FEDERAL COURT OF AUSTRALIA

Faruqi v Latham [2018] FCA 1328

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s defence dated 23 November 2017 be struck out.

2.    The applicant’s interlocutory application filed 14 December 2017 be otherwise dismissed.

3.    The respondent’s interlocutory application filed 11 December 2017 be dismissed.

4.    The respondent pay the applicant’s costs of and associated with the interlocutory applications referred to in orders 2 and 3.

5.    The parties jointly arrange for the matter to be listed for a case management hearing on the earliest date suitable to the parties and the Court after 28 September 2018.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    What does the martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus and Emperor Flavius Valerius Aurelius Constantinus Augustus have to do with a defamation action commenced in Australia in 2017? How could the persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century be said to rationally affect the assessment of the probability of a fact in issue in a modern-day defamation action in which the defamatory imputations are said to be that the applicant knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or encourages and facilitates terrorism‽ Could the fact of the segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid in South Africa between 1948 and 1991 reasonably be said to be relevant to the defences of justification, contextual truth, qualified privilege, honest opinion and fair comment pleaded by the respondent in that defamation action?

2    These and other equally beguiling questions are raised by the interlocutory applications filed by the parties in this matter.

background

3    Mr Osman Faruqi is a Sydney-based writer and public commentator. Mr Mark Latham is a public commentator and operator of a website known as “Mark Latham’s Outsiders”. On 2 August 2017, a video entitled “Mark Latham’s Outsiders: The Rise of Anti-White Racism and Terrorist Plots in Australia” was uploaded to that, and a number of other, websites. In that video, Mr Latham is, amongst other things, seen and heard to say the following:

… Anyone out there, on the left of politics in particular, that’s fermenting [sic] hatred of white people, the rise of anti-white racism in Australia, and also those fermenting [sic] the idea of an Islamic master race in Australia, they are aiding and abetting Islamic terrorism. They are giving encouragement and succour to the terrorist fanatics who want to kill innocent people in this country …

Now there’s an instance of this earlier in the week, a guy called Osman Faruqi …

Now this type of anti-white racism is totally unacceptable …

These people are fermenting [sic] hatred of white people. And as such, they are effectively encouraging the terrorists in this political environment, to do their worst …

4    Mr Faruqi promptly commenced proceedings in this Court alleging that Mr Latham had defamed him. He alleges that statements made in the video posted on Mr Latham’s website, including those just cited, carried three defamatory imputations: first, that Mr Faruqi knowingly assists terrorist fanatics who want to kill innocent people in Australia; second, that Mr Faruqi condones the murder of innocent people by Islamic terrorists; and, third, that Mr Faruqi encourages and facilitates terrorism. It is perhaps worth noting that Mr Faruqi’s statement of claim occupies just over two pages.

5    Mr Latham filed a defence to Mr Faruqi’s claim. It runs, in total, to just over 76 pages in length and includes nine schedules. Its contents will be summarised shortly. For the moment, it suffices to say that the defence raises most, if not all, of the positive defences to an action in defamation which are available, both under the Defamation Act 2005 (NSW) and at common law. Those defences include the defence of justification under s 25 of the Defamation Act; the defence of contextual truth under s 26 of the Defamation Act; the defence of qualified privilege, both under s 30 of the Defamation Act and at common law; a defence of honest opinion under s 31 of the Defamation Act; the defence of fair comment at common law; and a defence based on Constitutionally-protected free speech.

6    Both Mr Latham and Mr Faruqi filed interlocutory applications in which they sought orders striking out parts of their opponent’s pleading. Mr Latham also sought an order requiring Mr Faruqi to provide certain further particulars of his claim.

7    Mr Latham’s primary contention was that the relevant publication, the video, did not have the capacity to convey the imputations alleged by Mr Faruqi. Mr Latham also challenged that aspect of Mr Faruqi’s pleading which, so Mr Latham contended, appeared to allege that the video was published in Australia’s external territories, including the Territory of Ashmore and Cartier Islands, the Coral Sea Islands Territory, and the Territory of Heard Island and McDonald Islands. The request for particulars related, not only to the basis upon which it was alleged that the video was published in the external territories, but also aspects of Mr Faruqi’s damages claim.

8    For his part, Mr Faruqi contended, in short, that various parts of Mr Latham’s defence contained scandalous, frivolous or vexatious material, or were evasive or ambiguous, or were likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence appropriate to the nature of the relevant pleading, or were otherwise an abuse of the process of the Court.

9    For the reasons that follow, Mr Latham’s interlocutory application should be dismissed, and Mr Faruqi’s interlocutory application should, for the most part, be allowed.

10    It is convenient to first address Mr Latham’s interlocutory application.

Is the video capable of conveying the alleged defamatory imputations?

11    The substantive question raised by Mr Latham’s interlocutory application is whether the impugned publication, the video, is capable of conveying the alleged defamatory imputations.

12    The principles that should be applied in addressing that question were not in dispute.

13    The question whether a publication is capable of conveying a defamatory meaning is a question of law: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [9], [17]. The question is whether the challenged defamatory meanings or imputations could reasonably be found by the tribunal of fact to have been conveyed by the publication: Favell at [14]-[15]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [138]. In this Court, the tribunal of fact is likely to be the trial judge, not a jury: Wing v Fairfax Media Publications Pty Ltd (2017) 350 ALR 476; [2017] FCAFC 19. In those circumstances, the utility of considering this issue on an interlocutory basis before trial is perhaps questionable: Murphy v Nationwide News Pty Ltd [2017] FCA 603 at [14]; Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [78].

14    In any event, the question is to be determined from the perspective of the ordinary reasonable reader (or listener or viewer, depending on the nature of the matter complained of). It should be borne in mind, in that context, that ordinary readers draw implications much more freely than lawyers, especially when they are derogatory: Favell at [11], referring to the judgment of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277.

15    Striking out a pleading, or part of it, on the basis that the publication was not capable of giving rise to the defamatory imputations alleged is a matter for the discretion of the judge hearing the application. Such a step is not to be undertaken lightly, but only with great caution: the “fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion”: Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2]; approved in Favell at [6].

16    The capacity determination is “an exercise in generosity not parsimony”: Corby at [135] citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]. In Corby, McColl JA (with whom Gleeson JA agreed) said (at [136]):

One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be ‘perverse’ for any jury to do so’”: Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).

17    The caution that should be exercised in considering whether to strike out a pleading, or part of it, in a defamation case based on a capacity determination, is consistent with the principles that apply generally to the striking out of pleadings pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case: Radisich v McDonald [2010] FCA 762; 198 IR 244; at [20] and the authorities there cited. The Court is careful to ensure that it does not, in striking out a pleading, prevent a party from making a case that it is entitled to make: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175; Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 at [20].

18    Mr Latham submitted that the words used in the video are not capable of conveying the imputation that Mr Faruqi “knowingly assists terrorist fanatics who want to kill innocent people in Australia” because the words used in the video are “utterly incapable” of conveying that Mr Faruqi “knowingly” provided that assistance. That submission appeared to amount to a concession that the words used in the video are capable of conveying that Mr Faruqi assisted terrorist fanatics who wanted to kill innocent people in Australia. The contention was that they just did not convey that he did so “knowingly”.

19    Mr Latham’s submission in relation to the imputation that Mr Faruqi “condones the murder of innocent people by Islamic terrorists” focussed on the word “condones”. He submitted that the words used in the video are incapable of conveying that Mr Faruqi condones such actions, meaning that he approves, sanctions, countenances or endorses such actions.

20    In relation to the third alleged imputation, that Mr Faruqi “encourages and facilitates terrorism”, Mr Latham conceded that the words used in the video are arguably capable of conveying that Mr Faruqi encourages terrorism. He submitted, however, that the words are not capable of conveying that Mr Faruqi also facilitates terrorism.

21    Each of those arguments can be dealt with shortly. While there may ultimately be some force in Mr Latham’s arguments that the words used in the video did not, in fact, convey any of the pleaded imputations, it cannot be concluded that no ordinary viewer of the video could reasonably have understood the words to bear any of the alleged meanings, or that it would be perverse for them to do so.

22    While it may be correct that the words used in the video may not, in terms, expressly state that Mr Faruqi knew that his words or actions assisted terrorist fanatics who wanted to kill innocent people in Australia, or that he condoned the murder of innocent people by Islamic terrorists, or that he not only encouraged, but also facilitated, terrorism, it is at least reasonably open to find that an ordinary viewer of the entire video might “read between the lines” (cf. Lewis at 258) and draw those implications or inferences. The use of expressions such as “aid and abet”, and evocative words like “succour”, might be said to make the drawing of such implications more likely.

23    The final determination of whether ordinary reasonable readers would draw such implications is a matter best considered after full argument at trial. It is sufficient at this stage to simply find that it is at least reasonably arguable that they would.

24    It follows that Mr Latham’s contention that the video is not capable of conveying the alleged imputations is rejected.

Other issues raised by Mr Latham’s interlocutory application

25    At the hearing of the interlocutory application, Mr Faruqi disclaimed any reliance on publication in the external territories. That disclaimer resolved Mr Latham’s complaint, and request for particulars, concerning what he claimed was an allegation that the video had been published in Australia’s external territories.

26    Mr Latham’s other complaint concerning the allegation that the video had been published appeared to relate to the date on which that was said to have occurred. While Mr Faruqi’s pleading alleged that the video was uploaded on 2 August 2017, it does not follow, in Mr Latham’s submission, that the video was published on that date. That is because the video was not published until it was, in fact, communicated to a third person. Mr Latham relied, in support of that submission, on the judgment of the High Court in Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575.

27    That complaint amounts to nothing more than a pleader’s quibble. It certainly does not warrant the striking out of any part of Mr Faruqi’s pleading. The pleading alleges that the video was downloaded, viewed and comprehended in each State and Territory of Australia, though, as just noted, Mr Faruqi now disclaims any publication in the external territories. Particulars of the number of times the video was viewed on one particular website, and “liked” or “shared” on another, are provided. Mr Faruqi plainly did not and does not intend to allege that all those viewings occurred on 2 August 2017. The date on which the video was uploaded is largely immaterial, other than that it indicates that the video was viewed by third parties on or after that date.

28    Mr Latham’s other complaints concerned Mr Faruqi’s claim that he is entitled to aggravated damages. The first complaint was resolved by an amendment to the pleading, made at the hearing, to correct a typographical error. The pleading initially alleged that Mr Latham knew the imputations to be false. After the amendment, the pleading alleges that Mr Faruqi knew that the imputations were false and is entitled to aggravated damages on that basis. No further particulars of that allegation are required. It is a circumstance that, at least arguably, may result in an award of aggravated damages.

29    The second complaint relating to Mr Faruqi’s claim of aggravated damages concerned the allegation that Mr Latham refused to cease publication of the imputations, despite being requested to do so in a letter dated 17 August 2017. Mr Latham’s complaint is that the letter did not ask him to cease publishing the pleaded imputations. Rather, it asked him to cease publishing other statements made in, or other meanings allegedly conveyed by, the video. Mr Faruqi’s response was that the filing of his claim in this Court amounted to a demand that Mr Latham cease publishing the alleged imputations. It is unnecessary to resolve this issue or say anything further about it. Mr Faruqi’s case in relation to this aspect of his claim for aggravated damages is clear. So too is Mr Latham’s response. No further particulars are required. There is no reason to strike out this particular of the claim for aggravated damages.

30    The third complaint concerned the lack of particularity of the allegation that Mr Latham’s “attack” on Mr Faruqi was “intemperate”. Mr Faruqi’s case, however, is that the intemperate nature of Mr Latham’s conduct is readily apparent, and is an available inference from, the video itself. That submission should be accepted. No further particulars of that allegation are required. There is no reason to strike out this particular of the claim for aggravated damages.

31    It follows that, save for the matters resolved by way of concession or amendment at the hearing, none of the arguments advanced by Mr Latham for striking out, or requiring further particulars, of any part of Mr Faruqi’s claim have any merit. Mr Latham’s interlocutory application should accordingly be dismissed.

Mr Latham’s defence

32    Mr Latham’s defence is, on just about any view, an extraordinary document. In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat.

33    There are 12 “parts” to the defence. There are also nine schedules.

34    Part A of the defence purports to deal with the interpretation of the defence. It needs to be read in conjunction with Schedule I, which is said to be a “dictionary” of words and expressions used in the defence. The dictionary includes, amongst other things, a dramatis personae, a list of online biographical notes regarding Mr Faruqi, references to “internet terminology”, and a description of certain “Islamic terrorist atrocities”. One example from the dictionary will perhaps suffice to give a general flavour of what is under consideration. The expression “the Bowdlerization” is defined in the dictionary as follows:

the expression, referred to in subparagraph 65(b)(ii) of this pleading:

•    which Latham used in lieu of the word “fucked”;

•    comprising the name of the letter “F” followed by the past participial suffix “-ed”; and

•    sounding roughly like “effed”.

35    Part A of the defence also refers to the “adjectival meaning” of certain words, such as “white”, “brown” and “Person of Colour”. It also helpfully points out that the schedules form part of the pleading, but that the table of contents and headings are provided for “ease of reference” only.

36    Mr Faruqi contended that paragraphs 3 and 4 of Part A should be struck out on the basis that they do not give rise to a reasonable defence. Paragraphs 3 and 4 are in the following terms:

3.    The term “brown”:

(a)    is used by Faruqi discriminately in his public utterances, including those referred to in Part D of this pleading, as an adjective to distinguish persons who possess:

(i)    darker skin; and

(ii)    other racial characteristics not ordinarily associated with a European ethnic heritage; and

(b)    when used in this pleading, bears the same adjectival meaning.

4.    The term “Person of Colour” (or its abbreviation, “PoC”):

(a)    is used by Faruqi discriminately in his public utterances, including those referred to in Part D of this pleading, as a noun to distinguish persons whom Faruqi would otherwise identify as either:

(i)    “brown”; or

(ii)    not “white”; and

(b)    when used in this pleading, bears the same meaning.

37    Part B of the defence contains Mr Latham’s “Objections in point of law” in relation to Mr Faruqi’s claim. Some of the pleaded objections use the language of r 16.21 of the Rules and appear to amount to contentions that various paragraphs of Mr Faruqi’s pleading should be struck out. Why those contentions are included in Mr Latham’s defence, as opposed to in an interlocutory application seeking to strike out those paragraphs of the pleading, is unclear.

38    In any event, Mr Faruqi contended that only paragraph 14 of Part B should be struck out on the basis that it is likely to cause prejudice or embarrassment. Paragraph 14 is in the following terms:

14.    Further or in the further alternative: Latham objects in point of law that subparagraph 6(a) of the Amended Statement of Claim is embarrassing and incompetent, on the grounds that:

(a)    alleged defamatory meaning (a) comprises distinct and discrete allegations, that the “Matter Complained Of” carries at least two defamatory meanings; that is to say:–

(i)    that Faruqi “assists terrorist fanatics who want to kill innocent people in Australia”; and

(ii)    that Faruqi does so “knowingly”; and

(b)    in the premises, subparagraph 6(a) of the Amended Statement of Claim is bad for duplicity.

39    Part C of the defence is entitled “Who is Faruqi”. As that title suggests, it contains various assertions or allegations concerning how Mr Faruqi has been described by himself and others. While the relevance or significance of much of what has been pleaded in Part C is perhaps questionable, Mr Faruqi does not seek to strike out any paragraphs within it.

40    Part D of the defence is entitled “Faruqi’s vilification of “white” people”. Mr Faruqi contended that paragraphs 27 and 28 of Part D should be struck out on the basis that they contain frivolous or vexatious material, are evasive or ambiguous, are likely to cause prejudice or embarrassment, do not raise a reasonable defence, or are otherwise an abuse of the process of the Court. Paragraphs 27 and 28 are in the following terms.

27.    Faruqi’s Twitter feed includes the Tweets set forth in the second column of the table contained in Schedule II, issued by Faruqi on or about the respective dates set forth in the first column thereof.

28.    As “News and Politics Editor” of Junkee, Faruqi:

(a)    regularly contributes articles which:

(i)    portray “white” people in a poor light; and

(ii)    portray “brown” people in a better light; and

(b)    regularly authorizes, sanctions and approves the publication on Junkee of articles which:

(i)    portray “white” people in a poor light; and

(ii)    portray “brown” people in a better light.

41    As can be seen, paragraph 27 incorporates Schedule II. Schedule II contains some of the content of 164 “tweets” said to have been posted by Mr Faruqi on his Twitter account between 16 January 2012 and 22 November 2017. One of them is the tweet that appears to have provoked Mr Latham’s ire and, in due course, prompted Mr Latham’s comments concerning Mr Faruqi in the video. In that tweet, Mr Faruqi states: “The white people are getting fucked Yas, it’s happening”. Read in isolation, that tweet does not appear to make much sense. The same could perhaps be said of some of the other tweets referred to in Schedule II.

42    It is not entirely clear what Schedule II is intended to allege, particularly because, in accordance with paragraph 9 of Part A of the defence, the heading of Part D and Schedule II is included for “ease of reference” only and does not affect the meaning of the pleading. It is perhaps intended to support the allegation that Mr Faruqi regularly sends tweets which, to use the language of paragraph 28, portray “white” people in a poor light and portray “brown” people in a better light. That hardly amounts to an allegation that Mr Faruqi vilifies white people, or is a “racist who has committed anti-white racism” or is someone who has “foment[ed] the rise of anti-white racism” as alleged in, for example, paragraphs 73 and 74 of the pleading.

43    The question whether that allegation could reasonably be made out by the tweets in Schedule II, many of which could, on one view at least, fairly be characterised as asserting racism against “brown” people, or at least favouritism towards “white” people in Australian society, is considered later. In any event, Mr Faruqi’s primary submission was that, even if the tweets and the allegations in paragraph 28 are capable of establishing that Mr Faruqi vilifies white people, that fact is irrelevant to any defence pleaded by Mr Latham.

44    Part E of the defence is entitled “The connexion between racial vilification and racist violence”. It essentially puts forward a hypothesis which is central, if not critical, to many, if not most, of Mr Latham’s defences. Mr Faruqi contended that the entirety of Part E, which comprises paragraphs 29 to 32B, should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court. Paragraphs 29 to 32A are in the following terms:

29.    The vilification of a particular racial or religious group (“the vilified grouping”):

(a)    tends to:

(i)    demonize and ostracize members of the vilified group; and

(ii)    de-humanize such members;

(b)    tends to cause, amongst persons of different racial heritage or religious adherence:

(i)    the eradication or diminution of empathy with members of the vilified grouping; and

(ii)    the creation of a mindset of detachment and dissociation from members of the vilified grouping; and

(c)    thereby facilitates and encourages, amongst persons of different racial heritage or religious adherence:

(i)    the recruitment of such persons to commit acts of violence against members of the vilified grouping; and

(ii)    the commission by such persons of acts of violence against members of the vilified grouping.

29A.    In compliance with Rule 16.03(1)(b) of the Federal Court Rules, Latham pleads the facts set forth in paragraphs 30 to 32B of this pleading as facts which:

(a)    may take Faruqi by surprise if not expressly pleaded;

(b)    form part of Latham’s case which Faruqi will be required to meet at trial; and

(c)    in the case of paragraph 32B of this pleading, will be relied upon by Latham at trial as comprising admissions against interest by Faruqi with respect to:

(i)    the phenomenon described in paragraph 29 of this pleading; and

(ii)    the matters set forth in paragraph 32A of this pleading.

30.    The phenomenon described in paragraph 29 of this pleading has been observed in the historical context of various acts and events which are, or which are widely regarded as being, in the nature of genocide, including those identified in Schedule III.

31.    The phenomenon described in paragraph 29 of this pleading has also been observed in:

(a)    the persecution and martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus, known as “Nero”, and the reign of the Emperor Flavius Valerius Aurelius Constantinus Augustus, known as “Constantine the Great”, concluding with the Edict of Milan of 313 AD;

(b)    persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century, culminating in the St. Bartholomew’s Day massacre of 1572;

(c)    persecution in England, from the reign of Queen Elizabeth I, of:

(i)    Protestant nonconformists, until the Act of Toleration of 1689; and

(ii)    Roman Catholics, until the Roman Catholic Relief Act of 1791;

(d)    segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid:

(i)    in South Africa, between 1948 and 1991; and

(ii)    in Rhodesia (modern Zimbabwe), between 1965 and 1979; and

(e)    the violence and intimidation inflicted on African-Americans, principally in the southern states of the United States of America, by the Klu Klux Klan and other “white supremacist” organizations and vigilantes, since about 1946, peaking in the 1950s and 1960s.

32.    The phenomenon described in paragraph 29 of this pleading has been documented in academic literature, including the articles identified in Schedule IV.

32A.    In contemporary times, the phenomenon described in paragraph 29 of this pleading is especially potent and fecund if vilification of the vilified grouping is effected by means of an on-line social medium, such as Twitter or Facebook.

45    Paragraph 32B contains an image of tweets posted by Mr Faruqi on 26 October 2017 and 1 November 2017.

46    The tweets posted by Mr Faruqi on 26 October 2017 appear to have been in response to a Facebook post which reads: “Earn a better response rate on Osman Faruqi by responding to a message from Bryan Burman”. The said message from Bryan Burman, apparently directed at Mr Faruqi, was: “You are the lowest of low scum. Oh well we know who you are now. Eyes open fucker you never know what is around the next corner”. Mr Faruqi’s response to the Facebook post was: “Cheers Facebook for encouraging me to respond to the hundreds of racist messages and death threats I’ve received this week”. In another post, Mr Faruqi writes: “What am I supposed to say, “Thanks for threatening to kill me”? My poor response rate”.

47    In one of the tweets posted on 1 November 2017, Mr Faruqi writes: “Whenever I experience a surge in death threats or slightly more benign racism I check if Bolt has written something - I’m never disappointed” and “Great that we have a culture where commentators can unleash a wave of idiocy with a blog post”.

48    It would appear from paragraph 29A of the defence that Mr Latham alleges that those tweets somehow show that Mr Faruqi himself accepts or admits the “phenomenon” described in paragraph 29.

49    As can be seen, paragraph 30 incorporates Schedule III and paragraph 32 incorporates Schedule IV. Schedule III is entitled “Historical examples of vilification promoting genocide”. It contains a series of brief descriptions of historical events, starting with the Massacre at Ayyadieh of “Saracen” troops under An-Nasir Salah ad-Din Yusuf ibn Ayyub by forces commanded by King Richard I of England on 20 August 1191, and ending with the genocide of Rohingya people by the Myanmar Army and police in Rakhine State since 2016. It is unnecessary to detail all of the events contained in this Schedule, which runs to just over two pages. It should, however, perhaps be noted that some people might well dispute the causes and characterisation of some of what appears to be portrayed in this Schedule as ineluctable historical facts.

50    Schedule IV is entitled “Academic articles: Effects of racial vilification”. As the title suggests, it contains a list, running to almost five pages, of various academic articles. It is not entirely clear what use is to be made of the articles in the list. Does Mr Latham intend to tender them all if Mr Faruqi does not admit the alleged phenomenon?

51    The basis upon which Mr Latham asserts that the phenomenon alleged in paragraph 29 is relevant to his defences will be examined in detail later. It suffices for present purposes to note that the terms of the defence suggest that Part E is said to be relevant to Mr Latham’s defences of justification, contextual truth, qualified privilege, honest opinion and fair comment. Mr Faruqi, on the other hand, contended that the material in Part E is irrelevant to any matter that arises from his pleading or any reasonable defence. Indeed, Mr Faruqi contended that the central hypothesis that appears to underlie Mr Latham’s reliance on the pleaded phenomenon and historical events is “a massive non sequitur”.

52    Part F of the defence is entitled “Faruqi’s response to Islamic terrorist atrocities”. It contains details of three incidents involving terrorists who associated themselves with Islamic extremists and purports to summarise the content or effect of articles published by Mr Faruqi in relation to those incidents. The three incidents are the Lindt Café “siege”, which occurred in Sydney on 15-16 December 2014; the suicide bombings and shootings that occurred in Paris on 13 November 2015; and the bombings that occurred in Brussels on 22 March 2016. Mr Faruqi contended that the entirety of Part F, which comprises paragraphs 33 to 55, should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.

53    It is sufficient, for present purposes, to set out paragraphs 33 to 42 of the defence, which concern the Lindt Café incident. Paragraphs 43 to 49, which deal with the Paris attacks, and paragraphs 50 to 55, which deal with the Brussels bombings, are in relevantly similar terms. Paragraphs 33 to 42 of the defence are in the following terms:

33.    On 15-16 December 2014, an incident known as “the Lindt Café siege” (also known as “the Sydney siege” or “the 2014 Sydney hostage crisis”) occurred in Martin Place, Sydney.

34.    The Lindt Café siege was perpetrated by one Man Haron Monis.

35.    Monis:

(a)    was born in Iran;

(b)    was an adherent of the Islamic faith; and

(c)    obtained political asylum in Australia in 2001.

36.    In perpetrating the Lindt Café siege, Monis:

(a)    expressed allegiance to “the caliph of the Muslims”, meaning ISIL;

(b)    denounced moderate Islam;

(c)    was wearing a black headband with inscriptions, in Arabic, to the effect:

(i)    “We are ready to sacrifice for you, O Mohammad”; and

(ii)    “May Allah honour him and grant him peace”; and

(d)    compelled hostages to hold the Black Standard flag against the window of the café.

37.    ISIL, through its on-line magazine Dabiq, subsequently claimed that, in perpetrating the Lindt Café siege, Monis had joined “the mujahidin of [ISIL] in their war against the crusader coalition”.

38.    On 15 January 2015, the Lindt Café siege was declared under subsection 6(6) of the Terrorism Insurance Act 2003 (Cth.) to be a “terrorist incident”.

39.    On 24 May 2017, following a lengthy inquest, the New South Wales State Coroner determined that the Lindt Café siege was a terrorist incident.

40.    In the course of the Lindt Café siege:

(a)    18 people were taken hostage, all of them innocent and most of them “white”;

(b)    2 of those innocent “white” people were killed;

(c)    3 more of those people were injured, all of them innocent and most of them “white”; and

(d)    a police officer, responding to the siege, was also injured.

41.    On the day that the Lindt Café siege concluded, 16 December 2014, an article by Faruqi in relation to the Lindt Café siege was published on the website of the British newspaper The Independent under the headline, “Sydney siege: Australia’s Muslims need much more than #IllRideWithYou’s hollow symbolism”, at:

http://www.independent.co.uk/voices/comment/sydney-siege-australias-muslims-need-much-more-than-illridewithyous-hollow-symbolism-9927998.html

42.    Faruqi’s Lindt Café siege article:

(a)    did not denounce, or express any condemnation, censure, or criticism of:

(i)    the Lindt Café siege; or

(ii)    Monis, as perpetrator of the Lindt Café siege; or

(iii)    Islamic terrorist atrocities generally; or

(iv)    ISIL-inspired Islamic terrorist atrocities in particular;

(b)    merely described the Lindt Café siege, objectively, as “devastating”;

(c)    focussed principally on what could and should be done, in light of the Lindt Café siege, to benefit Australia’s Muslim community; and

(d)    reserved his denunciation, condemnation, censure, and criticism for “the far-right Australian Defence League” which he accused of creating a “context of bigotry and intimidation”.

54    As was the case with Part E of the defence, the terms of the defence suggest that Mr Latham asserts that the matters pleaded in Part F of the defence are relevant to his defences of justification, contextual truth, qualified privilege, honest opinion and fair comment. Mr Faruqi contended, however, that the matters pleaded in Part F are wholly irrelevant. The rival arguments in that regard will be explored in more detail later. It is sufficient for present purposes to note that Part F appears to build on or further develop the alleged historical phenomenon which is the subject of Part E. Mr Latham’s case would appear to be, in short terms, that the three terrorist incidents referred to in Part F were encouraged and facilitated by people who demonised “white” people. Mr Faruqi contended, however, that Mr Latham’s hypothesis in that regard is based on the false, or at least undemonstrated, premise that the victims of those terrorist attacks were targeted because they were “white”.

55    Part FA of the defence is entitled “Faruqi’s incitement of racial violence”. The main allegation contained in Part FA is that, on 9 November 2017, Mr Faruqi “incited others to commit or threaten physical harm towards a person or group of persons on the ground of … race”. The basis of that allegation is the content of two tweets posted by Mr Faruqi on 9 November 2017. Those tweets appear to have been prompted by a report in the Huffington Post with the title “Right-Wing Hate Group Attacks Sam Dastyari at Melbourne Pub”. Mr Faruqi’s tweets were:

No one else chimed in? The pub staff just watched this guys [sic] racially abuse someone and did nothing? Always incumbent on victims of racism to do the heavy lifting.

People in this situation always get hailed for “handling it well” when they should be supported in clocking dickheads like this in the face.

56    It would appear that it is the second tweet which is said to incite violence. The premise seems to be that the incitement was against people who were “white”.

57    The terms of Mr Latham’s defence would suggest that his case is that the matters pleaded in Part FA of the defence are relevant to his defences of justification, contextual truth, qualified privilege, honest opinion and fair comment.

58    Mr Faruqi, however, contended that Part FA should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.

59    Part G of the defence is entitled “Faruqi’s personal attacks on Latham”. Paragraph 56 of the defence incorporates Schedule V, which is entitled “Faruqi’s tweets personally attacking Latham”, and contains some details of 10 tweets allegedly posted by Mr Faruqi between approximately 13 June 2012 and 1 August 2017. Paragraphs 57 to 60 contain some details of articles allegedly published by Mr Faruqi on the Junkee website. Paragraph 61 alleges that those articles subjected Mr Latham to “scorn, derision, ridicule and mockery”. The terms of Mr Latham’s defence suggest that his case is that the matters pleaded in Part G are relevant to Mr Faruqi’s antecedent reputation and character and the damages to which Mr Faruqi may be entitled: see paragraphs 98 and 114 to 118 of the defence.

60    Mr Faruqi contended that Part G in its entirety should be struck out on the basis that it is likely to cause prejudice or embarrassment, or does not raise a reasonable defence.

61    Part H of the defence, which comprises paragraphs 62 to 68, is entitled “Response to pleaded allegations”. It is the one part of the defence that specifically pleads to the allegations in Mr Faruqi’s statement of claim. Mr Faruqi does not contend that any paragraph in Part H should be struck out.

62    Part I of the defence contains details of Mr Latham’s positive or specific defences to Mr Faruqi’s claim.

63    Paragraph 72 raises the defence of justification in s 25 of the Defamation Act. Mr Latham pleads, in short, that the imputations that Mr Faruqi alleges were carried by the video were substantially true. The particulars of the allegation of substantial truth are said to be contained in Parts D, E, F and FA of the defence.

64    Mr Faruqi contended that paragraph 72 should be struck out on the basis that it does not raise a reasonable defence of justification, or is otherwise an abuse of the process of the Court.

65    Paragraphs 73 to 75 of the defence raise the defence of contextual truth pursuant to s 26 of the Defamation Act. The additional or contextual imputations that Mr Latham contends are carried by the video are set out in paragraph 73 as follows:

73.    In addition to the alleged defamatory meanings, the words contained on the 2 August 2017 video and (in particular) the corrected Schedule A words carried the following further meanings; that is to say:–

(a)    that Faruqi is a racist who has committed anti-white racism;

(b)    that Faruqi has contributed to fomenting the rise of anti-white racism in Australia;

(c)    that, by his contribution to fomenting hatred of white people and the rise of anti-white racism in Australia, Faruqi has aided and abetted Islamic terrorism;

(d)    that, by his contribution to fomenting hatred of white people and the rise of anti-white racism in Australia, Faruqi has given encouragement and succour to the terrorist fanatics who want to kill innocent people in Australia;

(e)    that the words of Faruqi’s Tweet of 27 July 2017, “The white people are getting fucked Yas, it’s happening”:

(i)    were directed at white people who were elected to be members of the Australian Senate as endorsed candidates for The Greens;

(ii)    were published by Faruqi in circumstances where Faruqi was a former staffer for The Greens; and

(iii)    therefore reflected gross disloyalty on the part of Faruqi;

(f)    that, by his Tweet of 27 July 2017, Faruqi celebrated anti-white racism in Australia;

(g)    that Faruqi’s conduct, as set forth in subparagraphs (a) to (d) and subparagraph (f) hereof, is totally unacceptable in Australia;

(h)    that, by fomenting hatred of white people, Faruqi and others are effectively encouraging the terrorists in the current political environment to do their worst;

(i)    that Faruqi’s anti-white racism is un-Australian, because no racial hatred of any kind should be tolerated in Australia;

(j)    that Faruqi’s conduct, as set forth in subparagraphs (a) to (d), subparagraph (f) and subparagraph (h) hereof, has contributed to a rise in anti-white racism which is unacceptable to an extent that may fairly be characterized as unusual, significant, remarkable, extraordinary or outstanding; and

(k)    that Faruqi is an “imbecile” in the popular sense of that term, which is to say a foolish or stupid person.

66    Mr Latham pleads that the contextual imputations are substantially true. The particulars of the substantial truth of the imputations are said to be found in Parts C, D, E, F and FA of the defence: see paragraph 74 of the defence.

67    Mr Faruqi contended that the pleaded defence of contextual truth should be struck out on the basis that it is likely to cause prejudice or embarrassment, or that no reasonable defence is raised.

68    Paragraphs 76 to 79 of the defence plead the defence of qualified privilege pursuant to s 30 of the Defamation Act and, apparently, common law. The subjects that recipients of the video are alleged to have had an interest in having information on are set out in the following terms in paragraph 76:

76.    In the premises set forth in Part C, Part D, Part E, Part F and Part FA of this pleading, viewers of the 2 August 2017 video had an interest, or an apparent interest, in having information on the following subjects; that is to say: –

(a)    the rise of anti-white racism in Australia;

(b)    the fomenting in Australia of hatred directed against white people;

(c)    Faruqi's Tweet of 27 July 2017, as an example of the rise of anti-white racism in Australia and the fomenting in Australia of hatred directed against white people;

(d)    Faruqi's gross disloyalty, as a former staffer for The Greens, in publishing his Tweet of 27 July 2017 directed at white people who were elected to be members of the Australian Senate as endorsed candidates for The Greens;

(e)    the connection between (on the one hand) the rise of anti-white racism in Australia and the fomenting in Australia of hatred directed against white people, and (on the other hand) the likelihood of Islamic terrorist atrocities being committed in Australia; and

(f)    the views and opinions of Latham, with respect to the matters set forth in subparagraphs (a) to (e) hereof, as:

(i)    a public commentator; and

(ii)    a former Federal Leader of a major political party (the Australian Labor Party).

69    Mr Latham pleads that his conduct in publishing the video was reasonable in the circumstances. The relevant circumstances are said to be found in Parts C, D, E, F and FA of the defence: see paragraph 79 of the defence.

70    Mr Faruqi contended that the pleaded defence of qualified privilege should be struck out on the basis that paragraphs 76 to 79 are evasive or ambiguous, are likely to cause prejudice or embarrassment, or do not raise a reasonable defence.

71    Paragraphs 80 to 82 raise a defence of honest opinion pursuant to s 31 of the Defamation Act. Like the pleaded defences of justification, contextual truth and qualified privilege, the pleaded defence of honest opinion relies on Parts C, D, E, F and FA of the defence. Mr Latham appears to contend that the alleged defamatory imputations were expressions of his opinion, rather than statements of fact (see paragraph 80 of the defence), that his opinions related to matters of public interest, and that his opinions were based on “proper material”. Paragraph 82 sets out the basis of the contention that Mr Latham’s opinion was based on “proper material”:

82.    Latham’s opinions with respect to the matters conveyed by the 2 August 2017 video were based on proper material, namely:

(a)    Faruqi’s Tweet of 27 July 2017;

(b)    knowledge of Faruqi’s position as a former staffer for The Greens;

(c)    a general awareness (though not a detailed knowledge) of Faruqi’s vilification of “white” people, as set forth in Part D of this pleading;

(d)    a general awareness (though not a detailed knowledge) of the connexion between racial vilification and racist violence, as set forth in Part E of this pleading; and

(e)    with respect to Islamic terrorist atrocities:

(i)    a general awareness (though not a detailed knowledge) of Faruqi’ response to such atrocities, as set forth in Part F of this pleading; and

(ii)    in particular, a knowledge that Faruqi, having made public comments about a number of such atrocities, had not denounced, or expressed any condemnation, censure, or criticism of, the perpetrators of such atrocities.

72    Mr Faruqi contended that the pleaded defence of honest opinion should be struck out on the basis that paragraphs 80 to 82 are, variously, evasive or ambiguous, are likely to cause prejudice or embarrassment, or do not raise a reasonable defence.

73    Paragraphs 83 to 85 of the defence purport to plead the common law defence of fair comment. It is, in short, alleged that Mr Faruqi is a public figure (see paragraph 83 of the defence) and that the defamatory imputations constituted fair comment with respect to Mr Faruqi’s character and conduct in his capacity as a public figure (see paragraph 85 of the defence). The defence of fair comment also relies on Parts C, D, E, F and FA of the defence. Those parts are said to constitute “proper material [that] was true in substance” (see paragraph 84 of the defence).

74    Mr Faruqi contended that the pleaded defence of fair comment in paragraphs 83 to 85 should be struck out on the basis that it does not raise a reasonable defence.

75    Paragraph 86 of the defence pleads that the video constituted an exercise of Mr Latham’s “constitutionally-protected right to free speech” with respect to “political and government matters relevant to the system of representative and responsible government provided for by the Australian Constitution”. Mr Faruqi does not contend that this paragraph should be struck out.

76    Part J of the defence, which includes paragraphs 87 to 92, is entitled “Abuse of Process”. It contains a series of factual allegations which are said to support the conclusion that Mr Faruqi and his solicitors commenced the proceeding against Mr Latham for purposes that were ulterior, collateral, illegitimate and improper. It is unnecessary for present purposes to set out the detail of the pleaded allegations. It is sufficient to note that Mr Latham has not applied to have Mr Faruqi’s claim struck out or summarily dismissed on the basis that it was commenced for an improper purpose.

77    Mr Faruqi contended that Part J of the defence should be struck out in its entirety on the basis that it contains material which is frivolous or vexatious, that it is likely to cause prejudice or embarrassment, or that does not raise a reasonable defence.

78    Part K of the defence is a lengthy part of the defence, comprising paragraphs 93 to 131. It contains various factual allegations that are said to be relevant to Mr Faruqi’s reputation and the mitigation of damages. Mr Faruqi contended that paragraphs 94 to 131 should be struck out on the basis that they contain material that is frivolous or vexatious, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.

79    Paragraphs 94 to 99 make various general allegations about Mr Faruqi’s reputation, including that his reputation was that of: an “anti-white racist” and a person who “fomented anti-white racism”; a person who gave aid and succour to Islamic terrorism; a person who was indifferent to mass murder committed by Islamic terrorists; a person who regarded the political interests of Muslims as having greater significance than mass murder committed by Islamic terrorists; a commentator who vilifies another commentator in various ways; and a commentator who regularly and consistently published tweets of an infantile, puerile or juvenile character, and was unable to express himself in a public forum without resort to crude, indecent, obscene and offensive language. It is also alleged, in the alternative, that Mr Faruqi did not deserve to enjoy a better reputation than a person who had a reputation as otherwise alleged.

80    Importantly, those general allegations concerning Mr Faruqi’s reputation rely, variously, on Parts D, E, F, FA and G and Schedules II and V of the defence.

81    Paragraphs 100 to 110 contain allegations concerning published exchanges between Mr Faruqi and two authors or commentators. The first exchange was between Mr Faruqi and Mr Stephen Koukoulas, a well-known and respected Australian economist, concerning Mr Faruqi’s “blog” response to an article published Mr Koukoulas, and Mr Koukoulas’ response to Mr Faruqi’s critique. Schedule VIII to the defence is said to contain passages from Mr Koukoulas’ response. This exchange is said to demonstrate that Mr Faruqi’s reputation was that of a journalist or commentator who, amongst other things, was lazy, sloppy, conducted inadequate research and engaged in cheap attacks. The second exchange was between Mr Faruqi and Mr Thomas Samm concerning an article published by Mr Samm on the website of The New English Review. That article was a response to Mr Faruqi’s earlier article concerning the Lindt Café siege. Mr Samm’s article is reproduced in Schedule IX to the defence. This exchange is said to demonstrate that Mr Faruqi’s reputation was, amongst other things, that of a commentator or a professed journalist who was indifferent to the murder of non-Muslim Australians by Islamic terrorists.

82    Paragraphs 111 to 113 contain allegations relating to Mr Faruqi’s association with Senator, Ms Lee Rhiannon. Paragraph 112 makes certain allegations against Ms Rhiannon and paragraph 113 alleges that Mr Faruqi’s reputation was “that of a political activist with no greater credibility than that of Rhiannon”.

83    Paragraphs 114 to 118 contain allegations concerning statements made by Mr Faruqi about Mr Latham. It is alleged that the effect of those statements was that anything said by Mr Latham about Mr Faruqi could not or would not have caused any hurt or embarrassment to Mr Faruqi. It is also alleged that people who were aware of Mr Faruqi and his attacks on Mr Latham would not have attached any weight to what Mr Latham said about Mr Faruqi.

84    Paragraphs 119 to 125 allege that Mr Faruqi republished the alleged defamatory imputations in various ways. Paragraphs 126 to 129 allege that Mr Faruqi somehow abandoned his claim that he was defamed by reason of some things said in a letter written by his solicitor. Paragraphs 130 and 131 allege that Mr Faruqi is not entitled to aggravated damages because Mr Faruqi’s criticisms of Mr Latham were more intemperate than Mr Latham’s “attack” upon Mr Faruqi.

Mr Latham’s central hypothesis

85    As has already been touched on in the course of summarising Mr Latham’s defence, there is a central hypothesis which underpins all of Mr Latham’s positive defences. That hypothesis is, in summary, that so-called “anti-white racism” – conduct which is calculated to demonise and dehumanise “white people” – supports, foments, encourages and facilitates Islamic terrorism. Once that hypothesis is accepted, according to Mr Latham, the alleged defamatory imputations are justified, reasonable and comprise an honest opinion or fair comment. That is because, on Mr Latham’s case, Mr Faruqi is an anti-white racist; ergo he knowingly assists terrorist fanatics who want to kill innocent people in Australia, condones the murder of innocent people by Islamic terrorists, and encourages and facilitates terrorism.

86    Various parts of Mr Latham’s defence are said to provide the foundations for the establishment of the validity of this hypothesis. Part E, for example, purports to establish the historical phenomenon that the vilification of a particular racial or religious group facilitates and encourages acts of violence against the vilified grouping. Part F appears to refer to what are said to be more contemporary examples of that phenomenon involving Islamic terrorism. The unstated premise that appears to underlie Part F is that those recent acts of Islamic terrorism involved the targeting of “white people”. Parts D and FA allege, in effect, that Mr Faruqi is an “anti-white racist” – someone who engages in conduct which is calculated to demonise and dehumanise “white people”. It follows, according to Mr Latham, that Mr Faruqi supports, foments, encourages and facilitates Islamic terrorism.

87    Mr Latham’s positive or substantive defences all hinge, in one way or another, on the validity of this central hypothesis. If the hypothesis is flawed and unreasonable, his defences, as presently pleaded, are also unreasonable and likely to fail. There are other issues with parts of Mr Latham’s pleading. The validity of his central hypothesis, however, is the primary issue in considering Mr Faruqi’s strike out application.

Striking out parts of a pleading – relevant principles

88    Rule 16.02 of the Rules provides, amongst other things, that a pleading, including a defence must: be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial, but not the evidence by which the material facts are to be proved; not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose, relevantly, a defence appropriate to the nature of the pleading; and not otherwise be an abuse of the process of the Court. Rule 16.21 in effect provides the remedy of striking out a pleading, or any part of it, which fails to meet any of those requirements.

89    Rules 16.02 and 16.21 must also be interpreted and applied in light of s 37M of the Federal Court of Australia Act 1976 (Cth), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

90    The power to strike out pleadings or portions of pleadings is discretionary. As has already been noted, that discretion 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”: Pioneer Concrete 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”.

91    In the context of defamation proceedings, in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484, McColl JA, after referring to the statements in Agar v Hyde that have just been referred to, said as follows (at [112]):

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”.

92    Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236. Where, however, the reasonableness of the cause of action or defence hinges on a point of law, that point of law can be determined, thereby avoiding the need for and expense of a lengthy trial: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [43]-[44].

93    The mere allegation of a scandalous fact does not necessarily render the pleading liable to be struck out as scandalous. Material which is degrading, and therefore scandalous, will not be struck out unless it is also irrelevant: Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25]. Scandal, in the context of r 16.21 of the Rules, means “the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause” and “any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual”: Cavill at [25].

94    A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations, or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c).

95    A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms [2012] FCA 27; 247 FCR 440; at [80], [84]. A party cannot be expected to respond to mere context, commentary, history, narrative material, or material of a general evidentiary nature: Fuller v Toms at [83].

96    A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce (1996) 138 ALR 522 at 531.

97    A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236. The same principle plainly applies in the case of a pleaded defence.

98    If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the residue would be confusing: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323; Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 153-154.

99    In the defamation context, a defence of justification can be struck out if it is not properly particularised. 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; and, second, they must be sufficiently specific and precise to enable a claimant to know the case that they are required to meet: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [46].

100    In Khan v Fairfax Media Publications Pty Ltd (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.

101    In relation to the first requirement, sufficiency, 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: Rush at [50]. A strike out application based on the insufficiency of the particulars of a justification defence must be approached with the 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: Rush at [47]-[50].

102    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]. 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: Rush at [54].

DOES MR LATHAM’S CENTRAL HYPOTHESIS RAISE A REASONABLE DEFENCE?

103    Mr Faruqi’s primary objection to Mr Latham’s defence was, in effect, that the central hypothesis that underpins it is fundamentally flawed. That fundamental flaw is the “facile assumption that there is a provable link between what is termed “white racism” and “Islamic terrorism”.”. In Mr Faruqi’s submission, even if some historical events may suggest that the vilification of certain racial groups may be linked to the perpetration of violence against those groups, the defence contains no legitimate allegation which connects “white racism” and contemporary “Islamic terrorism”. Mr Faruqi contended, in short, that there is no demonstrable connection between historical racially motivated violence and contemporary religiously motivated terrorism. There is, for example, no proper or reasonable basis to allege that recent incidents of Islamic terrorism were racially motivated, or that the terrorists targeted the victims because they were white. The fact that the victims may have been “mostly” white does not mean that the victims were targeted because they were white.

104    There is considerable merit in Mr Faruqi’s submissions concerning Mr Latham’s central hypothesis. For the reasons that follow, those parts of Mr Latham’s defence which rely on the central hypothesis do not raise a reasonable defence. That, however, is only one of the problems. Much of the material relied on by Mr Latham in relation to this fundamental part of his defence is, in any event, inappropriate commentary, history, narrative material, or material of such a general evidentiary nature that Mr Faruqi could not reasonably be expected to respond or plead to it.

105    The starting point in considering the difficulties with Mr Latham’s defence, insofar as it relies on the central hypothesis, is Part E of the defence. How, it might be asked rhetorically, could Mr Faruqi be reasonably expected to plead or respond to the indisputably simplistic articulation of the “phenomenon” referred to in paragraph 29, or the almost absurdly brief summaries of the complex historical events referred to in paragraphs 30, 31 and Schedule III? Vast tomes have been written about some of those events, yet they have each been reduced to a mere sentence or two, drafted in a way which is, no doubt, intended to support the existence of the phenomenon pleaded in paragraph 29.

106    Even if the occurrence of the acts and events listed in paragraphs 30 and 31 and Schedule III might reasonably be accepted, the causes and characterisation of some of them may not be entirely undisputed or indisputable, at least from the perspective of some people. Some Turks, for example, apparently still take issue with the description of the “Armenian Genocide”. More recently, some Myanmarese, apparently including even Aung San Suu Kyi, appear to dispute or debate the causes of the ongoing mistreatment of the Rohingya people in Rakhine State, or at least challenge the characterisation of this tragedy as racial or religious genocide. There may also be considerable room for debate as to whether the phenomenon described in paragraph 29 of the defence “has been observed” during all of the acts and events identified in Schedule III. Who, it might be asked rhetorically, observed the phenomenon in the context of those acts and events?

107    Equally troubling is the question of how Mr Latham would go about proving the alleged historical phenomenon if Mr Faruqi chose to deny or not admit its existence. Likewise, how does Mr Latham propose to prove the alleged characterisation of the lengthy list of historical events, or the assertion that the phenomenon pleaded in paragraph 29 was observed in the context of those events, if Mr Faruqi choses to put him to proof of some or all of those allegations? He may, it may be presumed, attempt to tender the scholarly articles in Schedule IV, though the admissibility of those articles would, at best, be questionable. He may attempt to call the authors of those articles, or other historians, to express their expert opinions about the phenomenon, or to recite their learnings about the historical events in question.

108    While the Court could possibly countenance such a course of events in a case where the evidence concerning such historical events and historical phenomena could, if accepted, rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, that is simply not the case here.

109    The fundamental difficulty is that, even assuming, for the sake of argument, that Mr Latham can prove that Mr Faruqi was an “anti-white racist” – that is, that he vilifies and demonises white people – the facts and conclusions pleaded in Part E of the defence are not reasonably capable of rationally affecting the assessment of whether Mr Faruqi thereby knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or that he encourages and facilitates terrorism, or that it was, or is, reasonable or fair to assert or opine that Mr Faruqi possesses any of those attributes. That is because, irrespective of whether or not Christians were persecuted in the ancient Roman Empire, or Huguenots were persecuted in the French Kingdom in the 1500s, or Protestants and Catholics were persecuted in England from the reign of Queen Elizabeth I, there is no reasonably demonstrated or demonstrable link between the vilification of white people in contemporary Australia and terrorist acts perpetrated by modern-day Islamic fundamentalists. To the extent that Mr Latham’s defence asserts or implies such a link, that assertion or implication is not reasonably open or arguable.

110    The same can be said about Mr Latham’s other pleaded defences. There is, in short, no rational or logical connection between the historical events and the alleged historical phenomenon pleaded in Part E, and the question whether Mr Latham’s actions in publishing the defamatory imputations were reasonable in the circumstances; or the question whether the publication of the imputations was an expression of opinion based on proper material, or the question whether the publication of the imputations comprised a fair comment on Mr Faruqi’s character based on proper material that was true in substance. Irrespective of the alleged historical phenomenon pleaded by Mr Latham in paragraph 29 of the defence, the missing link is the existence of any demonstrable connection between alleged anti-white racism, on the one hand, and contemporary Islamic terrorism on the other. No reasonable factual basis for the existence of such a link is pleaded in the defence.

111    It should also be noted in this context that there is no reasonable basis for asserting that the tweet referred to in paragraph 32B of the defence is capable of constituting an admission by Mr Faruqi of the existence of the historical phenomenon pleaded in Part E, let alone the existence of any demonstrable link between so-called anti-white racism and Islamic terrorism in contemporary Australia.

112    Part F of the defence is no better. How, it might be asked rhetorically, could Mr Faruqi reasonably be expected to plead or respond to some of the general statements concerning the Lindt Café siege, the Paris attacks of November 2015 and the bombings in Brussels of March 2016? And if they are denied, or not admitted, how does Mr Latham intend to prove them? In the course of argument it was submitted, on Mr Latham’s behalf, that he might have to tender the Coroner’s report in relation to the Lindt Café, or call the French Consul in relation to the Paris attacks. That submission, if anything, simply demonstrated the capacity of the allegations in Part F to cause undue delay, prejudice and embarrassment in the conduct of the proceeding.

113    Perhaps more significantly, how could the facts and circumstances of those events rationally affect the assessment of the probability of the existence of any fact in issue in this proceeding? There appears to be a hint or suggestion in the pleading, but nothing more, that the terrorists targeted white people. Why else would it be asserted that “most” of the victims of those incidents were white? The fact that most of the victims were white, if that be a fact, however, does not demonstrate that the terrorists targeted white people specifically, or that the attacks were racially motivated, or that the terrorists responsible for these atrocities were motivated or encouraged, or that their actions were facilitated, by “anti-white racism”. Even if that conclusion was expressly pleaded in the defence, it would have no reasonable or rational basis in the facts that are pleaded.

114    Part F also contains assertions about articles written by Mr Faruqi about each of the three terrorist incidents. The central allegation is that Mr Faruqi did not expressly denounce, condemn, censure or criticise the terrorists, but instead focussed on other issues, and reserved his denunciation for others, including conservative or right-wing politicians or activists and the mainstream media or commentators. While not directly alleged, it appears to be suggested that Mr Faruqi’s articles somehow condoned the attacks.

115    Mr Latham submitted that his allegations concerning the articles are supported by a fair reading of the articles. The articles were accordingly tendered (albeit over objection by Mr Latham) and admitted into evidence on the interlocutory application. There is no doubt that views may differ concerning the quality and content of the three articles authored by Mr Faruqi. Many people may disagree with the opinions expressed by Mr Faruqi, or the particular perspective or stance taken by him in the three articles. Mr Latham’s apparent characterisation of the articles as somehow condoning those attacks is, however, not reasonably open on any fair reading of them. Indeed, it is a mischaracterisation of the articles. Even if the articles did not expressly condemn or denounce the attacks, that is mainly because the articles were not directly about the attacks. Rather, they were mainly about the actions and reactions of some members of the community in the aftermath of the attacks.

116    In any event, even if Mr Latham’s characterisation of Mr Faruqi’s articles is somehow correct, or even reasonably arguable, what is the asserted relevance of that to Mr Latham’s central hypothesis or his defence generally? Is it suggested that those articles somehow evidence Mr Faruqi’s “anti-white racism”? Or is it seriously suggested that those articles somehow encouraged or facilitated further acts of terrorism? Or is Mr Faruqi’s response to those incidents, in his capacity as a commentator or journalist, said to be relevant in some other way? The answer is entirely unclear. In this respect, at least, Part F is, at best, evasive and ambiguous, or likely to cause prejudice and embarrassment. It does not properly raise, or assist in any way in the raising of, any defence to Mr Faruqi’s claim.

117    That brings the discussion back to the other fundamental premise underlying Mr Latham’s central hypothesis: that Mr Faruqi is an anti-white racist who vilifies and incites violence against white people. That premise is the subject-matter of Parts D and FA of the defence. Two questions arise. First, is there a reasonable factual basis in the pleading to allege that Mr Faruqi is a so-called anti-white racist? Second, if so, how is that actually relevant to any of Mr Latham’s defences?

118    As for the first question, upon close analysis, the 164 tweets which are extracted, in isolation and out of context, in Schedule II, are simply not reasonably capable of supporting the assertion or conclusion that Mr Faruqi demonises or vilifies white people, let alone incites or encourages violence against them.

119    To vilify someone is to speak evil or maliciously of a person, or to traduce them. To demonise a person is to represent them as a demon. It would perhaps be fair to say that many of Mr Faruqi’s tweets are critical of, and at times sarcastic or cynical about, what he perceives to be the attitude of “white” mainstream Australian society. He is also frequently critical of what he perceives to be the “white”-dominated make up of some of the main political and social institutions in Australia. Some of the tweets are also critical of what Mr Faruqi sees to be the obvious racism or discrimination against “brown” people in Australia, with whom he identifies and celebrates. It does not follow, however, that the tweets vilify or demonise all white people. Indeed, many of the tweets are plainly intended to be little more than a humorous or satirical commentary on specific events or happenings in the media or Australian society, albeit from the perspective of a particular minority group.

120    It may readily be accepted that some people might disagree with some of the views and opinions Mr Faruqi expresses in the tweets. Some may not be amused by them. Others may, perhaps with some justification, consider some of the tweets to be rather puerile, shallow, trite or even hackneyed. But really, what does one expect from Twitter, or social media generally; deep, insightful analysis? It is also perhaps possible to imagine that some people who are not only white-skinned, but also thin-skinned, might be offended by some of them. That is, however, a long way from the proposition that the tweets vilify or dehumanise white people, and an even longer way from the proposition that the tweets, or their author, incite or encourage violence against white people.

121    It is obviously not possible to consider each of the 164 tweets, though it may assist in illustrating the point to refer to a few of them.

122    On 10 November 2017, Mr Faruqi tweeted:

White people keep saying to me “stop making everything about race!!” Mate, I’d love to – but it’s you guys who have made racism a thing we have to live with, as evidenced by that study, among many other things.

123    It is difficult to see how that tweet could reasonably be said to vilify or demonise white people. Rather, it is more about racism by white people. It also illustrates the point that it is difficult to fully comprehend or appreciate the meaning of many of the tweets out of context. This tweet appears to have been, at least in part, a response to a study of some sort. Exactly what that study was is unclear.

124    On 6 November 2017, Mr Faruqi tweeted:

Imagine the Melbourne Cup but no horses. Just white people wearing dumb clothes and getting drunk in a park. Still boring but less cruel?

125    On one view, perhaps, that tweet could be said to hold some white people up to ridicule. It is, however, obviously intended to be a humorous observation concerning the antics of those who attend the Melbourne Cup. Even if some people might not be amused, could it really be said to amount to the vilification of white people?

126    Along the same lines is a tweet posted by Mr Faruqi on 4 July 2017:

The owner of my fav[ourite] Pakistani restaurant in Sydney always reminds me what food on the menu to not order because it’s “for white people”.

127    Does Mr Latham seriously suggest that this constitutes “anti-white racism”? He must, because he included this tweet in Schedule II, though that suggestion borders on the fanciful.

128    On 24 August 2016, Mr Faruqi tweeted:

It’s not fair that I get bullied for my name when white people called “Thornton McCamish” exist in this country.

129    It is quite possible that Thornton McCamish (apparently a journalist and author) may have taken offence at this tweet, though it is equally possible that he may have been amused by it. Either way, it is hard to see how it could seriously be contended that it vilifies white people.

130    On 8 February 2016, Mr Faruqi tweeted:

Ah yes another #qanda panel discussing refugees and migration with an all white panel. Dunno how ABC doesn’t have policies on this.

131    That tweet is one example from a large number of the tweets that make the – some would perhaps say, perfectly legitimate – point concerning the lack of cultural diversity in the media. It would appear to be a comment posted about an episode of the ABC’s Q&A program.

132    A number of other tweets posted by Mr Faruqi concern the lack of cultural and gender diversity in positions of power or influence in Australian society, and the sense of entitlement amongst those who do occupy power; mainly “white” men. For example, on 20 July 2016, Mr Faruqi tweeted:

Labradors are to dogs what straight white dudes are to politics. Boring, too common, entitled.

133    This tweet may well have been offensive to owners of Labradors, or perhaps even Labradors themselves. Some readers may well have considered that it was a fairly crude and simplistic way for Mr Faruqi to make his point. Others may have been simply amused. Either way, it hardly constitutes vilification.

134    Mr Faruqi’s barbs are sometimes directed at an even narrower group or sub-group; middle-aged white men who graduated from the University of Sydney. No doubt Mr Faruqi believes that members of this group not only dominate the economic, political and cultural institutions in Australian society, but also run those institutions in a self-serving way. On 30 August 2015, for example, Mr Faruqi tweeted:

“Judicial Review”. Rich old white male Sydney Uni[versity] graduates looking out for themselves. What a joke of a system.

135    It is again difficult to fully appreciate the meaning of this tweet, given that it is taken out of context. It is not entirely clear what prompted the tweet, or what “system” was being railed against by Mr Faruqi. In any event, is it seriously to be suggested that middle-aged white men who graduated from the University of Sydney constitute a vilified or demonised sub-class in Australian society? Do people within that specific demographic feel threatened or vulnerable as a result of social media posts such as this? A number of those involved in the conduct of this piece of litigation might be thought to be well placed to answer those rhetorical questions, though the answer is, in any event, obvious. More pointedly, could it seriously be suggested that social media posts such as this are likely to encourage or facilitate anyone taking up their cudgels against middle-aged white male university graduates, let alone incite terrorist acts by Islamic terrorists against the “white” population generally?

136    No doubt Mr Latham would pick some other examples from the 164 tweets to demonstrate his point, though he did not rely on any specific tweet in his submissions in defence of the pleading. Nevertheless, considered individually or cumulatively, the tweets as particularised in Schedule II are simply not reasonably capable of proving that Mr Faruqi vilifies or demonises white people, or is an “anti-white racist”, whatever that may mean. It is even more difficult to see how it could seriously be contended that any of the 164 tweets, or even all of the 164 tweets taken together, could incite acts of terrorism by Islamic extremists or anyone else.

137    It would appear that Mr Latham has been able to locate only one tweet or post which suggests any form of violence. That is the tweet which is the subject of Part FA. The suggestion in that tweet is that the appropriate response to a right-wing “hate group” who attacked Sam Dastyari was “clocking” them in the face. Assuming that the reference to “clocking” in this tweet could seriously be considered to be the incitement of violence, it nonetheless cannot be suggested that the tweet incited violence against “white” people on the basis of their race. It would appear that Mr Latham simply assumes that the right-wing hate group was made up of “white people”. Some may think that to be a valid assumption, or at least one that is reasonably open. Even so, the suggestion is not that they be “clocked” because of their race. The suggestion is that they be clocked because of their racist attitudes.

138    The more significant criticism of Parts D and FA, however, is that even if the facts pleaded in them are reasonably capable of supporting the assertion that Mr Faruqi is an “anti-white racist”, that fact or conclusion is not rationally capable of affecting the assessment of any fact in issue. That is again because there is no reasonably demonstrated or demonstrable link, in the pleading or otherwise, between white racism and Islamic terrorism in contemporary Australia. There is no reasonable or rational basis for asserting, on the basis of the pleaded facts, that a person who vilifies white people, including Mr Faruqi if that is reasonably able to be demonstrated, thereby knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or encourages and facilitates terrorism.

139    It also follows that, even if the facts pleaded in Parts D and FA are reasonably capable of establishing that Mr Faruqi is an “anti-white racist”, they are not rationally capable of affecting the assessment of whether the alleged imputations or contextual imputations were substantially true, or whether it was reasonable in the circumstances for Mr Latham to have published the defamatory statements, or whether any opinion expressed by Mr Latham along the lines of the defamatory imputations was based on proper material, or material that was true in substance.

140    Those conclusions concerning Mr Latham’s central hypothesis, and Parts D, E, F and FA of the defence, support the striking out of Parts D, E, F and FA. The conclusion reached concerning the validity and reasonableness of the central hypothesis supports the striking out of those parts of the defence on the basis that they are frivolous and vexatious, evasive and ambiguous, likely to cause prejudice and embarrassment and, most significantly, on the basis that they do not raise any reasonable defence to Mr Faruqi’s claim.

141    Those parts of the pleadings are also almost the antithesis of a pleading that meets the overarching purpose of civil proceedings in this Court. They will not facilitate the just resolution of the dispute according to law as quickly, inexpensively and efficiently as possible. Rather, they would, if permitted, unquestionably hamper, prolong and complicate the proceedings. Indeed, they would transform the trial of the action into a three-ring circus.

Should the “dependent defences” be struck out?

142    The dependent defences are the substantive defences pleaded by Mr Latham that depend, in whole or in part, on Parts D, E, F and FA and the central hypothesis. That includes the defence of justification, the defence of contextual truth, the defence of qualified privilege, the defence of honest opinion and the defence of fair comment. The particulars provided in relation to each of those defences, for the most part, simply state “[i]n the premises set forth in Part C, Part D, Part E, Part F and Part FA”. For the reasons already given, those parts should and will be struck out. It follows that the dependent defences should also be struck out, if only because they will essentially be unsupported by any properly particularised facts.

143    In the circumstances, it is necessary to make only a few brief observations concerning each of the dependent defences.

The defence of justification

144    Mr Latham’s defence of justification is pleaded in paragraph 72 in the following terms:

72.    In the premises set forth in Part D, Part E, Part F and Part FA of this pleading, insofar as either the Schedule A words or the corrected Schedule A words carried any of the alleged defamatory meanings, the alleged defamatory meanings are substantially true.

145    Mr Latham’s case in relation to the defence of justification is that, by reason of the facts alleged in Parts D, E, F and FA of the defence, and the central hypothesis that lies at the heart of those parts, it is substantially true that Mr Faruqi knowingly assists terrorist fanatics who want to kill innocent people in Australia, condones the murder of innocent people by Islamic terrorists and encourages and facilitates terrorism. That is, self-evidently, an extremely serious allegation.

146    For the reasons already given, the central hypothesis that underlies Mr Latham’s contention that the alleged defamatory meanings are substantially true is flawed for a number of reasons. Parts D, E, F and FA of the pleading are not reasonably capable of supporting the central hypothesis and, accordingly, not capable of supporting the substantial truth of the defamatory meanings.

147    Even if, contrary to that conclusion, the central hypothesis is reasonably arguable, the particularisation of the defence of justification is nonetheless deficient and insufficient having regard to the principles considered earlier. In particular, the particulars (comprising Parts D, E, F and FA) are not sufficiently precise to enable Mr Faruqi to know the case that he has to meet. The defamatory meanings involve assertions of misconduct of the most serious kind. The particulars of truth relied on by Mr Latham are not stated with the precision that would be necessary were those serious allegations made in an indictment. That alone would be sufficient to warrant the striking out of Mr Latham’s defence of justification as presently pleaded.

Contextual truth

148    Exactly the same can be said in relation to Mr Latham’s pleaded defence of contextual truth as set out in paragraphs 73 to 75 of the defence. The pleaded contextual imputations include the serious allegations that “by his contribution to fomenting hatred of white people and the rise of anti-white racism in Australia, Faruqi has aided and abetted Islamic terrorism” and “has given encouragement and succour to the terrorist fanatics who want to kill innocent people in Australia” (see subparagraphs 73(c) and (d) of the defence). Mr Latham apparently alleges that those imputations are substantially true. They are serious allegations that require adequate and sufficient particulars.

149    Even if, contrary to the conclusion that has been reached, the central hypothesis that underpins Parts C, D, E, F and FA of the defence is reasonably arguable, Parts C, D, E, F and FA of the defence do not provide adequate and sufficient particulars of the alleged truth of the contextual imputations. Amongst other things, they are not sufficiently precise to enable Mr Faruqi to know the case he has to meet. They are not stated with the precision that would be necessary for an indictment.

Qualified privilege

150    Mr Latham’s pleaded defence of qualified privilege also depends on Parts C, D, E, F and FA of the defence. Those parts are provided as particulars of the allegation in paragraph 76 that viewers of the video had an interest, or an apparent interest, in having information on certain topics, including “the rise of anti-white racism in Australia” and “the fomenting in Australia of hatred directed against white people”.

151    It is at least questionable that Parts C, D, E, F and FA provide proper particulars of the allegation in paragraph 76. Of perhaps more significance, however, is that those parts of the defence are also provided as particulars of the allegation, in paragraph 79 of the defence, that Mr Latham’s conduct in publishing the video was reasonable. On just about any view, Parts C, D, E, F and FA do not provide proper particulars of the basis upon which Mr Latham contends that his conduct in publishing was reasonable in the circumstances as required by s 30(1)(c) of the Defamation Act. Those parts of the defence do not relate to, or bear any relationship to, any of the factors or considerations referred to in s 30(3) of the Defamation Act. Nor is it readily apparent how they relate to the reasonableness of Mr Latham’s conduct. What could Mr Faruqi’s tweets, or the various historical events referred to in Part E, or Mr Faruqi’s articles about the Lindt Café siege and the Paris and Brussels bombings, possibly have to do with the reasonableness of Mr Latham’s conduct in publishing the defamatory imputations? Since the answer to that question is by no means clear from the pleading, the particulars must be deficient. Mr Faruqi would be unable to determine the nature of the case he has to meet.

152    It follows that, even if, contrary to the conclusion that has been reached, the central hypothesis underlying Parts C, D, E, F and FA was reasonably arguable, the defence of qualified privilege as presently pleaded is not properly particularised. Nor, as presently pleaded at least, do paragraphs 76 to 79 raise a reasonable defence of qualified privilege.

Honest opinion

153    Mr Latham’s pleaded defence of honest opinion also depends on Parts C, D, E, F and FA. Those parts are relied on as particulars of the allegation that the defamatory imputations were expressions of opinion rather than statements of fact (paragraph 80 of the defence), as particulars of the allegation that the opinions expressed in the video were matters of public interest (paragraph 81 of the defence) and as particulars of the allegation that the opinions were based on “proper material” (paragraph 82 of the defence). In relation to the last mentioned element of the defence, it is worth noting that it is not contended that the material in Parts D, E and F comprised “proper material”. It is alleged only that Mr Latham had a “general awareness” of those matters.

154    It is readily apparent that the defence of honest opinion depends on the validity of the central hypothesis and on Parts C, D, E, F and FA of the defence. If those parts are struck out on the basis that, amongst other things, the central hypothesis is not reasonably arguable, it must follow that the defence of honest opinion must also be struck out. It should also be noted, however, that even if, contrary to the conclusion that has been reached, the central hypothesis is reasonably arguable, it is highly doubtful that adequate particulars have been provided concerning the “proper material” upon which the alleged opinions are said to have been based. There is, for example, no indication of the nature and extent of Mr Latham’s “general awareness” of the matters referred to in Parts D, E and F of the defence, or how he obtained that general awareness. Nor is it readily apparent that a “general awareness” of such matters could comprise “proper material” as is required by s 31(1)(c) of the Defamation Act.

Fair comment

155    Much the same can be said in relation to Mr Latham’s pleaded common law defence of fair comment. It is perhaps sufficient to simply note that the defence of fair comment, as presently pleaded, appears to be based on the rather sweeping allegation that the facts alleged in Parts C, D, E, F and FA comprise “proper material” that was “true in substance”. Even if, contrary to the conclusion that has been reached, the central hypothesis that underpins Parts C, D, E, F and FA is reasonably arguable, it is difficult to see how it could be seriously contended that the defence of fair comment has been properly pleaded or particularised.

Are the matters pleaded in Part K reasonably capable of being relevant to the mitigation of damages?

156    Part K of the defence purportedly raises allegations that are said to be relevant to the mitigation of damages should it be found that Mr Faruqi was defamed by Mr Latham as alleged. Part K occupies over 10 pages of the defence (paragraphs 93 to 131) and incorporates, by reference, Parts D, E, F, FA, G and Schedules II, III, IV, V, VI, VII, VIII and IX.

157    Unfortunately, despite the length and complexity of this part of the defence, neither Mr Faruqi nor Mr Latham gave much attention to it in their respective submissions. Mr Faruqi simply submitted that Part K suffered from the same “conceptual difficulty” as the other parts of the defence. That was presumably a reference to the fundamental problems with the central hypothesis that underpins the other parts of the defence. Mr Latham did not respond to that complaint.

158    While there is perhaps some merit in the general submission that Part K of the defence is infected with the same problems and deficiencies that have already been highlighted in the context of the other parts of the defence, particularly as Part K expressly relies on and incorporates those parts, the problems with Part K go much deeper than that. Before identifying those problems, it is necessary to say something briefly concerning the relevant principles relating to the relevance and admissibility of evidence of bad reputation in mitigation of damages.

159    While the issue of bad reputation has plagued the law of defamation over a considerable period of time (cf. Nationwide News Pty Ltd v El-Azzi [2004] NSWCA 382 at [16] per Spigelman CJ with whom Mason P and Beazley JA agreed), the following basic principles may be stated with some degree of confidence.

160    First, evidence of the plaintiff’s bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages: Scott v Sampson (1882) 8 QBD 491.

161    Second, the evidence of bad reputation must relate to the “sector” of the plaintiff’s life relevant to the defamation: Plato Films Ltd v Speidel [1961] AC 1090 at 1123, 1139, 1140 and 1147; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [17]-[21], [28]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162].

162    Third, the evidence of a person’s reputation must demonstrate a settled view of the community and must be a permanent, not transitory view: Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513; Associated Newspapers Ltd v Dingle [1964] AC 371 at 396-399, 406, 412, 417.

163    Fourth, subject to certain exceptions, evidence of particular previous acts of misconduct by the plaintiff are not admissible under the guise of bad reputation: Scott v Sampson at 504-505; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at [6]; except perhaps if those acts are sufficiently notorious: O’Hagan at [38]; Speidel at 1131; Goody v Odhams Press Ltd [1967] 1 QB 333 at 342. The main exception to this exclusionary rule is that evidence which provides directly relevant background context to the defamatory conduct is admissible: Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 598-602. Evidence that may be admitted under the so-called Burstein principle includes, in general terms, evidence of specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the plaintiff’s reputation in that part or sector of his or her life which is the subject of the defamatory publication, but does not include evidence of rumours that the plaintiff had done what was alleged in the defamatory material: see Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [32]-[46] and the cases there cited.

164    Fifth, the rationale or policy that lies behind the various exclusionary rules relevant to evidence of reputation is to “prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition”: Burstein at 596; Speidel at 1143-1144.

165    When regard is had to those general principles, it is readily apparent that most of the material facts and allegations pleaded in Part K of the defence are not reasonably capable of proving Mr Faruqi’s general reputation in the area of his life relevant to the defamatory imputations. Nor are the facts capable of being otherwise relevant to the mitigation of damages. Indeed, it would be fair to say that if Mr Latham was permitted to plead and prove the factual allegations in Part K, the trial in this matter would undoubtedly rapidly descend into a roving inquiry into aspects of Mr Faruqi’s reputation, character or disposition that could not possibly bear on the proper assessment of the damages to which he would be entitled if he succeeds in establishing that he was defamed by Mr Latham as alleged.

166    As has already been noted, paragraph 94 of the defence alleges that Mr Faruqi has a reputation as an “anti-white racist” or a “person who fomented anti-white racism”. That allegation is said to be based on Part D of the defence. It will be recalled that Part D incorporates Schedule II, which contains a series of Mr Faruqi’s tweets which Mr Latham alleges vilifies white people. Even if Mr Latham’s allegation that the tweets in Schedule II vilify white people is reasonably arguable, which itself is highly doubtful for the reasons already given, they nonetheless are not reasonably capable of constituting evidence of Mr Faruqi’s reputation. If anything, they are akin to evidence of individual acts on the part of Mr Faruqi; the acts involved in posting the various tweets. Nor could the tweets, with perhaps one exception, reasonably be said to constitute evidence directly relevant to the subject matter of the alleged defamatory statement within the Burstein principle. The one possible exception is the tweet which was specifically referred to by Mr Latham in the video, and which appears to have prompted his outrage.

167    Paragraph 95 of the defence alleges that Mr Faruqi had a reputation of someone who, amongst other things, gave aid and succour to Islamic terrorism because of his “anti-white racism”. That allegation is said to be made out “[i]n the premises set forth in Part E” of the defence. It may be recalled that Part E, which incorporates Schedules III and IV, purports to establish the connection between racial vilification and racist violence. The difficulty with paragraph 95 is that, on any view, the contents of Part E and Schedules III and IV are not reasonably capable of proving anything about Mr Faruqi’s reputation.

168    Paragraph 96 of the defence alleges that Mr Faruqi’s reputation was that of a person who was indifferent to mass murder committed by Islamic terrorists and of a person who regarded the political interests of Muslims as having a greater significance than mass murder committed by Islamic terrorists. That allegation is said to be based on Part F, which is the part of the defence that makes various allegations concerning articles Mr Faruqi wrote about the actions and views of various people in the aftermath of the Lindt Café siege and the Paris and Brussels bombings. The difficulty with this allegation is that, like the allegation in paragraph 94, even if Mr Latham’s allegation that the articles tend to show that Mr Faruqi was indifferent to those acts committed by Islamic terrorists, which itself is highly questionable, the articles are nonetheless not reasonably capable of constituting evidence of Mr Faruqi’s reputation. Nor are they reasonably capable of constituting evidence directly relevant to the subject matter of the alleged defamatory statements within the Burstein principle.

169    Paragraph 97 of the defence simply asserts that Mr Faruqi did not deserve to enjoy a reputation better than that of a person who incites others to commit or threaten racial violence. That rather curious and questionable allegation is said to be based on Part FA, which concerns two particular tweets posted by Mr Faruqi. It is sufficient to say that, almost self-evidently having regard to the principles referred to earlier, paragraph 97 and Part FA are not reasonably capable of demonstrating any fact concerning Mr Faruqi’s reputation which could be relevant to the mitigation of damages.

170    Paragraph 98 is in a slightly different category. It alleges that Mr Faruqi has the reputation of a commentator who vilifies another commentator; namely, Mr Latham. That assertion is said to be based on Part G of the defence, which refers to a number of Mr Faruqi’s articles which refer to Mr Latham. The problems with this paragraph are manifest. First, the articles are not reasonably capable of proving anything about Mr Faruqi’s reputation. Second, even if they do say something about Mr Faruqi’s reputation, it is about his reputation as a commentator or journalist. That is a sector of Mr Faruqi’s life which is far removed from the sector of Mr Faruqi’s life relevant to the alleged defamation.

171    Exactly the same can be said concerning paragraph 99, which alleges, amongst other things, that Mr Faruqi’s reputation was as a commentator who regularly and consistently published tweets of an infantile, puerile or juvenile character. That allegation is based on the tweets in Schedules II and V. For the reasons already discussed at length, those tweets are not reasonably capable of demonstrating anything of relevance about Mr Faruqi’s reputation and are not reasonably capable of constituting evidence directly relevant to the subject matter of the alleged defamatory statements. In any event, the reputation supposedly established by the tweets is not in the sector of Mr Faruqi’s life relevant to the alleged defamation.

172    Paragraphs 100 to 106 relate to the exchange between Mr Faruqi and Mr Koukoulas concerning Mr Faruqi’s purported critique of an article written by Mr Koukoulas. It is, perhaps, fair to say that Mr Koukoulas’ response, summarised in Schedule VIII, was rather scathing about Mr Faruqi’s purported critique. Mr Koukoulas’ response is alleged to support various assertions or conclusions concerning Mr Faruqi’s reputation as a commentator. The difficulty is that the views of one author or commentator, no matter who he (or she) is, concerning one article written by another commentator, in this case Mr Faruqi, are not reasonably capable of proving a settled and permanent community view of the reputation of Mr Faruqi as a commentator. Nor could it reasonably be said that Mr Faruqi’s reputation as a commentator is in the same sector of his life as the sector relevant to the defamatory meanings.

173    The allegations in paragraphs 107 to 110, which concern the article written by Mr Samm in response to Mr Faruqi’s article about the Lindt Café siege, are in exactly the same category. Mr Samm’s article is not reasonably capable of proving a settled and permanent community view of Mr Faruqi’s reputation as a commentator and, in any event, Mr Faruqi’s reputation as a commentator is in a completely different sector of his life to the sector affected by the alleged defamation.

174    Paragraphs 111 to 113 can be dealt with shortly. The allegations in those paragraphs are somewhat perplexing and unusual, even by the standards of this pleading. It is, in short, alleged that Mr Faruqi is closely associated with Ms Rhiannon, that Ms Rhiannon is a “political activist” who has a past association with the Communist Party and Socialist Party of Australia and is a member of the “old guard” of The Greens, and that Mr Faruqi’s reputation “was that of a political activist with no greater credibility than that of Rhiannon”. Those allegations, which border on being frivolous and vexatious, are plainly not reasonably capable of proving a settled and permanent community view of Mr Faruqi’s reputation and, in any event, Mr Faruqi’s reputation as a political activist is in a completely different sector of his life to the sector affected by the alleged defamation.

175    Paragraphs 114 to 118 return to the theme of Mr Faruqi’s past criticisms of Mr Latham in the Junkee articles pleaded in Part G of the defence. The argument advanced in those paragraphs, however, is different. It appears to be argued that, given Mr Faruqi’s low opinion of Mr Latham, he would be neither hurt nor embarrassed by anything Mr Latham said about him. Indeed, Mr Latham goes further still. He appears to allege that people who know Mr Faruqi, and perhaps Mr Faruqi himself, would regard it as a matter of honour and pride to attract criticism from Mr Latham. The proposition that appears to underlie paragraphs 114 to 118 is that material is not defamatory if it is not believed by the reader. That proposition is clearly wrong: see Morgan v Odhams Press Ltd [1971] 2 All ER 1156 at 1163. The allegations in paragraphs 114 to 118 accordingly do not raise a reasonable defence and are, in any event, scandalous, vexatious and embarrassing.

176    Paragraphs 119 to 125 raise a different claim that is purportedly relevant to the mitigation of damages. In simple terms, Mr Latham alleges that Mr Faruqi republished the alleged defamatory imputations in a number of ways and that, therefore, if Mr Faruqi’s reputation was damaged, “that is entirely or largely a consequence of his own actions” (see paragraph 125 of the defence).

177    There are at least two difficulties with that general allegation. First, the pleaded facts do not reasonably establish that Mr Faruqi republished the defamatory imputations. Second, even if they did, it is readily apparent that the point of the republication was to refute or criticise what Mr Latham had said or implied.

178    The first alleged republication is said to be in a tweet posted on 2 August 2017. That tweet said: “Mr Latham compared Ms Abdel-Magied and Mr Faruqi to terrorists” and quoted Mr Latham as having said “The rise of anti-white racism is just phenomenally unacceptable, it puts these people on the same page as the terrorists”. Mr Faruqi added “Defamation lawyers… feel free to slide into my DMs”. It is tolerably clear that those tweets refer to only part of what Mr Latham said. They do not repeat the imputations. In any event, the context in which the words were repeated, and the reference to defamation lawyers, plainly conveyed that Mr Faruqi considered that what Mr Latham had said was wrong, if not outrageous, and that he was considering taking action for defamation.

179    It should perhaps be added that it would be open to Mr Latham, if he chose to do so, to cross-examine Mr Faruqi about those tweets for the purpose of establishing that Mr Faruqi was not genuinely hurt or embarrassed by the defamatory meanings conveyed by Mr Latham. It does not follow, however, that paragraph 119 of the defence discloses a reasonable defence.

180    That state of affairs is even clearer in relation to the second alleged republication. The second republication is said to be the inclusion of the defamatory meanings in a letter dated 17 August 2017 from Mr Faruqi’s lawyers to Mr Latham. That letter is defined in Schedule I as the “Concerns Notice”. The so-called Concerns Notice states that Mr Latham’s video conveyed certain defamatory meanings to the ordinary viewer. Some of those meanings broadly correspond to the defamatory meanings subsequently pleaded by Mr Faruqi. It is clear, however, that the whole point of the letter was to put Mr Latham on notice that Mr Faruqi claimed that the meanings conveyed by the video were false and defamatory, and that Mr Latham should retract them, otherwise defamation proceedings would be commenced. That would be obvious to anyone who read the letter. It follows that, even if, as alleged, Mr Faruqi or his agent subsequently made the letter available to the press and media, it could hardly be seriously contended that any damage caused to Mr Faruqi by the video was in fact of Mr Faruqi’s own making.

181    It follows that paragraphs 119 to 125 do not raise any reasonable defence or response to Mr Faruqi’s claim and should be struck out.

182    Finally, paragraphs 130 and 131 appear to allege that, because Mr Faruqi’s “attacks” upon Mr Latham referred to in Part G of the defence were more intemperate than the defamatory imputations conveyed by Mr Latham in the video, Mr Faruqi was not entitled to aggravated damages. It is, of course, open to Mr Latham to deny that Mr Faruqi is entitled to aggravated damages if he makes out his claim. It is, however, by no means self-evident that the publications in Part G of the defence could reasonably bear on the question whether aggravated damages are appropriate.

Does Part J of the defence raise a reasonable defence?

183    The short point in relation to the matters pleaded in Part J of the defence, which are said to support the allegation that Mr Faruqi and his solicitor commenced this proceeding for ulterior, collateral, illegitimate, and improper purposes (see paragraph 92 of the defence), is that if Mr Latham wishes to pursue that allegation, the proper course or mechanism is for him to file an interlocutory application seeking summary judgment pursuant to r 26.01(1)(d), or an order striking out Mr Faruqi’s application and statement of claim pursuant to r 16.21(1)(f) of the Rules. The fact that Mr Latham has elected not to make any such application in respect of the allegations in Part J of the defence is particularly strange, given that he did file an interlocutory application seeking to strike out parts of Mr Faruqi’s pleading, albeit for reasons different to those pleaded in Part J. Why did he not raise the contentions advanced in Part J of the defence in that interlocutory application?

184    Mr Latham submitted that while an interlocutory application pursuant to r 16.21 or 26.01 of the Rules was one way in which his claims concerning abuse of process may be ventilated, it is not the only way. He maintained that it was open to him to raise an abuse of process in defence of a claim. He relied on a number of authorities from other common law jurisdictions which suggested that one form of abuse of process, so-called “Anshun estoppel” (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), may be pleaded in a defence. He also pointed to cases in New Zealand, Canada, Singapore, and the United Kingdom, which he submitted supported the proposition that matters which may support a stay of proceedings can be pleaded and determined at trial: Reynolds (as liquidator of James Development Ltd (in liq)) v Calvert (as trustees of Frongopoulos Trust) [2015] NZHC 400; Ontario v Lipsitz 2011 ONCA 466; Goh Nellie v Goh Lian Teck [2007] 1 SLR 453; London Borough of Haringey v O’Brien [2016] UKEAT 0004. Finally, Mr Latham submitted that the allegations pleaded in Part J were capable of constituting a defence of “unclean hands” to what was said to be Mr Faruqi’s claim for equitable relief in the form of an injunction restraining the further publication of the alleged defamatory imputations.

185    Mr Latham’s submissions in respect of Part J of the defence have no merit and should be dismissed.

186    If Mr Latham wishes to pursue the allegations of abuse of process, he should do so not as part of his defence, but by way of an interlocutory application seeking summary judgment or the striking out of Mr Faruqi’s claim. If Mr Latham is able to establish that the proceedings were commenced for the ulterior, collateral, illegitimate, and improper purposes he alleges in Part J, there could be little doubt that he would be entitled to summary judgment in his favour, or an order striking out Mr Faruqi’s originating application and statement of claim. The course proposed by Mr Latham, which is to raise collateral issues concerning the reasons for the commencement of the proceedings at trial as part of his defence, is likely to be productive of significant confusion, embarrassment and delay.

187    It should also perhaps be noted in this context that, given the seriousness of the allegations made against Mr Faruqi and his solicitor concerning the reasons for the commencement of the proceedings, one would expect that any interlocutory application filed by Mr Latham seeking summary judgment would be supported by evidence which was reasonably capable of making out the factual allegations said to support the claim that the proceedings were commenced for improper purposes. The inferences that Mr Latham apparently contends should be drawn from the facts pleaded in Part J would appear, at first blush at least, to be rather tenuous to say the least.

188    Contrary to Mr Latham’s submissions, the matters pleaded in Part J of the defence do not raise a reasonable defence to Mr Faruqi’s claim. The allegation of abuse of process is not, in this context at least, akin to a claim of Anshun estoppel. Nor does it amount to a claim of “unclean hands” which could reasonably be said to defeat Mr Faruqi’s claim to an injunction if he otherwise makes out the elements of his claim in defamation. The fact that some courts or tribunals in other jurisdictions, in a different procedural context, and in very different circumstances, might have dealt with arguments relating to abuse of process at the final hearing is neither here nor there. In any event, as has already been noted, even if it may, in some circumstances, be permissible to raise a claim of abuse of process in a defence to a claim, that is plainly not an appropriate course in this proceeding and is likely to cause significant prejudice, embarrassment and delay.

189    It follows that Part J of the defence should be struck out.

should Other specific paragraphs of the defence be struck out?

190    There were three other miscellaneous paragraphs of the defence that Mr Faruqi claimed should be struck out.

191    Paragraphs 3 and 4 of the defence define the meaning or sense of the word “brown” and “Person of Colour” when used by Mr Faruqi in his “public utterances”. It is doubtful that the striking out of those paragraphs of the defence would have been warranted if the balance of the defence remained. Given the findings that have already been made concerning the striking out of Parts D, F and FA and Schedule II of the defence, however, paragraphs 3 and 4 are essentially irrelevant.

192    In paragraph 14 of the defence, Mr Latham “objects in point of law that subparagraph 6(a) of the Amended Statement of Claim is embarrassing and incompetent”. That is said to be because it contains “two defamatory meanings” and is therefore “bad for duplicity”. The two meanings are said to be that Mr Faruqi “assists terrorist fanatics who want to kill innocent people in Australia” and that he does so “knowingly”. Mr Faruqi contended that paragraph 14 should be struck out because it is clear that the imputation pleaded by him in paragraph 6(a) is capable of only one meaning. Paragraph 14 therefore does not raise a reasonable defence.

193    There is merit in Mr Faruqi’s submission in that regard. In any event, Mr Latham filed an interlocutory application in which he sought orders including that paragraph 6 be struck out. His contention that paragraph 6(a) should be struck out has been dealt with and rejected for the reasons already given. The video was capable of conveying the defamatory imputation pleaded in paragraph 6(a). The question whether that meaning or imputation was in fact conveyed is a matter for trial. Mr Latham did not specifically or explicitly raise the duplicity argument in the context of his strike out application, though his submissions did focus on the word “knowingly” in paragraph 6(a). If Mr Latham wanted to “object in point of law” to paragraph 6(a) on the basis of duplicity, he should have done so in the context of the interlocutory application. In those circumstances, paragraph 14 should be struck out as not raising a reasonable defence, or on the basis that it is likely to cause embarrassment.

Should Mr Latham be given leave to re-plead?

194    Where the Court strikes out a pleading, or part of a pleading, it undoubtedly has the discretion to grant leave to re-plead. The question arises whether, in all the circumstances, Mr Latham should be permitted to re-plead those parts of his defence that have or will be struck out. Mr Faruqi did not consent to the grant of leave to re-plead and indeed advanced some reasons why leave should not be granted. Those reasons all appeared to flow from a degree of scepticism about whether the product of the grant of such leave would be any better than the original pleading, or would otherwise comply with the Rules. Perhaps not surprisingly, Mr Faruqi was concerned about the prospect of having to be put to the trouble and expense of a further strike out application and the inevitable further delays that such an application would cause.

195    It should, however, perhaps be borne in mind that Mr Latham has not previously amended his defence, other than as a consequence of the filing of an amended statement of claim by Mr Faruqi. This is also the first strike out application. Perhaps more significantly, while large parts of the defence have or will be struck out, the prospect or possibility that Mr Latham will be able to properly re-plead some of the substantive defences cannot be entirely excluded. It can also be expected that if Mr Latham takes up the opportunity to re-plead his defence, he will pay heed to the reasons why parts of his existing defence have been struck out. It can be expected that he will not make the same mistakes twice, and that his re-pleaded defence will be clear, concise, unambiguous, and only raise defences that are reasonably arguable and appropriate having regard to the nature of the case. He will, in other words, ensure that his re-pleaded defence complies with the Rules and the overarching purpose identified in s 37M of the Federal Court Act. If it does not, and parts of it are again struck out, he should not expect that he will necessarily be given another opportunity.

196    In all the circumstances, Mr Latham should be granted leave to re-plead on this occasion.

The appropriate strike-out order

197    As was noted earlier, if substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the residue would be confusing. That raises the question whether, in light of the extensive parts of Mr Latham’s defence that are to be struck out, the preferable course would be to strike out the entire defence, particularly in light of the fact that Mr Latham is to be given leave to re-plead.

198    In his interlocutory application, Mr Faruqi sought only to have the following paragraphs of the defence struck out: 3, 4, 14, 27, 28, 29 to 32B, 33 to 55, 55A to 55C, 56 to 61, 72, 73 to 75, 76 to 79, 80 to 82, 83 to 85, 87 to 92 and 94 to 131. For the reasons that have been given, it is appropriate to strike out all of those paragraphs. That would leave very few paragraphs remaining. The remaining paragraphs include, perhaps most significantly, paragraphs 62 to 68 which comprise Mr Latham’s specific response to Mr Faruqi’s pleaded allegations.

199    The difficulty is that if only those paragraphs of the defence that were specifically objected to by Mr Faruqi are struck out and if, as expected, Mr Latham takes up the opportunity to re-plead, the resulting amended defence will undoubtedly be confusing and unwieldy. That will particularly be the case if, as is customarily the case, the struck out paragraphs are denoted by strike-throughs and the new paragraphs are denoted by underlining. Even if that is not done, the paragraph numbering will be out of order if, as hoped or expected, the struck out paragraphs outnumber the new paragraphs inserted in the defence. Some difficulties would also most likely be encountered in marrying-up the new paragraphs with the old.

200    In all the circumstances, and, in particular, in light of the grant of leave to Mr Latham to re-plead, the preferable course is to strike-out the entire defence so that Mr Latham can start from scratch. That will hopefully give rise to a more concise and comprehensible pleading that both complies with the Rules and the overarching purpose in s 37M of the Federal Court Act. It should perhaps be noted that effectively the same approach was taken by Drummond J in similar circumstances in Gold Coast City Council v Pioneer Concrete.

Orders and disposition

201    Mr Latham’s defence should be struck out in its entirety. He should, however, be granted leave to re-plead. It would be appropriate to order that his defence be filed within 28 days. The parties should arrange for the proceeding to be listed for a further case management hearing on a suitable date shortly after that 28 day period so that further orders can then be made to progress the matter.

Associate:

Dated:    30 August 2018