Federal Court of Australia

Parke v Rubenstein (No 2) [2021] FCA 107

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 18 August 2020 is dismissed.

2.    The Court will hear from the parties in respect of costs.

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

REASONS FOR JUDGMENT

WHITE J:

1    The applicant seeks interlocutory orders in defamation proceedings:

(a)    striking out the defence of honest opinion pursuant to s 29 in the Defamation Act 2005 (SA) (s 31 of the Uniform Defamation Acts (UDA) of the States and Territories) raised by the first respondent and, in the event that that order is made, leave to file an amended reply;

(b)    that the first respondent be dux litis in the proceeding; and

(c)    that the first respondent make discovery of particular documents.

2    When the proceedings commenced, there were three respondents, but only the first respondent remains. The applicant had sought similar orders with respect to the third respondent. However, since the Court heard the submissions, the third respondent has ceased to be a party to the proceedings: Parke v Rubenstein [2020] FCA 1466. Accordingly, this judgment concerns only the orders sought in the interlocutory application against the first respondent.

3    The applicant had foreshadowed seeking an order that certain issues in the proceedings be heard and determined in advance of other issues, but has not brought such an application.

4    The trial in the action is to commence on 12 April 2021.

Background

5    Between 2007 and 2013, the applicant was the member for the seat of Fremantle in the House of Representatives in the Australian Parliament. On 7 April 2019, she was pre-selected as the candidate for the Australian Labor Party in the election for the seat of Curtin in the House of Representatives to be held on 18 May 2019.

6    The first respondent is the Executive Director of the Australia/Israel & Jewish Affairs Council (AIJAC).

7    The second respondent was The Herald and Weekly Times Pty Ltd but the applicant discontinued her claim against that respondent shortly after the proceedings were commenced.

8    The third respondent was Mr Sharma. He is the member of the House of Representatives for the seat of Wentworth in the State of New South Wales, having been elected on 18 May 2019.

9    On 4 March 2019, some five weeks before her pre-selection, the applicant had given a speech (the Speech) to a group known as the West Australian Labor Friends of Palestine in Perth. Following her pre-selection, the applicant’s Speech attracted media attention, in consequence of which, on 12 April 2019, the applicant surrendered her pre-selection.

10    On 12 April 2019 (but it seems before the applicant’s surrender of her pre-selection), the first respondent authorised an email (the Email) concerning the applicant’s Speech to be sent to a journalist at the second respondent. The Email said of the Speech:

The comments by ALP candidate Melissa Parke are among the most extreme examples of anti-Israel rhetoric ever voiced in Australia.

They constitute nothing more than a laundry list of slanders, including discredited conspiracy theories and downright falsifications.

Ms Parke’s comments, coming straight out of the talking points from the worst Israel haters, bring discredit to both her and the party she is representing.

Ms Parke has publically expressed support for “the current Labor policy” but has acted in a way which is outside the spirit of this policy and as well as being an affront to all thinking Australians.

AIJAC calls on Labor leadership to distance the party from Ms Parke’s outrageous claims. We have seen in other countries what happens when political parties turn to a blind eye towards fanatics and conspiracy theorists in their ranks. It is incumbent on the ALP leadership to ensure Australia does not follow the same route.

11    The applicant pleads that the Email was also sent to media organisations but the first respondent denies that allegation.

12    The applicant claims that the Email was defamatory. She pleads that the ordinary and natural meaning of the words in the Email was that she is a:

(a)    compulsive slanderer;

(b)    conspiracy theorist;

(c)    liar; and

(d)    fanatic.

13    On 24 April 2019, the first respondent prepared an article entitled “Dangerous Israel obsessions in the ALP” (the Article). The Article was uploaded to the website of the AIJAC where it remained for many months. The first respondent also admits that a copy of the Article was sent to a number of persons by email. The applicant pleads a wider distribution and claims that the Article conveyed the following defamatory meanings of and concerning her, namely, that she:

 (a)    published a fabricated story about the Israeli Military;

 (b)    is an anti-Semite;

(c)    is one who engages in anti-Semitic tropes by suggesting that Israel exercises substantial influence over our political system; and

(d)    is one who lies by suggesting that Israel’s influence in our political system and foreign policies is substantial.

14    The first respondent denies that his publications were defamatory of the applicant and denies that she has suffered any loss, as she alleges. He raises two substantive defences:

(a)    honest opinion under s 31 of the UDA ([11] and [12] of the Defence); and

(b)    qualified privilege both at common law and under s 28 of the UDA ([13] of the Defence).

The defence of honest opinion

15    The first respondent’s pleading of honest opinion in relation to the Email is (relevantly) as follows:

[11]    Further and in the alternative to paragraph 4 above, insofar as it may be found that the Rubenstein Email conveyed the Paragraph 6 Imputations (which is denied) , and that any of those imputations are defamatory of the applicant (which is denied), the first respondent says that:

(a)    the Rubenstein Email was an expression of opinion of the first respondent;

   (b)    the opinion related to matters of public interest; and

(c)    the opinion was based on proper material, or alternatively, was based to some extent on proper material and represented opinion which might reasonably be based on that material to the extent to which it was proper material.

PARTICULARS

1.    Proper Material

(a)    The expression of opinion was based on the speech delivered by the applicant on or around 4 March 2019 in Perth, Western Australia , to an event held by WA Labor Friends of Palestine (Speech), a transcript of which is annexed to this pleading and marked “B”;

(b)    The Speech was proper material by reason that it is substantially true that the Speech was made.

2.    Public Interest

…

16    The first respondent’s pleading of honest opinion in relation to the Article is (relevantly) as follows:

[12]    Further or in the alternative to paragraph 6 above, insofar as it may be found that the Editorial conveyed the Paragraph 8 Imputations (which is denied), and that any of those imputations are defamatory of the applicant (which is denied), the first respondent says that

  (a)    the Editorial was an expression of opinion of the first respondent;

  (b)    the opinion related to matters of public interest; and

(c)    the opinion was based on proper material, or alternatively, was based to some extent on proper material and represented opinion which might reasonably be based on that material to the extent to which it was proper material.

PARTICULARS

1.    Proper Material

(a)    The expression of opinion was based on the facts and matters stated and/or referred to in the Editorial as follows:

    (i)    the applicant delivered the Speech;

(ii)    well-publicised accusations of antisemitism had been made against the UK Labour Party since the election of Jeremy Corbyn as its leader in 2015;

(iii)    Bill Shorten and Chris Bowen, senior figures within the Australian Labor Party, had condemned the Speech;

(iv)    the International Holocaust Remembrance Alliance had issued a Working Definition of Antisemitism , which states that it is Antisemitic to make "mendacious, dehumanising, demonising, or stereotypical allegations about Jews as such or the power of Jews as a collective - such as … Jews controlling the media, economy, government or other societal institutions."

(v)    Senator Sue Lines made the following statement by way of response to the Speech: "the Israeli lobby is so powerful within the party and outside the party and it really does impact on the sort of movement we've been able to make in our party."

(vi)    The 2018 memoir of former NSW Premier, Bob Carr, entitled "Run for your Life", contained references to "the Jewish lobby" and the "bullying Jewish leadership ", and other statements about the Jewish community as follows:

•    "no other community, in my experience, treats politicians as their poodles";

•    "Jews enjoy[ing] a view of themselves as the 'chosen people' and therefore entitled to incontestable rights to the land God gave them";

•    "through its political clout, the Jewish community will always crush you".

(vii)     The applicant has publicly supported the Boycott Divestment and Sanctions movement (BDS);

(viii)    The BDS demands that Israel be punished through complete economic, academic and cultural isolation;

(ix)    Leaders of BDS have stated that their goal is the effective destruction of the State of Israel.

(b)    The matters particularised in paragraph (a) above were proper material by reason that they are substantially true.

2.    Public Interest

…

17    By her Reply filed on 20 April 2020, the applicant denies that either the Email or the Article constitute an honest opinion on matters of public interest, pleading:

[2.1]    the words set out in the Rubenstein Email and the Editorial and which gave rise to the imputations complained of were not expressions of opinion but rather assertions of fact;

[2.2]    to the extent that there is found to have been any comment it is not admitted that same related to matters of public interest;

[2.3]    further, it is denied that any opinion conveyed by the two publications was based upon proper material. Without limiting the generality of the denial, whilst it is admitted that the Speech was made, it is averred that the Speech was not placed before the ultimate readers of the Rubenstein Email and the Editorial and in the event could not constitute proper material;

[2.4]    whilst it is admitted that the matters pleaded as Public Interest in respect of the Rubenstein Email and the Editorial are per se matters of public interest the Email went beyond such matters in making personal and unwarranted assertions against the Applicant;

[2.5]    in specific response to the allegations of proper material relating to the Editorial it is not admitted that any of the particulars could constitute proper material in support of any opinion of and concerning the applicant found to have been expressed, and further the applicant denies particulars (iii), (viii) and (ix).

18    In [4] of the Reply, the applicant alleges that each of the Email and the Article were published maliciously and provides particulars of that allegation.

Power and principles

19    The applicant seeks the striking out of the honest opinion defences pursuant to r 16.21(1)(c), (d) and (e) of the of Federal Court Rules 2011 (Cth) (the FCR) which permit a party to seek an order that all or part of a pleading be struck out on the grounds (relevantly) that the pleading:

…

  (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

…

20    The principles which guide the Court on applications pursuant to r 16.21 are well-established. In the defamation context, they have been stated in this Court in several recent decisions: Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [36]-[38]; Rush v Nationwide News Pty Ltd [2018] FCA 357, (2018) 359 ALR 473 at [42]-[43]; Faruqi v Latham [2018] FCA 1328 at [15]-[17]; Wing v The Australian Broadcasting Corporation [2018] FCA 1340 at [7]; Hanson-Young v Leyonhjelm [2018] FCA 1688, (2018) 364 ALR 624 at [9]. It is not necessary to refer to the principles in detail. It is accepted that the discretionary power to strike out should be exercised sparingly and only in clear cases.

21    It is also appropriate to keep in mind a passage in the reasons of Gummow, Hayne Heydon JJ in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [33]:

Relevant approach. In Favell v Queensland Newspapers Pty Ltd this Court approved the following statement of McPherson JA as a correct approach where application is made to strike out defamation pleadings as disclosing no cause of action:

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

The same applies to the striking out of defences. Thus the fact, for example, that reasonable minds might possibly differ about whether the pleaded material is fact or comment is a strong reason for not striking out the allegations, but once the conclusion is firmly reached that it is fact, there is no justification for not giving effect to that conclusion.

(Citation omitted and emphasis added)

22    Generally, it is for the trier of fact at trial to determine what is a statement of fact and what is an expression of opinion. In cases of trial by jury, a judge may however withdraw the issue from the jury if satisfied that the impugned matter is not capable of being understood as either a statement of fact or an expression of opinion, as the case may be. However, a trial judge should adopt this course only in clear cases. In O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166, the plurality said at 173-4:

[I]f there be doubt, it is for the jury to decide whether what has been published is a statement of fact or an expression of opinion.

The defence of honest opinion in s 31 of the UDA

23    Section 31 in the UDA provides (relevantly):

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of the defendant rather than a statement of fact, and

   (b)    the opinion related to a matter of public interest, and

   (c)     the opinion is based on proper material.

…

(4)    A defence established under this section is defeated if, and only if, the plaintiff provides that –

(a)    in the case of a defence under subsection (1) – the was not honestly held by the defendant at the time the defamatory matter was published; or

…

(5)    For the purposes of this section, an opinion is based on "proper material" if it is based on material that—

   (a)    is substantially true, or

(b)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c)    was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

(Emphasis in the original)

24    As is apparent, on its face the defence in subs (1) requires that a respondent prove three matters (and only three matters) concerning the impugned defamatory matter: that the defamatory matter was an expression of opinion rather than a statement of fact; that the opinion related to a matter of public interest; and that the opinion was based on “proper material”. Section 31(5) provides that an opinion will be so based if it is based on material which satisfies at least one of the three internal alternatives within that subsection.

The applicant’s submissions concerning strike out

25    The applicant’s submissions proceeded on the basis that the principles developed in relation to the common law defence of fair comment on a matter of public interest are applicable to the statutory defence of honest opinion. However, the applicant did not seek to justify that position by reference to the text of s 31 of the UDA. Instead, she relied on the statement in Australian Defamation Law and Practice, Tobin and Sexton (LexisNexis), at 13,001 that the statutory defence of honest opinion “is essentially the same defence as that of fair comment on a matter of public interest under the common law” and on the statement in Defamation Law in Australia, P George (3rd Edition, LexisNexis) at [28.1] that “the statutory defence of honest opinion is based on many of the concepts of the common law defence of fair comment”.

26    Counsel also referred to Cosco v Hutley (No 2) [2020] NSWSC 893 in which Rothman J said:

[314]    In order for the defence of honest opinion to succeed, the statement must be recognisable as a comment by the ordinary viewer and, in that respect, must be seen as a “deduction, inference, conclusion, criticism, remark or observation”.

…

[317]    … Ultimately, the test is whether the ordinary reasonable person would understand the meaning as an expression of opinion, rather than as a statement of fact.

(Citation omitted)

27    Counsel submitted that understanding s 31 of the UDA as being essentially the same as the common law defence of fair comment on a matter of public interest had several consequences, which seemed to distil to these:

(a)    the defence is available only in respect of comments and not imputations of fact, citing Gatley on Libel & Slander (12th edition, Sweet & Maxwell) at [12.7], [28.1]; Tobin and Sexton at [13.015];

(b)    the comment must be based on facts stated in the publication and plainly sufficiently linked to those facts or on facts which are otherwise notorious, citing Cosco at [315]; George at [27.3], [28.1]; Channel Seven v Manock at [5], [35];

(c)    although the characterisation of a publication as a statement of fact or as comment may depend on the context in which it is made, the consideration of context is confined to the publication impugned in the proceedings, citing Gatley at [12.12];

(d)    the availability of the defence is to be determined by reference to the meaning which the impugned words would have been understood to convey and not by reference to the meaning intended by the author, citing Duncan and Neill on Defamation, Second Edition, 1983 at [12.31];

(e)    a respondent should separate the comment from statements of fact, citing Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319;

(f)    when comment and fact are not clearly distinguished, there is a tendency to regard the entire statement as one of fact, citing Gatley at [12.13]; Hunt v Star Newspaper at 319;

(g)    a respondent has the onus of establishing that the relevant statements would have been understood by the ordinary reasonable reader to be an expression of opinion and not a statement of fact, citing Tobin and Sexton at [13.025]; and

(h)    the defence is not available if only some of the facts on which the comment is based are set out in the publication.

28    Counsel for the applicant then made the following written submissions:

[18]    It is submitted that the pleaded imputations are all assertions of fact. It is suggested that ‘the Applicant is a trafficker of conspiracy theories ats (sic) Israel, which theories are baseless’ is a verifiable fact. If so, no evidence has been foreshadowed to prove the truth of such facts.

[19]    If each or some of the pleaded imputations are found to be comment they are founded on the facts as identified in para.3 of the Hamdan affidavit. Again no evidence has been foreshadowed to establish the truth of such facts.

[20]    The First Respondent has, since the Primary Application was issued, filed a Notice to Admit Facts. Such facts as are admitted by the Applicant do not support any opinions which might be found to be conveyed by the publications.

29    Paragraph [3] of the Hamdan affidavit to which [19] referred contained what were, in effect, submissions by the applicant’s solicitor as to what constituted assertions of fact in the Email and in the Article.

30    Counsel raised other matters in the oral submissions. I refer to these below.

Consideration

31    I am satisfied that a number of matters indicate that the striking out of the first respondent’s defence of honest opinion is inappropriate.

32    First, the applicant’s submissions did not indicate how the identified paragraphs in r 16.21(1) were engaged presently. She submitted only that each of subparas (c), (d) and (e) “have application”, but did so without indicating how that was so by reference to the form of the first respondent’s pleading and the criteria for the application of each subparagraph. This is particularly pertinent because it is evident that the focus of r 16.21(1)(c), (d) and (e) is on the form and adequacy of the impugned pleading. Instead of directing attention to matters of that kind, [18]-[20] of the applicant’s submissions set out above were directed to a perceived absence of evidence proposed to be led by the first respondent. Rule 16.21(1)(c), (d) and (e) are not directed to that subject matter. If the applicant had wished to contend that the first respondent’s defence has no reasonable prospect of success by reason of a lack of available evidence, her application should have been of a different kind, perhaps under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

33    Secondly, the correctness or otherwise of the applicant’s assertion that “the pleaded imputations are all assertions of fact” is an issue which can be determined appropriately at the trial. In the circumstances of this case, it is not an issue appropriate to be determined on a strike out application under r 16.21.

34    Thirdly, and contrary to the submission of the applicant in [18] set out above, s 31(1)(a) in the UDA requires that it be the “defamatory matter”, and not the pleaded imputations, which be an expression of opinion.

35    The New South Wales Court of Appeal adverted to this aspect of s 31(1)(a) in Harbour Radio v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695. While the Court did not, on my understanding, express a final view, it said:

[43]    The appellants noted that s 31 identified a defence “to the publication of defamatory matter”, language which differed from the defences of substantial truth (“justification”) in s 25 and contextual truth in s 26, both of which refer to the defamatory imputations, rather than the defamatory matter, as that which must be true. The case law, such as it is since the commencement of the Defamation Act on 1 January 2006, has not treated this distinction as significant.

[44]    The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.

(Citation omitted)

36    In three first instance decisions in New South Wales, McCallum J has accepted that the defence of honest opinion under s 31 is directed to the defamatory matter, rather than to the imputations specified by the plaintiff: O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [45]-[46]; Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035 at [43]-[44] and O’Neill v Fairfax Media Publications (No 2) [2019] NSWSC 655 at [81]-[83], although her Honour has considered the meaning pleaded by the plaintiff to be relevant to the defence because it is the meaning found by the Court which is to be scrutinised for its fairness. The reasons of White JA in Feldman v Polaris Media Pty Ltd [2020] NSWCA 56 at [66] provide support for the proposition that it is the defamatory matter which is to be considered.

37    One of the applicant’s oral submissions was that, in order to rely on the defence of honest opinion, the first respondent had to have included in the defamatory matter the material on which a reader could form a view as to whether the opinion was reasonable. I understood counsel to be referring in this respect to the requirement of the common law defence of fair comment on a matter of public interest, that is, the facts on which the comment is based be stated in the impugned matter, be sufficiently indicated, or so notorious so as to enable readers to identify it as comment on those facts and to assess for themselves whether the facts support the comment: Channel Seven v Manock at [5], [35]. Counsel then submitted:

[We have] drawn attention to the significance of the matter in the context of these proceedings, particularly in respect of the third respondent. And drawn attention to the fact that the respondents have filed material in compliance with the court’s orders as to the evidence that they intend to rely upon. None of which evidence addresses the issue of proper material and the truth of factual matters asserted in proper material, and if it is proper material.

And the effect of that is, we say, that the applicant is significantly prejudiced, because, the applicant, we say, is entitled to know what case she has to meet or she has to meet in this case, under a defence of honest opinion. And accordingly when a defendant pleads honest opinion, we will be – he will be required to spell out with sufficient precision to enable the plaintiff to know the case he has to meet. What is the comment? What is the proper material on which it is based? Is that proper material true? And, we say, that it does not appear and that the applicant is prejudiced.

38    Insofar as this submission concerns the content of the first respondent’s pleading, it faces the difficulty that each of [11] and [12] in the first respondent’s defence do plead the opinion, do plead the “proper material” on which it is said the opinion was based, and do plead that the proper material was substantially true. Whether or not those matters (if established) will establish the pleaded defence is a matter best addressed at trial. That includes the issue of whether the Email and the Article are statements of fact, as the applicant contends, and not expressions of opinion. In preparing for the trial, the applicant has the advantage of knowing that the first respondent’s defence of honest opinion, particularly with respect to the Email, appears to be narrowly confined.

39    Insofar as the applicant’s submission rests on the proposition that the common law principles concerning the defence of fair comment on a matter of public interest are applicable to the statutory defence of honest opinion, it raises larger issues. Each of Tobin & Sexton (at [13.001] and George (at [28.1]) on which the applicant relies, provide some support for the applicant’s contention, but neither cites authority for the proposition.

40    It is appropriate to keep in mind that the defence of honest opinion is statutory. It is the elements of that statutory defence (properly construed) which the first respondent will have to satisfy in order to make out the defence. Section 31 of the UDA does not contain explicitly any requirement that the facts on which the opinion is based be stated in the defamatory matter, be notorious, or otherwise be available to the reader. Nor does it contain any explicit requirement with respect to the fairness of the opinion. The explicit requirement is that the opinion be based on proper material within the meaning of that expression as elaborated in subs (5). Counsel for the applicant accepted (indeed asserted) that s 31 of the UDA is unclear in this respect.

41    The decision of the Court of Appeal in Victoria (Nettle, Ashley and Weinberg JJA) in The Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75; (2009) 21 VR 661 provides support for the proposition that s 31 of the UDA requires the facts on which the opinion is based to appear in the publication or be otherwise apparent to the reader. Their Honours said:

[83]    Counsel for the applicants further submitted that the distinction between the common law defence of fair comment and the statutory defence of honest opinion was important because as, under the former, all of the facts on which the comment is based must appear in the publication or otherwise be apparent to the reader but, under the latter, it is necessary only to show that the opinion is honestly based on ‘proper material’ which, according to counsel, need not be known to the reader.

[84]    We reject that submission for two reasons. First, we do not consider that there is any difference between the common law and the statute as to the need for facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader. The idea of expanding the defence of comment or opinion to cases where the facts are unspecified and unknown was rejected by the Law Reform Commission (on whose report the legislation is largely based), and there is nothing in the Proposal for uniform defamation laws released by the States and Territories in July 2004 or in the proposed bill which they released in November 2004, or in the Explanatory Memorandum or Second Reading Speech which suggests any difference in that respect. To the contrary, all the indications are that the two were meant to be the same.

(Citations omitted)

42    The Court of Appeal in New South Wales in Harbour Radio v Ahmed noted, at [37], that s 31 of the UDA assumes the existence of the distinction between statements of fact and expressions of opinion and considered it appropriate to have regard to the general law in identifying the principles to be applied in determining whether a particular statement was one of fact or opinion, at [37]-[40]. The Court also noted, at [41], that the common law requires the facts upon which the comment was based be notorious, stated in the defamatory matter itself, or be sufficiently indicated so as to enable persons to whom the defamatory matter is published to identify as comment and thereby be able to assess for themselves whether the facts purport the comment. Their Honours noted, but did not resolve, the issue of whether the proper material for the purposes of s 31(5) need be identified in the publication, at [42].

43    I note that in JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; (2020) 377 ALR 467 (Thawley J), the parties had proceeded upon the basis that there was no material distinction between the statutory defence of honest opinion and the common law defence of fair comment – see [471]. It was accordingly unnecessary for his Honour to consider the position. In Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15, Lee J noted the parties’ agreed position that proper material for the purposes of s 31(5) was, as in the common law defence on fair comment on the matter of public interest, “a series of true facts which are contained or referred to in the publication or alternatively are notorious”, at [124]. However, his Honour seemed to accept that there may be an issue as to whether s 31 of the UDA does require this, saying at [124]:

... If one was searching for a textual foundation for this approach it might be thought it is consistent with the statutory requirement that the opinion be based on the proper material.  Further, it might be thought consistent contextually with the need for the facts to be identified in such a way as to allow a reader to come to their own opinion on the facts identified. In any event, it unnecessary to say anything further as to any possible differences as to proper material as between the common law and statutory defences …

(Emphasis in the original)

44    After the Court had reserved judgment on the interlocutory application, the applicant was granted leave (at her request) to make submissions as to the effect of the amendments to s 31 of the UDA contemplated by the Council of Attorneys-General Review of Model Defamation Provisions, Feb 2019, the amending bills and the First and Second Reading Speeches in New South Wales. Much of the submission which the applicant then provided went beyond that grant of leave. In order to provide fairness to the first respondent, I have had regard only to that part of the supplementary submissions directed to the subject matter of the grant of leave.

45    In the Discussion Paper issued in February 2019 as part of the Council of Attorneys-General Review of Model Defamation Provisions, it was said at [5.35] that s 31(5) in the UDA “does not make clear whether the proper material must be published in the same publication as the purportedly defamatory material” and, at [5.37], that “[i]t is in the public interest, and appropriate in order to ensure people’s reputations are not unduly damaged, for statements of “opinion” that may adversely affect a person’s reputation to be contextualised by supporting material that evidences the basis upon which the opinion is honestly held”.

46    Section 31(5) of the UDA (and its counterpart in s 29 of the Defamation Act 2005 (SA)) has been amended (in several but not all States and Territories) to address that issue explicitly:

(5)    For the purposes of this section, an opinion is based on proper material if—

(a)    the material on which it is based is—

   (i)    set out in specific or general terms in the published matter; or

   (ii)    notorious; or

(iii)    accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or

(iv)    otherwise apparent from the context in which the matter is published; and

(b)    the material—

   (i)    is substantially true; or

(ii)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(iii)    was published on an occasion that attracted the protection of a defence under this section or section 26 or 27.

(Emphasis in the original)

47    It is subpara (5)(a) which is new.

48    There are several authorities which suggest that it is permissible to have regard to an amending provision in construing the previous unamended provision: see Statutory Interpretations in Australia, Pearce, 9th Edition at [3.38]. However, as the authors of Interpretation and Use of Legal Sources – The Laws of Australia, Thomson Reuters point out, at [25.1.2730]:

This proposition turns on the notion that the amendment would otherwise be unnecessary. Though various judges have expressed scepticism about the legitimacy of the proposition, it has not been declared erroneous. It can only be applied if the words of the un-amended provision are ambiguous and if the amendment would truly have no work to do if the un-amended provisions were construed in a particular way. Even then, the principle must be approached with caution. The amendment may have been for the avoidance of doubt or to overcome a judicial decision on a particular point without consideration of the effect of the un-amended provision on other points.

(Citations omitted)

49    Although counsel for the applicant referred to the antecedent of [3.38] in an earlier edition of Pearce, it was left unclear whether he was submitting that the amendment to s 31 of the UDA was for the purpose of the avoidance of doubt. His submission that the un-amended s 31(5) was unclear seemed to be inconsistent with such a contention.

50    The matters to which I have referred make it apparent that there are unresolved issues as to the extent to which the common law defence of fair comment informs completely the construction and application of the defence of honest opinion under s 31 of the UDA. I think it fair to say that the submissions which the Court received on these issues were not complete. A much more detailed analysis of the legislative history and of the authorities than was essayed in the submissions would be required.

51    For this and other reasons, I consider it undesirable for the Court presently to express a concluded view about these matters. On the assumption that it be necessary for the facts upon which the opinion in the Email was based to be identified in the pleading, the first respondent’s plea in [11] does that. He pleads that the expression of opinion was based on the Speech and asserts that that was proper material “by reason that it is substantially true that the speech was made”. Some of the applicant’s submissions seemed to suggest that mere proof that the Speech was made (as alleged in Particular (1)(b) of the first respondent’s defence) will not be sufficient to establish the requirement of substantial truth for the purposes of s 31(5)(c), but no detailed submission to that effect was made. I note in this respect that on the appeal in Feldman v Polaris Media Pty Ltd [2020] NSWCA 56, Emmett AJA, at [149], considered that all which was needed to be proven as substantially true was that the appellant had given evidence to the effect asserted in a Royal Commission, whether or not that evidence was itself true. See also Simpson AJA at [212]-[213] and White JA at [121]-[123].

52    It is true that the defence of the first respondent does not plead that the content of the Speech was known to the journalist or to the second respondent.

53    However, as counsel for the first respondent pointed out, the respondent’s outline of proposed evidence (provided in accordance with the Court’s case management orders) suggests that the first respondent will give evidence that he authorised the Email to be sent to the journalist in response to a request by the journalist, and that it was the journalist who had provided him with a copy of the Speech. That evidence, if given, would be capable of establishing that the journalist, at the least, had knowledge of the circumstance that the applicant had made the Speech and of its content. In the context of this litigation, that suggests that the omission of a plea to the same effect in the first respondent’s defence may, as a matter of practicality, be a matter of no moment.

54    The first respondent has also foreshadowed evidence at the trial regarding the extent to which the Speech was known publically at the time of publication of the Article on 24 April 2019. With reference to this foreshadowed evidence, the applicant’s counsel submitted:

[I]t can’t seriously be suggested, we say, that the speech is a – was a notorious matter. The fact that a speech might be made was notorious; the contents of the speech was not, in the slightest bit notorious, and there’s already – not that it’s necessarily appropriate for your Honour to go to it but that’s in the evidence of the applicant in the affidavit she has already filed. She wasn’t even aware it had been published anywhere since she made the speech some six weeks earlier.

55    As this submission of counsel seemed to acknowledge in part, the notoriety or otherwise of the Speech is not a matter which can be determined on a strike out application of the present kind. It is a trial issue.

56    For the reasons given above, I am not satisfied that the pleading by the first respondent of his defences of honest opinion fails to disclose a reasonable defence or that it suffers from the vices to which r 16.21(c), (d) and (e) refers. In my view, the issues which the applicant raises concerning the availability of the defence should be agitated in the trial. The application for strike out fails.

The dux litis application

57    The applicant seeks an order that the first respondent be dux litis on the defences of honest opinion and qualified privilege as he bears the onus on those defences.

58    Counsel for the applicant explained that, in seeking the dux litis order, the applicant proposed that she would give her evidence on the matters on which she bears the onus (principally publication and damages); that she could be cross-examined on these matters and on those on which the first respondent has the onus (but not re-examined at that stage about these matters); that the first respondent would then lead his evidence on the matters on which he bears the onus; the applicant would cross-examine the first respondent’s witnesses; that after that cross-examination they could be re-examined; that she would then lead her evidence in answer to the matters on which the first respondent bears the onus and, following any cross-examination and re-examination, the evidential stage in the trial would be complete.

59    One cannot help thinking that counsel’s acknowledgement that the applicant’s proposal involved “some messiness” in the trial was appropriate.

60    It was not in issue that the Court has the power to make a dux litis order or an order allowing an applicant to split its case – see r 1.21 in the FCR.

61    Counsel for the applicant referred to a decision of the District Court of South Australia, Moriarty & Wortley v Advertiser Newspapers Ltd (1998) 196 LSJS 395, in which a dux litis order was made in defamation proceedings and to French v Triple M Melbourne Pty Limited [2008] VSC 548 in which Forrest J allowed the plaintiff to split his case by calling his expert evidence on an issue on which the defendants had the onus after the defendants had called their expert evidence. Counsel also referred to S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6 and to Fleming v Advertiser News Weekend Publishing Co Pty Ltd [2014] SASC 145 in which the Supreme Court of South Australia considered, but refused, applications for the defendants to be dux litis on issues on which they bore the onus. The reasons of Bleby J in S, DJ v Channel Seven contained a review of several of the relevant authorities to which I refer, without repeating it herein. It is sufficient instead to refer to the summary of the relevant principles by Forrest J in French v Triple M at [8]:

(a)    in normal circumstances a plaintiff will not be permitted to split his or her case;

(b)    however in some cases particularly where the burden of proof shifts to the defendant a court will entertain the splitting of the case to enable the plaintiff to rebut evidence led on a particular issue by the defendant. This is a rule of practice, not one of substantive law;

(c)    the paramount question is how are the interests of justice best served. This discretionary consideration includes taking into account the interests of the parties and also the orderly presentation of evidence before the jury. Two relevant considerations as disclosed by the authorities in relation to the exercise of the discretion are -

   (i)    the inconvenience to a party in proving a negative;

(ii)    where a plea of justification in a libel action is raised a plaintiff will not have had the opportunity to hear the evidence said to justify the alleged defamatory matter. In those circumstances a court may permit the splitting of the case. Indeed, the earlier authorities indicate that in such cases this was the norm rather than the exception.

62    It is pertinent to note, as Bleby J did in S, DJ v Channel Seven at [25], that a dux litis/splitting the case decision will be governed to a large extent by the nature of the issues formulated on the pleadings and the type of evidence to be led.

63    The matters which the applicant advanced in favour of the dux litis order she proposed were:

(a)    she does not know the evidence she should call to meet the first respondent’s defences of honest opinion and qualified privilege;

(a)    if she goes first, she will have to try to anticipate the evidence to be called. This will only be prejudicial to her but lead to a longer trial than would otherwise be the case; and

(b)    she will be deprived of the opportunity to make a submission of no case to answer on matters on which the defendants bear the onus.

64    Counsel made these submissions at a level of generality and without reference in any detail to the identified issues and the evidence foreshadowed by each party.

65    In accordance with the usual practice of this Court, it has made trial programming orders directed to the exchange and foreshadowing of the evidence to be led by each party. In response to orders made on 23 April 2020, the applicant filed and served outlines of the evidence in chief to be led from 10 witnesses in addition to herself. The evidence of six of these witnesses was said to be of an expert kind but, as has been pointed out to the applicant’s counsel, the applicant has made no attempt to comply with the Court’s Rules concerning the adducing of expert evidence in a trial (Pt 23 of the FCR) and with the Court’s Practice Note concerning expert evidence (Expert Evidence Practice Note (GPN-EXPT). The first respondent has filed and served an affidavit containing his evidence in chief on non-contentious matters and an outline of his remaining evidence. He has not filed an affidavit or an outline of evidence from any other witness. It can therefore be inferred that he will be the only defence witness. It is apparent therefore that the greater amount of the evidence to be led in the trial is likely to be led by the applicant.

66    It is pertinent that the applicant did not press for any further particulars of the first respondent’s defence before providing the outlines of her anticipated witnesses.

67    The submissions of counsel for the applicant did not refer expressly to the stage in the trial at which she would adduce evidence in support of her plea of malice. That is a matter upon which she bears the onus and on which she makes positive averments, including that the first respondent was involved in pressure being placed upon the Australian Labor Party to have her disendorsed as a candidate in the May 2019 Federal Election, and that he had no honest belief in publishing either the Email or the Article. It may be that the applicant will in large part seek to establish these matters in her cross-examination of the first respondent, but even so, he should have the opportunity of responding to the applicant’s evidence about those matters. He could do so if the applicant give evidence in support of her plea of malice in the first stage of her proposed evidence. As there is an obvious overlap between the matters upon which the applicant relies for the plea of malice and her defence more generally to the defence of honest opinion, that is a matter pointing against the applicant’s application.

68    A dux litis order and an order that the applicant be permitted to split her case would be a departure from the conventional way in which trials are conducted.

69    This Court has now conducted a number of defamation trials through to judgment, including trials in matters in which the respondent has had the onus on some issues. That has been done with efficiency and without prejudice to the fairness of the trial process. Counsel did not point to any defamation proceeding in which the Court has made a dux litis order, or an order for the splitting of the applicant’s case. That is not to say of course, that there may not be cases in which that course may be appropriate. However, the Court’s experience to date suggests that it is appropriate for it to be cautious before making such an order.

70    In my view, the applicant has not shown that a dux litis order is appropriate in this case. That part of the interlocutory application is refused.

The application for discovery

71    By [5] of the interlocutory application, the applicant seeks an order that the first respondent make discovery of two categories of documents:

(a)    all documentation evidencing the extent of AIJAC’s “Rambam study program” limited to the calendar years 2014 to 2018 inclusive, referred to in paragraphs 21(j) and 24(h) of the First Respondent’s affidavit [made on 23 June 2020]; and

(b)    all documentation evidencing the extent of AIJAC’s funding of Australian political parties, politicians, media organisations and individual journalists limited to the calendar years 2014 to 2018 inclusive, which material the applicant infers is related to “tropes cited in” the definition of anti-Semitism referred to in para 6 of the Outline of Evidence of the First Respondent [filed on 23 June 2020].

72    Counsel for the applicant did not make any written or oral submissions in support of the application for discovery. The Court is accordingly confined to the matters contained in the affidavit of the applicant’s solicitor filed in support of the interlocutory application which was limited to the annexed correspondence passing between the respective solicitors. Unfortunately, it was not the entire correspondence concerning discovery which made it somewhat difficult to follow.

73    On my understanding, the application for discovery of the first category of documents is based on the following. Pursuant to the case management orders referred to earlier, the first respondent filed and served an affidavit on 23 June 2020 confined to non-contentious matters in which he deposed to the establishment of the AIJAC, its purpose and its responsibilities. In [21] he deposed that the responsibilities of AIJAC include:

(j)    Bringing overseas visitors on speaking programs to Australia, and sponsoring study visit programs to Israel for Australians under the Rambam program since 2002.

74    In [24(h)], the first respondent deposed that, in the position of Executive Director of AIJAC, he is required to:

(h)    Oversee the formulation and implementation of AIJAC’s visitor program to Australia as well as AIJAC’s Rambam study visit program to Israel.

75    It seems from the solicitor’s correspondence, although it was not made express, that the applicant seeks an order pursuant to r 20.13(2)(b) of the FCR that the first respondent provide discovery other than standard discovery (as defined in r 20.14). Standard discovery is confined to documents of direct relevance to an issue raised by the pleadings.

76    The solicitor’s correspondence did not indicate by reference to an issue raised by the pleadings, as distinct from a topic referred to in the first respondent’s affidavit, the issue to which the documents in the first category are said to be directly or indirectly relevant. The AIJAC’s Rambam Study Program is not even mentioned in the pleadings. That includes the Amended Reply which the applicant has foreshadowed in the event that her strike out application succeeded.

77    The applicant did not point to any reason to depart from the criterion of direct relevance for which r 20.14 provides. Accordingly, the application with respect to the first category of document is refused.

78    Paragraph [6] in the outline of the oral evidence foreshadowed by Dr Rubenstein, to which the second category of documents sought by the applicant refers, states:

Dr Rubenstein did not think the Applicant herself was anti-Semitic, but he believed the comments she expressed strayed into territory such that they could fall within the scope of the working definition of anti-Semitism as defined by the International Holocaust Remembrance Alliance, or invoke some of the tropes cited in that definition.

79    Plainly, the documents in the second category sought by the applicant may have only an indirect relevance, if at all, to the matters referred to by Dr Rubenstein in [6]. It is pertinent that the applicant did not seek to support this particular claim for discovery by reference to an issue on the pleadings. The applicant has not shown that the order sought is appropriate.

80    For these reasons, the application for discovery is refused.

Conclusion

81    The application to amend the filed Reply was contingent upon the strike out application succeeding. As it has not succeeded, this part of the interlocutory application need not be considered further.

82    For the reasons given above, the interlocutory application of the applicant filed on 18 August 2020 is refused. I will hear from the parties with respect to costs.

Associate:

Dated:    16 February 2021