FEDERAL COURT OF AUSTRALIA
Table of Corrections
In the Appearances on the cover page in the field Counsel for the Applicant the words “with Mr B Dean” after “Ms S Chrysanthou” have been added.
DATE OF ORDER:
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an interlocutory judgment in defamation proceedings.
2 Both the Applicant and the Respondent are members of the Senate in the Australian Parliament.
3 The Applicant alleges that she was defamed by statements made or published by the Respondent on four occasions:
(1) in a media statement issued by the Respondent on 28 June 2018 and republished on Medium.com on 29 June 2018, and subsequently republished by the Respondent;
(2) in the Sky News Australia program “The Outsiders” broadcast on 1 July 2018;
(3) in the “Sunday Morning” program of Radio 3AW broadcast on 1 July 2018; and
(4) in the ABC program “7.30 with Leigh Sales” broadcast on 2 July 2018.
4 The Applicant alleges that on each of the second to fourth occasions, the Respondent’s statements conveyed the following defamatory meanings:
(i) the Applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;
(ii) the Applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists; and
(iii) the Applicant is a misandrist, in that she publicly claimed that all men are rapists.
5 In relation to the media statement issued on 28 June 2018, the Applicant alleges that it conveyed the first and second of these meanings only.
6 By an amended interlocutory application filed on 11 October 2018, the Respondent seeks:
(1) the striking out of the Applicant’s Amended Statement of Claim (the ASC);
(2) the striking out of ,  and  of the Originating Application; and
(3) the permanent stay or dismissal of the proceedings.
7 In the Respondent’s outline of submission provided in advance of the hearing, he abandoned an application that the ASC be struck out because the defamatory meanings alleged “are not sustainable from the words alleged to comprise the relevant publications”. That claim may have been difficult to maintain in any event given the “great caution” to be exercised by courts in disallowing a defamation pleading on this basis: Trkulja v Google LLC  HCA 25; (2018) 356 ALR 178 at .
8 The Respondent seeks the striking out of the ASC pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the FCR). Rule 16.21(1) provides:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
9 The principles which guide the Court on applications pursuant to r 16.21 are well-established. Some have been stated in the defamation context in several recent decisions: Goodfellow v Fairfax Media Publications Pty Ltd  FCA 1152 at -; Rush v Nationwide News Pty Ltd  FCA 357 at -; Faruqi v Latham  FCA 1328 at -; Wing v The Australian Broadcasting Corporation  FCA 1340 at .
The form of the pleading of the defamatory imputations
10 The first basis upon which the Respondent seeks the striking out of the ASC turns on the manner in which the Applicant has pleaded the defamatory imputations she asserts. He contends that, instead of pleading the defamatory imputations as “substantive averments”, the Applicant has pleaded them as “particulars”.
11 The form of the Applicant’s pleading with respect to the defamatory meanings said to have been conveyed by the media statement published on 28 June 2018 (referred to in the ASC as “the First Matter Complained Of”) is as follows:
 In its natural and ordinary meaning, the First Matter Complained Of was defamatory of the Applicant and carried the following defamatory meanings (or meanings not different in substance):
Particulars of meaning
(a) The Applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;
(b) The Applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists.
12 Paragraphs ,  and  in relation to the second, third and fourth matters complained of are in the same form (but with the additional allegation of defamatory meaning).
13 The Respondent’s submission on this ground was based on the fact that the Applicant’s pleading of the defamatory meanings appears under the heading “Particulars of Meaning”. This indicated, his counsel submitted, that these were a pleading of particulars and not, as required by r 16.02(1)(d) of the FCR, a pleading of material facts. In support, counsel referred to authorities indicating the distinction between a substantive pleading, on the one hand, and the pleading of particulars, on the other: Saunders v Jones (1877) 7 Ch D 435 at 451; R v Associated Northern Collieries  HCA 61, (1910) 11 CLR 738 at 740.
14 In this Court, the required content of pleadings is governed by the FCR. Rule 16.02(1) provides (relevantly):
(1) A pleading must:
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and
(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
15 Rules 16.03(1)(b) provides in addition that a party must plead a fact if failure to plead the fact may take another party by surprise.
16 Rule 16.41(1) provides (relevantly):
(1) A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.
17 Thus, the FCR maintains the distinction between material facts and particulars. However, in practice the distinction is often blurred. The Court is more concerned with whether respondents are sufficiently informed of the case they have to meet than with the niceties of the form by which that is achieved. Technical objections to pleadings on the ground of alleged want of form are generally received with less enthusiasm than was the case in times past, providing that the pleadings, including the particulars, disclose sufficiently the case which the opposing party must meet at trial and disclose a reasonable cause of action: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466 (von Doussa J).
18 The application of this approach indicates that, even taken at its highest, the Respondent’s objection to the form of the Applicant’s pleading lacks merit. The Respondent is informed of the imputations alleged by the Applicant. He does not contend that there is deficiency in the pleading of imputations other than that they are under a heading which appears to identify them as particulars. This is a complaint based on form and not substance.
19 I also consider that the Respondent’s submission proceeds on a misapprehension. It assumes that the Applicant uses the term “Particulars of Meaning” to refer to particulars of the kind to which r 16.41 refer. In my view, that is not an appropriate understanding of the pleading.
20 Instead, in context the term “Particulars of Meaning” is a sub-heading, serving to indicate the nature of the content which follows. That content is a pleading of material facts, and not a pleading of particulars “fleshing out” material facts.
21 The ASC would have the same meaning and effect if the heading “Particulars of Meaning” was not used. It would then be obvious that the meanings alleged in the subparagraphs to  (and its counterparts with respect to the other matters complained of) constitutes a pleading of material facts. That this is the intended effect of the content appearing under the heading “Particulars of Meaning” is indicated by the allegation in  (and its counterparts) that the matter complained of carried the following defamatory meanings. In this way, the so-called particulars are incorporated into the pleading of the material facts concerning the defamatory meaning alleged.
22 This basis for strike out fails.
The allegations concerning the places of publication
23 The second basis on which the Respondent seeks the striking out of the Statement of Claim concerns the allegation in  that the 3AW Sunday Morning program on 1 July 2018 was published “in the Australian Capital Territory, the Northern Territory, New South Wales and the other States of Australia”.
24 The Respondent contends that that allegation is “self-evidently false”, at least with respect to publication in the Northern Territory, Queensland and Western Australia. As I understood it, the Respondent’s contention is that it is obvious as a fact that the 3AW program was not broadcast in those places because it is broadcast from Melbourne and its radio audience could not include places far distant from Victoria.
25 I do not regard it as being “self-evidently false” that the 3AW program was broadcast in the Northern Territory, Queensland and Western Australia. It is at least possible that the 3AW program in question was broadcast in those places through a process of relay or through local stations. Whether or not that was so will be a matter for evidence at trial.
26 Ordinarily, the nature and extent of publication of an alleged defamation in any location is a relatively straightforward matter upon which the parties to a defamation action can, and should, agree. The Court’s expectation is that the parties will make reasonable endeavours to reach such an agreement in the present case. This being so, it cannot reasonably be held at this stage that the Applicant’s pleading of the places at which the 3AW program was broadcast will cause “prejudice, embarrassment or delay” in the proceeding or that it suffers from any of the other vices to which r 16.21(1) refers.
27 This basis for strike out fails.
The contemplated provision of further particulars
28 The Applicant’s pleading of the publication of each of the four matters complained of includes the statement that:
Further particulars of the extent of publication and republication … will be provided after discovery and interrogatories.
29 The Respondent contends that a pleading in this form attracts r 16.21(1)(b), (c) and (d) for three reasons:
(i) the ASC does not contain any allegation of “republication”;
(ii) the Applicant has not yet sought or obtained an order for discovery under r 20.12 of the FCR; and
(iii) the Applicant has not yet sought or obtained leave to interrogate under r 21.01 of the FCR.
30 Contrary to the Respondent’s submission, the ASC does contain express allegations of republication in relation to the first, second and fourth matters complained of.
31 It is also to be remembered that republication of defamatory material can be relied upon in defamation proceedings in two ways: as establishing a separate cause of action or as going to damages from the initial publication: Bracks v Smyth-Kirk  NSWSC 930 at . It is apparent that the Applicant relies on republication for the latter purpose.
32 Further, and in any event, the Applicant’s statement that she will provide further particulars of the extent of publication and republication cannot reasonably be characterised in the terms used in r 16.21 for which the Respondent contends. The later provision of particulars of the extent of publication and republication are ordinary incidents in defamation litigation. As indicated earlier, these are matters about which the parties to defamation proceedings can usually agree.
33 The Respondent’s reliance on the fact that the Applicant has not yet sought or obtained an order for discovery or leave to interrogate is without merit. As his own application acknowledged, the Applicant is not entitled to discovery nor to interrogate without an order of the Court. The first occasion upon which the Applicant could have sought such an order was at the First Case Management Hearing on 20 September 2018. At that hearing, the Applicant’s counsel proposed, consistently with the practice commonly adopted in this Court when the evidence in chief of the parties is to be provided in affidavit form, that issues of discovery be deferred until after the exchange of the parties’ affidavit evidence. Experience shows that when that is done, the necessity for discovery is either obviated altogether or reduced. I also observe that the Respondent did not then oppose the deferral of consideration of orders for discovery on this basis.
34 In these circumstances, this objection of the Respondent is, as I say, unmeritorious.
The grapevine effect
35 In  of the ASC, the Applicant pleads:
The Applicant also relies on the grapevine effect as to damages as to all publications and republications.
36 The Respondent’s complaint is that this pleading does not allege any material fact. He contends that it is therefore frivolous or vexatious, evasive or ambiguous and likely to cause prejudice, embarrassment or delay in the proceedings.
37 This contention cannot be sustained. The Applicant is doing no more than signalling that, in relation to her claim for damages, she will rely upon the prospect of there having been further dissemination of the alleged defamatory matters through the “grapevine”, causing damage to her reputation.
38 I also observe that the Respondent does not claim to be uncertain as to the meaning of the term “grapevine effect”.
39 This basis for strike out fails.
Paragraphs ,  and  of the Originating Application
40 By  of the Originating Application, the Applicant claims damages, including aggravated damages. There then follow the following claims for injunctions:
 An order that the Respondent be permanently restrained from publishing the Matters Complained Of, or any matter to the same effect.
 An order that the Respondent be permanently restrained from publishing the imputations found by the court to be carried by any of the Matters Complained Of, of and concerning the Applicant, and any imputations that do not differ in substance.
 An order that the Respondent permanently remove the Second Matter Complained Of and republications of the Matters Complained Of, or any matter to the same effect.
41 The Amended Interlocutory Application indicates that the Respondent seeks the striking out of the claims in ,  and  on the ground that they are not supported by any material facts pleaded in the ASC.
42 It was not clear that the Respondent did press this application as his counsel did not make any submissions in support. But, in any event, the application is without merit. The ASC does contain content which may (I am saying no more than may) support the relief sought by the Applicant.
The infringement of Parliamentary privilege
43 Lastly, the Respondent sought the permanent stay or dismissal of the proceeding by reference to s 16 of the Parliamentary Privileges Act 1987 (Cth) (the PP Act).
44 Section 49 of the Australian Constitution has the effect that Art 9 of the Bill of Rights 1688 applies to the Commonwealth Parliament. Article 9 provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
45 Section 16 is declaratory of the effect of Art 9. It provides (relevantly):
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
46 It appropriate to record that the Respondent does not plead s 10 of the PP Act as a defence. That section provides that it is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter and the defamatory matter was contained in a fair accurate report of proceedings at meeting of a House or a committee.
47 In Carrigan v Honourable Senator Michaelia Cash  FCA 1466, I set out my understanding of the effect of s 16. I do not understand the Full Court on the appeal (Carrigan v Honourable Senator Michaelia Cash  FCAFC 86) to have indicated that that understanding is incorrect. I therefore repeat what I said then:
 … [s] 16 is not to be regarded as limited in its scope to the operation of Art 9. On the contrary, s 16(1) is an express indication that the Parliament contemplated that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen  SASC 83, (2000) 76 SASR 450 at ,  (Doyle CJ, with whom Mullighan J agreed), - (Perry J),  (Lander J); R v Theophanous  VSCA 78, (2003) 141 A Crim R 216 at .
 Section 16(3) has the effect of making it unlawful for evidence to be tendered or received in a Court or for questions to be asked, or statements, submissions or comments made, concerning “proceedings in Parliament” for specified purposes. Subsection (2) defines in an inclusive manner the term “proceedings in Parliament”. At its base, the term means “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House” of the Parliament. However, “proceedings in Parliament” also include “the presentation or submission of a document to a House”, and the “preparation of a document for purposes of or incidental to the transacting of any … business” of a House of Parliament.
 Counsel for the Respondents emphasised the principle of “non-intervention” which underpins s 16. The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts: Prebble v Television New Zealand Limited  1 AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are “astute to recognise their respective constitutional roles”: Prebble at 332D, 335G; Rann v Olsen at -, -, -; Theophanous at ; Halden v Marks at 462.
 The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at , . The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething  FCA 45, (2000) 97 FCR 9 at .
48 Neither party in the present proceeding suggested that this summary was inappropriate.
49 The Respondent raises the issue of Parliamentary privilege in - of his Defence. In , he asserts that the matters complained of comprise a repetition of statements made by the Applicant or him in the Senate, responses by either to those statements, or comments by either of them to the statements. In , the Respondent pleads (relevantly):
[T]his Honourable Court cannot, without impeaching or questioning the freedom of speech and debates or proceedings in the Australian Senate, adjudicate upon:
(a) whether the Applicant made a claim in the Australian Senate which is, or which is tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists;
(b) whether such a claim, if made by the Applicant in the Australian Senate, was absurd;
(c) whether such a claim, if made by the Applicant in the Australian Senate, exposed the Applicant as a hypocrite; and
(d) whether such a claim, if made by the Applicant in the Australian Senate, exposed the Applicant as a misandrist.
50 The Respondent submitted that a breach of s 16(3) of the PP Act will occur at two stages in the Court’s consideration of the Applicant’s claim:
(1) when the Court considers the question (described by the Respondent as the “threshold question”) of defamatory capacity; and
(2) when the Court considers the question of “defamatory meaning”.
51 In trials in this Court by Judge alone, the identified threshold question will not arise. It is subsumed in the question of whether the words complained of were defamatory of the Applicant. However, that does not affect the Respondent’s submission as he contended that the Court’s consideration of whether the matters complained of are defamatory of the Applicant will require it to hear submissions, and to reach a view, about how ordinary, reasonable readers would respond to a statement, spoken in Parliament, that all men are rapists.
52 Next, the Respondent contends that he will not be able to pursue his defence of justification without infringing s 16(3). That being so, he submits that the Applicant’s pursuit of proceeding in a circumstance in which he will be deprived of an available defence by the PP Act constitutes an abuse of process warranting the Court’s stay or summary dismissal of the proceedings.
53 In my view, s 16(3) of the PP Act does not warrant the summary dismissal or stay of the proceedings, at least at this stage.
54 It is evident that there is a dispute about what the Applicant said in the Senate on 28 June 2018. Paragraph [21(a)] of the Respondent’s Defence, quoted earlier, identifies the factual issue involved. Counsel for the Applicant confirmed that there is an issue as to whether the particular words on which the Respondent relies were said in the Senate.
55 It was common ground that the Court may receive and consider evidence concerning what was said in the Senate for the purposes of determining whether a matter did form part of “proceedings in Parliament” as defined in s 16(2) of the PP Act. Again, it is convenient to repeat what I said in Carrigan v Cash on this topic:
 It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis  HCA 71; (1998) 195 CLR 424 at . The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when outlining the first of two situations in which courts do consider parliamentary privilege:
First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceeding in Parliament …
 Accordingly, the Court may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231-2.
See also Carrigan v Cash on appeal at .
56 For this reason alone, it would be inappropriate to dismiss or stay the proceedings. If the factual issue as to what was said in the Senate on 28 June 2018 is resolved adversely to the Respondent, s 16 will have no application. That is because s 16(3) protects “proceedings in Parliament”, as defined in s 16(2). It does not protect words not spoken and nor acts not done in the course of, or for the purposes of or incidental to, the transacting of the business of the Senate. That is so even when a person genuinely, but erroneously, thinks that the words were spoken or the acts were done in the course of the business of the Senate.
57 It may be necessary at some stage in these proceedings to consider the application of the PP Act in the event it be found that the Applicant did make the statement in the Senate which the Respondent attributes to her. This may involve consideration of some of the difficult issues addressed in Rann v Olsen  SASC 83; (2000) 76 SASR 480.
58 In my opinion, it is unnecessary and inappropriate to do so at this stage. First, for the reasons already given, the determination of the issue cannot lead to the stay or striking out of the proceedings now. Secondly, it may turn out to be hypothetical. Thirdly, it would in any event be preferable for the parties to file and serve their affidavit evidence so that the Court may have a more detailed appreciation of the evidence each wishes to lead at trial.
59 For the reasons given above, the Amended Interlocutory Application of the Respondent filed on 11 October 2018 is dismissed. I will hear the parties as to costs.