Cooper v Cooper [2019] QDC 279

DISTRICT COURT OF QUEENSLAND CITATION: Cooper v Cooper [2019] QDC 279 PARTIES: JAMIE MALACHI COOPER (applicant) v SHARELLE NADEINE COOPER (respondent) FILE NO/S: D123/2017 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Ipswich District Court DELIVERED ON: 13 December 2019 DELIVERED AT: Ipswich HEARING DATE: 6 August 2018 JUDGE: Horneman-Wren SC, DCJ ORDERS: 1. Paragraphs 11, 12, 13, 14 and 15 of the defendant’s defence are struck out. 2. The defendant has leave to replead paragraphs 14 and 15 of her defence by 13 January 2020. 3. The parties costs of and incidental to the application are each party’s cost in the cause. CATCHWORDS: CIVIL APPLICATION – STRIKEOUT PARTICULARS OF DEFENCE – PURSUANT TO s 162 and/or 171 – SUMMARY JUDGMENT – PURSUANT TO s 292 – UNIFORM CIVIL PROCEDURE RULES – where applicant seeks summary judgment – where applicant seeks, in the alternate, to have pleadings struck out – where applicant – whether the pleaded defence has any reasonable prospects of succeeding – whether the pleaded particulars amount to mitigation of damage or a defence – whether defendant should have leave to replead Legislation: Defamation Act 2005 Uniform Civil Procedure Rules 1999 Public Interest Disclosure Act 2010 Cases: -- 1 of 18 -- 2 Chappell v Mirror Newspapers Ltd (1984) ATR 80-691; Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Mann v Mackay Television Ltd [1992] 2 Qd R 136; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86; Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116; Papoconstuntinos v Holmes-a-Court [2009] NSWSC 903; Prager v Times Newspapers Ltd [1988] 1 WLR 77 CA 93; S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036; Singleton v John Fairfax & Sons Ltd At [1983] 2 NSWLR 722; Smith v Lucht [2017] 2 Qd R 489; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; COUNSEL: K N Wilson QC for the applicant S F Lamb for the respondent SOLICITORS: Australian Property Lawyers for the applicant Corney & Lind for the respondent Background [1] The plaintiff, Jamie Malachi Cooper, is the brother-in-law of the defendant, Sharelle Nadeine Cooper. Quite apparently, all is not harmonious within the family. [2] On 26 December 2016, or thereabouts, Sharelle published a post on the Facebook account of Lauren Trotter. Lauren is the de facto partner of Jamie. Sharelle knows Lauren well.1 [3] Lauren had posted a photograph of the three year old son of herself and the plaintiff. He is wearing a cowboy hat and what appears to be a monogrammed work shirt. Several people commented upon it. Sharelle then posted: “This is how his father Jamie Cooper cares for cattle. (Great example for a child to be learning from)”. 1 Affidavit of Sharelle Nadeine Cooper filed 5 April 2018, para 12(c). -- 2 of 18 -- 3 [4] The post included a photograph of what appears to be a dead cow.2 [5] Someone else commented upon the post by Sharelle saying: “Really appropriate Sharelle”. [6] To this, Sharelle responded: “Sure is when u want to wear a company logo and pretend to be big cow cockies but really don’t have a clue of a company whose directors cruel and mistreat animals and ur father plays a big part in it u bring it on urself”. [7] The plaintiff’s statement of claim identifies “the publication” as being the post and the response.3 The plaintiff has thus pleaded the two individual posts collectively as “the publication”. [8] The defendant admits that she published each of the post and the response, collectively the publication. [9] The plaintiff alleges that a number of defamatory imputations arise from the natural and ordinary meaning of the words, including: “That the plaintiff: (i) mistreated the animal depicted; (ii) neglected the animal depicted; (iii) abused the animal depicted; (iv) abuses cattle and animals; (v) mistreats cattle; (vi) mistreats animals; (vii) is cruel to animals; (viii) otherwise acts in contumelious disregard for the rights of animals.”4 [10] He also alleges that several other defamatory imputations arise by way of false innuendo, including: 2 Exhibit 1. 3 The particulars of the publication refer to a concerns notice dated 24 November 2017 said to be annexed to the pleading. It is not. The concerns notice and copies of the two posts are exhibited to the affidavit of Timothy Lachlan Knox filed 21 May 2012. 4 Statement of claim, paragraph 4. -- 3 of 18 -- 4 “That the plaintiff: (i) mistreats cattle in his capacity as an employee of Cooper Pastoral Co.; (ii) is incompetent in his role working with cattle for Cooper Pastoral Co.; (iii) caused the harm done to the animal depicted; (iv) is a cruel person; (v) is cruel to animals; (vi) is immoral.5 [11] By her defence, the defendant pleads that: the publication is not reasonably capable of conveying the pleaded imputations (whether arising on the natural and ordinary meaning of the words or by innuendo); did not convey the imputations or would not be understood to convey them; is not reasonably capable of being defamatory of the plaintiff; and was not defamatory of him in the sense pleaded. She also denies the imputation that he mistreats cattle in his capacity as an employee of the cattle company on the basis that he is not in fact an employee. [12] The defendant also raises by way of defences that: (a) each of the imputations are true; (b) the publication was an expression of opinion; and (c) the circumstances of the publication were trivial such that the plaintiff was unlikely to sustain any harm. [13] As to truth, she pleads specific matters concerning the plaintiff’s treatment of the cow depicted in the publication alleged to have occurred on 26 September 2016 and numerous prior occasions on which she alleges that the plaintiff failed to properly care for animals.6 [14] As to honest opinion, she pleads that the publication was an expression of opinion as she provided an opinion as to the acceptable standard of care for cattle and livestock.7 She pleads that the opinion related to a matter of public interest being the management of agriculture and livestock and the care and treatment of animals,8 and that the 5 Statement of claim, paragraph 5. 6 Defence, paragraph 10. 7 Defence, paragraph 11. 8 Paragraph 12. -- 4 of 18 -- 5 opinion was based on proper material because the facts and matters on which the opinion was based were substantially true.9 [15] As to triviality, she pleads: “14. The circumstances of the publication are such that the plaintiff did not sustain any harm: (a) The publication was able to be accessed on Lauren Trotter’s Facebook page for less than 48 hours. (b) The publication was on the personal Facebook page of Lauren Trotter which is accessed by her Facebook friends. Lauren Trotter is the de facto partner of the plaintiff and her Facebook friends are likely to be known to the plaintiff. (c) The publication was made as a comment underneath a photograph post on Facebook as a supplementary publication to the photograph post, and not as the primary post. (d) The publication was made on a private personal Facebook page of a third party that is not the plaintiff. and not published on or to the plaintiff’s employer or the plaintiff’s employer’s social media.” [16] At paragraph 15 of the defence the defendant pleads a number of matters in mitigation of the damages claimed by the plaintiff. Those matters are: “15. The defendant relies on mitigation of damages as stated in paragraph 7 of the statement of claim on: (a) that any imputations relied upon by the plaintiff was caused by the plaintiff in his own action towards animals, (b) that the plaintiff failed to properly particularise his claim and solely relies upon his claim to his alleged harmed reputation rather than the truth of his own actions of being cruel to animals, (c) that the plaintiff made no attempt to defend himself, 9 Paragraph 13. -- 5 of 18 -- 6 (d) that the plaintiff took almost a year to make a defamation claim, (e) that the facts relied upon by the plaintiff are false and misleading, (f) that the defendant honestly believes that the plaintiff is cruel to animals and continues to be so and there is substantial truth to the matter, (g) that any imputations are matters of public interest, (h) that the plaintiff has been charged for cruelty towards animals by the police, (i) that the plaintiff’s claim has been made to retaliate against the defendant.” [17] In respect of 15(i), the defendant then alleged two matters in support of the allegation that the claim was made to retaliate against her. First, that she had made a public interest disclosure by reporting the plaintiff to police and other authorities for acts of animal cruelty, relying upon ss 36 and 38 of the Public Interest Disclosure Act 2010. Secondly, that the retaliatory attempt against her was by the solicitors for the plaintiff because she had made a public interest disclosure concerning one particular solicitor. [18] Thirdly, that she is one of the plaintiffs in a family farming property dispute in the Supreme Court and that the plaintiff was using the defamation proceedings to cause detriment to her so that she and her husband would not be able to proceed with their claim and to discredit her. The application [19] The plaintiff applies for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999. Alternatively, he applies to have paragraph 15 of the defence struck out pursuant to r 162 and/or 171. -- 6 of 18 -- 7 Summary judgment [20] The court’s power to order summary judgment should only be exercised in the clearest of cases, and requires the plaintiff to demonstrate that there is no real prospect of a successful defence.10 [21] The plaintiff’s written submissions in support of the application suggested that there was no defence of truth simpliciter at common law. The plaintiff then went on to make submissions concerning the availability of the defence of contextual truth under s 26 of the Defamation Act 2005, but submitted that the defendant had not pleaded any true contextual imputations, and arguing that the defence did not, therefore, arise. [22] In his oral submissions, senior counsel for the plaintiff amended the submissions, acknowledging that a defence of substantial truth was available under s 25 of the Defamation Act. [23] Indeed, in oral submissions, senior counsel for the plaintiff described that defence as “arguably the only defence available” but submitted that upon proper analysis it did not have any real prospect of succeeding. The basis for the submission is that the evidence of the defendant contained in her affidavit, demonstrates that the defence of substantial truth cannot be made out. [24] The starting point is paragraph 10 of the defence in which the defendant pleads the matters concerning the treatment of the particular cow to which the publication related and the treatment of other animals on prior occasions. The defendant included in her affidavit a chronology of events.11 In that chronology she states that on 19 August 2016: “I observed an incident of animal cruelty”. She goes on to identify that she had a number of conversations with her husband about the plaintiff’s treatment of animals.12 Then, in respect of 19 August 2016 she says that her husband called her by telephone that evening informing her that there was a cow which had been mistreated by the plaintiff. 13 [25] The plaintiff makes two points. First, he submits that the defendant’s evidence that she was told of the plaintiff’s mistreatment of the cow by her husband is inconsistent 10 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. 11 At paragraph 11 of the affidavit. 12 At paragraph 16. 13 At paragraph 17(c). -- 7 of 18 -- 8 with the statement in the chronology that she had observed an incident of mistreatment. Secondly, he says that the description of the mistreatment which she recounts her husband telling her is different from that pleaded at paragraph 10 of the defence. The pleading alleges that the defendant threw stones at the cow’s head, wounding it and causing it to bleed. It also alleges that he then proceeded to strike the cow excessively causing it to fall to the ground. The plaintiff makes the point that there is no mention of any stoning of the cow in the affidavit. The allegation in the affidavit is that the animal was beaten with sticks. [26] The plaintiff makes a similar point in relation to events alleged to have occurred on 7 November 2016. Again, the chronology states in respect of that date: “I observed an incident of animal cruelty”. Again, the point is made that in paragraph 17(d) of her affidavit, the defendant states that she was told by her husband in a telephone call on that date that the plaintiff had mistreated a cow. Again, the plaintiff contends that the allegations pleaded at paragraph 10 of the defence are not deposed to by the defendant in her affidavit. [27] It is submitted that the plaintiff when given the opportunity to put on an affidavit in support of the defence she did not swear to facts which matched the allegations pleaded. Counsel for the plaintiff noted that there had been no suggestion that there would be any amendment made to the pleaded facts. [28] The defendant makes the same submissions in respect of the other alleged prior incidents of mistreatment: they were not personal observations as stated in the chronology, but rather related by her husband; and the context of the alleged mistreatment is different. [29] In respect of the events of 26 December concerning the cow depicted in the publication, the plaintiff submits that the real complaint of the defendant as set out in her affidavit, particularly at paragraph 27(c), is that the plaintiff did not euthanise the cow, which does not match the allegations concerning his conduct pleaded in the defence. [30] It is for those reasons that the plaintiff submits that the defence of justification of substantial truth has no real prospect of succeeding. In my view, the plaintiff’s submission should not be accepted. -- 8 of 18 -- 9 [31] First, in relation to the events of 26 December to which the publication is said to relate, the plaintiff’s submission as to the defendant’s real complaint, by reference to paragraph 27(c) of her affidavit, does not acknowledge or deal with the preceding paragraphs 25 and 26 which also relate to that occasion. The defendant there deposes to having seen a weak cow and having witnessed the plaintiff giving it a bucket of water which he later took away; his having dragged the cow’s tail to move her and having kicked her in the head. She also deposes to the plaintiff strapping the cow to a tractor to move it a few metres. Those allegations are broadly consistent with the particulars provided to the pleading of truth at paragraph 10(b) of the defence. [32] In relation to the submissions that the plaintiff’s chronology states that she observed further things but that her description of the events of the particular occasions state that she was told those things by her husband, that criticism is not universally accurate. The plaintiff does depose to personal observations on 24 and 26 November consistent with the particulars provided. The same is true for events of 9 December 2016. [33] To the extent that the criticism is accurate for the events of 19 August and 7 November, I would not conclude that the defence of justification has no real prospects of succeeding because of the distinction as to whether she or her husband observed those matters. She deposes to her husband’s willingness to give evidence about the matters to which she refers.14 It will be the substance of the allegations of mistreatment, rather than the particular person who observed it, which will be of greatest relevance to the defence. [34] The same may be said of the criticisms of differences between pleaded facts particularised in the defence and matters deposed to in the defendant’s affidavit. There is, in my view, sufficient consistency between them to demonstrate that there are some prospects for the substantial truth defence to succeed. It cannot be said that the evidence of the events which are particularised in paragraph 10 of the defence are wholly unsupported by the plaintiff’s evidence in her affidavit. [35] I do not accept the plaintiff’s submissions on the absence of any real prospect of the substantial truth or justification defence succeeding. The evidence demonstrates a need for a trial in respect of the claim. 14 Paragraph 18 of her affidavit. -- 9 of 18 -- 10 [36] In relation to the pleaded defence of honest opinion, the plaintiff submits that there is no real prospect of that defence succeeding because the publication was not the expression of the defendant’s opinion; it was a statement of fact. In my view, this submission is correct. [37] No part of the original post or the subsequent response to a comment includes any statement of the defendant’s opinion as to the acceptable standard of care for cattle and livestock.15 A reader of the publication might infer that it was the defendant’s opinion, demonstrated by the statements as to the plaintiff’s care in the publication, that the standard of care was not appropriate. However, that would require inference of opinion drawn by the reader from the statement of fact contained in the publication. As presently pleaded, paragraphs 11, 12 and 13 of the defence disclose no reasonable defence. [38] As summary judgment will not be granted, the appropriate course is to strike out those paragraphs pursuant to r 171, even though this was not relief particularly sought in the application.16 [39] The defendant’s defence of triviality, as presently pleaded, is misconceived. Section 33 of the Defamation Act provides: “33. It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.” [40] As the plaintiff submits, the pleading at paragraph 14 of the defence, that “the circumstances of the publication are set out are such that the plaintiff did not sustain any harm”, does not engage the statutory defence created by s 33. The plaintiff submits that the pleading goes only to an assessment of damages rather than to establishing a defence. The plaintiff is correct in that regard in respect of that which is pleaded at paragraph 14. It is to be noted, however, that at paragraph 9(c) the defendant has pleaded in terms of the statutory defence: that is, that the circumstance of the publication were such that the plaintiff was unlikely to sustain any harm. [41] As Flanagan J observed in Smith v Lucht:17 15 As pleaded in the defence at paragraph 11. 16 Rule 658, Uniform Civil Procedure Rules. 17 [2017] 2 Qd R 489 [102]. -- 10 of 18 -- 11 “Whilst the defence proceeds on the premise that the plaintiff has been defamed (and therefore his or her reputation presumably harmed) the operation of the defence does not seek to establish that the plaintiff’s reputation was not in fact harmed. As stated by Moffit P in Chappel: ‘… section 13 is directed entirely to the circumstances of the publication. It does not change the general law so the defendant can raise an issue on the probabilities whether there is in fact harm caused to the person defamed. The issue is directed to the quality of the publication in respect of its proneness to cause harm.’”18 [42] His Honour went on to observe:19 “It is, as Moffit P observed, the quality of the circumstances of the publication which determine at the moment of publication whether or not it is actionable. The defence therefore ‘depends entirely on the causative potency of the circumstances of the publication’ to produce immunity from harm.” [43] In order to make out the defence of triviality the defendant must prove “not merely that there is unlikely to be a great or substantial harm, but there is unlikely to be any harm at all”.20 [44] The enquiry as to whether the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm is an objective enquiry directed to the moment of publication.21 [45] In Chappell v Mirror Newspapers, Moffit P observed of the equivalent defence: “The apparent purpose of s 13 and its predecessors, despite some differences in their terms and application, was to give a defence to and hence discourage actions for trivial defamation. This will arise in particular where there is a limited publication. This will more often 18 Citing from the judgment of Moffit P in Chappell v Mirror Newspapers Ltd (1984) ATR 80-691 at 68, 947. 19 At [105]. 20 Papoconstuntinos v Holmes-a-Court [2009] NSWSC 903 at [105] cited with approval in Smith v Lucht at [94]. 21 Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 799; Chappell v Mirror Newspapers Limited at 68, 947; Smith v Lucht at [97]. -- 11 of 18 -- 12 be the case where the defamation is oral but will sometimes extend to a written defamation. Examples of written defamatory imputations of trivial impact published by letter or circular to a limited or particular class of persons can be readily thought of.” [46] In Morosi v Mirror Newspapers, the court had said to similar effect: “Section 13 seems to be intended to provide a defence to trivial actions for defamation. It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a very few people in a private home. It may be that the knowledge of the plaintiff’s reputation by the person to whom the publication is made in such a case, and their acceptance of that reputation as truly reflecting the plaintiff’s character, can be taken into account in deciding whether the plaintiff is likely to suffer harm.”22 [47] And in Singleton v John Fairfax & Sons Ltd,23 Hunt J said: “Other factors which have been held to be relevant to the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published, and the place where it is published.”24 [48] Given the focus of the enquiry as to the circumstances is at the moment a publication, its accessibility for only 48 hours, as pleaded at paragraph 14(a) of the defence, may be of limited relevance. However, the matters pleaded at paragraphs 14(b), (c) and (d) are directed to the extent of the publication which may be of more relevance to a pleading properly directed to the enquiry raised by s 33. [49] Paragraph 14 should be struck out because it does not raise the defence of triviality under s 33. However, because the pleading at paragraph 9(c) of the defence, that is that the circumstances of the publication were trivial such that the plaintiff was unlikely to sustain any harm, does properly engage with that statutory defence raised by s 33, the defendant should be afforded the opportunity to replead paragraph 14 in a manner which would also properly reflect that defence. 22 Supra at 800. 23 At [1983] 2 NSWLR 722 at 724. 24 Citing Morosi at 800. -- 12 of 18 -- 13 [50] The application for summary judgment fails. The pleading in mitigation – paragraph 15 of the defence [51] The plaintiff seeks to have paragraph 15 of the defence struck out, either in whole or in part. There are several parts to the argument. [52] First, the plaintiff submits that subparagraphs 15(a) and (b) do not plead matters in mitigation of damages; rather they go to the substantive defence of substantial truth. He further says that any failure to particularlise his claim, as pleaded at paragraph 15(b), is not a matter of mitigation. [53] Secondly, it is contended that subparagraphs (c) and (d) likewise do not plead matters in mitigation, the plaintiff having brought proceedings within the time limited by the Limitation of Actions Act 1974, s 10AA. [54] Thirdly, the pleading of subparagraph (e) is a bald pleading that the facts relied upon by the plaintiff are false and misleading, without identification of any particular facts said to be false or any explanation as to why they are misleading. In any event, whilst relevant to the defences pleaded, this is not a matter of mitigation. [55] Fourthly, the defendant’s subjective belief as to the plaintiff’s conduct, as pleaded at subparagraph (f), is irrelevant. [56] Fifthly, subparagraph (g) is said not a proper pleading of mitigation. [57] Sixthly, the plaintiff submits that the fact, as referred to in subparagraph (h), that he was charged by police for cruelty toward animals could not amount to an act by him in mitigation of his damages. He notes that the defendant identifies in her own affidavit that the charges were not proceeded with. [58] Seventhly, in respect of the allegation that the claim is retaliatory, as alleged in subparagraph (i), the plaintiff submits that even if it were so, that is irrelevant unless it is an abuse of process; and the defendant does not allege that it is. Further, he submits the matters that the disclosures to police by the defendant referred to in subparagraph 15(i)(i) could not attract the immunity from liability under s 36 of the Public Interest Disclosure Act 2010, or the defence of absolute privilege to a defamation proceeding which s 38 of that Act creates. The disclosure could not attract those protections because it was not “a public interest disclosure”. Nor, is it -- 13 of 18 -- 14 submitted, is the disclosure made about the plaintiff’s solicitor a public interest disclosure. [59] In respect of subparagraph 15(i)(ii) the plaintiff further submits that the exhibiting of documents to the defence is a disclosure of information obtained in the administration of the Legal Profession Act 2007, and that such disclosure contravenes s 705 of that Act. [60] The defendant made only limited submissions in support of the retention of paragraph 15. [61] In respect of subparagraphs 15(a) and (b), the defendant’s written submission is that: “The defendant’s comments are about the plaintiff’s conduct not the plaintiff himself. The distinction is a relevant factor in the assessment of damages.” [62] In his oral submissions, the defendant took a different tack. Those subparagraphs, it was said, identified that there was no causal link between the harm the plaintiff is said to have suffered and the damages that he is claiming. If that were the purpose of those subparagraphs, in my view they fail to achieve it. [63] As for the distinction referred to in the written submissions, it should first be observed that if “the comments” referred to are those in those subparagraphs of the pleading themselves, rather than the publication, then they should not be included in a pleading. Pleadings are to contain statements of material facts upon which a party relies.25 I will proceed on the assumption that the comments refer to the publication. [64] I do not consider that the asserted distinction is established by the pleading or that it has the suggested relevance. The defendant has commented upon the conduct of the plaintiff; that much may be accepted. However, it is alleged by the plaintiff that the comments concerning him give rise to the imputations which it is alleged are damaging of his reputation. In fact, a literal reading of subparagraph 15(a) seems to recognise that. The subparagraph seems to say no more than that the imputations arise because the alleged defamatory comments of the defendant are true. That is, it is no more than a recitation of the defence of substantial truth. 25 Rule 149(1)(b) UCPR. Conclusions of law may also be pleaded or raised provided that the material facts in support are also pleaded; but the matters pleaded are not conclusions of law. -- 14 of 18 -- 15 [65] In oral submissions, counsel for the defendant sought to establish that those matters could be relied upon in mitigation of damages even if a pleaded defence, such as justification, fails. He sought support from the judgment of Macfarlan J in Holt v TCN Channel Nine Pty Ltd,26 and the cases there cited.27 Those authorities establish that evidence led in support of a plea of justification, and thus properly before the tribunal of fact, may be considered in mitigation of damages even though the plea itself fails. This is particularly so where there are severable defamatory matters.28 So too where the publication of one defamatory matter gives rise to several imputations, justification may be established in respect of some but not others. [66] The defendant would be liable for damages in respect of those imputations which were not justified. As already identified, the plaintiff has pleaded the initial post and the response collectively as “the publication” and not as separate defamatory matters, with the composite publication said to give rise to the alleged imputations both from the natural and ordinary meaning of the words used and by way of false innuendo. The plaintiff has pleaded in that way without any separate identification of “the words” said to give rise to the imputations as pleaded at paragraph 4.29 [67] In my view, it may be appropriate for a defendant to defamation proceedings to plead that damages claimed by the plaintiff ought to be mitigated because a part or parts of the published matter is true. However, subparagraphs 15(a) and (b) do not achieve that purpose. [68] Subparagraphs 15(a) and (b) should be struck out. As presently pleaded they have a tendency to prejudice or delay the fair trial of the proceeding. However, leave to replead should be granted. [69] In respect of each of subparagraphs 15(c), (d), (h) and (i), the written submission is limited to “the defendant’s comments provide context to the posts”. That submission rather suggests that the comments referred to are indeed what is set out in those 26 (2014) 86 NSWLR 96 at [26]-[32]. 27 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [43]; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227. 28 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [48], citing Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 at 290; Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 627; Prager v Times Newspapers Ltd [1988] 1 WLR 77 CA 93. 29 The difficulties that may be created by pleading in such a way are referred to by Derrington J in Mann v Mackay Television Ltd [1992] 2 Qd R 136 at 148-149; and Plato Films Ltd v Speidel [1961] AC 1090 at 1143-1144; and S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 at 1039. -- 15 of 18 -- 16 subparagraphs of the pleading rather than the publication itself. The same observation, as made above, as to the inappropriateness of pleading comments can be repeated. [70] Insofar as the matters set out in subparagraphs (c), (d) and (i) are statements of material fact, they do not provide context to the post at all. Each is directed to matters subsequent to, and not at all relating to, the post. [71] In oral submissions counsel for the defendant sought to support the retention of subparagraphs (c) and (d) on the basis that they refer to conduct of the defendant relevant to the assessment of damages. There is some support for that proposition in a case cited by the defendant. In McCarey v Associated Newspapers Ltd (No 2),30 Pearson LJ observed that he considered there to be some delay in the bringing of the action stating that “had the plaintiff considered the libels upon him to be very serious he would presumably have brought his action at once and the fact that he was willing, for whatever reasons, to defer commencing proceedings for some 11 months was some indication that he did not consider the damage to his reputation to be a highly serious matter.” The defendant submits that the delay here is analogous. [72] In my view, the pleading at subparagraphs 15(c) and (d) do not truly engage with that issue, if that is what they are intended to raise. They do not allege, in their present form, that the defendant relies, in mitigation of the plaintiff’s claim for damages, upon the fact that by his conduct he has demonstrated that he did not consider the damage to his reputation to be serious. Particulars of that may be the matters currently pleaded in subparagraphs 15(c) and 15(d). However, in their present form those subparagraphs should be struck out, but leave to replead them should be granted. [73] As for subparagraph 15(h), on its face it may have been capable of providing context for the post if it was something which was known to or prompted the defendant to publish it.31 However, the defendant’s evidence filed on the application betrays any potential relevance. The evidence demonstrates that the police charge was also subsequent to the publication.32 30 [1965] 2 QB 86 at 96-97. 31 Leaving aside for the moment any question of relevance of such context. 32 Defendant’s affidavit at paragraphs 48 and 49. -- 16 of 18 -- 17 [74] In my view, each of those subparagraphs should be struck out. They have a tendency to prejudice or delay a fair trial. Subparagraph (i) is also unnecessary and scandalous. The plaintiff’s submission that the matters pleaded cannot have been public interest disclosures under the Public Interest Disclosure Act 2010 are correct. The protections conferred by ss 36 and 38 of that Act cannot arise. The exhibiting of the material is also inappropriate. The court’s order which presently prohibits search of that material will be made permanent. [75] The defendant’s written submissions in support of retention of subparagraph 15(e) is “first, the defendant is denying the imputations and second, unless the family disputes in the Supreme Court are placed before the jury, the jury will not have the context for publication”. No oral submissions were made in support of subparagraph 15(e). [76] The pleading in subparagraph 15(e) does not do that, which it is submitted it does. It simply, baldly states that the facts relied upon by the plaintiff are false and misleading. It lacks all particularity. It ought to be struck out. [77] It is contended for the defendant that subparagraphs (f) and (g) refer to the defences of truth, honest opinion and triviality. As the plaintiff submits, the defendant’s subjective belief that the plaintiff is cruel to animals is not to the point. Section 36 of the Defamation Act provides that in awarding damages the court is to disregard the state of mind of the defendant; so it is generally not relevant. There is an exception that the defendant’s state of mind can be considered to the extent that it effects the harm sustained by the plaintiff. There is nothing raised in the statement of claim (or otherwise in the defence) which would make the defendant’s state of mind relevant to any plea in mitigation of damages. [78] Subparagraph 15(f) should be struck out. [79] The defendant’s written submission that subparagraph 15(g) goes to the defences of truth, honest opinion and triviality, undeveloped by further oral submissions, cannot be sustained. It too should be struck out. [80] Therefore, the whole of paragraph 15 of the defence should be struck out. The defendant though ought to have leave to replead. Disposition -- 17 of 18 -- 18 [81] Paragraphs 11, 12, 13, 14 and 15 of the defence will be struck out. [82] The defendant will have leave to replead matters relevant to a defence of triviality and mitigation of damages. [83] The plaintiff’s application for summary judgment has been unsuccessful. He has however enjoyed success in having struck out a number of paragraphs of the defence. Apart from paragraph 15, however, that relief was not particularly sought in the application. It has been ordered by the court as a consequence of the consideration of those paragraphs in the context of the application for summary judgment. The primary relief sought by the plaintiff was refused, however, I have considered the striking out of the current pleadings with leave to replead the appropriate course for the reasons provided. [84] In those circumstances, the appropriate costs order is that each parties’ costs of the application be their costs in the cause. -- 18 of 18 --