Federal Court of Australia

Hun v Aljazeera International (Malaysia) SDN BHD (No 3) [2024] FCA 1261

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 19 April 2024 seeking leave to file the proposed amended defence be dismissed.

2.    Paragraphs [31] and [34(a)] of the respondents’ defence filed 21 April 2023 be struck out.

3.    The applicant’s interlocutory application dated 4 August 2023 be otherwise dismissed.

4.    The respondents have leave to file an amended Schedule 2 of their defence in the form contained in their proposed amended defence.

5.    Costs be reserved.

6.    Within seven days of the date of these orders the parties are to provide the chambers of the Honourable Justice McEvoy (at Associate.McEvoyJ@fedcourt.gov.au) with:

    (a) any agreed orders as to the costs of the respondents’ application to file their proposed amended defence and the applicant’s strike out application; and

    (b) a proposed minute of orders as to the future conduct of the proceeding.

7.    If the parties are unable to reach agreement as to the costs of these applications, on or before 4:00pm on 8 November 2024 the parties are to file and serve written submissions not exceeding two pages to be prepared with 1.5 line spacing and 12-point font, on the question of costs of these applications.

8.    Any question as to the costs of these applications will be determined on the papers pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth).

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

REASONS FOR JUDGMENT

MCEVOY J:

1    By an interlocutory application filed on 4 August 2023, the applicant seeks orders pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) that the following parts of the respondents’ defence filed on 21 April 2023 be struck out:

(1)    paragraph [31] and Schedule 1, being the justification defence to imputation [10(c)] in the statement of claim pursuant to s 25 of the Defamation Act 2005 (Vic);

(2)    paragraphs [32] and [33], and Schedule 2, being the public interest defence pursuant to s 29A of the Act; and

(3)    paragraphs [34(a)], [34(b)] and [34(c)] concerning mitigation of damages.

2    By orders dated 17 August 2023, the respondents were given an opportunity to amend their defence to answer the applicant’s strike out application. Some considerable time later, on 2 November 2023, the respondents filed and served a proposed amended defence (Proposed Amended Defence). By an interlocutory application filed on 19 April 2024 they seek leave to file the Proposed Amended Defence. The applicant resists leave being given to the respondents to file their Proposed Amended Defence.

3    The applicant relies on the following affidavits:

(1)    the affidavit of his solicitor, Mr Adam Alexander Lopez, dated 9 August 2023; and

(2)    a further affidavit of Mr Lopez dated 13 September 2024.

4    Both parties rely on the following affidavits which have been filed in the proceeding on behalf of the Australian Federal Police (AFP) in response to a subpoena to produce documents:

(1)    the affidavit of Mr Nigel Ryan dated 27 September 2023; and

(2)    the affidavit of Ms Helen Drew dated 2 November 2023.

5    For the reasons that follow I have determined that the Proposed Amended Defence does not answer the strike out application in respect of the respondents’ justification defences. The Proposed Amended Defence retains paragraphs [31], [34(a)] and [34(b)] and Schedule 1 of the defence. It also seeks to introduce, at paragraphs [31A] and [31B], additional justification defences to imputations [10(a)] and [10(b)] in the statement of claim, with accompanying additional particulars in Schedule 1. Paragraph [31] of the defence, paragraphs [31A] and [31B] of the Proposed Amended Defence, and Schedule 1, do not disclose a proper justification defence. I accept that they are evasive, embarrassing, and that they will prejudice and delay a fair trial of the proceeding. I accept also that the particulars in Schedule 1 are vague and imprecise, do not adequately place the applicant on notice of the case he will face at trial, and are incapable of justifying imputations [10(a)], [10(b)] and [10(c)]. The ancillary plea in mitigation of damages at paragraph [34(a)] is bad for the same reason.

6    Insofar as the public interest defence in paragraphs [32], [33] and Schedule 2 of the defence is concerned, I have concluded that in all the circumstances it would not be appropriate to deal with that defence on a strike out basis. I have also concluded that paragraphs [7] and [8] of Schedule 2 do not seek impermissibly to interfere with the privilege afforded by Article 9 of the Bill of Rights 1688 (Imp) and s 16 of the Parliamentary Privileges Act 1987 (Cth). The respondents’ retention of their public interest defence means that paragraph [34](b)] of the defence should not be struck out.

7    Nor do I consider that it would be appropriate to strike out the respondents’ plea of “bad general reputation” in paragraph [34(c)] of the defence. The respondents accept that they will need to lead evidence at trial of bad general reputation in the relevant sector, which they identify as a reputation for serious criminality. That is a matter which should be left for trial.

Relevant principles – defences

8    Part 2 of the applicant’s primary submissions on these applications set out, amongst other things, the relevant provisions of the Rules and certain pertinent observations of Wigney J in Rush v Nationwide News Pty Ltd (2018) 359 ALR 473 concerning the pleading of justification defences in defamation proceedings which were endorsed by the Full Court in Australian Broadcasting Corporation v Wing (2019) 271 FCR 632. These submissions may, in substance, be accepted. I would also, for the most part, accept the respondents’ statement of applicable principles in parts B and C of their submissions. Insofar as the respondents take issue with the applicant’s interpretation of the observations of the Full Court in Wing at [146], I proceed on the basis that the governing principle is that the court will expect a high degree of precision in the particularisation of grave allegations against an applicant for the purposes of a defence of justification.

9    Obviously enough, a pleading must not be evasive or ambiguous, must not be likely to cause prejudice, embarrassment or delay, must not fail to disclose a reasonable cause of action or defence, and must not contain scandalous material. I accept the applicant’s submission that in circumstances where the respondents allege that the applicant is complicit in serious criminal, corrupt and fraudulent conduct involving human slavery, cyber scams and suspected drug trafficking, the court should impose a high degree of precision in the particularisation of such grave allegations.

10    Plainly, the power to strike out a defence should be exercised with great care and only in a clear case: Rush at [42]-[43] (Wigney J), citing Trade Practice Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 (Sheppard, Jenkinson and Drummond JJ), Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ) and John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [112] (McColl JA). Where a court is asked to strike out a justification defence based on an alleged insufficiency or inadequacy of particulars, a particular need for caution arises. This is because, in determining the application, it is necessary to make factual evaluations which can be difficult in the context of an interlocutory hearing: Rush at [47]-[48]; Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [33] (Kenneth Martin J). Caution must also be exercised because particulars necessarily provide the “topics” on which evidence may be adduced at trial and the evidence at trial may prove more fulsome: Rush at [49], citing Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20] (Hodgson JA).

11    Nonetheless, particulars provided in support of a justification defence must still be capable of proving the truth of the defamatory meanings sought to be justified and must be sufficiently precise to enable a claimant to know the case they are required to meet: Rush at [46], citing Khan v Fairfax Media Publications Pty Ltd (No 3) [2015] WASC 400 at [21] (Le Miere J) and Lord Ashcroft v Foley [2012] EWCA Civ 423 at [49]-[50]; Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 at [16] (McCallum J).

12    As to the issue of capacity, I accept the applicant’s submission that a court must determine whether the pleaded particulars, taken at their highest, are capable of proving the truth of the defamatory imputations that are sought to be justified, having regard to the cumulative effect of the particulars: Rush at [50]-[51]; Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 at [11] (McCallum J); Gallagher at [54]; Wing at [134]-[135] (Besanko, Bromwich and Wheelahan JJ). The particulars must be capable of proving every material part of the defamatory sting conveyed by the imputation: Rush at [99]; Wing at [19]. Although particulars identify the topics on which evidence may be led, each case must be considered having regard to the kind of allegations sought to be proved and the kind of particulars provided: Eardley at [16]; Gair v Greenwood [2017] NSWSC 1652 at [11] (McCallum J). Where a court reaches a positive state of satisfaction that pleaded particulars are incapable of justifying an imputation it should not hesitate to strike out a respondent’s justification defence: Gair at [9].

13    As to precision, I also accept the applicant’s submission that particulars of justification must be set out with the same precision as an indictment: Rush at [52]; Crosby v Kelly [2013] FCA 1343 at [35]-[36] (Rares J); Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [9]-[12] (McCallum J) (Brooks v Fairfax Media (No 2)); Wing v Australian Broadcasting Corporation [2018] FCA 1340 at [78] (Rares J) (Wing v ABC). That is to say, with real precision. The specificity provided should be such as fairly to put the claimant on notice of the respondent’s case in relation to each necessary element of the defamatory charge: Rush at [54]; Brooks v Fairfax Media (No 2) at [12]. As Wigney J observed in Rush at [53], the need for precision in a defamation case is even more acute than in a criminal case because a claimant ordinarily gives evidence first. The claimant should be permitted to go to trial with knowledge not merely of the general case they have to meet but of the specific acts which it is alleged they have committed: Wing at [145], citing Wootton v Sievier [1913] 3 KB 499 at 508.

14    The applicant is correct to submit that a striking feature of the present case is the conspicuous absence in the respondents’ particulars of justification of any allegation about what the applicant actually did, when he did it, or how he knew about any of the matters alleged insofar as he is said to be complicit in the relevant (very serious) conduct: cf Wing v ABC at [107]. There are no direct allegations of material fact made in relation to any such conduct by the applicant.

15    It is also relevant in the present context, as the applicant observes, that a respondent who pleads a justification defence must do so on the basis of the information in their possession when the defence is delivered and, if the defence is improperly pleaded, the defendant should not be permitted to invoke the compulsive processes of the court in order to fish for documents or information which might support a proper justification plea: Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148 at 153-4; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 (Owen J); Rush at [172]; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); ABC v Wing at [139]-[140]. If a respondent says they are unable to plead the necessary facts without the benefit of discovery or subpoenas then the plea of justification cannot be maintained: Zierenberg v Labouchere [1892] 2 QB 183 at 188-9. This is not to deny the right to augment, in an appropriate case; but the present case is not, in my assessment, one where all the respondents have sought to do is augment a properly pleaded justification defence.

16    Having regard to these matters of principle I turn now to the substance of the competing applications.

Justification defence to imputation 10(c) – paragraph [31] and schedule 1 of THE defence

17    Imputation [10(c)] is in the following terms:

c.    the applicant is suspected on reasonable grounds by Australian police of drug trafficking.

18    I accept the applicant’s submission that in order to justify this imputation the respondents would need to plead, particularise, and in due course, adduce evidence at trial of, facts, matters and circumstances capable of establishing the following essential matters:

(1)    that Australian police hold a suspicion that the applicant engaged in drug trafficking;

(2)    the grounds on which Australian police hold such a suspicion; and

(3)    that those grounds are reasonable, in the sense that a reasonable person might suspect that the applicant engaged in drug trafficking based on those grounds.

19    I also accept, as the applicant submits, that the particulars in paragraphs [1] to [10] of Schedule 1 do not disclose any facts, matters or circumstances which are capable of establishing these matters.

20    To be clear, the respondents’ burden is not simply to prove that Australian police formed a suspicion that the applicant engaged in drug trafficking. Nor is it simply to prove that police or the person who issued the relevant warrants may have subjectively believed at one point in time that there were grounds for investigation or for the issue of warrants. Rather, if they are to justify imputation [10(c)], the respondents must prove on the balance of probabilities that, based on a particularised set of facts, Australian police formed a suspicion that the applicant engaged in drug trafficking and that that those facts, viewed objectively, provided a reasonable basis for forming such a suspicion.

21    I accept the applicant’s submission that the particulars in paragraphs [1] to [10] of Schedule 1 are incapable of supporting these conclusions because they fail to disclose the relevant and necessary underlying facts. They do not identify with any degree of precision what it is that the applicant is alleged or suspected to have done, when he is alleged or suspected to have done it, in what circumstances, and how those circumstances provided a reasonable basis for suspecting that the applicant engaged in drug trafficking. I accept the applicant’s submission that the pleaded particulars are loose, imprecise, conclusionary and tend to obscure rather than elucidate the issues: Rush at [46], [56]; Wing v ABC at [90].

22    The applicant develops his submissions in this respect in paragraphs [3.6] to [3.18] of his submissions by reference to timing issues bearing upon reasonable suspicion, the use of the expression “person of interest”, the deficiencies with the particulars regarding the telephone intercept warrants, the alleged suspicion of the National Crime Authority (NCA), and the issue of an arrest warrant for the applicant. For present purposes it is unnecessary to recite the details of the pleading deficiencies elaborated upon by the applicant. In substance I accept the applicant’s submissions in relation to these matters.

23    I do not accept, as the respondents contend, that the applicant has impermissibly conflated what the respondents need to prove at trial to make out their justification defence and what constitutes an adequate pleading that may be augmented by the forensic processes of the court. Further, while I accept that the applicant’s submissions consider each relevant particular on its own terms, I do not consider that this is done in a compartmentalised way. It is no answer in the present circumstances to say, having regard to the context provided by other particulars, and to the cumulative effect of the particulars, that they are rendered sufficient.

24    Nor do I accept, as the respondents contend, that a reasonable suspicion does not simply evaporate because of the effluxion of time when there has been no relevant change in circumstances. As the applicant submits, the flaw in this reasoning is that whether a reasonable suspicion remains depends on what were the particular grounds for holding the suspicion. It is only once those grounds are identified that an assessment can be made as to whether they were reasonable, and whether there has been any change in circumstances which would mean that the suspicion is either no longer held or the reasonable grounds no longer exist. The respondents identify the suspicion which is alleged to have been formed by the NCA at paragraph [6] of Schedule 1. However, they do not particularise the grounds on which the suspicion was allegedly held – that is, what is it that the NCA allegedly suspected the applicant of having said or done, when and where that might have been, and based on what information. The effect of this, in my assessment, is that the applicant is left in a position where he does not know the case he must answer at trial and is denied the opportunity to adduce evidence in response which might point to a “change in circumstances”.

25    I also do not accept the respondents’ submission that paragraph [6] of Schedule 1 identifies what the applicant is alleged to have done and in what circumstances. As the applicant submits, paragraph [6] identifies a suspicion allegedly once held by the NCA, but does not identify the grounds on which the suspicion was held, much less any facts, matters or circumstances which might support a finding that such grounds were reasonable. Further, I accept that the statement in paragraph [6] that the applicant was suspected of being a “financier in relation to a shipment of heroin” is so general as to be embarrassing.

26    Insofar as the respondents seek to defend paragraphs [3] and [4] of Schedule 1 on the basis that they are prefatory to what follows, I accept the applicant’s submissions in response that those paragraphs should be regarded as raising a false issue. The respondents are not required to prove that telephone intercept warrants were issued, how they came to be issued, or how many were obtained. Any subpoenas directed to augmenting these matters would be liable to set aside on the basis that they do not relate to any issue between the parties in the proceeding. The respondents’ burden is to prove the grounds on which the applicant is allegedly suspected by police of being involved in drug trafficking, and that the suspicion is reasonably held. The respondents seem to accept that paragraphs [3] and [4] do not advance their case on those questions.

27    Nor do I accept the respondents’ submission in support of paragraphs [7] and [8] of Schedule 1. As the applicant submits, the issues raised by imputation [10(c)] are not about the validity of an arrest warrant, whether reasonable grounds existed for the issue of an arrest warrant, whether the person who issued any arrest warrant did so correctly, or whether people like the respondents who have knowledge of an arrest warrant might infer that there were, objectively, reasonable grounds to suspect the applicant of drug trafficking. The relevant imputation alleged by the applicant to have been conveyed by the documentary is that he is suspected on reasonable grounds by Australian police of drug trafficking. The respondents’ particulars must be directed to such suspicion held by Australian police (and formed before the issue of any arrest warrant) and to the grounds on which that suspicion was based. Paragraph [8] of Schedule 1 is notable in that it concedes that there was a requirement on the NCA or AFP to lay before the issuing officer, on oath, “the reasons why the warrant was sought, including the reasons why the applicant was believed to have committed offences.” However, it does not go on to identify or particularise what those reasons were. I accept that the reasons for suspecting the applicant is the critical fact for the purpose of any justification defence to imputation [10(c)], and that the respondents do not properly grapple with that fact in their particulars.

28    I therefore accept the applicant’s submission that the shortcomings in the respondents’ pleaded particulars give rise to questions of prejudice and fairness. In addition to being incapable of justifying imputation [10(c)], I accept that they do not fairly put the applicant on notice of the case he would have to meet at trial. The absence of specificity as to the particular matters alleged against the applicant will prejudice him in giving proper consideration to whether to reply to any of the allegations, what evidence to gather for trial to refute the allegations, and what witnesses to call.

29    For all these reasons I accept that the particulars in paragraphs [1] to [10] of Schedule 1 are vague, evasive and ambiguous, do not disclose a reasonable defence, and would cause prejudice, delay and embarrassment in the proceeding: rr 16.02(2), 16.21(1).

Justification defence to imputation 10(a) and 10(b) – paragraphs [31A]-[31B] and Schedule 1 of the proposed amended defence

30    Imputations [10(a)] and [10(b)] are in the following terms:

a.     the applicant, in his capacity as the nephew of the Cambodian Prime Minister and a director of several companies within the Heng He Group in Cambodia, is complicit in a corrupt criminal enterprise by which companies within the Heng He Group, having ingratiated themselves with the applicant and elements of the Cambodian government, traffic human slaves from China to conduct global cyber scam operations from within Cambodia with impunity

b.     the applicant, in his capacity as the nephew of the Cambodian Prime Minister and a director of several companies within the Heng He Group in Cambodia, is complicit in a corrupt criminal enterprise by which companies within the Heng He Group, having ingratiated themselves with the applicant and elements of the Cambodian government, imprison and horrifically abuse human slaves in compounds in Cambodia with impunity.

31    I accept, despite what appeared to be the respondents’ submission to the contrary at the hearing, that the real sting of these imputations is that the applicant was criminally complicit in human trafficking, cyber scams and the horrific abuse of slaves in Cambodia, by using his position as the Prime Minister’s nephew and his directorships in several Heng He companies to permit such conduct to proceed with impunity. In other words, the documentary conveys the impression that the applicant was a knowing participant in this criminal enterprise in more than a way that was simply passive. In this sense the publication is of the kind considered by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137D-E.

32    I accept also, as the applicant submits, that in order to justify these imputations the respondents would need to plead, particularise, and in due course adduce evidence at trial, of facts, matters and circumstances capable of establishing the following essential factual matters:

(1)    that companies within the Heng He Group in Cambodia are involved in a criminal enterprise which involves trafficking human slaves from China into Cambodia, horrifically abusing them, and using them to conduct global cyber scam operations from compounds within Cambodia;

(2)    that the applicant is knowingly involved in this criminal enterprise by using his position as the Prime Minister’s nephew and a director of several Heng He companies to permit the criminal enterprise to operate with impunity; and

(3)    that the applicant’s conduct is corrupt.

33    I accept that the particulars in paragraphs [11] to [39] of Schedule 1 to the Proposed Amended Defence do not, even taken together, disclose facts, matters or circumstances which are capable of establishing these essential matters. The obvious deficiency in the pleaded particulars is the absence of:

(1)    any particulars capable of proving that human trafficking and cyber scam operations in fact occurred; and

(2)    critically, any allegation by the respondents about anything that the applicant himself did in relation to any such human trafficking and cyber scam operations.

34    Insofar as the respondents submit that the proffered justification defence can work on the basis that the imputations allege only passive complicity on the part of the applicant, and somehow that it is unnecessary to link any actual conduct in the nature of human trafficking to him, I do not accept this submission.

35    The applicant develops his submissions in relation to the justification defences to imputations [10(a)] and [10(b)] by reference to deficiencies in the respondents’ particulars going to the proof of human trafficking and cyber scam operations, and his complicity in human trafficking and cyber scams, at paragraphs [4.5] to [4.17] of his submissions and in paragraphs [5.1] to [5.10] of his reply. It is unnecessary to recite these submissions, but in substance I accept them. The particulars advanced by the respondents are far too general, high level and conclusionary. Several of the particulars are based on media reports and other hearsay statements, and others are no more than sweeping, imprecise statements which are difficult to see being the subject of admissible evidence at trial. The particulars concerning the corporate structure of the so called Heng He Group do not positively implicate the applicant in the trafficking of human slaves. Indeed, he is not even said to be a director of the company alleged to operate the compound in which people who are alleged to have been trafficked conduct cyber scamming activities.

36    Having regard to these matters I am not satisfied that the respondents’ submissions at paragraphs [38] to [48], and as orally developed by senior counsel for the respondents at the hearing, provide any real answer to the applicant’s criticisms. As I have said, I accept that the real sting of imputations [10(a)] and [10(b)] is that the applicant was a knowing participant in the criminal enterprise of human trafficking. I do not accept, on the basis of the particulars advanced, that the respondents’ attempt to justify these imputations is respectably arguable. To the extent that the respondents are now critical of the pleading of the applicant’s imputations, it is significant that no application has been made seeking to strike out the applicant’s pleading in the almost two years that the proceeding has been on foot. The respondents have had ample opportunity to pursue such an application if they had wished to do so. Nor do I consider that the respondents’ proposed further particulars set out in their submissions take matters much further. None of them are proper particulars of a justification defence to the imputations pleaded in paragraphs [10(a)] and [10(b)] of the statement of claim. I do not consider that the particulars advanced by the respondents can be taken as a circumstantial case which is reasonably capable of justifying the pleaded imputations.

37    As with the particulars in paragraphs [1] to [10], the particulars in paragraphs [11] to [39] of Schedule 1, in addition being incapable of justifying imputations [10(a)] and [10(b)], do not fairly place the applicant on notice of the case he has to meet at trial. I accept that the absence of specificity as to the particular matters alleged against the applicant unfairly prejudice his ability properly to consider whether to reply to any of the allegations, what evidence he ought to lead to refute them, and what witnesses he should call. For these reasons I accept that the particulars in paragraphs [11] to [39] are vague, evasive and ambiguous, do not disclose a reasonable defence, and will cause prejudice, delay and embarrassment in the proceeding: rr 16.02(2), 16.21(1).

Public interest defence – paragraphs [32], [33] and Schedule 2 to the Defence

38    Axiomatically, having regard to s 29A of the Act, in order to make good the defence pleaded in paragraphs [32] and [33] of the defence, the respondents must prove that the documentary concerned a matter of public interest and that they each reasonably believed that the publication of the documentary was in the public interest.

39    Clearly enough, s 29A contains three elements: (1) an objective question as to whether the documentary concerned an issue of public interest; (2) a subjective enquiry as to whether the respondents in fact believed that the publication of the documentary was in the public interest (based on things the respondents said, knew, did or failed to do); and (3) an objective assessment, based on all the circumstances, as to whether the respondents’ belief was reasonable – that is, whether a reasonable person standing in the respondents’ shoes would have held that belief: Murdoch v Private Media Pty Ltd [2022] FCA 1275 at [64]-[67] (Wigney J); Russell v Australian Broadcasting Corp (No 3) [2023] FCA 1223 at [319],[322], [325] (Lee J). I accept that the third element focusses attention on the character of the documentary and imports a discretionary value judgment as to whether the public would benefit from the subject of the documentary being discussed: Russell at [320], citing O’Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229 (Dawson, McHugh and Gummow JJ); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 69 [20]-[21] (Gleeson CJ and Crennan J).

40    It may also be accepted, as the applicant submits, that the requirement of reasonableness calls for an “open-textured” and “value-laden” judgment to be exercised according to the justice of the case: Russell at [325]. True enough, an important aspect may be an honest and reasonable belief in the truth of what was published: Russell at [339]. The reasonableness enquiry is not directed to the respondents’ conduct but, rather, to the reasonableness of their belief in the truth of the subject matter of the publication: Russell at [328]-[329], [336]. However, as the applicant submits, the enquiry may nonetheless be informed by evidence of the respondents’ conduct and almost all the suggested considerations in s 29A(3) of the Act direct attention to the respondents’ conduct: Russell at [337]. The focus of the enquiry in the present case is on the nature and content of the documentary, the seriousness of the defamatory imputations conveyed by the documentary, the information possessed by the respondents, and the steps they took to check or verify that information.

41    The parties accept that in Murdoch, Wigney J was strongly inclined to the view that the enquiry into whether a defendant reasonably believed that publication of “the matter” was in the public interest relates to the whole of the matter that conveyed the defamatory imputations, not simply the defamatory imputations or sting conveyed by the matter. That was because the word “matter” is defined in s 4 of the Act as including an article, report or program; s 8 of the Act establishes a clear distinction between the “matter” on the one hand and the defamatory imputations conveyed by that matter on the other hand; and the same distinction is evident in the terms of s 29A, most notably in s 29A(3)(a): Murdoch at [70]-[71]. In Russell, Lee J (at [317]) approved Wigney J’s approach.

42    The parties also appear to accept that the nature, character and seriousness of the defamatory imputations conveyed by the impugned publication are not irrelevant to assessing whether the publication concerned an issue of public interest and whether the respondents reasonably believed that its publication was in the public interest, including because that is one of the considerations in s 29A(3) of the Act: Murdoch at [73]. Generally, the defamatory imputations must bear some relevance to the issue of public interest with which the published matter is concerned: Murdoch at [74]-[75], citing Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 at [51] and Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [130].

43    It must also be accepted that the notion of public interest is “plainly of wide import” and should not be confined within narrow limits: Murdoch at [78]. It includes “matters relating to the public life of the community and those who take part in it” and “the conduct of government and political life”, but the expression also embraces wider matters such as “the governance of public bodies, institutions and companies which give rise to a public interest in disclosure”: Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 177-178, quoted in Russell at [319]. In Bellino at [215], the majority considered that a subject of public interest means “the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invites public criticism or discussion”. In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning MR found (at 391) that a matter of public interest would arise “[w]henever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others”.

44    These realities no doubt informed Wigney J’s observations in Murdoch (at [84]) that where there is a dispute about the element of public interest, it may be premature and undesirable to determine the matter in the context of a strike out application.

45    It is against this background that the question of whether paragraphs [32] and [33] and Schedule 2 of the defence disclose a proper public interest defence must be considered.

46    I would observe at the outset that the applicant’s submissions on this question by reference to the particulars in Schedule 2 are not without force. Whether the particulars are capable of properly supporting a finding that the respondents reasonably believed the publication of the documentary to be in the public interest may be open to doubt. Nonetheless, on balance I have come to the view that this aspect of the matter is more properly be left for consideration at trial when the court will be better placed to conduct a detailed evaluation of the relevant evidence: see, for example, Russell at [358]-[418]. Ultimately, as senior counsel for the respondents submitted, the particulars in Schedule 2 are no more than particulars. They are the matters which the respondents will say they knew about and had in mind when they formed the view that the publication of the documentary was in the public interest. Whether or not their view in this respect was reasonable is one which I consider should not be dealt with on a strike out basis.

47    Insofar as the Parliamentary privilege question as it arises in paragraphs [7] and [8] of Schedule 2 is concerned, I have come to the view for the reasons advanced by the respondents that Parliamentary privilege does not prevent the adducing of evidence of the fact that something occurred in Parliament: Leyonhjelm v Hanson-Young (2021) 282 FCR 341 at [245], [247]-[249] (Wigney J), [375] (Abraham J); Barilaro v Shanks-Markovina (No 2) 287 FCR 597 at [36] (Rares J). I accept that it is only for this purpose – the fact of those matters which occurred in Parliament set out in paragraphs [7]-[8] of Schedule 2 – that the respondents include these events in their particulars of public interest.

mitigation of damages – paragraphs 34(a), 34(b) and 34(c) of the proposed amended defence

48    Having regard to my conclusion that paragraphs [31] of the defence, and paragraphs[31A] and [31B] and Schedule 1 of the Proposed Amended Defence do not disclose a justification defence to imputations [10(a)], [10(b)] and [10(c)], it follows that paragraph [34(a)] of the defence is not a proper plea in mitigation of damages and that it should be struck out. In light of my conclusion that paragraphs 32 and 33 of the defence should not be struck out, it follows that paragraph 34(b) will also not be struck out.

49    As to paragraph [34(c)] of the defence (that is to say, what is said to be the applicant’s bad general reputation within the Cambodian community in Australia), I accept, for the reasons advanced by the respondents, including by senior counsel orally, that it would not be appropriate to strike out paragraph [34(c)]. In substance, this is because I accept that it would be preferrable not to determine the relevant sector of the applicant’s reputation in the abstract: see Channel 7 Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [162]-[186] (McColl JA; Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in EQ agreeing). As McColl JA recognised (at [183]), it is for the judge to determine the relevant sector of the applicant’s reputation, a fact-dependant exercise which requires careful analysis of the matter complained of (citing Plato Films Ltd v Speidel [1961] AC 1090 at 1140).

Conclusion

50    Having regard to the conclusions I have set out above, it follows that the respondents’ application seeking leave to file the Proposed Amended Defence will be dismissed and paragraphs [31] and [34(a)] of the defence will be struck out. The applicant’s strike out application dated 4 August 2023 will be otherwise dismissed.

51    Given that the respondents’ public interest defence will not be struck out, and in light of certain minor additions to Schedule 2 to be found in the version of Schedule 2 contained in the Proposed Amended Defence, the respondents may have leave to file an amended Schedule 2 of their defence in the form contained in their Proposed Amended Defence.

52    I will reserve the costs of these applications for now and order that, if they cannot be agreed, the parties provide short written submissions on the question of costs within seven days. In that event I will determine the question of costs on the papers.

53    I will also order that within seven days the parties bring in a proposed minute of orders (or competing minutes) as to the future conduct of the proceeding. If the parties cannot agree the matter will be listed for case management hearing on 11 November 2024.

Associate:

Dated:    31 October 2024

SCHEDULE OF PARTIES