Federal Court of Australia

Edwards v Nine Network Australia Pty Limited [2022] FCA 509

ORDERS

THE COURT ORDERS THAT:

1.    The respondents have leave to file and serve a defence in the form attached to the respondents’ submissions dated and filed 14 April 2022, subject to it omitting paragraphs 20.1(c), 20.4 and 21.4 of the proposed defence and paragraphs 28 and 29 of the annexure to the proposed defence.

2.    The defence filed in accordance with order 1 be filed and served on or before 27 April 2022.

3.    The respondents pay the applicant’s costs of and associated with the interlocutory application dated 5 April 2022 and the amended interlocutory application dated 14 April 2022.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    A Current Affair is a television program which, as its name would tend to suggest, occasionally airs stories concerning current affairs. On 24 May 2021 and 1 June 2021, the program aired hard-hitting stories about a complicated triangular custody dispute involving a man, a woman and a dog. The woman, Ms Gina Edwards, is a person who is said to have some notoriety as a lawyer who has worked in the United States. The dog, a cavoodle named Oscar, apparently had some notoriety as one of those cute furry pets that annoyingly pops up uninvited on one’s social media feed – assuming one has one. The man, Mr Mark Gillespie, had no particular notoriety, other than perhaps as a result of his cameo performance in the stories in question.

2    The dispute between Ms Edwards and Mr Gillespie was about who was rightfully entitled to Oscar’s canine affections and affiliation. The stories broadcast on A Current Affair included dramatic footage of confrontations between Ms Edwards and Mr Gillespie in a dog park on Sydney’s lower north shore – all while Oscar gambolled nearby, apparently oblivious to the highly charged emotions of his putative masters.

3    Anyway, as events transpired, Ms Edwards did not take too kindly to the way she was portrayed in the stories broadcast on A Current Affair, or the related web-based articles which largely reproduced them. She sued the companies responsible for publishing the broadcasts and articles in question, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited (collectively Nine), as well as the reporter who appeared in and contributed to the production of the relevant stories, Steve Marshall. She alleged that the broadcasts and articles defamed her because they implied or imputed that: she was a thief who stole Oscar the cavoodle; she stole Oscar for her own financial benefit; she deliberately delayed a previous court case about Oscar; she exploited Oscar for her own financial benefit; she adopted delay tactics so as to prolong her unlawful possession of Oscar; and she failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. Ms Edwards claimed that the broadcasts and articles, and their “grapevine effect”, had gravely injured her character and reputation and resulted in her suffering substantial hurt and embarrassment.

4    The proceeding is at a very early stage. Already, however, it has become mired in procedural squabbles between the parties. The rot first started when Nine and Mr Marshall failed to file their defence within the 28 days allowed in the Federal Court Rules 2011 (Cth): see r 16.32. Following some rather intemperate and fairly unhelpful correspondence between the respective solicitors, Nine and Mr Marshall sought an extension of time in which to file their defence. When that application first came before the Court, Nine and Mr Marshall appeared cap in hand, but sans any draft defence. The explanation given for the delay was also far from satisfactory or persuasive. It was little better than the proverbial dog having eaten their homework.

5    Ms Edwards opposed the application. Once bitten, twice shy, she decried. She suspected that Nine and Mr Marshall were sniffing around for some ex post facto justification for their broadcasts. She submitted that Nine and Mr Marshall be required to lay their cards on the table and produce a draft defence before being granted an indulgence by the Court. She also submitted, not without some justification, that Nine and Mr Marshall had failed to provide any, or any satisfactory, explanation for why they had not filed their defence within the permitted time.

6    Nine and Mr Marshall were directed in those circumstances to come back when they had completed their homework, at least in draft.

7    Nine and Mr Marshall in due course filed an interlocutory application. This time the application was supported by an affidavit which annexed a draft defence. That did not, however, placate Ms Edwards. While she did not suggest that she had been materially prejudiced by the delay in filing the defence, she submitted that there were substantive pleading deficiencies in the draft defence. In particular, she claimed that the particulars of some of the positive defences that Nine and Mr Marshall intended to plead were defective or deficient. She submitted that the Court should not grant Nine and Mr Marshall leave to file a defective document.

8    Given Ms Edwards’ substantive opposition to the filing of the defence, the interlocutory application was set down for hearing. Nine and Mr Marshall subsequently served an amended interlocutory application in which they sought leave to file and serve a slightly tweaked version of their draft defence (the proposed defence). The tweaks, however, did not substantively address what Ms Edwards continued to maintain were material defects or deficiencies in the pleading.

9    Ms Edwards’ opposition to the filing of the proposed defence ultimately focussed on three alleged defects or deficiencies in the pleading.

10    The first alleged defect related to a proposed defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW).

11    Subsection 26(1) of the Defamation Act, as at the time applicable to this proceeding, provided as follows:

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

(a)    the matter carried, in addition to the defamatory imputation of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b)    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

…

12    Nine and Mr Marshall plead three contextual imputations in the proposed defence. Ms Edwards’ complaint relates to only one of those contextual imputations.

13    It will be recalled that one of the imputations which Ms Edwards alleged was conveyed by the broadcasts and articles in question was that she, being a barrister, had “deliberately delayed a court case about Oscar”. Nine and Mr Marshall deny that the broadcasts and articles conveyed that imputation. They propose to plead, however, that if the broadcasts and articles did convey that imputation, they also conveyed an imputation that Ms Edwards was “a person who has delayed court proceedings in which she had a personal interest”: paragraph 20.1(c) of the proposed defence.

14    Nine and Mr Marshall also propose to plead that this contextual imputation was substantially true. The particulars of the substantial truth of that imputation are, however, pretty sparse. The particulars allege that Ms Edwards contributed to the delays in the court case concerning Oscar by failing to pay court fees and failing to comply with court deadlines, such as filing affidavits out of time: paragraph 25 of the annexure to the proposed defence. Beyond that, the particulars simply refer to certain paragraphs of a judgment in an entirely unrelated matter: Vintage Marine Art Pty Ltd v Henderson [2021] NSWSC 48 (paragraph 28 of the annexure to the proposed defence). The relevance of those paragraphs, and what they are said to establish, is not explained.

15    Ms Edwards submitted that the contextual imputation in question is defective because it is so vague and general that the facts, matters and circumstances that could be relied on to establish its truth would not necessarily have any “reasonable relationship” to the broadcasts and articles published by Nine and Mr Marshall: see Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [34]-[35] (Hodgson JA (McColl JA and McClellan AJA agreeing)). Ms Edwards also submitted that it is unsatisfactory for the particulars to simply refer to paragraphs in a judgment. In Ms Edwards’ submission, Nine and Mr Marshall should be required to particularise the facts upon which they rely, and not simply leave it up to her and the Court to work out the supposed relevance of the specified paragraphs in the judgment in Vintage Marine.

16    The second alleged defect in the proposed defence relates to the plea of a limited defence of justification pursuant to s 25 of the Defamation Act. Nine and Mr Marshall propose to plead that the imputation that Ms Edwards “a barrister, exploited Oscar for her own financial benefit” was substantially true: paragraph 20.4 of the proposed defence. The particulars of that plea of substantial truth are as follows (paragraphs 14 to 16 of the annexure to the proposed defence):

In or about 2017, Gillespie had established an Instagram account for Oscar. After its establishment, Gillespie had allowed the Applicant to post material to that account, including photographs of Oscar.

On 16 December and 24 December 2019 respectively, the Applicant asserted that Oscar had become a public figure and that the social media account established by Gillespie, and subsequently operated by the Applicant, had become a valuable asset.

On or about 17 December 2019, an attempt was made by the Applicant to gain access to the Instagram account for Oscar, which attempt [sic] locked her out of the account.

17    Ms Edwards submitted that those particulars are not sufficiently precise to let her know the case that she is required to meet: see Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 at [132] (Besanko, Bromwich and Wheelahan JJ). Perhaps more significantly, she also submitted that the particulars, taken at their highest, are incapable of establishing that it is substantially true that she exploited Oscar for her own financial benefit.

18    The third defect identified by Ms Edwards relates to Nine and Mr Marshall’s proposed plea of mitigation. The proposed defence pleads at paragraphs 21.1 to 21.4 that Nine and Mr Marshall will rely, inter alia, upon the following “facts and matters” in mitigation of damages:

21.1     the substantial truth of the imputations in paragraph 7.4 and 10.3 of the SOC and/or the contextual imputations (or so many of them as are established by the Respondents to be substantially true);

21.2.     the facts, matters and circumstances proved in evidence in support of the defences pleaded in this defence;

21.3.     the circumstances in which it is proved that the matters complained of were published;

21.4.     the background context to 21.1 to 21.3 above;     

19    The reference to the “background context” in the last of the specified “facts and matters” is no doubt intended to engage the somewhat obscure and elusive principle that evidence of specific facts is admissible in mitigation of damages if it is “directly relevant background context” to the publication the subject of the defamation proceeding: see Burstein v Times Newspapers [2001] 1 WLR 579, particularly 598-599 (May LJ). I endeavoured, with perhaps only limited success, to make some sense of that principle in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [32]-[46].

20    Ms Edwards contended that Nine and Mr Marshall’s attempt to engage the Burstein principle was defective given no specific facts or specific conduct are identified in paragraph 21.4 of the proposed defence, or the particulars thereto.

21    In pressing for leave to file their proposed defence, Nine and Mr Marshall submitted that the present stage of the proceedings was not the proper time to interrogate the sufficiency of their pleading. They submitted, in effect, that since they have explained the delay and that there is no suggestion that Ms Edwards has suffered any prejudice as a result of the delay, they should be permitted to file the proposed defence. In their submission, if there are in fact any deficiencies in their pleading, those deficiencies can be addressed at a later stage, presumably in the context of an application by Ms Edwards to strike out those parts of the defence.

22    To be fair, Nine and Mr Marshall also maintained that their proposed pleading was not deficient.

23    In relation to the impugned contextual imputation, Nine and Mr Marshall maintained that the imputation, as pleaded, was sufficiently confined and bore a reasonable relationship to the published material. They also defended the imputation by referring to paragraphs of the judgment in Vintage Marine, rather than setting out the facts, matters and circumstances that may be gleaned from those paragraphs. They were, they said, just trying to be helpful because the judgment set out the relevant facts in fairly concise terms. They suggested, however, that if pressed they would be prepared to include those facts in their particulars.

24    In relation to the complaints about their justification defence, Nine and Mr Marshall submitted that the defence was “sustainable and sufficiently particularised to support the maintenance of an arguable defence”. They submitted that the Court’s jurisdiction to strike out a defence in a defamation case, which was the effect of Ms Edwards’ opposition to the defence, should only be “exercised with great care” and that “a plea should not be struck out unless it is perfectly clear that it cannot succeed”: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at [112] (McColl JA), citing Howden v Truth and Sportsman Ltd (1937) 58 CLR 416; [1937] HCA 73 at 418 (Starke J).

25    As for the plea in mitigation and the apparent reliance on the Burstein principle, Nine and Mr Marshall maintained that they have provided detailed particulars in support of their mitigation plea. They asserted that Ms Edwards was well aware of the substance of their case. There was therefore nothing wrong with them pleading their intention to rely on background context.

26    So, what is to be done in respect of this gripping pleadings dispute?

27    There is perhaps something to be said for the proposition that the Court ordinarily does not and should not get involved in considering the adequacy of a pleaded defence at such an early stage of the proceeding. That occurred in the recent case of Barilaro v Shanks-Markovina (No 2) [2021] FCA 950, though the issues raised by the proposed defence in that case were substantive and quite different to the somewhat more mundane issues raised by the pleading issues in this case.

28    The difficulty for Nine and Mr Marshall, however, is that by failing to file their defence within the specified time, they effectively opened themselves up to Ms Edwards’ pre-emptive strike. Had they filed their defence in time, it would unquestionably have been up to Ms Edwards to file an application to strike out the paragraphs of the defence that she now seeks to impugn. The problem, in short, is a problem of Nine’s and Mr Marshall’s own making.

29    More fundamentally, at the end of the day, the overarching objective of case management in this Court, including in defamation proceedings, is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see s 37M(1) of the Federal Court of Australia Act 1976 (Cth). If there are material deficiencies in the proposed defence, as alleged by Ms Edwards, it would plainly be more expeditious, less expensive and more efficient to resolve them now, rather than permit the proposed defence to be filed and effectively require Nine and Mr Marshall to bring an application to strike out the allegedly offending parts of the pleading.

30    It is also well established, albeit mainly in the context of applications to amend, that a party will generally not be permitted to file a pleading if it would be liable to be struck out. The gist or crux of Ms Edwards’ opposition to the application to file the proposed defence out of time is that the offending paragraphs of the pleading would be liable to be struck out on the basis that they are evasive or ambiguous, likely to cause prejudice, embarrassment or delay, or fail to disclose a reasonable defence: see r 16.21(1)(c)-(e) of the Rules. It would, in those circumstances, be counterproductive to permit the filing of a defence which included the offending paragraphs.

31    It is, therefore, appropriate to consider and resolve the pleadings dispute at this early stage of the proceeding.

32    Having dispensed with the complaint by Nine and Mr Marshall that it would be premature to address the adequacy or sufficiency of their defence at this early stage, it is necessary to consider the merits of Ms Edwards’ three complaints concerning the proposed defence. It would be tempting, at least at first blush, to dispense with Ms Edwards’ complaints as amounting to little more than arcane or technical pleading quibbles which would be best left for determination at the trial. Upon analysis, however, there is more to the complaints than first meets the eye.

33    It would also be counterproductive to simply kick the complaints into the long grass, as it were, and leave them to be argued about at trial. That is because, if permitted to stand, the disputed paragraphs are likely to be productive of further and even more annoying interlocutory disputes. In particular, it would appear almost inevitable that Nine and Mr Marshall would endeavour to utilise the Court’s compulsory processes to bolster or shore up their impugned contextual truth and justification defences. Ms Edwards would then be likely to contend, not without some justification, that the utilisation of the Court’s compulsory processes would be an abuse of process in those circumstances: see, for example, Rush v Nationwide News Pty Ltd [2018] FCA 357 (Rush No 1) at [172], and the cases there cited. There is, in short, good reason to keep the parties in this defamation proceeding on a tight leash.

34    Turning, then, to the first complaint, there is merit in Ms Edwards’ contention that the proposed contextual imputation that Ms Edwards is “a person who has delayed court proceedings in which she has a personal interest” is defective or deficient. There is also merit in Ms Edwards’ complaint concerning the particulars provided in respect of the truth of that contextual imputation.

35    First, the proposed contextual imputation is pleaded in inappropriately and, in the circumstances, impermissibly broad and general terms. When, how, why and in what circumstances is it said that Ms Edwards has delayed court proceedings in which she has had some personal interest? Nine and Mr Marshall submitted that the contextual imputation was confined to Ms Edwards’ “conduct as a litigant in 2020 and 2021” (emphasis in original). The basis of that submission was that the particulars only related to Ms Edwards’ conduct as a litigant at that time. That is not, however, the way the contextual imputation has been pleaded. The pleaded imputation is unlimited as to time. It is also unconfined as to, for example, whether Ms Edwards intentionally delayed the proceedings, and as to her motivation for doing so. The problem is that, if the pleaded imputation is permitted to stand, Nine and Mr Marshall could then endeavour to use the Court’s processes in an attempt to obtain evidence of other occasions where Ms Edwards has delayed court proceedings, and then seek to amend their particulars accordingly.

36    Second, and perhaps more substantially, the facts, matters and circumstances which could be relied upon to establish the truth of the alleged imputation, broadly expressed as it is, could scarcely be said to bear a reasonable relationship to the published material. The broadcasts and articles focussed almost entirely on the dispute concerning the ownership of Oscar. It is true that reference was made to the delays in the court proceedings that had been brought to resolve that thorny issue. It could scarcely be said, however, that the gist or sting of the publications in question had anything to do with Ms Edwards’ predilection or proclivity in respect of delaying court proceedings generally. The only assertion or imputation in the publications which had anything to do with delaying court proceedings was the assertion or imputation that Ms Edwards had delayed, or was delaying, the specific court proceeding concerning the disputed ownership of Oscar.

37    Third, the difficulties with the form of the pleaded contextual imputation are compounded by the particulars that are said to be capable of establishing the substantial truth of the imputation. It is plainly insufficient for Nine and Mr Marshall to simply refer to paragraphs from Vintage Marine. They are required to identify the facts, matters and circumstances that they intend to prove by admissible evidence in order to substantiate their claim that the contextual imputation was substantially true. It might also be added that Nine and Mr Marshall cannot simply rely on the judgment in Vintage Marine, which would be inadmissible to prove the existence of a fact that was in issue in that proceeding: see s 91 of the Evidence Act 1995 (Cth).

38    Even putting that obvious deficiency to one side, if it is assumed that the reference to the paragraphs in Vintage Marine is intended to identify facts that would support the claim that Ms Edwards was responsible for some of the delays experienced in that proceeding, the facts and circumstances in Vintage Marine were far removed from the facts and circumstances surrounding the court proceedings concerning Oscar. They do not bear any reasonable relationship to the content of the broadcasts and articles in question or the imputations that may have been conveyed by them. Nor do they explain or justify the broad and general wording of the contextual imputation in question. Even if the facts in Vintage Marine might perhaps be said to support the allegation that Ms Edwards’ conduct contributed to delays in the progress of that particular proceeding, the contextual imputation as pleaded goes well beyond an assertion that Ms Edwards delayed another proceeding (in addition to the one involving Oscar) in which she had some interest. The imputation as pleaded would permit a wide-ranging inquiry into Ms Edwards’ conduct in any proceedings in which she had some interest.

39    There is, therefore, merit in Ms Edwards’ complaints concerning the relevant contextual imputation and the particulars that have been provided in relation to it. The pleading and particularisation of that imputation is evasive or ambiguous, or embarrassing, in the requisite sense, or likely to cause her prejudice. They would, therefore, be liable to be struck out if included in the defence as filed.

40    Ms Edwards’ complaints concerning the proposed justification defence also have merit. The main problem with the justification defence is that the particulars of the facts, matters and circumstances that are said to establish the substantial truth of the imputation that Ms Edwards “exploited Oscar for her own financial benefit”, if proved, and taken at their highest, are not capable of proving the substantial truth of the imputation: see Rush (No 1) at [46].

41    The allegations levelled against Ms Edwards are essentially that: with Mr Gillespie’s permission, she posted material to the Instagram account established by Mr Gillespie; she asserted that Oscar had become a public figure and the Instagram account had become a “valuable asset”; and that she was ‘locked out’ of the account. How, it might be asked rhetorically, does any of that conduct, if proven to have occurred, amount to Ms Edwards “exploit[ing] Oscar for her own financial benefit”? It is difficult to accept that the mere posting of photographs of Oscar amounted to “exploitation”, but even if it did, there is nothing to suggest that Ms Edwards had obtained, or was likely to obtain, any “financial benefit” from that activity.

42    The allegation that Ms Edwards had asserted that Oscar had become a public figure and that the social media account had become a “valuable asset” does not assist. That is particularly the case given that the Instagram account, which Ms Edwards allegedly asserted was a “valuable asset”, had been established by Mr Gillespie. The fact that Ms Edwards was ‘locked out’ of that account would suggest that it remained under Mr Gillespie’s control at all relevant times. The allegation that Ms Edwards “operated” the account would appear to be no more than a reference to the fact that on occasion Ms Edwards posted material to that account, at least before she was ‘locked out’. In those circumstances, even if there was any truth in Ms Edwards’ alleged assertions concerning Oscar’s notoriety and the value of the relevant Instagram account, it does not follow that Ms Edwards had obtained, or was likely to obtain, any financial benefit from the mere posting of photographs on that account given that it was owned, operated or controlled by Mr Gillespie.

43    In their oral submissions, Nine and Mr Marshall sought to expand the particulars to include the fact that Ms Edwards had allegedly asserted “in substance” that she and another person were in fact the “owners” of the relevant Instagram account. That allegation also does not assist. The fact that Ms Edwards alleged that she owned the Instagram account does not mean that she did, in fact, own it. In any event, the point remains that there is no meaningful allegation in the particulars as to how the posting of photographs of Oscar on the account resulted in Ms Edwards obtaining a financial benefit of any sort.

44    The particulars of truth relied on by Nine and Mr Marshall in support of their justification defence are also manifestly deficient as a matter of form. A justification defence must be pleaded and particularised with sufficient specificity and precision to enable the applicant to know the case they have to meet. The particulars of Nine and Mr Marshall’s justification defence manifestly fail to satisfy that requirement. It is entirely unclear from the particulars how the act of posting photographs of Oscar on an Instagram account could be said to constitute exploitation of Oscar. Whether such conduct could amount to exploitation may depend on the number of photographs that were posted and the nature of those photographs. The particulars provide no detail whatsoever in relation to either of those matters. And, as was noted earlier, the particulars provide no detail whatsoever as to the nature of the financial benefit that Ms Edwards is alleged to have obtained or hoped to obtain.

45    In all the circumstances, the justification defence in the proposed defence is evasive or ambiguous, likely to cause prejudice, embarrassment or delay, and fails to disclose a reasonable defence. It would accordingly be liable to be struck out of the defence if it was permitted to be filed.

46    The third complaint, which concerns the attempt to engage the Burstein principle in the context of the plea relating to mitigation of damages, may be dealt with shortly. The problem with the reference, in paragraph 21.4 of the proposed defence, to Nine’s and Mr Marshall’s reliance on the “background context” is that it is effectively meaningless. If evidence of “specific facts” is adduced at trial in support of, for example, the defence of contextual truth, Nine and Mr Marshall may seek to rely on those specific facts on the basis of the Burstein principle. Whether the evidence, or the facts established by it, in fact fall within the Burstein principle is a matter that can only be resolved at trial. It is, however, pointless to plead an intention to rely on “background context” in relation to mitigation of damages without identifying what specific facts, matters or circumstances will be relied on at trial as constituting “background context”. What are the “specific facts”, relevant to the mitigation of damages, which are said to be “relevant background context” to the publication? If there are any facts, matters and circumstances which are said to be relevant to mitigation of damages, but which are not already included in the schedule to the proposed defence, those facts, matters and circumstances should be specifically pleaded or particularised.

47    Paragraph 21.4 of the proposed defence is, in the circumstances, evasive or ambiguous, or likely to cause prejudice, embarrassment or delay, and would, if permitted to remain in the proposed defence, be liable to be struck out.

48    The end result is that Nine and Mr Marshall should not be permitted to file the proposed defence in its present form.

49    Ms Edwards did not contend that Nine and Mr Marshall should be denied the right to defend the proceeding at all. The effect of her submissions was that Nine and Mr Marshall be permitted to file a defence which omits those paragraphs to which she objected: that is, those that relate to the impugned contextual imputation, the defence of justification, and the attempt to engage the Burstein principle. That is the appropriate course to take.

50    The appropriate order, therefore, is that Nine and Mr Marshall have leave to file the proposed defence subject to omitting paragraphs 20.1(c), 20.4, 21.4 of the proposed defence and the particulars in paragraphs 28 and 29 of the annexure to the proposed defence. Nine and Mr Marshall should pay Ms Edwards’ costs of the relevant interlocutory applications.

Associate:

Dated:    6 May 2022