Court and is “information lodged with or filed in the Court”. A suppression order is defined in s 37AA as an order that prohibits or restricts the disclosure of information (by publication or otherwise) and a non-publication order is defined as meaning an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). Mr Rush did not, in terms, apply for either a suppression order or a non-publication order.
184 Section 37AG of the FCA Act specifies the grounds upon which the Court may make a suppression or non-publication order. The only ground that was said to be relevant to Mr Rush’s application was that the order “is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a). Importantly, s 37AE provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
185 It is convenient to first address whether any of the orders sought by Mr Rush were necessary to prevent prejudice to the proper administration of justice for the purposes of s 37AG of the FCA Act. The short answer to that question is “no”. There are a number of reasons why that is so.
186 First, suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Bianca Hope Rinehart v Georgina Hope Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart at [26].
187 Second, the only substantive reason advanced by Mr Rush for departing from the open justice principle was that he would likely suffer further embarrassment if the allegations and other information relating to him that are contained in the Amended Defence are made public and are therefore able to be published. In Rinehart v Welker, Bathurst CJ and McColl JA referred with approval to the statement of Lord Woolf MR in R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 at 978 that “[i]n general … parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation”. Their Honours went on to say that:
It is the price of open justice that allegations about individuals are aired in open court. Such individuals, particularly if they are parties, can make their response to such allegations public in the same forum. The media, the vehicle by which such allegations are usually published to the world, would be obliged to publish any response to ensure any report of the proceedings was fair: s 29 of the Defamation Act 2005 (NSW).
188 Embarrassment is not itself a ground for making an order under s 37AG(1) of the Act, except in a case which falls under s 37AG(1)(d): embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature.
189 Third, as has already been noted, the Rules provide that the pleadings filed by a party are ordinarily available for public inspection. That is an important part of the system of open justice. As Rares J pointed out in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at [29], the reason that the pleadings may be inspected by the public is so that the public “may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution”.
190 In Llewellyn, Rares J rejected, as erroneous, the approach that had been taken by some judges in defamation cases in the Supreme Court of New South Wales in relation to the public dissemination of the pleadings. That approach involved refusing any public access to pleadings prior to the trial. The basis for that approach was said to be that if pleadings were made available to the public prior to trial, the person the subject of any allegations made in the pleadings would most likely be unfairly prejudiced with no necessary redress in defamation. Rares J said (at [24]) that in his view that approach was fundamentally erroneous:
It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts. Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts. People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state or, here, the Commonwealth to be applied to the resolution of their dispute.
191 His Honour continued (at [28]):
The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could only possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of anyone to fairly report proceedings in a court of justice.
192 It is fairly common for defendants in defamation cases to plead a defence of justification. The particulars of such a defence are likely to put in issue the truth of the very matters about which the plaintiff complains. Until the matter proceeds to trial and the issue is determined, the particulars of truth in a defence of justification amount to nothing more than allegations. A fair report of those particulars would ordinarily have to make it clear that they amounted to nothing more than untested allegations. There is no reason to think that members of the media would not know and appreciate that to be the case. Similarly, it is fairly common for a defendant in a defamation case to plead qualified privilege and, in that context, for the defence to include particulars of information that the defendant had in its possession at the time of publication of the allegedly defamatory matter. That information may be disputed. In some cases, the defendant may accept that the information ultimately turned out to be inaccurate or even false, though they had no reason to believe so at the time of the publication. A fair media report of such a defence would ordinarily have to point that out.
193 I am unable to see why this case is any different to any other defamation case. While the case may well be the subject of considerable public and media attention, there is no reason to suppose that the particulars in the Amended Defence will not be fairly reported. In any event, if they are not fairly reported, Mr Rush may well have a further cause of action in defamation.
194 Nor is there any reason to suppose that members of the public will not appreciate that the particulars in the Amended Defence are anything other than untested allegations that may turn out to be proved false or incorrect. As Rares J said in Llewellyn (at [37]):
Members of the public, as Mason J made clear in Mirror Newspapers v Harrison (1982) 149 CLR at 300-301, understand that it is fundamental to the open administration of justice that, as a routine, courts have allegations made in them which are untested at stages in the course of proceedings. At the end of the day the ordinary reasonable member of the community understands that it is the responsibility of the court, be it a judge or jury, to make findings about those allegations and then to decide cases. Ordinary members of the community understand that those matters are part of the administration of justice. Members of the media generally have a similar understanding.
195 Fourth, I doubt that the fact that parts of the Amended Defence will be struck out justifies the making of a suppression or non-publication order over the entirety of the pleading, or the parts that have been struck out. Nor does it warrant the removal of the pleading, or part of it, if that is possible, from the Court file. The principle of open justice demands and requires that the public be able to follow and understand all stages of a proceeding, including interlocutory steps such as the striking out of part of a defence. It is difficult to see how such a step could be fully understood, or fairly reported on, if the parts of the defence that are struck out are suppressed.
196 Of course, there may well be exceptional cases where the parts of a pleading that are struck out contain manifestly scandalous or vexatious material. This, however, is not such a case.
197 It is, in any event, difficult to see why Mr Rush would be further embarrassed by any reporting of those parts of the Amended Defence that are to be struck out. A fair report of any of the parts of the Amended Defence that have been struck out would almost certainly have to include details of why those parts were struck out. In this matter, a fair report would most likely have to refer to the fact that some of the paragraphs of the justification defence were struck out because they were found not to be capable of supporting the truth of the imputations that they were said to have justified. That would hardly be likely to embarrass Mr Rush.
198 In all the circumstances, I am not satisfied that Mr Rush demonstrated that the orders sought by him, to the extent that they were sought pursuant to s 37AF and 37AG, were necessary to prevent prejudice to the proper administration of justice.
199 As for access to the documents pursuant to r 2.32 of the Rules, while the Court can make an order under r 2.32(3)(a) that a document that would otherwise be available for inspection by a third party be kept confidential, it is difficult to see why the principles concerning open justice that apply to ss 37AF and 37AG should not apply equally in those circumstances. For the reasons already given, Mr Rush has failed to demonstrate a good reason why the original Defence, the Amended Defence, or any part of those documents should be confidential and not be available for inspection by third parties.
200 Much the same can be said regarding Mr Rush’s application that the Amended Defence, or the parts of it that are to be struck out, should be removed from the Court file pursuant to r 16.21(2) of the Rules. It is doubtful that removal from the Court file would be justified simply because the parts of the Amended Defence that are to be struck out no longer form part of the pleading. Something more would ordinarily need to be shown. Removal of material that was struck out because it was manifestly scandalous and vexatious might be justified in some cases. The material struck out of the Amended Defence in this matter, however, does not really meet that description. In any event, in this matter in my view the principles of open justice discussed earlier clearly outweigh any further embarrassment that Mr Rush may suffer if the Amended Defence, or the parts of it that are to be struck out, are not removed from the Court file.
Disposition and orders
201 For the reasons that have been given, paragraphs 13(a), 14 to 28 and 36.9A to 36.9C of the Amended Defence should be struck out pursuant to r 16.21 of the Rules. The words “specifically the matters set out in paragraphs 36.9A and 36.9C below” in paragraph 36.9 should also be struck out. The subpoena issued to the Sydney Theatre Company, on the application of Nationwide and Mr Moran, should be set aside. Nationwide and Mr Moran should pay Mr Rush’s costs of the interlocutory application and the amended interlocutory application. They should also pay Mr Rush’s costs occasioned by the amendment to the defence. The parties should jointly approach the Court to have the matter relisted for further case management at the earliest opportunity.
I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. |
Associate:
Dated: 20 March 2018
