Doe 1 v Dowling

1. [1]

   HIS HONOUR: By a notice of motion filed on 10 May 2018, the plaintiffs sought an order that a defence filed by Shane Dowling (“the defendant”) filed on 30 April 2018 (“the amended defence”) be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules (NSW) (“UCPR”) on the basis that no reasonable defence was disclosed and/or the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings.

2. [2]

   That description of the subject matter of this judgment requires explanation by recourse to the history of the proceedings. That history is set out extensively in the judgment of McCallum J in Doe v Dowling [2017] NSWSC 1793 at [1]-[26].

3. [3]

   An action for defamation was commenced by two plaintiffs by statement of claim on 21 December 2016. Those proceedings arose out of the publication of material on a website operated by the defendant. At that time the plaintiffs were Jane Doe 1 and Jane Doe 2 (Campbell J made an order pursuant to s 7 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publications of the names of the first and second plaintiffs: see Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909).

4. [4]

   There were injunctive proceedings which were described in the judgment of McCallum J. On 21 February 2017, following the publication of further material on the defendant’s website, an amended statement of claim was filed joining two additional plaintiffs under the pseudonyms Jane Doe 3 and Jane Doe 4. The plaintiffs on the present motion are Jane Doe 1, 2, 3 and 4, respectively.

5. [5]

   The defendant filed a defence to the statement of claim brought by Jane Doe 1 and Jane Doe 2 (“the first and second plaintiffs”) but that was struck out by Fagan J on 10 February 2017 for reasons stated by his Honour in Jane Doe 1 v Dowling (No 5) (Unreported, Supreme Court New South Wales, Fagan J, 10 February 2017). A second defence produced by the defendant was the subject of a further strike out application but the filing of the amended statement of claim intervened.

6. [6]

   The present application relates to the amended defence filed on 30 April 2018.

The applicable rules

1. [7]

   The Court may strike out the whole or any part of a pleading under r 14.28 of the UCPR, which rule is in the following terms:

2. [8]

   Defences in defamation proceedings must comply with the general pleading rules and those specifically dealing with pleading and particularising defamation defences pursuant to Pts 14 and 15 of the UCPR. Given the wholesale deficiency in the pleadings in the amended defence, it is unnecessary to refer to particular aspects of those rules. In short, as I will discuss, the amended defence fails to comply with any of the basic rules or principals of pleading a defence.

Legal principles

1. [9]

   There was no dispute about the legal principals encapsulated in the written submissions of the plaintiffs. In my view they are correct and I extract them below:

Consideration

1. [10]

   Neither party called evidence on the motion but that deficiency is of no consequence given that the fundamental deficiencies in the pleadings within the amended defence.

2. [11]

   At the broadest level, the amended defence merely replicates or paraphrases the provisions of the Defamation Act 2005 (NSW) as constituting the defences. At best, it may be concluded that the defendant has identified the subject matter of the defence.

3. [12]

   None of the requirements for the pleading and the particularisation of the defences as set out in UCPR rr 14.31-14.4 and 15.21-15.30 were complied with in the amended defence. Nor is there any reference to particular paragraphs of the amended statement of claim and, therefore, there is no indication as to whether the relevant defences were raised in relation to every matter complained of or only some. An illustration of this non-compliance is the “justification” defence, as pleaded by the defendant, which does not traverse the imputations to which it is directed. Similarly, the “contextual truth” defence does not plead a single contextual imputation conveyed in addition to the plaintiffs’ imputations. Further, there are no particulars of factors, matters and/or circumstances which the defendant relies upon to prove the defences.

4. [13]

   As the plaintiffs submitted, this is not a case where the amended defence simply fails to disclose a reasonable defence. The omission rises to the level of failing to disclose a defence such as to perform the very basic obligation of informing the plaintiffs of the case they would be required to meet.

5. [14]

   In many respects, these difficulties were anticipated by the defendant who contended, at the outset of the hearing of the notice of motion, that the Court should permit him to re-plead the defence in the event that it was struck out. The balance of the proceedings then occupied argument as to that question. In the result, at the close of the hearing, the Court indicated that it intended to strike out the amended defence but to reserve the question of whether the defendant would be permitted to re-plead.

6. [15]

   The preceding components of these considerations constitutes the foundation for the conclusion that the amended defence is so obviously untenable that it cannot possibly succeed and the reasons for the determination that the amended defence should be struck out. The balance of these considerations deals with that question and the additional question of whether the defendant should be granted leave to re-plead in those circumstances.

7. [16]

   The plaintiffs submitted that, given the history of the litigation and the nature of the present pleadings, there is little chance that leave to re-plead “will result in a document that complies with the relevant rules and principles”. It was submitted that, in the light of McCallum J’s reasons in Doe v Dowling, it was apparent that the defendant had no defence.

8. [17]

   In reply to the submissions developed by the defendant, to which I will return to momentarily, the plaintiffs submitted that the defendant’s reliance upon discovery or interrogatories demonstrated the absence of an available defence for the defendant (the plaintiffs contending that it was inappropriate to make orders for discovery or interrogatories prior to the pleadings closing). Further, the defendant had been given every opportunity to articulate his position.

9. [18]

   The defendant contended that he was in a position to improve the form of the pleadings having acquired an example of the pleading of a defence from another proceeding.

10. [19]

    He was asked to indicate what the substance of his defence might be, with a view to ascertaining whether, irrespective of particular form requirements of a defence, a re-pleading may produce, in substance, a defence.

11. [20]

    In response to that inquiry the defendant traversed a number of aspects of his pleadings but ultimately came to the submission “[m]y view point is that I need interrogatories and discovery first to re-plead” and “so that’s why my view point is: if you were minded to do anything, leave is granted for me to file, if need be, the interrogatories and discovery, and a notice of motion to have them issued”.

12. [21]

    As to particular aspects of the defence, the defendant placed primary reliance upon absolute privilege. That submission was predicated upon the basis that the document published on his website had been deployed elsewhere in circumstances that would attract absolute privilege and in particular he relied upon the fact that the document was deployed in proceedings in the Australiana Human Rights Commission. He contended that all “[he] did was repeat what was in that Australian Human Rights Commission legal document”.

13. [22]

    The defendant also referred to the defences of truth and triviality. He referred to statements made by Ms Amber Harrison in an article in “the Telegraph”. Reference was made to honest opinion (it was submitted that “it’s highly likely it’s true”) and qualified privilege.

14. [23]

    None of the submissions took up the invitation of the Court to add to submissions that had been made before McCallum J in Doe v Dowling or re-characterise those submissions or to expand upon the basis for them. That said, having regard to the submissions of the parties, it is necessary to spend some little time further considering the judgment of McCallum J in Doe v Dowling.

15. [24]

    The starting point of that consideration must be to note that her Honour was dealing with the question as to whether the fifth order made by the Court, as presently constituted, granting injunctive relief should be continued. One of the considerations undertaken by her Honour in that respect was whether, on the evidence and having regard to the circumstances of publication, there was any real ground for supposing that the defence might succeed. This was necessary to determine because, if the publication may be defensible, an injunction should not be granted because of the public interest in free speech. That issue involved both a consideration of the nature and quality of the evidence (see Doe v Dowling at [19]) and the prospect that the circumstances of publication, without more, might point to the prospect of a good defence (Doe v Dowling at [21]).

16. [25]

    It is also important to note that her Honour stated that “nothing in this judgment determines the fate of any future defence”. The only question, her Honour observed, at that stage of proceedings was whether there appears to be a viable defence; if there is, the plaintiffs application must fail (Doe v Dowling at [26]).

17. [26]

    Turning to the primary submission advanced by the defendant as to absolute privilege, her Honour observed (Doe v Dowling at [34]):

18. [27]

    In substance, the defendant’s contention is that the document published on his website had been deployed elsewhere in circumstance that attract absolute privilege such that the document enjoyed the “same protection”.

19. [28]

    The difficulty with that defence, so formulated, was, as her Honour observed, a defence of absolute privilege does not arise by reporting something which is the subject of absolute privilege. In any event, the reporting of that which was said under absolute privilege may at its highest attract a qualified privilege.

20. [29]

    The amended defence relied upon by the defendant did not actually plead qualified privilege but the Court received, without objection, submissions from him in that respect.

21. [30]

    As to qualified privilege, McCallum J stated in Doe v Dowling (at [36]-[39]):

22. [31]

    There was no change in the circumstances described in those paragraphs identified in the submissions by the defendant in these proceedings. I respectfully concur with the substance of her Honour’s remarks. Some further observations in relation to interrogatories and discovery will be made below.

23. [32]

    As to the defence of truth, or what the defendant described as “contextual truth”, this brings to consideration the discussion at [27], [29], [31]-[33] of Doe v Dowling, which I extract below:

24. [33]

    In these proceedings, the defendant continued his complaint about evidence being put on in the form of a solicitor’s affidavit and further submitted that the plaintiffs case was weak because they had not, themselves, gone into evidence. As the counsel for the plaintiffs properly contended this misconceived the nature of proceedings and where the onus of proof lies.

25. [34]

    I make no general observations about the use of affidavits put on by solicitors on the information and belief basis. It is sufficient to note that the onus fell upon the defendant to articulate the defence of truth. There is no further evidence put on in the proceedings or identified as being available to him in that respect (or, if available, the content of any such evidence). The defendant’s submission that a lot of people “look at my website, all people opt in” and “they’re all interested in what I write and have a genuine interest in what I say” does not overcome these obstacles. The position as identified by McCallum J at [33] of her judgment has not changed.

26. [35]

    In relation to the defence of triviality (and also in relation to the question of qualified privilege) the defendant submitted that, with the “me too” movement there was a strong argument in favour of finding qualified privilege because it is a “political issue” and there has been the lobbying of governments to change laws so there is no “sexual harassment”. It was necessary, therefore, to have discussion about such things.

27. [36]

    I have earlier remarked on the question of qualified privilege but it appropriate to deal with those submissions in the context of triviality, having regard to McCallum J’s decision at [40]-[41], which was in the following terms:

28. [37]

    The observations by McCallum J at [41] are apposite in the context of the submission made by the defendant as to the “me too” movement. The logic of the submission appears to be that the “me too” movement converted the subject matter of the defamatory document into a matter of governmental or political content thereby attracting the defence of qualified privilege at common law. However, that defence is conditioned on the requirement of reasonableness. It is difficult to conceive how a campaign which is designed to vindicate and protect those who have been victims of sexual harassment might be advanced by the publication of arguably defamatory comments about the treatment of four women employed or formerly employed by the Seven Network. It is difficult to delineate between the alleged (and unproven) treatment of the women by the management of the Seven Network from the treatment afforded them by the publication of the material in question.

29. [38]

    The defence provides no particulars at all in relation to the defence of honest opinion.

30. [39]

    The defendant did contend that it was his honest opinion because it was highly likely that the imputations were true. However, that does not establish in and of itself the defence of honest opinion. As McCallum J observed (and no further submissions were made by the defendant about the matter) he does not hold the opinion expressed in the imputations. In that sense, whether the opinion is true or not is irrelevant.

31. [40]

    As mentioned above, there was no further evidence produced by the defendant over that which was discussed in McCallum J’s judgment. Nor are there any submissions advanced, of substance, which provided for any differentiation or advancement over that which was previously put by the defendant as to what might support a determination in favour of re-pleading. The amended defence suffers the deficits which I have described above.

32. [41]

    In substance, the defendant sought to overcome those deficiencies by the issuing of interrogatories and discovery. The subject matter of the interrogatories and the discovery sought are set out in paras 11-12 of the amended defence. I do not repeat them.

33. [42]

    It is unnecessary, in the light of those findings, to rule upon the second limb of the notice of motion, namely, the defence has a tendency to cause prejudice, embarrassment or delay; although I note there is some substance to the plaintiffs’ submissions in that respect.

Conclusion

1. [43]

   In the circumstances, the Court considers that the first prayer for relief in the notice of motion should be granted and that the defendant not be permitted to re-plead. Costs should be reserved.

Direction

1. [44]

   The plaintiffs are directed to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.