FEDERAL COURT OF AUSTRALIA

Blaylock-Rayner v Seven Network (Operations) Limited [2023] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application filed on 3 May 2023 is dismissed.

2.    The applicant provide particulars of the reply filed on 8 December 2022 within 14 days.

3.    The applicant pay the respondents’ costs of the interlocutory application filed on 3 May 2023, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

ANDERSON J

INTRODUCTION

1    The applicant is a professional paparazzi photographer, and the chief executive officer and co-owner of the photo agency, Coleman-Rayner.

2    In this proceeding, the applicant alleges that the respondents defamed him by the publication of a live interview with Thomas Markle (Interview). That Interview was broadcast on the Sunrise Program, and further republished and promoted online, including via the respondents’ social media channels. Mr Markle is the father of Meghan Markle, Duchess of Sussex – a member of the British Royal Family and a former actress.

3    In his amended statement of claim dated 16 November 2022 (ASOC), the applicant alleges that the Interview conveyed two defamatory imputations, namely that he:

(1)    “is a dishonest management consultant who conned Mr Markle (by deceiving his daughter Samantha) into participating in a photographic shoot as part of a plan to disrupt the royal wedding of Meghan Markle” (imputation (a)) (ASOC [8](a)); and

(2)    “conspired with Harvey Weinstein, a notorious rapist, to take compromising photographs of Harvey Weinstein’s victims that could be used to discourage those women from suing Harvey Weinstein” (imputation (b)) (ASOC [8](b)).

4    In their defence dated 24 November 2022 (Defence), the respondents:

(1)    deny imputations (a) and (b) were conveyed (Defence [8]);

(2)    otherwise plead:

(a)    in relation to imputation (a), that the matter complained of was true (Defence [10]);

(b)    in relation to both imputations, that the matter complained of carried certain contextual imputations which were substantially true (Contextual Imputations) (Defence [11]);

(c)    in relation to both imputations, a defence of honest opinion (Defence [12]).

5    The respondents set out particulars of the truth/contextual truth pleas in the Defence at [1]-[59] (Contextual Truth Particulars).

6    If their defences fail, the respondents also allege various matters in mitigation of damages, including but not limited to:

(1)    those facts, matters, and circumstances they are able to prove in support of their pleaded defences (Defence [13(a)];

(2)    the substantial truth of the various matters alleged in the particulars (Defence 13(c)]); and

(3)    the general bad reputation of the applicant (Defence [13(d)]) (Bad Reputation Plea).

7    By his amended interlocutory application filed on 3 May 2023 (Strike Out Application), the applicant seeks orders pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Rules) striking out:

(1)    a subset of the pleaded Contextual Imputations;

(2)    certain of the Contextual Truth Particulars; and

(3)    the Bad Reputation Plea.

8    The respondents do not press the Bad Reputation Plea and it is therefore not necessary for these reasons to address that aspect of the Strike Out Application in detail.

9    Two further issues arise from the hearing of the application.

10    Firstly, the respondents have filed an interlocutory application by which they seek particulars of the applicant’s reply filed on 8 December 2022 (Respondents’ Application). The parties agreed during the hearing that the applicant would provide the particulars sought in the Respondents’ Application. It is therefore not necessary for these reasons to address the Respondents’ Application in detail.

11    Secondly, the respondents have also filed an affidavit of Ms Justine Munsie, a solicitor, sworn on 2 August 2023 (Munsie Affidavit) which, amongst other things, annexes correspondence enclosing a proposed amended defence (Proposed Amended Defence). By the Proposed Amended Defence, the respondents rely in mitigation of damages on the Contextual Truth Particulars as relevant background material pursuant to Burstein v Times [2001] 1 WLR 579 (Burstein Plea). The applicant submits that this is an impermissible plea.

12    For the reasons that follow, the applicant’s amended interlocutory application filed on 3 May 2023 will be dismissed. It is also not necessary for the Court to determine the permissibility of the respondents’ Burstein Plea for the reasons addressed below.

EVIDENCE ON THE STRIKE OUT APPLICATION AND PLEADINGS

13    On the hearing of the Strike Out Application, the applicant read into evidence the affidavit of Mr Peter Davey, a solicitor, sworn 2 May 2023 (Davey Affidavit). The respondents read into evidence the Munsie Affidavit. Those affidavits principally annexed correspondence concerning the state of the parties’ respective pleadings.

The ASOC

14    As has already been noted, in the ASOC, the applicant alleges that the Interview, which was broadcast on 15 September 2021, conveyed two defamatory imputations, namely imputation (a) and imputation (b). As is the usual course in proceedings of this nature, the ASOC annexes a transcript of the Interview.

15    The Interview was conducted by Natalie Barr and David Koch. Mr Koch introduces the Interview as concerning Mr Markle’s “tumultuous” and “fractured” relationship with his daughter. In introduction, Mr Koch further states that, according to Mr Markle, “as the tabloids made a mockery of him, he was convinced to take staged paparazzi photos before his daughter’s wedding”, referring to photographs taken by the applicant of Mr Markle.

16    In the course of the Interview, Ms Barr observes that it appeared that Mr Markle’s relationship with Ms Markle had started to “go awry” after those photos were taken, and asks Mr Markle about his relationship with Ms Markle. The subsequent exchange between Mr Markle and Ms Barr and Mr Koch is extracted in full below:

[MR MARKLE]     … [A]nd of course the photographs were a set up. I was, ah, set up by a guy named Jeff Rayner and um, um, another guy named Dylan Howard who is, ah, with American Media I think. And the whole thing was a plan to actually mess up the wedding, ah I was just part of it. Basically they went to my oldest daughter and convinced my oldest daughter to convince me to, to have photographs to clean up my image because the photographs before that were always making me look bad.

    So, um, I bought into it and went along. I regret it to this day because it was a total set up, ah, and, ah, Jeff knew – he knew it. Matter of fact he bragged about it on Facebook, ah, he bragged about it to everybody. Um, some day I'd like to, ah, ah, I mean I'm … attempting to sue him. If I, ah, if I fail in suing him I hope to see him someday with ah, with ah, Weinstein because he was also shooting, ah, shooting young women, ah, for Weinstein to, ah, ah - - -

MR KOCH:         Oh

MR MARKLE:     - - - make them look bad so they couldn’t sue him for rape.

MR KOCH:     Yeah. How does that make you feel? From what you’re saying you were conned by your eldest daughter

MR MARKLE:     Yeah ...

MR KOCH:         - - -In cahoots with this management company - - -

MR MARKLE:     No ...

MR KOCH:     to stage these photos that really destroyed your relationship, was the last straw for Meghan Markle.

MR MARKLE:    Let me, let me correct that, um, my daughter, my oldest daughter was conned into conning me. Um, and they, they, they - - -

MS BARR:         By the journalists.

MR MARKLE:     - - - went first to my oldest daughter and said that they would, they would make me look good and, ah, and I, I went along with it. Had I been a little younger and a little smarter it wouldn’t have happened

MS BARR:         Yeah

MR MARKLE:     - - - But, ah, I fell for it and ah, and I fell, I fell a long way for it. So, I do regret it to this day and, ah, I will, I am trying to sue the man and, ah, if I can't succeed in suing him, like I said, I’d be happy to see him … laying beside Weinstein.

17    Mr Markle is subsequently asked how life was for him. In response to this question he states:

Ah, I'm, I'm 77 years old. I had, ah, I had, ah, my first two heart attacks - my first heart attack came because of Jeff Rayner, the person we just talked about.

18    Various other topics are traversed during the Interview which are not directly relevant to the Strike Out Application, namely:

(a)    whether Mr Markle had met his grandchildren;

(b)    Ms Markle’s mental health;

(c)    whether Ms Markle was “controlling”;

(d)    whether Ms Markle was a bully; and

(e)    whether anything could be done to repair Mr Markle’s relationship with Ms Markle.

The Defence

19    By their Defence, the respondents plead, amongst other things, a defence of contextual truth, in reliance on s 26 of the Defamation Act 2005 (Vic) (Act). That defence relies on the alleged substantial truth of the Contextual Imputations. There are nine Contextual Imputations pleaded in the Defence at [11(a)], of which only four are impugned on the applicant’s Strike Out Application (Impugned Contextual Imputations). The Impugned Contextual Imputations are:

vi.     The applicant is a dishonourable man (Impugned Contextual Imputation (vi));

vii.     The applicant behaves dishonestly in his business dealings (Impugned Contextual Imputation (vii));

viii.     The applicant engaged in dishonest conduct designed to portray alleged sexual assault victims of Harvey Weinstein in a bad light (Impugned Contextual Imputation (viii));

ix.     The applicant is a con man (Impugned Contextual Imputation (ix))

20    As previously noted, the Contextual Truth Particulars are at [1]-[59]. Of these, the particulars that are said to support the Impugned Contextual Imputations are set out in the Defence at [26]-[59]. It is these particulars which the applicant seeks to strike out by his Strike Out Application (Impugned Contextual Truth Particulars). The Impugned Contextual Truth Particulars are summarised at [21]-[28] below.

21    At [26] of the particulars, the respondents purport to rely on particulars [1]-[25] in support of the Impugned Contextual Imputations. In summary, those particulars allege that:

(a)    a photographer working for Coleman-Rayner took photos of Mr Markle while he was exiting a convenience store, and provided those photos to the applicant;

(b)    subsequently, the applicant communicated with Mr Markle’s daughter and proposed to take photos of Mr Markle for publication which could “portray him in a sympathetic light and thereby improve his public image”;

(c)    the applicant then contacted Mr Markle, who at the time was 73 years old and in poor health;

(d)    when introduced to Mr Markle, the applicant:

(i)    represented to Mr Markle that he could take and sell images of him which would improve his image in the eyes of the public and the Royal Family, including his daughter and future son-in-law;

(ii)    offered to pay for the photos;

(iii)    promised not to sell the photos taken of Mr Markle referred to at [21(a)] above;

(e)    Mr Markle and the applicant subsequently entered into a written agreement for the taking of photographs and exploitation of those photographs in the media, which included terms that:

(i)    all photographs must have the look of “paparazzi” style photographs with no images looking like posed portraits;

(ii)    Coleman-Rayner would pay Mr Markle an amount in cash and a proportion of all future sales of the images.

(f)    the applicant subsequently took photos of Mr Markle in “contrived positions”, which were “dishonestly intended” to portray Mr Markle in a “false light”;

(g)    the publication of the photos did not improve the image of Mr Markle and, instead, humiliated him and caused him severe distress; and

(h)    the applicant did not pay Mr Markle any part of the fees earned for publication of the photographs until Mr Markle engaged an attorney to demand payment.

22    These allegations will be referred to as the Markle Allegations.

23    At [27]-[35] of the particulars, in support of the Impugned Contextual Imputations, the respondents allege an arrangement between American Media Inc (AMI) and Coleman-Rayner in respect of work for Mr Weinstein. I extract those allegations in full below:

27.     The applicant regularly works with and supplies photographs and information to American Media Inc (AMI) which owns tabloid newspapers and magazines including the National Enquirer.

28.     Dylan Howard was the Chief Content Officer of AMI in the period from about 2013 to 2020.

29.     Mr Howard and AMI had mutual business interests with Harvey Weinstein, including the launch of a TV production unit joint venture in 2015.

30.     Rose McGowan, an American actress, published a series of tweets in October 2016 in which she alleged that she was sexually assaulted by Harvey Weinstein.

31.     In late 2016, AMI contracted the applicant’s company, Coleman Rayner, to obtain information about Rose McGowan. The purpose of obtaining the information was to undermine her credibility and her claims about Harvey Weinstein.

32.     Coleman Rayner assigned one of their employed reporters to contact Ms McGowan and people who knew her with a view to obtaining information about Ms McGowan. The reporter, identifying himself only as “Andy”, interviewed Elizabeth Avellan, the former wife of Robert Rodriguez with whom Rose McGowan had had an extra marital relationship.

33.     On the false pretence that he was writing an article about Ms McGowan, Andy asked Ms Avellan questions about Ms McGowan and obtained information about her which discredited her.

34.     Coleman Rayner provided Andy’s interviews to Dylan Howard who then provided the interview to Harvey Weinstein. Mr Howard described the information as “AMAZING” and Mr Weinstein said “This is the killer. Especially if my fingerprints r not on this.”

35.     The objective of the work performed by Coleman Rayner in procuring the interview about Ms McGowan, together with the publication of the information obtained to AMI, was to exculpate Harvey Weinstein by sourcing salacious and/or negative information about one of his victim survivors. That conduct was despicable. The plaintiff as a principal of Coleman Rayner is responsible for that conduct.

24    These allegations will be referred to as the Weinstein Allegations.

25    At [36]-[40] of the particulars, in support of the Impugned Contextual Imputations, the respondents allege that Coleman-Rayner sold photographs and information to AMI concerning a celebrity, Richard Simmons, which falsely suggested that Mr Simmons was transitioning to become a woman. The respondents allege that, at the time that this information was sold to AMI, the applicant as principal of Coleman-Rayner knew, or was recklessly indifferent, to the fact that Mr Simmons was not transitioning to become a woman. These allegations will be referred to as the Simmons Allegations.

26    At [41]-[45] of the particulars, in support of the Impugned Contextual Imputations, the respondents allege that Coleman-Rayner entered into an agreement with Pacific Magazines whose terms included that Coleman-Rayner would not provide any exclusive “story packages” (being articles and photographs) to third parties without first giving Pacific Magazines an opportunity to acquire the exclusive rights to the story for publication in the New Idea magazine. The respondents allege that, during at least 2017, in breach of this agreement, Coleman-Rayner provided articles and photographs about celebrities to the main commercial competitor magazine of New Idea, Women’s Day, without first offering those stories to Pacific Magazines. The respondents allege that the applicant, as principal of Coleman-Rayner, was responsible for this conduct. These allegations will be referred to as the Pacific Allegations.

27    At [46]-[53] of the particulars, in support of the Impugned Contextual Imputations, the respondents allege that, in February 2017, the applicant took photos of Laraine Emmett outside her home without her consent. Ms Emmett’s daughter, who had passed away, was previously married to Rove McManus. The respondents further allege that, with the applicant’s knowledge, an employee of Coleman-Rayner, Karleigh Smith, deceived Ms Emmett and her husband, Michael Emmett, into providing her an interview, which she recorded without their knowledge. The respondents allege that subsequently, a story comprising the photos and words sold by Coleman-Rayner was published in New Idea under the heading “Belinda Emmett’s parents break their silence: The truth about Rove”, which caused Mr and Ms Emmett considerable distress. The respondents allege that the applicant facilitated the publication of the story, and that he misled New Idea into believing Mr and Ms Emmett consented to publication of their words and images. These allegations will be referred to as the Emmett Allegations.

28    At [54]-[59] of the particulars, in support of the Contextual Imputations, the respondents allege that the applicant sold to New Idea a story and photographs concerning a man who the applicant claimed was Patrick McDermott, the missing former partner of Olivia Newton John. The respondents allege that the photograph was not of Mr McDermott and the applicant knew, or was recklessly indifferent to, the fact that the man in the photograph was not Mr McDermott. These allegations will be referred to as the McDermott Allegations.

29    As previously noted, the respondents also plead, at [13] of the Defence, various matters in mitigation of damages. The respondents relevantly plead:

Further and alternatively the respondents rely in mitigation of damages on:

…

(d)     the bad reputation of the applicant;

…

(g)    the circumstances in which it is proved that the matter complained of was published …

Correspondence concerning Contextual Truth Particulars

30    The applicant subsequently sought further and better particulars of, amongst other things, the Weinstein Allegations. By a letter dated 1 February 2023, the applicant complained that the Weinstein Allegations were “only capable of supporting an allegation that the applicant was a principal of a business engaged by others as part of an attempt by them to exculpate Harvey Weinstein”. The letter enclosed a request for further and better particulars which requested that the respondents give the usual particulars “of the allegation that the objective of Coleman Rayner was to exculpate Harvey Weinstein” (as alleged at [35] of the particulars to the Defence).

31    In a letter dated 8 February 2023, the respondents responded to, amongst other things, the applicant’s complaint regarding the Weinstein Allegations. The respondents relevantly stated:

… the Applicant is a principal of the business that bears his name and may be expected to have known about a job of this nature and to have permitted the conduct involved to occur. This is not a large corporation where the misfeasance of a lowly employee might escape the attention of a principal. The notion that the Applicant would not have known about this referral to his own business from an organization as prominent as AMI, involving a Hollywood personality of the notoriety of Mr Weinstein is farfetched. We observe you do not actually say that this is the case. ·

32    On 16 February 2023, in response to the applicant’s request for further and better particulars concerning the Weinstein Allegations, the respondents stated:

Paragraph 35 [of the particulars] does not allege that Coleman Rayner itself had the objective of exculpating Mr Weinstein. As is apparent from paragraph 31 [of the particulars], the Respondents rely on the fact that the objective of AMI and/or Harvey Weinstein in having Coleman Rayner carry out the work was to exculpate Harvey Weinstein and that this object was conveyed to Coleman Rayner.

33    In light of the respondents’ response, the applicant subsequently requested particulars of how the alleged object of AMI and/or Mr Weinstein was communicated to Coleman-Rayner, and further how any object came to be within the knowledge of the applicant.

34    On 5 April 2023, the respondents responded as follows:

The object of the work and its communication to Coleman Rayner (and its principal the applicant) is to be inferred, at least, from the following facts, matters and circumstances:

(a)     Coleman Rayner tasked one of its reporters ("Andy") to obtain information from Elizabeth Avellan about Rose McGowan.

(b)     Andy asks questions of Ms Avellan which are directed at eliciting salacious and/or negative information about Ms McGowan. The transcript of the interview is publicly available.

(c)     Coleman Rayner supplied a transcript and an audio file of the reporter's interview to Dylan Howard of AMI.

(d)     Mr Howard sent an email to Mr Weinstein on 7 December 2016 informing him of the information which had been obtained and describing it as "AMAZING". Mr Howard noted that Ms Avellan was "a good talker!" and had "laid into Rose [McGowan] pretty hard". ·

Further particulars will be provided following discovery, the issuing of subpoenas and if appropriate interrogatories.

Respondents’ proposed amendment to mitigation of damages plea

35    By letter dated 9 February 2023, the respondents informed the applicant that, in the course of preparing for the hearing, the respondents had identified amendments to the mitigation of damages plea which they proposed to make following the outcome of the Strike Out Application. These amendments are recorded in the Proposed Amended Defence.

36    The relevant amendments involve the deletion of the Bad Reputation Plea at [13(d)] of the Defence, and the amendment of the plea at [13(g)] of the Defence to introduce the Burstein Plea. The proposed amended plea at [13(g) reads as follows:

the circumstances in which it is proved that the matter complained of was published, including the material at particulars [11 to [591 below upon which the respondents rely as relevant background material pursuant to Burstein v Times [200111 WLR 579 …

STRIKE OUT APPLICATION

37    The applicant, by his amended interlocutory application filed on 3 May 2023, relevantly seeks the relief set out below (and additional ancillary relief):

1.     Pursuant to r 16.21 of the Federal Court Rules 2011 (the Rules), the following paragraphs of the defence filed 24 Nfovember 2022 are each struck out:

a.     paragraphs 11(a)(vi), (vii), (viii) and (ix); and

b.     paragraphs 26 to 59 of the particulars of contextual truth; and

…

1A.     The defence be removed from the Court file on the grounds that it:

a.    contains scandalous material;

b.     contains frivolous or vexatious material; and / or

c.     is evasive or ambiguous; and / or

d.     is an abuse of process of the Court,

LEGAL PRINCIPLES

Power to strike out pleadings

38    Rule 16.21 of the Rules provides that a pleading may be struck out on the grounds that the pleading:

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)     is evasive or ambiguous; or

…

(f)     is otherwise an abuse of the process of the Court.

39    Rule 16.21 must be interpreted and applied in light of s 37M of the Federal Court of Australia Act 1974 (Cth), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: KTC v David [2022] FCAFC 60 at [118] (Wigney J).

40    The power to strike out a pleading (or a part of it) is discretionary and ought to be employed carefully, so as to avoid depriving a party of a case which, in justice, it ought to be able to bring: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 (Shepherd J, Jenkinson and Drummond JJ agreeing); Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 at [20] (Murphy J). The Court must consider whether, in the circumstances, striking out the pleading is necessary in the interests of justice according to law: John Holland Pty Ltd v Maritime Union [2009] FCA 437 at [60]-[61] (Graham J); see also Eggerth v EPI International Pty Ltd [2017] FCA 1547 at [3] (Derrington J); Rushton v Commonwealth Superannuation Corp [2020] FCA 777 at [45] (Griffiths J); Delpachitra v University of Technology Sydney [2022] FCA 22 at [7] (Besanko J).

41    It is generally accepted that the power to strike out a pleading will only be used in a plain and obvious case. The party seeking to strike out a pleading carries a not insignificant onus of establishing that the impugned pleading suffers from deficiencies that warrant the relief sought: Eggerth v EPI International Pty Ltd [2017] FCA 1547 at [3] (Derrington J).

42    The applicant’s submissions emphasise that the main function of pleadings and particulars is to alert the other party to the case the applicant must meet at trial, to avoid surprise to that party and consequential delay, and to define the precise issues for determination by the Court: citing, eg, Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] (Greenwood, McKerracher and Reeves JJ). So much may be accepted, but it must also be borne in mind that pleadings are not an end in themselves; they are a means to the ultimate attainment of justice between the parties: Thomson at [13].

43    In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, an appeal concerning the merits of a strike out application in a defamation proceeding, Gleeson CJ, McHugh, Gummow and Heydon JJ endorsed the following key principles:

(1)    a court should not take the step of striking out a pleading lightly, and should do so with great caution: at [6], quoting Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2] (McPherson JA);

(2)    “[t]he fact that reasonable minds may 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”: at [6], quoting Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2] (McPherson JA);

(3)    in determining what the reasonable person would understand a matter to convey, the ordinary person is not inhibited by knowledge of the rules of construction, and can read between the lines in light of that person’s general knowledge and experience of worldly affairs: at [10], quoting Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 (Lord Reid);

(4)    although, for a lawyer, an implication in a text must be necessary and reasonable, ordinary readers draw implications much more freely, especially when they are derogatory: at [11];

(5)    the Court must consider the “broad impression conveyed by the libel” and not “the meaning of each word under analysis”: at [11], quoting Lewis at 285.

44    Recent examples of strike out applications in defamation cases under r 16.21 of the Rules may be found in the following decisions: Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [36]-[38] (Wigney J); Rush v Nationwide News Pty Ltd [2018] FCA 357 at [42]-[43] (Wigney J); Faruqi v Latham [2018] FCA 1328 at [15]-[17] (Wigney J); Hanson-Young v Leyonhjelm [2018] FCA 1688 at [9] (White J); and Parke v Rubenstein (No 2) [2021] FCA 107 at [20] (White J).

45    In Faruqi at [16]-[17], Wigney J articulated the Court’s approach to strike out applications in a defamation context as follows (citations omitted):

The capacity determination is “an exercise in generosity not parsimony” …

The caution that should be exercised in considering whether to strike out a pleading, or part of it, in a defamation case based on a capacity determination, is consistent with the principles that apply generally to the striking out of pleadings pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case … The Court is careful to ensure that it does not, in striking out a pleading, prevent a party from making a case that it is entitled to make.

46    Underlying the concern in some of the authorities to avoid striking out a pleading concerning whether an impugned publication is capable of conveying a defamatory imputation was the risk of depriving a plaintiff (in this Court, applicant) of an opportunity to present his or her case to a jury: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [137] (McColl JA). Of course, in this Court, the tribunal of fact will be a judge sitting alone. However, this Court has not adopted a less onerous test for strike out applications in defamation proceedings. To the contrary, this Court’s Defamation Practice note (DEF-1) states that issues concerning the capacity of a matter to convey a pleaded meaning and whether a pleaded meaning is capable of being defamatory should not ordinarily be litigated as separate questions at an interlocutory stage as they will be subsumed in the issues to be determined at trial. This was reflected in the observations of White J in Palmer v McGowan [2021] FCA 430 who said at [12]:

These matters [that proceedings are generally determined by a judge alone and the court’s emphasis on the quick, efficient and inexpensive disposition of defamation proceedings] mean that it will often be the case that issues concerning the capacity of an impugned statement to convey the defamatory meaning pleaded, or whether a pleaded meaning is capable of being defamatory, are regarded in this Court as inappropriate for interlocutory decision. Issues of that kind are instead subsumed in the issues to be determined at trial. Paragraph [4.10] of the Court’s Defamation Practice Note (DEF-1) reflects that understanding. The Court does not encourage interlocutory activity about these matters. That does not preclude there being cases in which interlocutory determination of issues of this kind will be appropriate. However, any party seeking the strike out of a defamation pleading on the ground of lack of capacity or lack of defamatory meaning should understand that applications of this kind are likely to be granted by the Court only in clear cases and when the advantages of determination of the issue at interlocutory level are very apparent.

47    The utility of considering the question of whether a publication is capable of conveying a defamatory meaning on an interlocutory basis before trial has been questioned where a trial will be conducted by a judge alone: Murphy v Nationwide News Pty Ltd [2017] FCA 603 at [14] (White J); Goodfellow at [78] and Faruqi at [13].

Contextual truth defence

48    Section 26 of the Act provides a defence to the publication of a defamatory matter if a respondent proves that the matter carried one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations of which the applicant complains (that are not contextual imputations) and are also carried by the matter, do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations. Section 26(2) (as amended on 1 July 2021) permits a respondent to rely on an imputation about which the applicant complains as a contextual imputation.

49    In Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, referring to a similar provision in the Defamation Act 2005 (NSW), McColl JA (with whom Beazley and Giles JJA agreed) stated (at [85]) that the mischief to which the contextual truth statutory defence was directed was the defect in the common law position identified by Lord Denning in Plato Films Ltd v Speidel [1961] AC 1090. Lord Denning articulated that defect (at 1142) as follows:

Suppose a newspaper said of a man: “He has murdered his … father, stolen from his mother and does not go to church on Sundays," and the plaintiff brings a libel action complaining only of the imputation that he does not go to church. The defendants, said Mr. Gardiner, cannot justify the major charges of murder and theft, because the plaintiff has not complained of them. They cannot give evidence of them in mitigation of damages because they are only specific instances. What is, then, the position? It would, says Mr. Gardiner, be most unjust that the plaintiff should get damages for the minor matter when, if the jury had had the whole before them, they would have given him nothing. I agree it would.

50    In Kermode, McColl JA went on to observe (at [85]) that the effect of the contextual truth statutory defence was as follows:

A defendant will be able to defeat a plaintiff’s cause of action if its substantially true contextual imputation(s) outweigh the plaintiff’s defamatory imputations. A plaintiff will not be able to avoid serious stings in defamatory matter by selective pleading.

51    The elements of a defence of contextual truth have recently been considered by this Court in Palmer v McGowan (No 5) [2022] FCA 893 at [317]-[321] (Lee J) and Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [120]-[127] (Abraham J). Those cases make clear that there are four elements to the defence of contextual truth (Palmer No 5 at [318]; Nassif at [121]):

(a)    firstly, that the matter carried one or more other imputations;

(b)    secondly, those other imputations are conveyed in addition to the applicant's defamatory imputations.

(c)    thirdly, the contextual imputations are substantially true; and

(d)    fourthly, the applicant's defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.

52    With respect to the first and second of these elements, the applicant relies on authorities which are to the effect that contextual imputations must “differ in substance” from the imputations pleaded by an applicant, albeit, they need not differ in kind: Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341 at [42], [70]-[74] (McColl JA, McFarlan JA agreeing, and Sackville AJA agreeing on this point); Palmer at [17].

53    In response, the respondents note that a matter may convey a contextual imputation of a general nature, which differs in substance from the specific imputations of which the applicant complains: Palmer No 5 at [319], citing Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [62] (Gleeson JA, with whom McColl JA and MacFarlan JA agreed). As noted by McColl JA in Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [319], the question of whether a particular charge of wrongdoing carries a general charge “may depend on the context in which the words are used” and the “gravity of the misconduct imputed in the particular charge”.

54    An overview of the authorities was provided by Lee J in Palmer No 5 (at [319]) as follows (citations omitted):

[I]t is well-established that a matter may convey a contextual imputation of a general nature, which differs in substance from one or more specific imputations of which the applicant complains … Indeed, in some cases, “a single alleged instance of misconduct will be so serious that it may, at the same time, convey a general charge” … The question of whether a particular charge of wrongdoing carries a general charge “may depend on the context in which the words are used” and the “gravity of the misconduct imputed in the particular charge

55    As to the fourth element of the contextual truth defence, the applicant notes that a defence of contextual truth must defeat the whole defamatory matter of which the applicant complains. That is, the Court must find that, because of the substantial truth of the contextual imputations, the defamatory imputations complained of by the applicant do not further harm the applicant’s reputation: Abou-Lokmeh at [29].

56    In response, the respondents note that Spigelman CJ said of a very similar section in the Defamation Act 1974 (NSW) in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434 at [5]:

Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not “further injure the reputation of the plaintiff”. For the purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.

57    The respondents emphasise that the Court does not engage in a comparison of individual imputation against individual contextual imputation. The Court’s focus is, instead, on the evidence relied on to establish the truth of the contextual imputations: Blake at [4]-[6]; see also Palmer No 5 at [321]; Abou-Lokmeh at [29] (McColl JA). Thus, as noted by Lee J in Palmer No 5, “[t]he question is whether the truth, as so established by that evidence of the contextual imputations (not the language in which they are expressed), is such that [the applicant’s] reputation is ‘not further harmed’ by any of his imputations which are not defensible”: at [321].

58    The judicial approach to analysing whether a matter carries an additional contextual imputation (the first and second elements of the contextual truth defence) is illustrated by McColl JA’s judgment in Abou-Lokmeh. In that case, the plaintiff had pleaded that a broadcast conveyed an imputation that, amongst other things: “[The plaintiff] paid to have [his wife, Ms Issa] murdered”. In response, the defendant pleaded, amongst other things, the following contextual imputation: “[The plaintiff] wanted [Ms Issa] to be killed”. The plaintiff sought to strike out the pleaded contextual imputation. McColl JA declined to do so.

59    McColl JA relevantly observed that the Court should not strike out the pleaded contextual imputation unless it was “obviously untenable” or “unarguably bad”: at [28].

60    McColl JA stated that in order for a contextual imputation to be carried “in addition to” the plaintiff’s defamatory imputations, the contextual imputation must “differ in substance” from the alleged defamatory imputations: at [30]. McColl JA accepted that the “differ in substance” test was able to be satisfied by a defendant pleading a contextual imputation in general terms: at [32].

61    McColl JA was satisfied that, in this case, the general contextual imputation relied on by the defendant (that the plaintiff wanted Ms Issa to be killed) differed in substance from the alleged defamatory imputation relied on by the plaintiff (that the plaintiff paid for Ms Issa to be murdered). McColl JA noted that:

(a)    the particulars in support of the contextual imputation ranged over a greater factual matrix than the incident referred to in the matter complained of, and were unrelated to the specific instance identified in the matter complained of (at [42]);

(b)    the alleged defamatory imputation was specific in nature, whereas the contextual imputation, although related to the same subject matter, conveyed a different, potentially broader sting (at [43]);

(c)    in most cases, a general allegation will differ in substance from a particular allegation (at [44]); and

(d)    the gravity of the defamatory imputation differed to that of the contextual imputation (at [45]).

62    McColl JA (at [47]-[48]) relevantly concluded:

I am conscious that the question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of defamation cases.

However, in my view [the plaintiff] has not established that contextual imputation (i) is obviously untenable or unarguably bad. It is at least arguable that the jury could find that [the plaintiff’s alleged defamatory imputation and the defendant’s contextual imputation] differed in substance. That is sufficient at the strike-out stage to make it inappropriate to strike it out.

63    In Palmer, White J also considered an application by an applicant, Mr McGowan, to strike out various contextual imputations pleaded by the respondent, Mr Palmer. Mr McGowan pleaded that Mr Palmer had published various statements which conveyed, amongst other things, the defamatory imputation that:

As Premier, Mr McGowan had corruptly attempted to cover up the personal involvement of himself and others in criminal acts by overseeing the passing of laws designed to provide exemptions [for] them from the criminal law.

64    In response, Mr Palmer pleaded that the publications conveyed seven contextual imputations, one of which was that “Mr McGowan is a dishonourable man”.

65    Mr McGowan sought to have this contextual imputation struck out on the basis that, inter alia, it was not capable of being conveyed, given the specific nature of the allegations in the impugned matter. White J rejected this submission and relevantly stated (at [90]):

by a series of rhetorical questions in the impugned matters, Mr Palmer made accusations about Mr McGowan breaking the law ([1]), covering up his own conduct ([1] and [11]), enacting legislation which took away the rights of the Press, the rights of the people of the State to make FOI requests so as to find out what Mr McGowan had done, and the rights to natural justice and access to legal process, betraying the rule of law ([1], [2], [7] and [10]), and enacting legislation to subvert the effect of two arbitral awards ([8]). It cannot reasonably be concluded that these statements are not capable of conveying the [Contextual Imputation 14].

66    White J went on to assess whether other defamatory imputations of which Mr McGowan complained were capable of conveying an equivalent contextual imputation that “Mr McGowan is a dishonourable man”. In one further case, White J held that it was at least arguable that this contextual imputation was conveyed (at [115]). In another case, White J struck out the contextual imputation on the basis that, having read, and reread the impugned statements by Mr Palmer, he was not able to discern on even an arguable basis that the imputation was conveyed (at [131]).

Challenges to the form and precision of imputations

67    The applicant’s attack on the Contextual Imputations also relies on the alleged imprecision of the Contextual Imputations. In this respect, the applicant notes that, in Adeang v Australian Broadcasting Corporation [2016] FCA 1200, Rares J observed (at [14]) that the statutory contextual truth defence required the respondent to formulate the meaning about a matter, being an “act” or “condition”, asserted or attributed to the applicant. Rares J stated that the respondent must plead any contextual imputation with a “sufficient degree of specificity that is related to the nature and content of the matter complained of” and “must specify an act or condition with appropriate clarity”: at [72]. Rares J also stated that, if a respondent seeks to justify an imputation or allegation of the commission of a criminal offence or misconduct, such a defence must be pleaded and proved with all the particularity and strictness of the proof of an indictment: at [15]. Rares J further accepted that: “[a]t an early stage of a defamation action it is usually important to deal with arguments about the capacity of a matter complained of to convey the imputations or meanings on which each party relies”: at [16].

68    In Adeang, the Minister for Justice of the Republic of Nauru sued in defamation the Australian Broadcasting Corporation (ABC) over a broadcast on two of its television stations. The ABC sought to rely on two contextual imputations, namely:

1    David Adeang, one of the most powerful figures in Nauruan politics, systematically violates the principles of democracy and the rule of law in Nauru in order to further his own agenda. ...

2    David Adeang, as a Minister of the Nauruan Government, obstructed the administration of justice on Nauru

69    Rares J ultimately concluded that the first imputation should be struck out on the basis that it was unacceptably vague and imprecise: at [72]. Rares J relevantly stated (at [71]):

Imputation 1 bundled together, in a vague, general and confused way concepts of systematic actions that violated two distinct sets of principles (democracy and rule of law) that Mr Adeang was accused of perpetrating in order to pursue an unelaborated “agenda”. I am of opinion that imputation 1 is so vague and imprecise that it should be struck out as calculated to cause prejudice. It is embarrassing. It asserts more than one act or condition and jumbles together a confusing melange of concepts – system, principles of both democracy and rule of law, and Mr Adeang’s “own agenda”.

70    Rares J held that the second imputation was capable of being conveyed by the matter complained of and was appropriately specific: at [75].

71    A further case on which the applicant relies is Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. In Drummoyne, the plaintiff had pleaded that two television broadcasts by the ABC conveyed an imputation that the plaintiff was “corrupt”. The New South Wales Court of Appeal (Gleeson CJ and Priestley JA in separate judgments; Kirby P dissenting) dismissed an appeal from a trial judge’s orders striking out the imputation. Gleeson CJ relevantly held (at 140):

[I]t is possible to discern certain particular forms of misconduct that might be said to be attributed to the [plaintiff] by the matter published, and it is possible to be more specific than the pleader has been as to the forms of corruption said to have been imputed to the Council. It is also appropriate to require the pleader to be more specific because, unless that is done, there is likely to be confusion in relation to the meaning for which the appellant contends. It is to the end of avoidance of confusion and uncertainty that the requirement of specificity is directed, and the practical content of the requirement in the present case is to be determined in that light.

72    The respondents note that, while a pleading that employs ambiguous language such that the other party is genuinely prejudiced by a lack of fair or adequate notice of the case that must be met, or is otherwise likely to cause prejudice or embarrassment, may be wholly or partly struck out, modern case management principles tend against an overly meticulous approach when considering the adequacy of a pleading. Thus, in Goodfellow, Wigney J stated at [34] that the basic purpose of a pleading is to clearly define the issues to be tried and to allow the other party an opportunity to know the case that they are required to meet. His Honour went on to state (at [34], [36]) (citations omitted):

If that object is met, it is difficult to see why a pleading, or part of it, should be struck out, even if there may be some degree of infelicity in the language employed in the pleading, and even if it is possible to conceive of ways the pleading could perhaps be improved. Pleadings are, after all, a means to an end, not an end in themselves …

…

It may generally be accepted that a pleading that employs ambiguous language may be wholly or partly struck out if the result is that it fails to identify the material factual allegations to the extent that the other party is not given fair or adequate notice of the case that must be met. Likewise, a pleading is likely to cause prejudice or embarrassment if, by reason of the language employed or otherwise, it is ambiguous and susceptible to various meanings to the point where the other party may not fairly know the case alleged against them … If, however, the pleading as a whole, read fairly and in context, adequately reveals the case that the other party has to meet, it is hard to see why the pleading, or part of it, should be struck out merely because it employs a word or words that, read in isolation, might in some circumstances be said to be susceptible of more than one meaning. Modern case management and practice and procedure in this Court demands that a practical and common sense approach should be taken to pleading disputes.

73    It follows that, while the pleaded or particularised meanings or imputations must be sufficiently clear or specific such that the relevant party knows the case they have to meet, an “overly technical or pedantic approach” to the pleading of imputations should be avoided: Goodfellow at [41].

74    In Drummoyne (at 137), Gleeson CJ provided the following guidance regarding the Court’s approach to assessing whether an imputation has been pleaded with the requisite specificity:

The requirement that a plaintiff must “specify” the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend on the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter.

75    The above extract of Gleeson CJ’s reasons was quoted by Wigney J in Goodfellow at [41].

76    It is also important that a particularised imputation be read in context, including in the context of the publication which is alleged to have conveyed the meaning or imputation: Goodfellow at [45], citing Favell at [17].

77    It follows that the specificity of an imputation should be approached in a practical common sense way. Ultimately, the question is whether the pleaded imputation is sufficiently clear to enable the other party to plead substantially in answer to it, or if there is likely to be confusion either at the pleading stage or at trial in relation to the meaning of the imputation: Goodfellow at [46].

Challenges to the adequacy and sufficiency of particulars

78    Pursuant to r 16.41 of the Rules, 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. Rule 16.41 is supplemented by r 16.43, which provides that:

(1)     A party who pleads a condition of mind [defined to include knowledge and any fraudulent intention] must state in the pleading particulars of the facts on which the party relies.

(2)     If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

79    Particulars provided in support of a defence of justification must generally satisfy two requirements. Firstly, they must be capable of proving the truth of the meaning sought to be justified. Secondly, they must be sufficiently specific and precise to enable a claimant to know the case they are required to meet: Rush at [46].

80    An example of a case in which the particulars of a truth defence were struck out, and on which the applicant places some emphasis, is Wing v Australian Broadcasting Corporation [2018] FCA 1340 (Rares J) (Wing First Instance Decision). In that case, the applicant, Dr Wing, claimed that material published by the respondents imputed, amongst other things, that he had bribed, or been knowingly involved in a bribe of the President of the General Assembly of the United Nations. The relevant imputations were as follows:

Imputation 5(f): The Applicant paid Sherri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in advancing the interests of the Chinese Communist Party in his dealings with the Australian government.

Imputation 5(g): The Applicant paid a $200,000 bribe to the President of the United Nations, John Ashe.

Imputation 5(h): The Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

81    The respondents alleged that Imputations 5(f)-(h) were substantially true. In support of this defence, the respondents pleaded particulars of truth which broadly comprised:

(1)    allegations concerning the relationship between Sherri Yan and the applicant (paras 61-63);

(2)    allegations concerning Ms Yan’s alleged activities in Australia, including an allegation that a raid in October 2015 by the Australian Security Intelligence Organisation and the Australian Federal Police of Ms Yan and her husband’s property resulted in the retrieval of highly classified Australian intelligence documents (paras 64-68),

(3)    allegations contained in a criminal complaint filed in a United States District Court proceeding against Ms Yan and others, including allegations that:

(a)    Ms Yan and other co-conspirators paid a bribe to John Ashe, the Antiguan permanent representative to the United Nations and the President of the General Assembly, in exchange for him attending a conference in Guangzhou, China;

(b)    a co-conspirator of Ms Yan (identified only as CC-3) had organised the conference and made the payment to Mr Ashe (paras 70-72);

(4)    allegations that the applicant had organised the conference in Guangzhou, China at which Mr Ashe spoke (paras 73-74);

(5)    allegations that Ms Yan had subsequently pleaded guilty to certain of the allegations in the criminal complaint and made oral admissions in court broadly to the effect that she, along with others, had paid Mr Ashe in exchange for obtaining his support for their business (paras 75-76);

(6)    an allegation contained in a statement by Andrew Hastie MP in Parliament that he had been informed by a US intelligence agency that CC-3 was the applicant (para 79);

(7)    a conclusion that it may be inferred from the particulars that:

(a)    CC-3 is the applicant (para 80(a));

(b)    the applicant must have known that Ms Yan was corrupt (para 80(b));

(c)    the applicant knowingly participated in the payment of a bribe to Mr Ashe (para 80(c));

(d)    the applicant did so in order to profit from Ashe’s activities on behalf of the co-conspirators in return for the bribe (para 80(d)).

82    Rares J struck out the allegation in para 79 because it was in breach of s 16(3)(a) of the Parliamentary Privileges Act 1987 (Cth): Wing First Instance Decision at [38]. Rares J held that the other particulars summarised above should be struck out on the basis that they were not reasonably capable of supporting the respondents’ plea of truth: at [109]. In reaching this conclusion, Rares J observed that the criminal complaint and Ms Yan’s guilty plea were hearsay and generalised allegations that did not provide a basis on which the applicant had a sufficiently clear statement of the case alleged against him: at [104]. Rares J went on to state (at [107]):

The striking feature of the particulars is the absence of any allegation about what Dr Wing did, when he did it or how he knew anything about any of the matters alleged. Moreover, the particulars of Dr Wing’s alleged state of mind in par 80 do not comply with r 16.43. Perhaps this is why par 80 then asserted, without any basis, that Dr Wing “must have known that [Ms] Yan was corrupt” and that he somehow “knowingly participated” in the payment of the … bribe.

83    Rares J’s conclusion was upheld by the Full Court: Australian Broadcasting Corporation v Wing (2019) 271 FCR 632 (Besanko, Bromwich and Wheelahan JJ) (Wing Appeal). The Full Court relevantly held at [162]:

What is remarkable about the allegations in paragraphs 70 to 79 of the respondents’ particulars is that, apart from the allegation in paragraph 73(c) [which alleged that the applicant had hosted the conference in Guangzhou, China], there are no direct allegations of material fact made in relation to any conduct of the applicant. Rather, the particulars allege as material facts: (1) allegations in court documents in a foreign court proceeding; (2) the hearing and outcome of a proceeding against Sheri Yan; and (3) statements made by Mr Hastie MP to the Federal Parliament. No material facts alleged in paragraphs 70 to 79, either alone or in combination, are capable of supporting the very serious allegations that are made in paragraph 80. The respondents’ attempt to justify the applicant’s imputations 5(f), (g), and (h) is untenable.

84    In reaching this conclusion, the Full Court (at [45]) quoted with apparent approval the following statement by Kennedy LJ in Wootton v Sievier [1913] 3 KB 499 at 508:

In every case in which the defence raises an imputation of misconduct against him, a plaintiff ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also of the acts which it is alleged that he has committed and upon which the defendant intends to rely as justifying the imputation. … [The propriety of this rule] is most evident in a libel case where the defendant has chosen to put the character of the plaintiff in serious jeopardy by the heinousness of the charges which are asserted or involved in the defendant’s plea of justification. In such a case, at all events, the pronouncement of Alderson B in Hickinbotham v Leach (1842) 10 M & W 361, 364, approved of and explained in reference to the modern system of pleading by Lord Esher M.R. in Zierenberg v Labouchere [1893] 2 QB at p 187, is not one whit too strong: “The plea ought to state the charge with the same precision as in an indictment.”

85    The Full Court further stated (at [46]):

What underlies these observations is that if a defendant makes a defamatory statement about a plaintiff that is general in nature, any particulars of justification must descend to specific facts on which the defendant will rely, and in the case of serious conduct including criminal offences, a plaintiff should have fair notice of the case to the same degree as a criminal indictment

86    Notwithstanding the above, the difficulty faced by a court on an application to strike out a contextual truth defence based on an asserted insufficiency or inadequacy of the particulars, and the resulting need for caution, arises because in determining the strike out application, it is necessary to make factual evaluations which are difficult to render in the context of an interlocutory hearing, which is necessarily “pitched at an evaluative (low) threshold of showing respectable arguability”: Rush at [48] quoting Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [33] (Kenneth Martin J).

87    The Court must also bear in mind that the particulars are simply a summary of the relevant facts, and are therefore unlikely to be as fulsome as the evidence that may ultimately be led to prove those facts: Rush at [49]. In Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376, Hodgson JA (with whom Santow and Tobias JJA agreed), said at [20]:

For my part I would accept that there could be circumstances where particulars fall so short of being capable of supporting the truth of imputation that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.

88    As stated by Wigney J in Rush (at [50]):

[T]he Court must determine whether the particulars that have been provided, taken at their highest, are capable of proving the truth of the defamatory imputations that are sought to be justified. In making that determination, the Court must not only bear in mind that the particulars are a bare outline of the facts that the claimant will seek to prove, but also exhibit the “curial caution” that must necessarily be exhibited in determining, at an interlocutory stage, factual issues that may be better finally determined on the basis of all of the evidence led at the trial.

89    Further, in assessing the sufficiency of particulars in a circumstantial case, it is necessary in an application of the present kind to have regard to the cumulative effect of the particulars: Wing Appeal at [135].

90    As to the requirement that the particulars of truth be specified with the same precision as in an indictment, the requirement is one of specificity and precision. The issue is not how much information is provided in the particulars, but whether the information that is given is sufficient to give the applicant sufficient notice of exactly what the respondent alleges against him or her in the context of a defence of justification of contextual truth: Rush at [54]; Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [12] (McCallum J).

Burstein and mitigation of damages

91    Before turning to the Burstein principle, it is necessary to locate that principle within the framework of the law concerning mitigation of damages in a defamation trial. That framework was usefully provided by Jackman J in Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688 at [6]-[8]. The starting point is that, evidence of general bad reputation is admissible in reduction of damages, but that evidence of rumours that the applicant has done what was charged and evidence of particular acts of misconduct on the part of the applicant tending to show his character and disposition are inadmissible: see Schiff at [6] and the authorities there cited. There are three exceptions to this rule of which two are relevant in this proceeding. Those exceptions were summarised in Schiff at [8] as follows:

(a)     evidence properly before the Court on a defence of justification, contextual truth or honest opinion can be taken into account in mitigation of damages: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 (Neill LJ). …

…

(c)    evidence of specific conduct by the applicant is admissible in mitigation of damages if it is “directly relevant background context” to the publication of the defamatory matter: Burstein at [42] (May LJ, with whom Sir Christopher Slade and Aldous LJ agreed).

92    In Burstein, the claimant, a musical composer, claimed that a publication in the Times that he “used to organise bands of hecklers to go about wrecking performances of modern atonal music” was defamatory of him. In proceedings for libel against the defendant publishers, the defendants relied on a defence of fair comment on a matter of public interest. The trial judge struck out that defence. In relation to the assessment of damages, the trial judge refused to allow the publisher to rely, in mitigation of damages, on facts it had pleaded in support of its defence of fair comment. Those particulars broadly alleged that the claimant had associated with a group called the Hecklers to oppose modernist atonal music, that the group had encouraged the public to boo at the end of the performance of an opera, and that the claimant had been present at the performance and had booed. The Court of Appeal of England and Wales held that the trial judge erred in excluding evidence of certain of the particularised facts.

93    May LJ (with whom Aldous LJ agreed) recognised that evidence in support of certain of the particulars relied on by the defendants was properly excluded because those particulars were “tendentious and essentially irrelevant” to the subject matter of the allegedly defamatory publication. Nonetheless, May LJ held (at [42]) that some of the particulars on which the defendants sought to rely ought to have been admitted into evidence at trial. In May LJ’s opinion, those particulars constituted “directly relevant background context”: at [42]. May LJ held that to “keep that away from the jury was … to put them in blinkers”: at [41].

94    In Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564 at [43], Wigney J observed that some uncertainty remains as to what sort of evidence can be admitted pursuant to the Burstein principle as “directly relevant background context”. On the basis of a thorough analysis of Burstein, Wigney J concluded (at [42]) that this expression referred to:

evidence of misconduct on the part of the claimant which, while not sufficient to make out a defence of justification, nevertheless was conduct which was in the same sector of the claimant’s life as the defamatory publication and was therefore directly relevant to his or her reputation. The example given by Lord Denning in Speidel [in which Lord Denning stated that a defendant could adduce evidence of two convictions of dishonesty in partial justification of a publication alleging that a plaintiff had been convicted of dishonesty six times] is a classic example of such evidence.

95    His Honour went on to state (at [45]):

[T]he facts which are able to be pleaded and proved in the mitigation of damages pursuant to the Burstein principle must concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication. The rationale for permitting evidence of such facts being led is that otherwise damages may be assessed on a false basis.

96    The Full Court in the Wing Appeal was reluctant to consider the metes and bounds of the applicability of the Burstein principle. The Full Court cautioned that, to do so, the Court would need to consider “how Burstein can be reconciled with other principles, including those applied by the House of Lords in Plato Films Ltd v Speidel”: at [84]. Nonetheless, as noted by Wigney J in Rush (No 2) at [46], it does not seem to be in doubt that the principle articulated in Burstein has been accepted in Australia: see, eg, Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at [179] (Gleeson JA, with whom McColl and Meagher JJA agreed); see also the recent articulation of the principle in Schiff at [22].

CONSIDERATION

Contextual Imputation (vi) – The applicant is a dishonourable man

97    The applicant contends that Contextual Imputation (vi) should be struck out for three reasons.

(1)    Firstly, the applicant contends that the imputation is not capable of being conveyed by the Interview. The applicant’s contention is that the Interview does not discuss concepts of honour or dishonour, nor does it impute the general quality of dishonour to the applicant.

(2)    Secondly, the applicant contends that the imputation is impermissibly vague because the term “dishonourable” encompasses a melange of concepts which may imply more than one underlying act or condition.

(3)    Thirdly, the applicant contends that the imputation lacks sufficient specificity to relate it to the nature and content of the matters of which the applicant complains.

98    I reject the applicant’s contentions.

99    As to the applicant’s first contention, as previously stated, the Court will ordinarily only exercise its power to strike out a pleading in a plain and obvious case: Eggerth at [3]. Moreover, any capacity determination is an exercise in generosity and not parsimony: Faruqi at [16]. The Court must consider the “broad impression” conveyed by the matter complained of, and not “the meaning of each word under analysis”, bearing in mind that the ordinary person can “read between the lines”: Favell at [10]-[11], quoting Lewis at 258, 285.

100    Having regard to these principles, I am satisfied that the Interview is at least capable of conveying a quality of dishonour to the applicant. There are various references in the Interview that, taken together, would appear to convey, or at least are capable of conveying, the broad impression that the applicant is a dishonourable man. Those references are:

(1)    Mr Markle’s statement that “the photographs were a set up”;

(2)    Mr Markle’s related statement that he was set up by the applicant, and that the applicant knew it;

(3)    Mr Markle’s statement that “the whole thing was a plan to actually mess up the wedding”;

(4)    Mr Markle’s statement that the applicant went to his eldest daughter and “conned [her] into conning [him]”;

(5)    Mr Markle’s statement that Mr Markle’s daughter was convinced to convince Mr Markle to taking the photographs “to clean up his image because the photographs before … were always making [him] look bad”;

(6)    Mr Markle’s statement that he was “attempting to sue [the applicant]”;

(7)    Mr Markle’s statement that the applicant had bragged about his conduct on Facebook “to everybody”;

(8)    Mr Markle’s statement that he would “hope to see [the applicant] someday with … Weinstein because he was also shooting ... young women … for Weinstein to … make them look bad so they couldn’t sue him for rape”;

(9)    Mr Markle’s statement that he “fell” for the applicant’s set up, that he regretted it, and that he thought that if he had been “a little younger and a little smarter it wouldn’t have happened”;

(10)    Mr Markle’s statement that he would be happy to see the applicant “laying beside Weinstein”; and

(11)    Mr Markle’s reference to suffering a heart attack because of the applicant.

101    The above allegations are multiple and traverse not only the applicant’s deception of Mr Markle’s daughter, but also include allegations about: Mr Markle’s particular vulnerability to being deceived into agreeing to have photos taken of him (his age, and the fact that previous photographs of him “were always making [him] look bad”); the consequences of that deception (that Mr Markle suffered a heart attack); and the applicant’s alleged work in aid of Mr Weinstein to discredit rape victims. In my opinion, those allegations are capable of sustaining Contextual Imputation (vi) at least at the strike out stage of this proceeding.

102    The applicant’s second and third contentions raise questions about the appropriate case management of a proceeding of this nature. The Defamation Practice Note DEF-1, states that issues concerning the capacity of a matter to convey a pleaded meaning should not ordinarily be litigated at an interlocutory stage. As noted by White J in Palmer at [24], while this does not preclude the Court from striking out the Contextual Imputations if satisfied that they are impermissibly imprecise or lacking in specificity, the Court must be persuaded that there are clear advantages to doing so.

103    In the present case, I am not satisfied that Contextual Imputation (vi) is so imprecise or lacking in specificity as to warrant being struck out for the following reasons.

104    Firstly, a plea in a defamation case that a matter conveyed an imputation that an individual is “dishonourable” is not entirely novel. As set out above, in Palmer, White J refused to strike out a contextual imputation that the applicant was a “dishonourable man” (at [90] and [115]).

105    Secondly, I must address the contentions raised on the Strike Out Application using a practical and common sense approach: Goodfellow at [36]. It may well be that Contextual Imputation (vi) could be improved, but that is not the test for a strike out application of this nature: Goodfellow at [34]. The critical question is whether the Defence adequately reveals the case that the applicant must meet – that is, whether it will create confusion either at the pleading or the trial stage of the proceeding: Goodfellow at [36], [46].

106    The applicant’s submission is that a person may be dishonourable in multiple different senses, such as the sense that the person: is not honest; lacks principles, probity or integrity; conducts himself or herself in a shameful and morally reprehensible way (whether honest or not); disgraces persons, institutions or values which the person has a duty or responsibility towards; or is more broadly held in low esteem. That may be true of the term “dishonourable” if it is read in isolation. However, in this case, the respondents have pleaded relatively detailed particulars in support of Contextual Imputation (vi), namely the Impugned Contextual Truth Particulars. Those particulars identify six discrete incidents which are said to establish that the applicant is a dishonourable man – that is, the Markle Allegations, the Weinstein Allegations, the Simmons Allegations, the Pacific Allegations, the Emmett Allegations and the McDermott Allegations. Those particulars thus give content to the allegation that the applicant is a “dishonourable man”. They also confine the scope of the respondents’ case in support of the general charge contained in Imputation (vi) that the applicant is a “dishonourable man”. In these circumstances, the applicant’s complaint that the concept of dishonour is capable of multiple meanings, while arguably true as a matter of philology, cannot be accepted from the perspective of practical justice: cf Drummoyne at 137. I am not satisfied that Contextual Imputation (vi), when read fairly and in the context of the Impugned Contextual Truth Particulars, leaves the applicant unaware of the case he must meet.

107    Nor am I satisfied that Contextual Imputation (vi), when read with the supporting Impugned Contextual Truth Particulars, risks diverting the Court and the parties’ resources into an inordinately lengthy inquiry into the totality of the applicant’s conduct over the span of his life. As noted above, the scope of the respondents’ case in support of Contextual Imputation (vi) is clarified by the particulars in the Markle Allegations, the Weinstein Allegations, the Simmons Allegations, the Pacific Allegations, the Emmett Allegations and the McDermott Allegations. The Markle Allegations and the Weinstein Allegations are clearly relevant to the matter complained of in this proceeding. The Markle Allegations relate to the applicant’s conduct commencing in early 2018 by which the applicant allegedly deceived Mr Markle into agreeing to have photographs taken of him and exploited in the media. The Weinstein Allegations relate to the applicant’s alleged work in or about late 2016 whose object was the exculpation of Mr Weintsein, a notorious rapist, by sourcing salacious and/or negative information about one of his survivors. The remaining four allegations relate to the applicant’s conduct either as the principal of Coleman-Raynor, a photo agency business, or while working as a photographer for Coleman-Raynor. Each allegation carries, explicitly or implicitly, a charge of dishonest or dishonourable conduct by the applicant. More particularly:

(1)    the Simmons Allegations allege that the applicant knowingly or recklessly sold photographs and information containing false information about Mr Simmons;

(2)    the Pacific Allegations allege that, in breach of an exclusivity agreement with Pacific Magazines (the publisher of New Idea magazine) the applicant was responsible for Coleman-Rayner providing articles and photographs to the main commercial competitor of New Idea magazine;

(3)    the Emmett Allegations allege that the applicant took photos of Ms Emmett without her consent, was aware that an employee of Coleman-Rayner had deceived Mr and Ms Emmett into providing an interview to the employee, subsequently facilitated publication of a story relating to Mr and Ms Emmett which caused Mr and Ms Emmett considerable distress, and misled New Idea into believing that Mr and Ms Emmett consented to the publication of their words and images;

(4)    the McDermott Allegations allege that the applicant knowingly or recklessly sold a false story and accompanying photographs concerning Mr McDermott.

108    It follows that each of the allegations in the Impugned Contextual Truth Particulars broadly relate to the same subject matter as the Interview – namely, the applicant’s dishonest or dishonourable conduct as a paparazzi photographer. They are also temporally confined within a two year period (2016 – 2017), and are proximate to the central Markle Allegations and the Weinstein Allegations.

109    Given the above, I consider that the allegations are tolerably confined to avoid prejudice to the applicant in the course of the proceeding and at trial. Further, as this case is being heard by a judge alone, any risk that the respondents may seek to expand the content of the “dishonourable man” allegation at trial beyond that reflected in the particulars can readily be managed by the judge during the trial. I am therefore not satisfied that there is any significant advantage to striking out Contextual Imputation (vi).

110    For the above reasons, I refuse to exercise my discretion to strike out Contextual Imputation (vi).

Contextual Imputation (vii) – The applicant behaves dishonestly in his business dealings

111    The applicant contends that Contextual Imputation (vii) should be struck out for two reasons:

(1)    Firstly, the applicant contends that the contextual imputation is not capable of being conveyed by the Interview, as the Interview did not relate to the applicant’s business dealings or commercial behaviour in a broad sense.

(2)    Secondly, the applicant contends that the imputation lacks sufficient specificity and also offends the rule in Drummoyne.

112    I reject the applicant’s contentions.

113    As to the applicant’s first contention, I again reiterate the overarching considerations applicable to a capacity determination such as this, which are set out at [99] above. Bearing in mind these principles, I am not satisfied that Contextual Imputation (vii) should be struck out for the reasons identified by the applicant.

114    The Interview contains various references which identify that the applicant engaged with Mr Markle in a business context. In the introduction to the Interview, Mr Koch states that Mr Markle was convinced to take “staged paparazzi photos” before the Royal wedding. During the Interview, Mr Markle refers to “the photographs” as a “set up”, and immediately after stating this, states that he was set up by the applicant and Dylan Howard, who he states was working with “American Media”. There is no suggestion during the Interview that Mr Markle had a personal relationship with the applicant. Three photographs of Mr Markle are presented during the broadcast of the Interview. Each photograph contains a caption which reads: “Source: Coleman-Rayner”. Ms Barr described the applicant as “the journalist”. These references are sufficient to convey that, when the applicant engaged with Mr Markle, he was acting as a journalist who had some association with Mr Howard, who worked with “American Media”, and that the photographs of Mr Markle were taken on behalf of Coleman-Rayner. Given these matters, I am satisfied that the Interview is capable of conveying to the reasonable viewer that the applicant engaged with Mr Markle in a professional (as opposed to personal) capacity, that the applicant would receive remuneration for his engagement with Mr Markle, and that the engagement was therefore a “business dealing”.

115    It also cannot be said that the Interview relates to a single business dealing between the applicant and Mr Markle. Nor can it be said that the Interview relates to two unrelated business dealings: one between the applicant and Mr Markle and one between the applicant and Mr Weinstein. Mr Koch describes Mr Markle as having been convinced to take “staged paparazzi photos” before the Royal wedding. Referring to those photos, Ms Barr subsequently states that it “sounds like that’s where it all broke down”, referring to the break down in the relationship between Mr Markle and Ms Markle. In a subsequent exchange in the Interview, Mr Markle describes those photographs as a “set up” by the applicant and Mr Howard to “mess up” the Royal wedding. Mr Markle states that the applicant convinced his oldest daughter to convince him to take the photographs to “clean up [his] image because the photographs before … were always making [him] look bad”. He further suggests that, had he been “a little younger and a little smarter”, he would not have been conned. In the context of referring to these photographs, Mr Markle refers to a further incident, in which he alleges that the applicant was “shooting young women … for Weinstein to … make them look bad so they couldn’t sue him for rape”.

116    I consider that it is at least reasonably arguable that the general tenor of the Interview, as conveyed to the ordinary viewer, is that the applicant’s business dealings involve deception and dishonesty. In reaching this conclusion, I am particularly conscious that the Court must proceed on the basis that the ordinary viewer is able to “read between the lines”, and will draw implications more freely than a lawyer would, particularly when an implication is derogatory. The Court is concerned with the “broad impression” of the alleged defamatory matter, “not the meaning of each word under analysis”: Favell at [10]-[11], quoting Lewis [1964] AC 234 at 258, 285.

117    Given the above, I consider that the Interview is at least capable of sustaining Contextual Imputation (vii). In these circumstances, the applicant’s first contention does not raise a sufficient basis to strike out Contextual Imputation (vii).

118    The applicant’s second contention can also be answered having regard to the principles outlined by Wigney J in Goodfellow at [34] and White J in Palmer at [24]. The critical question is whether Contextual Imputation (vii) fails to adequately reveal the case that the applicant has to meet: Goodfellow at [36]. Further, the advantages of striking out the Contextual Imputation (vii) must be “very apparent”: Palmer at [24].

119    The applicant contends that Contextual Imputation (vii) offends the rule in Drummoyne because it fails to specify the “business dealings” to which the alleged dishonest behaviour relates. In my opinion, the words “business dealings”, when understood in the context of the Interview, are not ambiguous or uncertain. The applicant’s submissions do not expose any real uncertainty as to the case they are required to meet. Nor would such a contention be sustainable in light of the relatively detailed Impugned Contextual Truth Particulars which are set out in support of Contextual Imputation (vii). The Impugned Contextual Truth Particulars distil into six topics the basis of the respondents’ case that “the applicant behaves dishonestly in his business dealings”. Again, if at trial, the respondents seek to enlarge the scope of the “dishonest business dealings” allegation beyond that reflected in the Impugned Contextual Truth Particulars, this is a matter that can be managed by the trial judge.

120    Given the above, I consider that Contextual Imputation (vii), when read fairly in the context of the Impugned Contextual Truth Particulars, adequately exposes the case the applicant must meet. I also do not consider that there is a clear advantage to striking out Contextual Imputation (vii). It follows that I am not satisfied that Contextual Imputation (vii) should be struck out.

Contextual Imputation (viii) - The applicant engaged in dishonest conduct designed to portray alleged sexual assault victims of Harvey Weinstein in a bad light

121    The applicant contends that Contextual Imputation (viii) should be struck out for three reasons:

(1)    Firstly, the applicant contends that the imputation is not capable of being conveyed by the Interview, as imputation (a) distils the entirety of the meaning conveyed by the Interview in relation to the applicant’s work for Mr Weinstein.

(2)    Secondly, the applicant contends that the imputation is intolerably confusing. The applicant contends that the confusion arises because of the disconnect between Contextual Imputation (viii) and the Weinstein Allegations in the Impugned Contextual Truth Particulars. In short, the disconnect is said to be that, whereas Contextual Imputation (viii) alleges dishonest conduct and a dishonest design by the applicant, the Weinstein Allegations instead attempt to assign vicarious responsibility to the applicant for the dishonest conduct of either Mr Howard, AMI or Mr Weinstein.

(3)    Thirdly, the applicant contends that the imputation is not capable of being proven on the basis of the particulars constituting the Weinstein Allegations. The substance of the applicant’s contention is that those particulars (as supplemented in the subsequent correspondence referred to at [30]-[34] above (Particulars Correspondence)) fails to identify any acts, facts, matters or circumstances which support an allegation that:

(a)    the applicant knew that AMI engaged Coleman-Rayner on behalf of Mr Weinstein;

(b)    anyone at Coleman-Rayner knew that the work that AMI had allegedly engaged the company to perform was in pursuit of the objective of either exculpating Mr Weinstein, or was “designed to portray alleged sexual assault victims of Harvey Weinstein in a bad light”;

(c)    if that objective or design was known to anyone at Coleman-Rayner, it was in turn communicated to the applicant at any time or at least before the applicant engaged in the alleged “dishonest conduct”;

(d)    the applicant knew that the reporter named “Andy” had interviewed anyone on a false pretence; and

(e)    the applicant permitted any such behaviour to occur.

122    I reject each of the applicant’s submissions.

123    As to the applicant’s first contention, it is well established that a matter may convey both a specific imputation of which an applicant complains, as well as a more general contextual imputation: Palmer No 5 at [319], citing Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [62]. In this case, it is important to return to the allegation of Mr Markle in the Interview, namely that the applicant was “shooting ... young women … for Weinstein to … make them look bad so they couldn’t sue him for rape”. Bearing in mind the principles set out at [99] above, which inform the Court’s approach to a capacity determination such as this, I am satisfied that Mr Markle’s statement is capable of sustaining the broader charge that “the applicant engaged in dishonest conduct designed to portray alleged sexual assault victims of Harvey Weinstein in a bad light”.

124    Mr Markle’s allegation is that the applicant’s work was intended to make the young women he photographed “look bad”. The respondents’ case is that a reasonable viewer would infer that the women were not in actual fact “bad” and, in turn, would also infer that the applicant’s portrayal of the women was “dishonest”. In my opinion, that case is sufficiently tenable to survive a strike out application.

125    The applicant’s second and third contentions appear to overlap, and can be dealt with together. Any criticism of Contextual Imputation (viii) as confusing and therefore bad in form is without substance. The Weinstein Allegations in the Contextual Truth Particulars have since been supplemented by the Particulars Correspondence, which comprises the respondents’ letter of 8 February 2023, and the further and better particulars provided on 16 February 2023 and 5 April 2023. When read together, it is evident that the respondents intend to establish the allegation that “the applicant engaged in dishonest conduct designed to portray alleged sexual assault victims of Harvey Weinstein in a bad light” through the following chain of facts, matters and circumstances:

(1)    AMI contracted with the applicant’s company, Coleman-Rayner, to obtain information about Rose McGowan. The purpose of obtaining the information was to undermine her credibility and her claims about Mr Weinstein.

(2)    Coleman-Rayner assigned one of its employed reporters – identified only as “Andy” – to obtain the information. Andy spoke to Elizabeth Avellan, the former wife of a man with whom Ms McGowan had had an extra marital relationship. Andy spoke to Ms Avellan on a false pretence and obtained information from Ms Avellan that discredited Ms McGowan.

(3)    Coleman-Rayner provided that information to AMI who provided it to Mr Weinstein. Mr Weinstein responded by saying: “This is the killer. Especially if my fingerprints r not on this”.

(4)    The objective of AMI and/or Mr Weinstein in having Coleman-Rayner carry out the work was to exculpate Mr Weinstein. This object was conveyed to Coleman-Rayner and its principal, the applicant.

(5)    That the object of the work and its communication to Coleman-Rayner can be inferred, at least, from the following:

(a)    Coleman-Rayner having assigned Andy to obtain information from Ms Avellan about Ms McGowan

(b)    Andy subsequently eliciting salacious and/or negative information about Ms McGowan.

(c)    Coleman-Rayner supplying a transcript and audio file of the reporter's interview to Mr Howard of AMI;

(d)    Mr Howard subsequently emailing Mr Weinstein the information and describing the interview as “AMAZING” and further stating that Ms Avellan “laid into [Ms McGowan] pretty hard”;

(6)    That the object of the work was communicated to the applicant can be inferred from the following:

(a)    the applicant is a principal of Coleman-Rayner, a business that bears his name;

(b)    Coleman-Rayner is not a large corporation where the conduct of employees might escape the attention of a principal;

(c)    the nature of the work, bearing in mind that it involved a Hollywood personality of the notoriety of Mr Weinstein, and was a referral to his own business from an organisation as prominent as AMI; and

(d)    the fact that the applicant does not deny that he was aware of the job.

(7)    For the same reasons, the applicant was responsible for the conduct of Coleman-Rayner and its employee, Andy.

126    The above more than adequately puts the applicant on notice as to the case that the applicant needs to meet in response to Contextual Imputation (viii). That is sufficient for Contextual Imputation (viii) to survive a strike out application based on any alleged confusion arising from the form of the contextual imputation: Goodfellow at [36].

127    The question of whether the above chain of facts, matters and circumstances are capable of sustaining Contextual Imputation (viii) requires closer scrutiny. In assessing this matter, I am conscious that, although Contextual Imputation (viii) does not allege that the applicant committed a criminal offence, it does allege serious conduct by the applicant in acting to portray sexual assault victims in a bad light. Such an allegation puts the character of the applicant in “serious jeopardy”. In these circumstances, the particulars of the Weinstein Allegations must support Contextual Imputation (viii) with the precision of an indictment: Wing Appeal at [45] quoting Wootton at 508. However, the requirement is one of specificity and precision, not how much information is provided in the particulars: Rush at [54]. The amount of information in an indictment is often spare: Brooks at [12]. The question is whether the information in the Contextual Truth Particulars is sufficient to give the applicant sufficient notice of exactly what the respondents allege against him: Rush at [54].

128    In this case, the respondents’ case in support of Contextual Imputation (viii), as articulated in the particulars of the Weinstein Allegations (as supplemented by the Particulars Correspondence) is inferential and arises from the cumulative effect of various facts, circumstances and matters. Taking the facts, matters and circumstances at their highest as I am required to do, and exhibiting the curial caution that is necessary to avoid determining a disputed question of fact (Rush at [50]), I am satisfied that the Weinstein Allegations are capable of supporting Contextual Imputation (viii) for two reasons.

129    Firstly, I am satisfied that the Weinstein Allegations, taken at their highest, are capable of establishing that Coleman-Rayner was aware of the object of AMI’s engagement – namely, exculpating Mr Weinstein. In my opinion, it would be open to a court to infer this from the fact that Coleman-Rayner tasked Andy with interviewing Ms Avellan, his performance of that assignment by eliciting salacious and negative information about Ms McGowan, the subsequent provision of that information to Mr Howard at AMI, and the reaction to that information by both Mr Howard and Mr Weinstein. In my opinion, it would at least be open to a court to infer that Andy would not have undertaken the assignment for AMI without knowing its object, having regard to how positively his work was received by Mr Howard of AMI and Mr Weinstein.

130    Secondly, I am satisfied that the Weinstein Allegations are capable of establishing that the applicant knew about the fact of the AMI engagement, its purpose, and its performance, and that the applicant was responsible for its performance. The respondents’ particulars in this respect are not beset by the same difficulties as those identified by Rares J in the Wing First Instance Decision and the Full Court in the Wing Appeal. They do not rely on patently inadmissible allegations and hearsay and generalised allegations in court documents in a foreign proceeding of the kind considered in those decisions. Although the Weinstein Allegations do not contain a precise allegation concerning the applicant’s conduct, they allege facts from which it would be open to a court to infer the applicant was aware of the AMI engagement, and authorised its performance. The relevant facts are that the applicant is a principal of Coleman-Rayner, that Coleman-Rayner is not a large corporation where the conduct of employees might escape the attention of a principal, the nature of the AMI assignment (that is, an assignment relating to a Hollywood celebrity, Ms McGowan, who had made an allegation of significant public interest against Mr Weinstein), the prominence of AMI, and the notoriety of Mr Weinstein. The particulars are satisfactory for the purposes of r 16.43 of the Rules. Further, in my opinion, it would be open to a court to conclude, on the basis of the cumulative effect of all of these matters when taken at their highest, that the applicant was aware of the object and performance of the AMI engagement.

131    Having regard to the above, I am satisfied that the respondents have satisfactorily put the applicant on notice as to what is alleged against him. I am also satisfied that the Weinstein Allegations in the Contextual Truth Particulars, as supplemented by the Particulars Correspondence, are capable of proving the truth of Contextual Imputation (viii).

132    None of the above should be construed as indicating the Court’s disposition concerning whether Contextual Imputation (viii) will be made out at trial. The above analysis merely reflects my opinion that this question is best determined in light of the evidence adduced and submissions made at trial.

133    For the above reasons, I do not consider that the applicant has identified a sufficient basis to strike out Contextual Imputation (viii).

Contextual Imputation (ix) - The applicant is a con man

134    The applicant contends that Contextual Imputation (ix) should be struck out on the basis that the contextual imputation is not capable of being conveyed by the Interview. This contention is based on two submissions:

(1)    Firstly, the applicant submits that the term “con man” is commonly understood to describe a person who habitually tricks others, whereas Mr Markle only went so far as to allege one instance in which the applicant conned his eldest daughter to con him.

(2)    Secondly, the applicant submits that the term “con man” is commonly understood to describe a person who habitually tricks others for financial reward, whereas the Interview contains no allegation that applicant’s object in “setting up” Mr Markle was financial reward.

135    I reject each of the applicant’s contentions.

136    During the Interview, Mr Markle describes a series of acts by the applicant, involving the applicant conning Mr Markle’s eldest daughter, who in turn conned Mr Markle into agreeing to have photographs taken of him purportedly to clean up his image. Mr Markle states that his oldest daughter “was conned into conning me”. Mr Markle also describes the photographs as a “set up”, and states that the applicant “bragged about it on Facebook”. Mr Markle refers to a further instance of the applicant being involved with Mr Weinstein in a scheme to make young women look bad so they could not sue Mr Weinstein for rape. Mr Markle also states that he is attempting to sue the applicant. In my opinion, these references are more than capable of conveying to a reasonable viewer that the applicant had engaged in more than an isolated act of conning Mr Markle.

137    I reject the applicant’s submission that the Interview is not capable of conveying that the applicant was a “con man” because it makes no reference to the applicant receiving a financial reward for his “set up”. I do not regard the term “con man” as necessarily importing a notion of financial reward. I accept the respondents’ submission that a con man may be understood as anyone who swindles or tricks another by means of gaining a person’s confidence and/or lying to them. There can be no doubt that the Interview contains allegations that the applicant tricked (or “set up”) Mr Markle into agreeing to the photographs being taken of him.

138    In any case, for the reasons set out at [114] above, the Interview conveys that, in the course of the incidents described in the Interview, the applicant was working with Mr Markle (and Mr Weinstein) in a business context. The reasonable viewer of the Interview would assume the applicant was receiving remuneration – that is, a financial reward – for his work.

139    In my opinion, the Interview, read in context, is capable of sustaining Contextual Imputation (ix). I am not satisfied that the imputation should be struck out.

Particulars of Contextual Truth

140    The applicant submits that the Court should strike out:

(1)    the particulars constituting the Weinstein Allegations on the basis that they cannot justify Contextual Imputation (viii) and on the basis that they cannot justify Contextual Imputations (vi), (vii) and (ix);

(2)    the particulars constituting the Simmons Allegations on the basis that the Simmons Allegations cannot justify Contextual Imputations (vi), (vii) and (ix) because they do not allege any knowing involvement by the applicant in publishing false information about Mr Simmons;

(3)    the particulars constituting the Pacific Allegations in the Contextual Particulars on the same basis as outlined at [140(2)] above.

141    I reject the applicant’s submissions.

142    As set out at [125]-[130], I am satisfied that the particulars constituting the Weinstein Allegations, as supplemented by the Particulars Correspondence, when taken at their highest, are capable of establishing the truth of Contextual Imputation (viii).

143    I am also satisfied that the particulars constituting the Weinstein Allegations are capable of supporting the truth of the imputations that the applicant is a dishonourable man, behaves dishonestly in his business dealings, and is a con man. The Weinstein Allegations allege that: the applicant knew, and was responsible for, an employee of Coleman-Rayner conducting an interview with Ms Avellan; that interview was undertaken under false pretences; the objective of the work undertaken by Coleman-Rayner was to obtain negative information about a rape victim, Ms McGowan, to exculpate a notorious rapist, Mr Weinstein. That conduct, if proved, is capable of supporting an imputation that the applicant is a dishonourable man, engages in dishonest business dealings, and is a con man.

144    The Simmons Allegations and the Pacific Allegations are also capable of supporting the imputations that the applicant is a dishonourable man, behaves dishonestly in his business dealings, and is a con man. The applicant’s contention is that, in the absence of an allegation that the applicant was knowingly involved in the conduct the subject of the Simmons Allegations and the Pacific Allegations (distributing false information about Mr Simmons and breaching an agreement with Pacific Magazines), the respondents cannot make out that the applicant is dishonourable, dishonest in his business dealings or a con man. However, the particulars must be taken at their highest, bearing in mind the applicant’s position as a principal of Coleman-Rayner, which the respondents allege is not a large corporation where the conduct of employees might escape the attention of a principal. Given this, I am satisfied that the particulars are capable of supporting an imputation that the applicant knew of the conduct of his firm in distributing false information about Mr Simmons and breaching an agreement with Pacific Magazines, and this is capable of establishing that the applicant is a dishonourable man, engages in dishonest business dealings, and is a con man.

145    For these reasons, I refuse to strike out the particulars constituting the Weinstein Allegations, Simmons Allegations and Pacific Allegations.

Mitigation of Damages – Bad Reputation

146    The respondents no longer press the Bad Reputation Plea at [15(d)] of the Defence.

Burstein Plea

147    As noted at [91] above, irrespective of the application of Burstein, evidence properly before the Court on a defence of justification, contextual truth or honest opinion can be taken into account in mitigation of damages: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120, cited in Schiff at [8]. For the reasons set out above, I have dismissed the applicant’s challenge to the Impugned Contextual Truth Particulars. In these circumstances, evidence in support of those particulars will properly be before the Court, and can be taken into account in mitigation of damages. It follows that it is not necessary for me to consider the application of Burstein.

Reply

148    At the hearing, the parties were in agreement that the applicant should provide further and better particulars of the applicant’s reply. I will order that the applicant provide those further and better particulars within the conventional 14 days of the date of publication of judgment.

DISPOSITION

149    The applicant’s amended interlocutory application filed on 3 May 2023 is dismissed.

150    The applicant will provide further and better particulars of the applicant’s reply filed on 8 December 2022 within 14 days of judgment.

151    The applicant will pay the respondents’ costs of the interlocutory application on a lump sum basis, to be agreed or, in default of agreement, to be fixed in lump sum by a Registrar of the Court.

Associate:

Dated:    29 August 2023