Federal Court of Australia

Mkrtchyan v Stirling [2026] FCA 1166

ORDERS

THE COURT ORDERS THAT:

1.    The amended statement of claim filed on 9 April 2026 be struck out.

2.    The applicant have leave to file and serve a further amended statement of claim within twenty-eight days of the date of these orders.

3.    The applicant pay the respondent’s costs of the strike-out application and any costs thrown away by reason of the repleading of the statement of claim, such costs to be taxed on the standard basis or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By interlocutory application filed 2 April 2026, the respondent to these proceedings, Ms Radha Stirling, seeks orders pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Rules), striking out the whole or certain parts of the amended statement of claim (ASOC) filed by the applicant, Mr Ovik Mkrtchyan. In broad terms, the ASOC seeks relief in respect of alleged defamatory comments which Ms Stirling published online. Relief is also sought for injurious falsehood and for misleading or deceptive conduct under the Australian Consumer Law.

2    Ms Stirling claims that the ASOC does not reveal a reasonable cause of action and is likely to cause prejudice, embarrassment or delay in the proceedings and should therefore be struck out under r 16.21(1)(d) and (e) of the Rules. For the reasons which follow, the application should be allowed, though Mr Mkrtchyan should be afforded one last opportunity to advance his case.

3    It should be emphasised, at the outset, that this application concerns only the adequacy of the pleading. None of the allegations contained in the impugned publications have been established by evidence, and nothing in these reasons should be taken as suggesting otherwise. Similarly, the matters advanced in the pleadings are allegations only. They have not been the subject of contested evidence or any determination by the Court.

4    This case illustrates the particular difficulties that arise when a party seeking redress for defamation has been the subject of prior adverse publicity, particularly that which concerns the same subject matter as the alleged defamatory imputation(s). For some time, the principle in Dingle v Associated Newspapers Ltd [1964] AC 371 partially resolved this problem for plaintiffs, to the extent that it recognised a common law presumption of damage upon the establishment of a defamatory imputation. However, s 10A of the Defamation Act 2005 (Qld) (Defamation Act) and its interstate analogues have removed that presumption, such that the focus is now upon the actual or likely impact of a particular statement: Peros v Nationwide News Pty Ltd (No 2) (2024) 19 QR 321 (Peros (No 2)); cf Lachaux v Independent Print Ltd [2019] UKSC 27.

Background

5    The facts, as they are advanced in the ASOC, are as follows.

6    Mr Mkrtchyan is an Armenian and Cypriot businessman presently residing in Latvia. He is the sole shareholder of Gor Investment Ltd (GIL), the parent company of a diverse portfolio of companies based in the United Kingdom, Uzbekistan and Canada. He is also a shareholder of five other companies based in the United Kingdom, including Gor Logistic Limited (GLL), of which he is the sole shareholder.

7    Ms Stirling is a resident of Queensland, Australia. She describes herself as a “leading human rights advocate, crisis manager and policy consultant”, and purports to offer “strategic”, “consulting” and “campaign management” services. She is the sole director and shareholder of several companies registered in the United Kingdom, including Stirling and Partners Limited, Detained in Dubai Limited, and Radha Stirling Limited. She or her companies own and operate various websites and social media accounts associated with those businesses, including www.radhastirling.com, www.dueprocess.international, www.detained-in-dubai.prowly.com, and www.ipexreform.com.

8    In his action, Mr Mkrtchyan alleges that, on or about 16 January 2025, Ms Stirling uploaded an article to the website, www.radhastirling.com, entitled “US Lobbyists used in plot to destabilise US relations with Uzbekistan and steal Central Asia’s largest cement holding” (hereinafter referred to as the “Article”). It is also alleged that, in the days thereafter, the Article was uploaded to other websites owned and operated by Ms Stirling.

9    The Article contained the following text which is extracted in the ASOC (the “Words Complained Of”):

Aripov’s key business partner is Russian citizen and Oligarch, Ovik Mkrtchyan, the head of GOR Investments for which former US Energy Secretary, Rick Perry and Mike Pompeo are members of the advisory board. Mkrtchyan was detained in Uzbekistan in January 2024 on corruption related charges, reportedly having transferred more than a billion dollars to offshore accounts.

Payne is a registered lobbyist for Aripov whose allies, Pompeo and Perry, sit on the board of his client’s business partner’s (Oligarch Ovik Mkrtchyan) company who was arrested over corruption allegations. He has been accused of embezzling the company’s wealth after appropriating Asia Alliance Bank from Gulnara Karimova, the former President’s daughter, and establishing dozens of offshore companies.

…

Corruption in Uzbekistan

Influential but corrupt people within Uzbekistan, who are close to the political opposition, with links to Russian organised crime and a history of appropriating businesses are targeting an investor for his business and assets…

…

US Interests

When we have people like Stephen Payne, Mike Pompeo, Rick Perry and Congressman Wesley Hunt linked to oligarchs who are trying to steal control and assets by any means and to the extent they were willing to throw millions at Americans, you end up with individuals misusing their diplomatic powers for their own financial benefit, even if that undermines United States interests with Uzbekistan as a whole.

10    Mr Mkrtchyan alleges that the underlined words were hyperlinked to an article on td-partner.com, dated 28 December 2024 and entitled “Billions in Offshores: How Ovik Mkrtchyan Withdrew Uzbekistan’s Wealth” (the “Hyperlinked Article”).

11    It appears that the Article was subsequently amended (hereinafter referred to as the “Amended Article”), such that explicit references to Mr Mkrtchyan were removed, though it contained the following words which are also extracted in the ASOC (the “Further Words Complained Of”):

Aripov’s key business partner is the head of GOR Investments for which former US Energy Secretary, Rick Perry and Mike Pompeo are members of the advisory board reportedly having transferred more than a billion dollars to offshore accounts.

…

US Interests

When we have people like Stephen Payne, Mike Pompeo, Rick Perry and Congressman Wesley Hunt linked to oligarchs who are trying to steal control and assets by any means and to the extent they were willing to throw millions at Americans, you end up with individuals misusing their diplomatic powers for their own financial benefit, even if that undermines United States interests with Uzbekistan as a whole.

12    The underlined words in the Amended Article are also said to have been hyperlinked to the Hyperlinked Article, which expressly refers to Mr Mkrtchyan.

13    Mr Mkrtchyan alleges that the Words Complained Of and the Further Words Complained Of (a) carry the defamatory imputations that he is guilty of corruption and is corrupt, and (b) have caused, or are likely to cause, serious harm to his reputation. It is the latter allegation with which the present application is largely concerned.

14    Relevantly, the pleaded case as to the occasioning of serious reputational harm by the statements contained in the Article and the Amended Article (hereinafter referred to as the “Impugned Publications”) is as follows:

14.     The publication of the Article in Publications 1a, 2, 3 and 4, and the Amended Article in Publication 1b, have caused, or in the alternative are likely to cause, serious harm to the Applicant’s reputation within the meaning of s 10A of the Defamation Act 2005 (Qld) or the equivalents in states and territories in Australia for the following reasons:

a.     the seriousness of the defamatory implications carried by the Article and/or the Amended Article;

b.    the fact that the Article and/or Amended Article associate the Applicant with organised, serious and sustained criminality and corruption, involving the embezzlement of over one billion dollars and bribery of high-profile U.S officials;

c.    the fact that the Applicant does not court media attention and prior to the publication of the Article, there were very few articles about him published online, and no articles critical of the Applicant on any website or social media platform as prominent as those operated by the Respondent;

d.     the fact that following the publication of the Article and/or Amended Article the Applicant and/or his companies received the following refusals by or withdrawals of financial services from overseas financial institutions, from which it may be inferred that the Applicant is likely to face similar withdrawals of/refusals to provide services from financial institutions in Australia:

i.    On 21 January 2025, UK financial provider ‘Emerald24’ refused to open an account for GIL, without giving any reasons. This refusal was communicated to GIL’s representatives within days of the publication of Publications 1a, 1b (if amended prior to this date), 2, 3 and 4;

ii.    On 31 December 2024, Revolut Bank (“Revolut”) requested information about the Applicant’s involvement with GLL within 21 days as part of a compliance investigation, which was required to maintain access to the account. GLL’s bank account was suspended before the expiry of that period, on 6 January 2025. GLL’s representative provided the requested information on 13 January 2025;

iii.    Subsequently, after the Respondent’s Article and Amended Article were published:

1.    in the second half of February 2025, Revolut informed two companies which were affiliated with GLL, and which held accounts with it, that they would be subject to an account closing procedure;

2.    GLL’s representative was notified on 14 March 2025 that Revolut would no longer offer its banking services and would be closing both GLL’s account and the personal account of a family member.

iv.    GIL was provided with banking services in the UK by UK Bank ‘3S Money’. On 27 March, 3S Money refused a request for GLL to open an account. GIL’s own banking services were withdrawn by 3S Money on 7 April 2025, and its account closed, on the basis that the provision of such services no longer aligned with the bank’s risk appetite, it having made express reference to publicly available sources raising compliance issues;

e.    the fact that the refusals/withdrawals of financial services described at paragraph d above are likely to have resulted from the publication of the Article and/or Amended Article for at least the following reasons:

i.    the absence of significant prior media attention or interest in the Applicant, as to which paragraph 14c above is repeated;

ii.    the exacerbation of any pre-existing scrutiny of, or interest in, the Applicant by the publication by the Respondent of the Article and Amended Article;

iii.    the Respondent’s publication and republication of the Article on such a wide scale made it likely that it would have been available to businesses offering banking and financial services, where they conducted regulatory and compliance checks;

iv.     the Applicant’s very close association with both GIL and the similarly named GLL, as sole shareholder of both companies, and the direct references in the Article to both GIL and the Applicant;

v.     the coincidence in time between the publication by the Respondent of the Article and Amended Article and the refusal of banking services.

f.    the fact that while the true extent of publication of each of the Article and Amended Article is not known, pending the disclosure of publication metrics by the Respondent, each of the Article and Amended Article are likely to have been published to a substantial but unquantifiable number of people in at least Australia and the UK, given the significant social media presence of the Respondent and her ties to both Australia and the UK;

g.     the fact that the Respondent’s website dueprocess.international purports to hold criminals, corporations, law enforcement organisations and governments accountable;

h.    the fact that the defamatory imputations in each of the Article and Amended Article were presented by the Respondent as factual and truthful, and that the Respondent did not include any denials of the defamatory imputations on the part of the Applicant, or any other information which might cast doubt on the defamatory imputations;

i.     the fact that there was no attempt by the Respondent to obtain any comment from the Applicant prior to the publication of the Article and the Amended Article which is inconsistent with legitimate journalism;

j.    by reason of the particulars in (h) and (i) above, the partisan and misleading manner in which the Article and Amended Article were published which is inconsistent with legitimate journalism;

k.     The Applicant refers to and repeats the particulars at paragraph 17 below;

l.    the fact that on 17 January 2025, the Respondent (via her Twitter/X account @RadhaStirling) published the following tweet promoting and hyperlinking Publication 3, which tagged prominent and influential news sites. It received three likes and was viewed c.300 times before being taken down on a date unknown to the Applicant:

    “US Lobbyists used in plot to destabilise US relations with #Uzbekistan and steal Central Asia’s largest cement holding @ICIJorg @TheDiplomatMag @CNNBusiness @IBTimes @ReutersBiz [hyperlink to Publication 3]”

m.     the likelihood that the sense and substance of each of the Article and Amended Article have spread further via the grapevine effect;

    …

15    Copies of the Impugned Publications are attached to the ASOC and ascribed numbers to which reference is made in the pleading. Publications 1a, 2, 3 and 4 are the Article, and publication 1b refers to the Amended Article.

16    Mr Mkrtchyan further alleges that the harm suffered by him by reason of the publication of the Impugned Publications has been aggravated because, inter alia:

(a)    Ms Stirling removed a particular version of the Article (Publication 4) after receiving correspondence from Mr Mkrtchyan on 12 February 2025, then “re-uploaded it without good reason for doing so”: ASOC [17(c)];

(b)    Ms Stirling notified Mr Mkrtchyan on 7 May 2025 that she had kept a draft version of Publication 4, which she “would not have done unless she had an intention to republish Publication 4 at a future date, and if she was not in fact seeking – by referring to its draft status – to pressurise and threaten”: ASOC [17(d)];

(c)    the Article was published “at the direction or request” of unknown persons who had the “deliberate intention of causing harm or injury” to Mr Mkrtchyan’s reputation: ASOC [17(e)], [17(f)];

(d)    the Article is deliberately misleading to the extent that it refers to Ms Stirling in the third person and as an independent expert: ASOC [17(g)];

(e)    the Article was published “in the context of a number of global publications of disinformation that appeared in a co-ordinated fashion” against him, his family members and his business associates (referred to as the “Campaign”): ASOC [17(h)];

(f)    Ms Stirling “did not publish the Article as legitimate and responsible journalism or disinterested political activism”: ASOC [17(i)]; and

(g)    the Article includes false allegations which are found in other articles published as part of the Campaign: ASOC [17(j)].

General principles governing the power to strike out

17    This application is brought pursuant to r 16.21 of the Rules, which provides as follows:

16.21    Application to strike out pleadings

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)     contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

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

18    The principal grounds relied upon by Ms Stirling are those contained in r 16.21(1)(d) and (e). Nevertheless, other submissions were directed to the vagueness of the pleading and some confusion arising out of the way in which the claims were articulated.

19    The principles in relation to r 16.21(1)(d) and (e) were summarised by Wigney J (with whom Anastassiou J agreed) in KTC v David [2022] FCAFC 60 at [120] and [123] (KTC v David):

[120]    A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.

…

[123]    A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236.

20    The Court is generally slow to exercise its discretion to strike out a pleading. The power is used only in plain and obvious cases where the defect could not be remedied by reasonable amendment, “lest one deprive 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, 175, cited in KTC v David [125].

21    However, where the case concerns allegations of fraud or criminality, the Court generally will not allow a defective pleading to stand. As Feutrill J said in Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [24]:

[24]    It has long been accepted that allegations of fraud, unlawfulness, illegality, criminality, professional misconduct or other serious impropriety must be clearly and completely pleaded and particularised: Davy v Garratt [1877] 7 Ch D 473 at 489; Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 at 573; Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 at [605] – [606]; Oldfield v Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 at [35] – [38]; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [26]. Making allegations of impropriety, in the absence of complete material facts supporting the allegations, is a basis for striking out a pleading as scandalous: Manolakis v Carter [2008] FCA 505 at [12] upheld on appeal in Manolakis v Carter [2008] FCAFC 183 at [28]; Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9].

22    Although it is true that the power to strike out is generally exercised only where the defect could not be remedied by reasonable amendment, different considerations should arise where a party, having been informed of alleged defects in its pleading, steadfastly refuses to amend. In this case, notwithstanding warnings as to alleged deficiencies in the ASOC, Counsel for Mr Mkrtchyan maintained that no such deficiencies existed and declined an opportunity to adjourn the hearing of this application to consider remedial amendments. At the same time, Counsel submitted that, if the Court were to conclude that defects did exist, his client should be afforded a further opportunity to replead. That approach is, at the very least, an indulgent one. Pleadings should not be formulated through a process of trial and error, with corrective amendments made only after deficiencies have been exposed by interlocutory application. It is now well established that, once a party has been afforded a sufficient opportunity to plead its case, the Court should be slow to permit further amendments: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [94]. Moreover, in many cases, permitting further amendment would be inconsistent with the operation of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

The challenged paragraphs of the pleading

23    The first complaint raised by Ms Stirling was that the ASOC failed to plead a proper case of causation between the alleged statements and the alleged damage. Though this was said to arise for each cause of action, it was mainly agitated in relation to the defamation claim.

24    As shown by paragraph 14 of the ASOC, which is set out at supra [14], the claim sought to be advanced is somewhat obscure. In the chapeau to that paragraph, there is a broad allegation that the Impugned Publications caused, or were likely to cause, serious harm to Mr Mkrtchyan’s reputation, though the precise nature of that harm is not identified. The harm is then said to arise from the facts alleged in subparagraphs (a) to (m), though whether those allegations are intended to particularise the harm, causation, or both is unclear.

25    In subparagraphs (d) and (e), Mr Mkrtchyan appears to allege that the publication of the Impugned Publications resulted in banks refusing to provide, or continue to provide, financial services to his companies. Thereafter, in subparagraphs (f) to (m), generalised and sometimes discordant allegations are made about the nature and scope of the Impugned Publications, though they seem to be somewhat untethered to specific allegations of harm.

26    At the hearing of this application, the parties’ submissions concentrated upon the allegation that the publications caused financial institutions to withdraw, or refuse to provide, financial services to some of Mr Mkrtchyan’s companies. It is not unfair to identify that as being the primary harm on which he relies.

27    One can readily accept that, if, all else being equal, people refuse to deal with a person following the publication of defamatory material about them, an inference might comfortably be drawn as to the causal connection between the publication and harm suffered. However, in this case, Ms Stirling submits that the facts as pleaded demonstrate the occurrence of substantial negative publicity about Mr Mkrtchyan prior to any publication by her, which would prevent a court from concluding that anything published by her resulted in the harm alleged.

28    The pleaded facts in the ASOC to which Ms Stirling refers are as follows.

29    By paragraph 17(h) and (j), it is alleged that the Campaign began escalating from August 2024 onwards, “in the form of publications on Russian language websites and social media platforms, before increasing in scale and intensity in late 2024”. The intensification is said to have occurred by reason of publications being made in English.

30    In paragraph 8 and subparagraph 17(g)(iii), it is pleaded that the Hyperlinked Article was published on 28 December 2024 and that it amounted to a “flagrant character assassination of the Applicant”. One might assume, despite it not being expressly pleaded, that the Hyperlinked Article comprised part of the Campaign. It can also be surmised that the assertion that the publication was a “flagrant character assassination”, means that it achieved that result.

31    It appears to be alleged by subparagraph 14(d)(ii) that the following events occurred consequently upon the publication of the Impugned Publications:

(a)    on 31 December 2024, Revolut Bank (Revolut) requested information on Mr Mkrtchyan’s involvement with GLL within 21 days as part of its compliance investigations;

(b)    on 6 January 2025, Revolut suspended GLL’s bank account; and

(c)    on 14 March 2025, Revolut informed GLL that it would be closing its bank account.

32    It is then alleged by subparagraphs 14(d)(i), (iii) and (iv) that, thereafter, a number of banks refused to provide, or withdrew from providing, financial services to companies associated with Mr Mkrtchyan. By paragraph 14(e), Mr Mkrtchyan alleges that it is likely that those refusals and withdrawals resulted from the Impugned Publications. The basis of that allegation is identified as being the absence of prior media scrutiny of Mr Mkrtchyan, the exacerbation of any pre-existing scrutiny by the Impugned Publications, the scale of their publication by Ms Stirling, and the coincidence in time between the publications and the refusals and withdrawals of financial services.

33    Paragraph 14(f) says that, whilst the true extent of the publication by Ms Stirling is not known, the Impugned Publications are likely to have been published extensively in Australia and the United Kingdom. By paragraph 14(l), it is alleged that Ms Stirling “tagged” prominent and influential news sites in a post about the Article on X (formerly Twitter). Whatever the precise effect of such an action, it is clear that the allegation is that Ms Stirling used the tagging function to notify a number of prominent news outlets of the publication by her of the Article.

34    By paragraph 16, which is conclusory in nature, it is alleged that Mr Mkrtchyan has been “gravely injured in his character and reputation” by reason of the Impugned Publications, and that he has suffered and will continue to suffer loss and damage. The specifics of such loss and damage are not provided, though it is possible that they include the difficulties faced by his companies in obtaining financial services. This, so it is claimed, is exacerbated by the publications forming part of an orchestrated campaign against him, though it is not identified with whom Ms Stirling is acting in concert.

35    The other claims made by Mr Mkrtchyan, including the claim for damages for misleading or deceptive conduct, rely upon substantially the same causal analysis.

Is the plea maintainable?

36    Even if one accepts the facts as pleaded, there is real doubt as to whether Mr Mkrtchyan can establish that the Impugned Publications contributed to his claimed loss. On his case, the Campaign had been deployed against him from August 2024, which grew in scale and intensity on websites and social media platforms towards the end of 2024. That apparently resulted in the assassination of his character, leading to detrimental consequences for his companies’ relationships with financial institutions. That is particularly so in the case of Revolut, in that the failure of the relationship occurred prior to Ms Stirling’s alleged conduct.

37    The difficulty is that, on Mr Mkrtchyan’s own pleading, the loss and damage said to have been suffered by him had already been set in train before the Impugned Publications, yet the ASOC does not identify that antecedent conduct as a cause of his loss. Nor does it distinguish between the harm allegedly caused by the Campaign and any harm allegedly caused by the Impugned Publications. Rather, the ASOC merely asserts that the Impugned Publications caused Mr Mkrtchyan serious harm because they were made while the Campaign was ongoing. That allegation does not explain how, or to what extent, the serious harm pleaded was caused by the Impugned Publications as distinct from the earlier Campaign.

38    Moreover, to the extent that the loss suffered by Mr Mkrtchyan is particularised, it relies upon generalised inferences from circumstantial facts, particularly the refusals and withdrawals of financial services. By paragraph 14(e), it is said that the refusals and withdrawals by the financial institutions described in paragraph 14(d) were likely caused by the Impugned Publications, by reason of the various general matters identified. Critically, however, there is no allegation that any of those financial institutions read, considered, were aware of, or were influenced by the publications. Nor is there any allegation identifying the means by which the publications came to the attention of those institutions, and nor is there any alleged factual basis for the inference that the decisions in question were affected by them.

39    Such a post hoc ergo propter hoc approach is problematic in any causation pleading. In this case, it is even more so, where it is accepted that the Campaign – which, as alleged, was “global” and involved the co-ordinated publication of “disinformation” for the purpose of harming Mr Mkrtchyan’s reputation – was occurring prior to and contemporaneously with the harm alleged to have been suffered. On the face of the pleading, it would appear at least equally likely that the relevant banks refused or withdrew from providing financial services by reason of that Campaign.

40    As mentioned, the ASOC addresses cumulatively a number of different causes of action, being defamation, misleading or deceptive conduct, and injurious falsehood. Whilst each relies substantially upon the same factual substratum, they involve different requirements and should thus be considered separately.

Defamation

41    In respect of the defamation claim, the principal attack concentrated upon the alleged failure to sufficiently plead a causal connection between the Impugned Publications and the alleged loss or damage. That damage is articulated in paragraph 16 as being injury to Mr Mkrtchyan’s character and reputation, the refusal of the provision of financial services to his companies by overseas institutions, as well as hurt, distress and embarrassment.

The significance of pleading causation in a post-10A defamation action

42    Prior to the introduction of s 10A of the Defamation Act and its counterparts, causation was often not significant in defamation actions. Plaintiffs were presumed to have a good reputation and, once the defamatory implication of a publication was established, damage to that reputation usually followed as a matter of course. However, s 10A now imposes the requirement for a specific causal relationship between the publication of defamatory material and the suffering of “serious harm” by the person claiming to have been defamed. It relevantly provides that:

(1)    It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

43    It follows that causation is now an essential element of the cause of action and, as such, it is subject to the general principles governing its pleading. Those principles were summarised by Bond JA (with which Callaghan and Crowley JJ agreed) in Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218 at [13] (Sedgwick), a negligence case:

[13]        Third, if causation is an essential element of a pleaded cause of action:

(a)    The pleader must plead the material facts which establish the necessary causal link between the alleged wrongful conduct and the claimed loss.

(b)    That duty extends to require the pleader to plead the material facts on which the party relies to establish any counterfactual relied on to establish the requisite causal link.

(c)    The pleading so framed, must give rise to a reasonable inference that the alleged wrongful conduct and the claimed loss stand to each other in the relation of cause and effect.

(d)    The entitlement to have the foregoing matters pleaded should be regarded as an incident of the essential function of pleadings, which is to ensure the basic requirement of procedural fairness that a party should have the opportunity to meet the case put against it.

(Footnotes omitted).

See also Peros (No 2) 325 [7]; cf Birenbaum v H & A Nominees Pty Ltd (t/as Cairo Takeaway) [2025] FCA 1345 [8] (Birenbaum).

44    The impact of s 10A on the pleading of causation was addressed by Applegarth J in Peros (No 2), which was an unusual case concerning a podcast series that identified the plaintiff, Mr Peros, as having unlawfully killed a young woman. Mr Peros sued the publisher for defamation, alleging that episode 13 of the podcast “caused or is likely to cause serious harm to the reputation of the plaintiff”. However, the nature and extent of his reputation were not particularised, and that omission was significant because, although Mr Peros had previously been acquitted of murder, he had been found by a Coroner to have violently killed the young woman. Moreover, as his Honour observed, it was curious that the pleaded serious harm was said to arise from the thirteenth episode of the podcast alone, and questions arose as to whether the imputations conveyed by the preceding 12 episodes had already impacted Mr Peros’s reputation.

45    His Honour identified that the introduction of the “serious harm” requirement removed the erstwhile presumption of a plaintiff’s good reputation: Peros (No 2) 325 [6]; see also Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 [51] (Peros (No 3)). He observed that, consequently, it was incumbent upon Mr Peros to plead his prior reputation, supported by particulars, and that serious harm was caused to that reputation by reason of the alleged defamatory publication: Peros (No 2) 325 [7]. For present purposes, this statement can be taken as identifying the requirements in the case before his Honour, rather than expressing a universal obligation which is applicable in every case: see Birenbaum [8]. So much can be discerned from the following paragraphs of the reasons in Peros (No 2) at 325 [10] – [11]:

[10]    In a case in which the serious harm element is contested because of the plaintiff’s alleged bad reputation prior to and at the time of the relevant publication, an unparticularised reference to “the reputation of the plaintiff” does not inform the defendants of the case they have to meet at trial. Its lack of particularity tends to prejudice or delay the fair hearing and determination of the serious harm issue.

[11]    Particulars of the nature and extent of the plaintiff’s reputation and the respects in which, and among whom, that reputation was harmed (or is likely to be harmed) are important in a case in which the nature and extent of the plaintiff’s pre‑publication reputation are in issue.

46    A concomitant issue is the difficulty which arises when a plaintiff with a pre-existing negative reputation seeks to plead and establish serious harm to their reputation by reason of a defamatory publication. This, too, was considered in the cases involving Mr Peros. Relevantly, in Peros (No 3), Applegarth J observed:

[70]    A person with a bad general reputation or a bad reputation in a relevant sector will struggle to prove that a defamatory publication caused serious harm to that already badly damaged reputation.

[71] A person’s bad reputation is relevant to the determination of serious harm. In following English authorities, Besanko J (with whom Anderson and O’Sullivan JJ agreed) stated in Selkirk v Wyatt:

… a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant. It may mean the difference between the prior bad reputation and the harm caused by the publication is not serious harm.

47    Though the quoted remarks of the Full Court in Selkirk v Wyatt (2024) 302 FCR 541 at 564 [98] (Selkirk v Wyatt) were not directed to the sufficiency of any pleading, they nonetheless highlight the necessity for a plaintiff whose reputation has previously been diminished, to identify sufficient particulars of the serious harm suffered so as to inform the defendant as to the case they need to meet at trial. So much is clear from the observations of Applegarth J in Peros (No 2) at 325 [9] and 327 – 328 [24]:

[9]    … There is, however, no doubt that the serious harm element of the cause of action is contested. The plaintiff’s pleading should be in a form which enables that issue to be determined fairly and without delay. The rules concerning pleadings and particulars make clear that material facts and other matters must be pleaded and particularised to enable the real issues in dispute to be resolved justly and expeditiously and to avoid surprise at trial.

…

[24]    The nature and extent of the plaintiff’s reputation prior to the publication of the matter complained of should be pleaded, together with further particulars of among whom he alleges his reputation was seriously harmed, and the nature of the harm that was caused. Those particulars are matters that should be pleaded and particularised in accordance with the pleading rules. Particulars of the plaintiff’s pre-publication reputation should be sufficient to inform the defendants of the case that they are required to meet and to avoid surprise at the hearing of the serious harm issue. Their proper pleading will facilitate the resolution of the serious harm issue.

48    His Honour also identified that, where a person claims to have been injured only in a particular sector, then the evidence led of their good prior reputation must relate to that sector: Peros (No 2) 327 [17], citing O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, 92 [5]. In such a case, the question is not one of the plaintiff’s reputation at large.

The fundamental difficulties with the plea of serious reputational harm

49    Having regard to the foregoing, Ms Stirling’s objection to the pleading of defamation primarily concerns the effect of the pleaded Campaign. In her submission, the pleading in its current form does not give rise to an arguable case of serious reputational harm, in circumstances where Mr Mkrtchyan is alleged to have suffered antecedent damage to his reputation by reason of the Campaign.

50    There is force in that submission. By pleading the existence of the effectuated smear campaign against him, that pre-dated the Impugned Publications and “intensified” over an extended period, Mr Mkrtchyan has put his pre-publication reputation squarely in issue. Therefore, his case against Ms Stirling must necessarily be that any reputational harm occasioned by the Impugned Publications was additional to, and distinct from, the harm alleged to have been caused by the Campaign. In those circumstances, Ms Stirling relies upon the observations of Applegarth J in Peros (No 2) and Peros (No 3), to the effect that, where such a scenario arises, the plaintiff must plead sufficient facts as to their claimed pre-publication reputation. Here, that would require Mr Mkrtchyan to plead facts capable of showing that the withdrawals and refusals of financial services to his companies were attributable to the Impugned Publications, rather than to the Campaign. In that respect, the pleading fails for several reasons.

51    Firstly, the causation plea relies, to a not insignificant degree, upon the problematic post hoc ergo propter hoc approach described at supra [36] – [39]. That is particularly apparent in the allegations concerning the refusals and withdrawals of financial services. In light of the pleaded prior disparagement, those allegations are insufficient to identify any reputational harm occasioned by the Impugned Publications, or to afford Ms Stirling a proper opportunity to meet the case against her. On the face of the pleading, the prior adverse publicity appears to have prompted at least one of the identified financial institutions (Revolut) to make inquiries of, and ultimately suspend services to, Mr Mkrtchyan’s companies before the Impugned Publications occurred. In those circumstances, it is not possible to discern the extent to which any withdrawal or refusal of financial services was attributable to Ms Stirling’s publications, as distinct from the earlier adverse publicity, if at all.

52    Moreover, paragraph 14(e) (see supra [14]) appears to advance a circumstantial case, one in respect of which Mr Mkrtchyan does not intend to call direct evidence of any causal connection between the Impugned Publications and the withdrawals and refusals of financial services. Rather, it appears that he will seek to establish damage by inviting the Court to draw an inference from the matters alleged in subparagraphs (i) to (v). Again, the impossible difficulty is that the pleading does not articulate any distinction between the effect of the Campaign and the alleged consequences of Ms Stirling’s Impugned Publications. As Applegarth J made clear in Peros (No 2) and Peros (No 3), for the ASOC to reveal an actionable claim, it must plead Mr Mkrtchyan’s pre-publication reputation and provide material facts in support of it. Then, he is required to specifically plead the facts which demonstrate that serious harm was caused to that reputation by reason of the alleged defamatory matter – as opposed to the prior attacks on his character – including facts which go to the requisite causal connection. The absence of these matters in the ASOC, in its present form, prevents Ms Stirling from understanding the case which she has to meet, and the lack of particularity tends to prejudice the fair hearing and determination of the serious harm issue.

53    Second, and in any event, it is pleaded only that the withdrawals and refusals of financial services were “likely” to have resulted from the Impugned Publications. That is materially distinct from alleging that such actions were, in fact, caused by the publications, and necessarily increases the uncertainty in the pleading.

54    The use of the expression “likely” is also insufficient as a matter of law. Section 10A(1) of the Defamation Act does not extend the cause of action in defamation to cases where the alleged defamatory publication is merely likely to have caused damage. Whatever may have been the position before the introduction of that provision, it is now tolerably clear that the cause of action requires either that serious harm has been caused, or that serious harm is likely to be caused in the future: Selkirk v Wyatt 563 [94]. Accordingly, where damage is alleged to have occurred, a plaintiff must plead that the defamatory material caused that damage. It is not sufficient to plead only that it was likely that the damage was caused by the publication.

55    Of course, nothing in the foregoing alters the fact that a plaintiff may ultimately discharge the onus of proving causation at trial by establishing that it is more likely than not that the damage flowed from the defamatory imputations. However, for the purposes of a pleading, the fact in issue remains whether the imputations caused the damage, not whether they were likely to have done so. The distinction is material and, for this reason alone, paragraph 14(e) is embarrassing.

56    Third, the inadequacy of the facts alleged in paragraph 14(e) is even more apparent when they are considered at a granular level. In particular, the reference in subparagraph 14(e)(i) to “the absence of significant prior media attention or interest in the Applicant” is strikingly vague. It is not, of itself, an allegation of increased post-publication media attention, but even if it were, further explanation of the causal connection between it and the Impugned Publications is required in circumstances where the antecedent Campaign is alleged to have occurred.

57    Similarly, the reference in subparagraph 14(e)(ii) to “the exacerbation of any pre-existing scrutiny of, or interest in, the Applicant” by the Impugned Publications, adds little to any understanding of the case to be advanced. That allegation is also particularly difficult given that the pleading also alleges an absence of any prior media attention.

58    The allegation in subparagraph 14(e)(iii), namely that the extent of the publication of the Article rendered it “likely” that it would have been available to financial institutions conducting regulatory checks, is likewise vague as to the manner in which the Impugned Publications are said to have caused serious harm to Mr Mkrtchyan’s reputation. In circumstances where the pleaded antecedent Campaign is said to have intensified before the Impugned Publications, the necessary causal connection is not apparent on the face of the pleading. As a matter of logic, even if the publications were more likely to have been available to financial institutions undertaking compliance or regulatory checks concerning Mr Mkrtchyan, it does not follow, as a matter of course, that any refusal or withdrawal of financial services was caused by them.

59    In subparagraph 14(e)(iv), reference is made to Mr Mkrtchyan’s association with GIL and GLL, which were named in the Impugned Publications. However, the extent to which that contributed to the damage to Mr Mkrtchyan’s reputation is not explained. Nor is it identified how that damage is additional to that which was already caused by reason of the Campaign.

60    The above comments apply with even greater force in relation to subparagraph 14(e)(v), which merely relies upon the coincidence in time between the Impugned Publications and the withdrawal of financial services. As mentioned, such an allegation is close to meaningless in the context of the pleaded case. That is particularly so for the allegation that Revolut suspended services to one of Mr Mkrtchyan’s companies prior to the Impugned Publications.

61    For these reasons, the necessary conclusion is that paragraph 14(e) contains insufficient allegations to demonstrate a relationship of cause and effect between the alleged defamatory imputations and the claimed serious harm. They are embarrassing and tend to prejudice the fair hearing of the matter, because they do not sufficiently reveal the case alleged.

62    Fourth, Mr Mkrtchyan also appears to raise a secondary case of serious harm, based on the matters alleged in paragraph 14(f) to (m), as well as other facts alleged throughout the pleading. Again, this aspect of the case also suffers from a lack of specificity. For instance, paragraph 14(f) vaguely asserts that, despite the true extent of the publication of the Impugned Publications being unknown, both are likely to have been published to people in Australia and the United Kingdom. Mr Mkrtchyan claims that the extent of publication is only ascertainable following disclosure by Ms Stirling of publication metrics. However, that appears to be a strange proposition, given his claims that financial institutions withdrew or refused financial services to his companies by reason of the publications. In those circumstances, one might expect that he would be aware of the reasons for the action taken by those financial institutions. If it is true that the decisions of those institutions were influenced by the contents of the Impugned Publications, one might expect the pleading to identify some factual basis for that assertion. No such facts are pleaded.

63    Fifth, there is no attempt to identify the persons or class of persons to whom the publications were made. In accordance with the observations of Applegarth J in Peros (No 2), in cases involving a prior disparagement of the plaintiff’s reputation, it is necessary to particularise the persons to whom the publication was made and whether they knew of the prior disparaging publication, knew the plaintiff, or otherwise knew anything about him or her. That is acutely relevant in this case. For instance, if the persons to whom the publications were made knew Mr Mkrtchyan and otherwise believed that his reputation was good, or did not believe the Words Complained Of, the impact of those words upon them may be negligible. However, in the absence of those matters, it is not possible to understand the precise case advanced by the ASOC.

64    Sixth, there is no allegation as to the nature of Mr Mkrtchyan’s reputation amongst the persons to whom the Impugned Publications were published, prior to their publication. That, too, is a matter which Applegarth J regarded as being important in cases of this kind, in Peros (No 2) at 327 – 328 [23] – [24]:

[23]    The particulars of reputation must relate to the sector of his life relevant to the defamation. While the plaintiff is not required to plead all of the evidence upon which he intends to rely, he is required to provide particulars of his pre-publication reputation. Besanko J (with whom Anderson and O’Sullivan JJ agreed) in Selkirk v Wyatt stated:

“In order to show the extent of the harm and whether it is properly characterised as ‘serious harm’, one would ordinarily expect the plaintiff to adduce evidence of his or her pre-existing reputation.” (citation omitted)

[24]     The nature and extent of the plaintiff’s reputation prior to the publication of the matter complained of should be pleaded, together with further particulars of among whom he alleges his reputation was seriously harmed, and the nature of the harm that was caused. Those particulars are matters that should be pleaded and particularised in accordance with the pleading rules. Particulars of the plaintiff’s pre-publication reputation should be sufficient to inform the defendants of the case that they are required to meet and to avoid surprise at the hearing of the serious harm issue. Their proper pleading will facilitate the resolution of the serious harm issue.

65    Overall, then, the pleading fails adequately to plead the serious harm element and the requisite causal connection between the Impugned Publications and the serious harm alleged. The defamation claim should therefore be struck out.

The additional inconsistencies

66    Ms Stirling also identified a number of specific inconsistencies within the pleading which undermine Mr Mkrtchyan’s case as to serious reputational harm.

67    Firstly, she submitted that there was a temporal incoherency in the pleading. An instance of this arises in paragraph 14(d)(ii) which is set out at supra [14]. There, it is said that:

… following the publication of the Article and/or Amended Article the Applicant and/or his companies received the following refusals by or withdrawals of financial services from overseas financial institutions …

68    The subparagraphs which follow include the allegation that Revolut requested information about Mr Mkrtchyan’s involvement with GLL on 31 December 2024, and then suspended GLL’s account on 6 January 2025. The obvious difficulty is that both of those events pre-dated the publication of the alleged defamatory material. However, if one assumes, generously to Mr Mkrtchyan, that the suspension of GLL’s Revolut account is not one of the “refusals/withdrawals of financial services” likely to have resulted from the Impugned Publications, as described in paragraph 14(e), the pleading does not suffer from any temporal difficulty. For present purposes, it is appropriate to read the pleading in this way, but even if that is done, the allegation of such pre-publication damage only emphasises the need for the pleading to reveal how the Impugned Publications caused additional damage.

69    Second, the plea in paragraph 14(e)(iv) is also problematic. It alleges that a bank known as “3S Money” refused to allow GLL to open an account in March 2025, and then closed GIL’s account in April 2025, on the basis that the provision of banking services to GIL no longer aligned with the bank’s risk appetite, having regard to publicly available sources raising compliance issues. However, the pleading makes no attempt to connect that with the Impugned Publications.

70    Though these matters might be said to be minor infelicities in the pleading, they are indicative of a broader problem, being that the pleading does not allow the respondent to identify with precision the case she must meet, particularly on the issue of loss and damage.

A failure to plead the jurisdictions in which the publication occurred

71    Placing the issue of causation to one side, the pleading of defamation is also deficient because it fails to identify, with any sufficient precision, the locations in which the publications occurred. By paragraphs 3 and 4 of the ASOC, it is alleged that the Impugned Publications were published on websites “from where [they] may have been viewed by persons unknown to [Mr Mkrtchyan] throughout Australia and/or overseas”. This has a number of difficulties.

72    Firstly, as Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575 at 606 – 607 [44] (Dow Jones), where material is published on the internet, any defamation necessarily occurs in the location where it is downloaded:

44    In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

See, to a similar effect, Newman v Whittington [2022] NSWSC 249 [15] – [19] (Newman v Whittington); Massarani v Kriz (2022) 400 ALR 718, 728 [53]; Sims v Jooste (No 2) [2016] WASCA 83 [18] – [20].

73    The rationale for this requirement is that defences may be available under the law of a foreign jurisdiction that are not available under Australian law. A defendant is therefore entitled to be informed of the place of publication said to found the cause of action so that any available defence may be identified and relied upon: Newman v Whittington [19] – [20]. It follows that a plaintiff must plead the location at which the alleged defamatory material was downloaded and viewed. References to that having occurred “overseas” are plainly insufficient, and pleading is deficient in that respect.

74    Second, the pleas in paragraphs 3 and 4 are only to the effect that the Impugned Publications may have been viewed by certain unknown persons. That appears to be the product of an erroneous assumption that the publications were “published” when they were made available online, as opposed to when they were downloaded and viewed. Nevertheless, the plea in this respect is tantamount to an acknowledgment that Mr Mkrtchyan does not know whether the material was viewed at all and, more importantly, it is insufficient for a good cause of action in defamation.

75    The failure to plead the jurisdictions in which the alleged publication took place or, indeed, that any publication took place, is a further reason for striking out the cause of action in defamation.

Aggravated damages

76    As the pleading of defamation fails, so too must the claim for aggravated damages. Notwithstanding, additional submissions were made on behalf of Ms Stirling as to why that claim is not sustainable. Whilst there is no reason here to consider the submissions in detail, it is sufficient to observe that they should be accepted for the following reasons.

77    The claim for aggravated damages appears in paragraph 17 of the ASOC, where a number of matters are identified. However, rather than being matters which illustrate Ms Stirling’s conduct as unjustified, improper or lacking bona fides: Stead v Fairfax Media Publications Pty Ltd (2021) 150 ACSR 43, 93 [240]: they are somewhat benign.

78    For instance, paragraph 17(c) alleges that Ms Stirling removed a particular version of the Article, and then “re-uploaded it without good reason for doing so”. By itself, or in conjunction with the other matters alleged, that conduct does not meet the requisite standard. It is nothing more than continued publication of the Article.

79    Similarly, paragraph 17(d) alleges that Ms Stirling informed Mr Mkrtchyan that she had kept a draft version of the Article, which is said to have indicated an intention to publish the Article in the future and to pressurise or threaten him. Again, there is nothing in that action that might be regarded as unjustified, improper or lacking bona fides.

80    Paragraph 17(e) alleges that Ms Stirling published the Article “at the direction or request” of certain unknown persons “who had the deliberate intention of causing serious harm or injury” to Mr Mkrtchyan’s reputation. That unparticularised allegation, which is serious in nature, also omits the necessary particulars from which such an inference might be drawn. A not dissimilar allegation is made in paragraph 17(f).

81    In light of the foregoing, though there is no need to assay all the deficiencies in the pleading of the claim for aggravated damages, it suffices to observe that, despite their seriousness, many of the allegations remain unparticularised. To a not insignificant degree, this gives the pleading the appearance of being speculative.

82    In the result, the claim for aggravated damages should be struck out as well.

Misleading or deceptive conduct

83    Mr Mkrtchyan also advances a claim under the Australian Consumer Law, being schedule 2 to the Competition and Consumer Act 2010 (Cth), in which he alleges that the Impugned Publications made representations that (a) were misleading or deceptive or were likely to mislead or deceive, and (b) caused him loss and damage. In general terms, the pleaded case is that by publishing the Impugned Publications, Ms Stirling represented to persons in Australia that Mr Mkrtchyan is corrupt and that he has used his companies to embezzle significant amounts of money, which he says is misleading or deceptive.

84    However, this cause of action also suffers from significant deficiencies, and Ms Stirling accordingly seeks an order striking it out.

Causation

85    The most obvious issue is the pleading of causation, which appears at paragraph 24A:

24A     By reason of the matters pleaded in paragraphs 18 to 24 above, the Applicant has suffered loss and damage.

Particulars

i.    The Applicant refers to and repeats paragraphs 14, 16 and 17 and the particulars thereto.

ii.    Further particulars may be provided after interlocutory steps.

86    The difficulties with the causation pleading in relation to the defamation claim have been discussed at supra [36] to [65]. Those difficulties are, if anything, more acute in relation to the ACL claim. It is well established that a claimant seeking relief under ss 236 or 237 of the ACL must plead the material facts said to establish the requisite causal connection between the impugned conduct and the loss or damage alleged. The bare assertion in paragraph 24A that loss and damage was suffered “by reason of the matters pleaded” does not satisfy that requirement. Nor is the deficiency cured by the incorporation of paragraphs 14, 16 and 17, which themselves employ similar conclusory formulations.

87    On this generalised assertion of causation, regard may be had to the observations made in Wyzenbeek v Australasian Marine Imports Pty Ltd [2017] FCA 1460 at [84]:

The applicants further plead that “as a result of” the various representations they have suffered loss and damage which are particularised as being the costs of repairing the defects, the costs of and incidental to repairing and rectifying the vessel, the costs of rendering the vessel closer to fitness for the purpose for which it was purchased, diminution in the value of the vessel and loss of use. It should be recognised that attempts to plead causation in TPA / ACL claims by the use of phrases such as “as a result of”, “by reason of” or “because of” have long been deprecated. Those pieces of legislation require that the party alleging the breach plead the necessary material facts to establish the causal relationship between the misleading or deceptive conduct and the loss. In Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 French J said that “facts and circumstances should be set out.” This observation has been referred to on numerous occasions (Barns v Forty Two International Pty Ltd (2014) 316 ALR 408; Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221; Hastie Group Ltd (In Liq) v Bourne; Hastie Group Ltd (In Liq) v Moore [2017] NSWSC 709 at [217]; Willmott Forests Ltd (recs and mgrs apptd) (in liq) v Armstrong Dubois Pty Ltd [2016] VSC 61). In Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457, Chesterman J said at [15]:

In any cause of action in respect of which causation is an essential element it is necessary to plead the material facts which are said to give rise to the causal connection. In particular it is necessary to plead the facts which lead to a reasonable inference that the acts complained of (here the relevant non-disclosure) and the alleged later event (here the making of the dragline agreement) stand to each other in the relation of cause and effect. Douglas J put it this way in LBS Holdings Pty Ltd v The Body Corporate for Condor Community Title Scheme 13200 & Ors [2004] QSC 229 (at para [3]):

… The principle relied on is that facts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link…

His Honour referred to Dow Hager Lawrance v Lord Norreys & Ors (1890) 15 App Cas 210 at 221 and Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd & Ors (1987) 14 FCR 215 at 221-222. In the first of those cases Lord Watson had said:

There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it; and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments. Facts and circumstances must in that case be set forth, and in every genuine claim are capable of being stated, leading to a reasonable inference that the fraud and injuries complained of stood to each other in the relation of cause and effect.

88    Further, paragraph 24A identifies paragraphs 14, 16 and 17 as containing the relevant loss and damage for which compensation is sought under ss 236 and 237 of the ACL. However, it is difficult to discern from those paragraphs any presently compensable economic loss or other damage suffered by Mr Mkrtchyan personally.

89    In particular, the refusals and withdrawals of financial services identified in paragraph 14(d) concern companies associated with Mr Mkrtchyan, rather than him personally. While the ASOC alleges that he is likely in the future to experience similar refusals or withdrawals of financial services in Australia as a consequence of the Impugned Publications, that allegation does not identify any presently suffered loss. Nor is it alleged that Mr Mkrtchyan has incurred any expense, suffered any diminution in the value of his assets, or otherwise sustained any financial detriment as a consequence of the matters described in paragraph 14(d). Equally, it is not pleaded that he has been required personally to obtain alternative financial services on less favourable terms, or to incur additional costs, as a result of those decisions.

90    In the absence of any plea of actual economic loss for which Mr Mkrtchyan might be compensated, consequent upon the Impugned Publications, the pleading alleges no facts which give rise to “a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect”: LBS Holdings Pty Ltd v Body Corporate for Condor Community Title Scheme 13200 [2004] QSC 229 [3]; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 [15].

91    Paragraphs 18 to 21 of the ASOC rightly confine the ACL claim to the effect of the alleged misleading or deceptive conduct upon persons or businesses in Australia. However, the pleading does not identify who those persons or businesses are. Nor does it identify that the Impugned Publications were read, received, or acted upon in Australia by any person who subsequently dealt with Mr Mkrtchyan to his detriment. That is not overcome by paragraph 24A’s reliance upon the refusals and withdrawals of financial services described in paragraphs 14 and 16, because those allegations concern decisions made by overseas financial institutions. It follows that it is impossible to identify the requisite causal connection between the conduct alleged to have contravened the ACL and the loss said to have been suffered. The pleading is therefore deficient.

Trade or commerce

92    A further issue is whether there was a valid plea that the alleged conduct of Ms Stirling occurred in trade or commerce. Although an allegation is made to that effect in paragraph 22 of the ASOC, the particulars provided therein are unsupportive of it. Relevantly, those particulars identify that Ms Stirling is a resident of Queensland, owns an Australian Business Number, and operates several websites which indicate that she engages in “business or professional activity”.

93    Though one can readily accept that Ms Stirling uses the identified websites to carry out various business activities, the difficulty here is that the ASOC does not squarely assert that the impugned representations were made in, or in the course of, any of her businesses. Despite Counsel’s emphatic submissions to the contrary, the particulars of paragraph 22 do not support the plea that the representations were made in trade or commerce. With respect to the authors of the ASOC, a respondent should not be required to rummage through the pleading to locate allegations from several diverse parts of it in an attempt to piece together the case being made against them.

94    It was submitted on behalf of Mr Mkrtchyan that one iteration of the Impugned Publications contained social media posts, embedded between paragraphs of text, which have the effect of supplying the relevant connection to trade or commerce. In particular, one of those posts identifies Ms Stirling as being the lawyer acting for a person alleged to have suffered at the hands of certain persons in Uzbekistan. The relevance of that is not immediately clear, in circumstances where it is not alleged that the relevant trade or commerce in which Ms Stirling engaged was the provision of legal services. Moreover, notwithstanding the assertion in Mr Mkrtchyan’s written submissions that the “inevitable conclusion” is that “the publications are made in the pursuance of the activities undertaken by the Respondent including as CEO of Detained in Dubai and Due Process International”, there is no suggestion that either of those businesses provided legal services.

95    Further, Counsel for Mr Mkrtchyan also submitted that the evidence at trial will demonstrate that the Impugned Publications comprised part of a campaign which Ms Stirling pursued on behalf of a client, for which she was paid, with the consequence that the Court will ineluctably determine that the representations were made in trade or commerce. Although an allegation somewhat to that effect is made in paragraph 17(e), that is not pleaded in support of the contention in paragraph 22 that the publications were made in trade or commerce.

Publication

96    Another difficulty is that the pleading asserts that the relevant misleading or deceptive conduct occurred upon Ms Stirling “publishing” the Impugned Publications. As mentioned, paragraphs 3 and 4 of the ASOC identify the Impugned Publications as having been published when they were made available online. However, a representation is only made where the relevant statement is received: Pulido v R S Distributions Pty Ltd (2003) 177 FLR 401, 407 [41]: and, where it is made on the internet, it is made where the relevant statement is downloaded and read: Valve Corporation v Australian Competition and Consumer Commission (2017) 258 FCR 190, 230 – 231 [134].

97    The allegations as to the publication of the Impugned Publications are deficient for the reasons given at supra [71] to [75]. In addition, the pleading does not assert that the representations were made in the sense of being received and understood by any person. Rather, it is alleged only that the Impugned Publications may have been viewed by persons in Australia, and that falls short of a valid plea that any representation was made here.

98    For those reasons, the pleading in relation to misleading or deceptive conduct does not disclose a reasonable cause of action, and it should be struck out.

Injurious falsehood

99    A claim is also made for injurious falsehood. The elements of that tort are not in dispute. They were articulated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404 [52] as follows:

The elements of the action for injurious falsehood usually are expressed in terms which derive from Bowen LJ's judgment in Ratcliffe v Evans… Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.

(Footnotes omitted).

The applicant’s business

100    In relation to the first element, the plea of injurious falsehood in this case is unusual, in that it makes no allegation as to the nature of Mr Mkrtchyan’s business, notwithstanding that it is alleged that the impugned statements were intended to harm him in the conduct of that business. Though reference is made to his “business affairs”, the pleading is wholly silent as to what business that might be.

101    In paragraph 25 of the ASOC, it is alleged that the Impugned Publications contained false statements concerning Mr Mkrtchyan and his business. They are the same as those relied upon for the claim under the ACL, namely that he used companies which he owned or controlled to embezzle money, which was then used to bribe US officials. It is said that, given the Article refers to two of Mr Mkrtchyan’s businesses, being Asia Alliance Bank and GIL, the allegedly false statements therein must have concerned Mr Mkrtchyan’s business. However, that cannot be correct. Even if it is assumed that the impugned representations concerned the business of those related companies, it does not follow that they were representations concerning Mr Mkrtchyan’s business. The business of the companies is not, ipso facto, his business. Although it might be alleged that Mr Mkrtchyan did conduct his business through a particular company or group of companies, such that their business and his are one and the same, no such allegation is made. Accordingly, notwithstanding the allegation in paragraph 25 that the representations concerned the applicant and his business, in the absence of any identification of that business, the respondent is unable to understand the case that she must meet.

Loss, damage and causation

102    The pleading of injurious falsehood is similarly affected by a vagueness as to damage. Paragraph 27 merely asserts that “[a]s a result of each of the Article and/or Amended Article, the Applicant has suffered actual damage”, and repeats and relies on the matters identified in paragraphs 14, 16 and 17. As discussed at supra [88] to [91], those matters do not identify any actual loss suffered by Mr Mkrtchyan personally in Australia. Nor do they plead any material facts capable of establishing a causal connection between the alleged false statements and the loss said to have been sustained.

103    Those deficiencies are fundamental. Unlike defamation, damage is the gist of the tort of injurious falsehood. It is therefore especially necessary to plead both the actual loss said to have been suffered and the material facts which establish that the loss was caused by the allegedly false statements. The ASOC does neither. In this regard, it is apt to invoke the observations of Griffiths J in National Roads and Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2019) 291 IR 28 at 80 [209]:

209    An applicant alleging the tort of injurious falsehood must prove that it has suffered particular and identifiable loss or damage as an essential element of the tort. The actual damage done is the very gist of the action. The requirement has been variously stated as requiring the plaintiff to establish “special damage”, “particular and identifiable loss or damage” and “actual damage” (Ratcliffe v Evans at 527–528 per Bowen LJ; Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560; (1999) ATPR 41–669 at 42–537 per Lindgren J). The tort of injurious falsehood does not provide a cause of action for mere injury to either reputation or feelings. A party seeking to establish injurious falsehood must plead and prove actual, that is, identifiable financial loss or damage, as an essential element of the tort.

104    There was no attempt in the ASOC to plead that Mr Mkrtchyan suffered damage of the nature described by his Honour. Though it was alleged that some companies were refused the provision of financial services, and that previous services were withdrawn for others, there is no allegation that this resulted in actual financial loss. Therefore, the pleading of this cause of action must fail.

Publication to third party

105    A further deficit in the pleading of injurious falsehood is the absence of any adequate allegation that the impugned representations were made to a third party. Though the pleading at paragraph 26 alleges that it is likely that the Impugned Publications were published to persons in Australia, that is not sufficient. The cause of action requires actual publication, not the creation of a state of affairs in which it is likely that the impugned material was published. That is necessarily so, given the strict requirement for the publication to have caused actual loss or damage. Again, the pleading is deficient in this respect.

106    At the risk of repetition, it is appropriate to observe that the relevant publication relied upon for this cause of action is that identified in paragraph 14 of the ASOC. However, to the extent that that paragraph identifies any “publication”, it refers to the assertions in paragraphs 3 and 4 that publication occurred upon Ms Stirling making the Impugned Publications available on the internet (see supra [71] – [75]). Those paragraphs do not identify any relevant publication to any identifiable person. It follows that this, too, is an insufficient allegation of the publication of the representations to third parties.

107    For the foregoing reasons, the pleading in relation to the injurious falsehood claim cannot stand. That being so, it is not necessary to consider whether the element of malice has been sufficiently pleaded.

Conclusion

108    The necessary conclusion is that the ASOC should be struck out in full. Though there are parts of it that might be salvaged, any attempt to rectify the deficiencies by amendment would probably result in an even more convoluted pleading.

109    Despite the conclusion that no cause of action is validly pleaded, the Court retains a discretion as to the form of the relief to be granted: see Branch v Papyrus Australia Ltd [2019] FCA 1879 [50]. In this case, there are serious doubts as to whether Mr Mkrtchyan will be able to identify any person who accessed, downloaded and relied upon the Article or Amended Article, either in Australia or overseas, and this weighs in favour of the conclusion that leave to replead should not be given: cf Newman v Whittington [30]. However, on the other hand, it is not entirely clear at this stage whether Mr Mkrtchyan has a reasonable prospect of prosecuting a claim. That is a reason in favour of granting him leave to replead on this occasion, notwithstanding that the pleading presently has the hallmarks of an action that might be described as somewhat speculative.

110    As mentioned earlier in these reasons (supra [22]), the Court offered Counsel for Mr Mkrtchyan an opportunity to replead at the commencement of the hearing of this application. That was rejected, consistently with the rejection by Mr Mkrtchyan of a similar offer from the solicitors for Ms Stirling. Subsequently, Counsel was informed that, if the pleading were to be struck out, Mr Mkrtchyan may not be given an opportunity to replead. In response, it was submitted that, in the ordinary course, a party should be afforded an opportunity to replead where a pleading is struck out after a contested hearing.

111    With respect, that approach – which, granted, has prevailed previously – should be reassessed. Where an applicant has been warned of the existence of deficiencies in the pleading and given a reasonable opportunity to replead, yet chooses to defend any subsequent strike-out application, they should not expect a further opportunity to advance a case if the strike-out application succeeds. To allow otherwise tends to contradict the philosophy of this Court, as encapsulated in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), and that of Australian Courts more generally: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Moreover, and importantly, it should not be thought that a pleading can be prepared by way of trial and error, in the sense of making iterative corrective amendments consequent upon interlocutory decisions.

112    Nevertheless, in his defence of the present application, Mr Mkrtchyan has relied upon the erstwhile practice. Whilst that is something that should not be encouraged, in the present circumstances, it is appropriate to afford him one further opportunity to advance his claims. There appears to be some evidence suggesting that a financial institution did, in fact, rely upon the negative impression of Mr Mkrtchyan possibly created by the Article or Amended Article when determining to restrict its dealings with his companies. That lends in favour of the conclusion that there may be a case which could reasonably be advanced. Accordingly, although the question of whether leave should be given to replead is finely balanced, it is appropriate to afford Mr Mkrtchyan a final chance to advance a sustainable case.

Costs

113    The respondent should have her costs of this application, as well as any costs thrown away consequent upon the filing of a further amended statement of claim.

Associate:    

Dated:    20 August 2026