Justice John Dixon has provided a very valuable judgment in Agustin-Bunch v Smith (No 2) [2022] VSC 290 providing a very useful and detailed analysis of how to plead, and more particualrly how not to plead defences.  It ended up being a bad day at the office for the defendants.

FACTS

The plaintiffs by writ seeks:

• damages,
• a permanent injunction restraining the defendants from publishing certain material, and
• a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory [1].

The second plaintiff seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’), contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL [1].

On 12 April 2021,  the court refused the plaintiffs’ application for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:

(a) 15 specific videos;
(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;
(c) certain Facebook and Instagram posts;
(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and
(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.

The relevant publications alleged to convey defamatory imputations are videos [6] where Dr Smith speaks partly in Tagalog and partly in English to a Filipino audience [7].

The defendants pleaded the defences of:

• truth,
• contextual truth,
• honest opinion, and
• qualified privilege both at common law and relying on the relevant statutory provisions [8]

The plaintiffs allege about 70 imputations and the defendants plead a truth defence to approximately 60 imputations [10].The defences have been pleaded (using the first video as an example) substantial truth in the following  template in this form:

If (which is denied) the First Video was defamatory of either of the Plaintiffs in any of the meanings alleged in paragraph 6 (or any permissible variant thereof), then in those meanings the First Video is substantially true and accordingly, the Defendants have a Defence both at common law and pursuant to section 25 of the Defamation Act 2005 (Vic) (Act) and the corresponding provisions of the uniform legislation.

PARTICULARS

The Defendants refer to Particulars of Truth, 1 to 72 contained in Schedule A to this Defence [9].

The defence of honest opinion follows this template:

[F]urther or alternatively, if (which is denied), the First Video was defamatory of either of the Plaintiffs in the meanings alleged in paragraph 6 (or any permissible variant thereof), then they say that:

(i) in those meanings the First Video was an expression of opinion of the First Defendant;

(ii) the opinion related to matters of public interest;

PARTICULARS

The Defendants refer to the Particulars of Public Interest contained in Schedule A.

(iii) the opinion was based on proper material, namely material that is substantially true and stated or referred to in the First Video;

PARTICULARS

The Defendants refer to and repeat Schedule A, Particulars of Truth 3 to 5, 8(b), 9, 21 to 25, 26(b) to 26(d), 26(f), 27, 28, 29, 32, 33, 34, 35, 37, 39 to 42, 46, 49 and 72.

(iv) the First Defendant is therefore entitled to the defence of honest opinion in section 31(1) of the Act.

The defendants plead the defence of honest opinion to imputations in the videos and from third-party comments [12].

The defence of contextual truth followed a template:

[F]urther or alternatively, if (which is denied) the First Video was defamatory of either of the Plaintiffs in any of the meanings alleged in paragraph 6 of the Claim (or any permissible variants thereof) (Carried Imputations), then the Defendants say:

(i) the First Video carried the following additional imputations (Contextual Imputations):

1. 1. The First Plaintiff makes dangerous and inaccurate medical claims in order to promote herself and her Products and, in doing so, endangers the lives of vulnerable Filipinos;

PARTICULARS

The Defendants refer to and repeat Particulars of Truth 3 to 20, 21 to 28, 34 to 40A, 55 to 63, 65, 65A, 72, 89A, 90 to 96, 124 and 128 to 129.

1. 2. The First Plaintiff falsely passed herself off as a Harvard-trained medical doctor;

PARTICULARS

The Defendants refer to and repeat Particulars of Truth 29 to 33.

1. 100. The First Plaintiff falsely portrays that she and her Products (as defined in Schedule A) can cure cancer and other serious illnesses;

PARTICULARS

The Defendants refer to and repeat Particulars of Truth 3 to 20, 21 to 28, 34 to 40A, 55 to 63, 65A and 72.

D. The First Plaintiff is a fraud.

PARTICULARS

The Defendants refer to and repeat Particulars of Truth 1.

(ii) The Contextual Imputations are substantially true;

(iii) By reason of the substantial truth of so many of the Contextual Imputations which are conveyed by the First Video, publication of the Carried Imputations do not further harm the reputations of the Plaintiffs;

(iv) Accordingly, the Defendants are entitled to the defence of contextual truth in section 26 of the Act.

DECISION

The plaintiffs contended that the proposed defence because large parts of it do not disclose a defence; and/or may prejudice, embarrass or delay the fair trial of the proceeding; and/or are otherwise an abuse of the process of the court [5].

The Court stated that pleadings are not an end in themselves but are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair. Absent extraordinary circumstances, leave to amend will usually be granted [16].

Truth

At common law and under s 25 of the Defamation Act 2005 (Vic) (‘Act’):

• , the defendant must prove both the truth:
  • of the words complained of in their literal meaning,
  • of the defamatory sting or stings, ‘true in substance and in fact’. The sting(s) of the defamation are identified by reference to the context of the publication as a whole [18].
• Every material part of the defamatory imputation must be true, otherwise the defence of justification fails [18].
• the defamatory imputations must be shown to be substantially true or not materially different from the truth [19]
• the general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of [19].

In this case, where there are many defamatory imputations, the defendants may justify only part of the material complained of [20].

A defence of partial justification:

• requires:
  • that the particular defamatory imputation is severable from the other defamatory imputations and
  • conveys a distinct and separate imputation.
  • the plaintiff not be left in any doubt as to what part the defendant seeks to justify [20].
• can not have loose and ineffective pleading with excessive and irrelevant particulars
• particulars of a defence of justification must:
  • be shown to be capable of proving the truth of the defamatory meaning sought to be justified and
  • be sufficiently specific and precise to enable a claimant to know the case they are required to meet [21]

There needs to be caution to avoid the court engagomg in factual evaluation on the basis of the pleading before evidence is led at trial [22]. The pleading:

• provides no more than a bare outline of the facts that the plaintiff will seek to prove;
• does not identify the outer limits of what may be proved at trial [22].

Regarding particulars:

• When assessing the sufficiency of the precision of particulars, a court should have regard to the cumulative effect of the particulars [22].
• a defendant must specify the particulars of truth relied on with the same precision as in an indictment
• s Specificity and precision are  assessed  by reference to whether the plaintiff is properly on notice of how the defendant alleges that an imputation is substantially true and enabled fairly to respond to it [22].
• a substantial truth defence can be particularised to meet a permissible variant of the meaning pleaded by the plaintiff,
• as a matter of ‘practical justice’ the pleading must identify generally the permissible variant alleged to be substantially true [23]
• a meaning is capable of being considered a permissible variant if it would be open to the jury at trial to consider that the imputation was no more injurious and not substantially different to that pleaded [23].
• care is needed in identifying the precise or specific meaning of a permissible variant in the context of the plaintiff’s allegations and the publications generally.
• there is a danger that false issues will be raised where a defendant makes wide allegations, en bloc, of matters it proposes to prove are true in order to meet possible permissible variants that have not been identified in terms [23].

Honest opinion

The defence of honest opinion under s 31 of the Act is substantially similar to the defence of fair comment at common law [24].

The relevant principles are:

• where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie [25].
•  s 31 of the Act  requires proof of three matters concerning the impugned defamatory matter:

(a) the matter was an expression of opinion rather than a statement of fact;

(b) the opinion related to a matter of public interest; and

(c) the opinion was based on proper material.

• an opinion will be based on proper material if it is based on material which satisfies at least one of three alternatives:
  • the material is substantially true;
  • was published on an occasion of absolute or qualified privilege; or
  • was published on an occasion that attracted the protection of a defence under this section or ss 28 or 29 of the Act [27].
• the defence must identify how the defendant alleges that the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact, how it will be alleged that the ordinary reasonable reader/viewer would have understood the statement to be an expression of opinion.
• it must identify how it will be alleged that the opinion related to a matter of public interest.
• the basis to allege that the defamatory matter is based on proper material requires the identification of the source and content of the facts and matters constituting the proper material,
• whether, and if so, how, the basal material is identified by the ordinary viewer of the publication or is otherwise notorious [28].
• the material on which the opinion is based is determined by reference to what the ordinary reasonable reader would have understood from the impugned matter to have been intended by the author to be considered as the basis for his or her comment [29].
• in some circumstances the pleader may need to specify some rational connection between the proper material and the opinion, identifying how an honest reader, however biased or prejudiced, might reasonably draw an inference or conclusion from the facts so stated or known [29].
• reference to the proper material may not need to be more specific than an allusion, provided the facts have been presented to the minds of the readers to enable them to assess the opinion for themselves [29].
• an honest opinion defence must grapple with the relationship between the meaning pleaded by the plaintiff and the prospect of a finding of a permissible variant by the court [30].
• if the defendant contends that the real sting of the imputation is a meaning that is not ‘substantially different’ in the context of the publication from which they are derived, and that such meaning is fair comment, the issue raised by the defendant will be closely connected with the issue pleaded by the plaintiff and no false issue will be set up [32].

Contextual truth

The contextual truth defence under s 26 of the Act and the common law principles are closely related defences. The plaintiff will fail If the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and upon which the plaintiff could succeed at trial, notwithstanding that the plaintiff had not in fact pleaded them; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations [33],

The need for particular forms of pleading flows from the special position in defamation actions whereby the plaintiff may go outside his pleaded case and yet succeed [33].

There is a distinction between pleading Hore-Lacy justification and s 26 

• Hore-Lacy justification takes as a starting point denial of the plaintiff’s meaning. Other meanings are asserted, said to be substantially true, and if the defendant succeeds the only available meanings have been justified
• a contextual truth defence starts with a finding by the trier of fact that one or more of the plaintiff’s pleaded imputations has been established. The defendant pleads additional meanings that are alleged to be substantially true such as not to further harm the plaintiff.
• Where a plaintiff particularises the same meanings for each defence, the defences of contextual truth and Hore-Lacy justification will be true alternatives [34].

When pleading either form of the defence:

• the additional/alternative imputation(s)  defamatory of the plaintiff must be specified with an appropriate degree of clarity and specificity. It is an exercise in which the context in which the imputation is pleaded is important [35].
• the plaintiff is entitled to know clearly what the defendants are intending to justify
• a defendant which proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed [36].
• iit will be preferable to separate the particulars of justification so that one can see clearly what facts are relied upon in support of each imputation [37]

Paintiffs’ submissions

Truth defence

The plaintiffs submitted that:

• as the plaintiffs pleaded imputations with specific qualifications the defendants’ particulars of truth needed to be confined to matters relevant to the precise imputations.  They were not.
• the plaintiffs submitted that the sting of the imputation is quite specific. The plaintiff is a fraud in the particular nominated respect, which is that she passes herself off as a real doctor when she is not that. The  many allegations were not relevant to establishing the truth of the imputation and the particulars do not identify what is meant by ‘a real doctor’. That the first plaintiff had medical qualifications and is entitled to be registered to practice medicine appears not to be in issue [38].
• the defendants have not properly pleaded the elements of fraud to support a truth defence for seven of the imputations [46]
• there is a related issue that the particulars of truth do not identify with precision and clarity the defendants’ case that the plaintiffs’ conduct ‘falsely’ imputed or recommended some matter identified in a particular representation [47]
• the particulars of truth are, the plaintiffs submitted, vague, conclusionary or embarrassing through pleading conclusions [48].
• the defendants overstated the medical impact of what Dr Farrah said. The plaintiffs identified four examples that appear to justify an imputation made in other publications that make dangerous, false, or inaccurate claims about products leading to an extreme consequence.
• extensive cross-referencing rendered the pleading embarrassing [50].
• the plaintiffs submitted that the defendants had not properly pleaded the making of representations by the plaintiffs on the counterfeit website at www.bostoncherbs.com [51].

Honest opinion defence

The plaintiffs submitted that two main issues repeated through the pleading of this defence identify the defects in the pleading.

(a) Many particulars of truth relied on are not referred to or stated in the relevant videos.

(b) The particulars of truth and particulars of public interest are embarrassing as they contain confusing and circular cross-referencing and it is difficult for the plaintiffs to discern which particular of truth is being relied on for which imputation in each video and whether it is being relied on because it is being referred to or stated or is otherwise notorious [52].

Contextual truth

The plaintiffs submitted that the pleading of this defence was deficient in that:

(a) many of the alleged contextual imputations are not capable of being conveyed by the publication; or

(b) the defendants have pleaded contextual imputations at a high level of generality in a form that is bad because it is vague, lacking clarity and specificity [53].

Defendants’ general submissions

The defendants submitted that:

•  the plaintiffs have repleaded almost every imputation in a manner calculated to make it difficult for the defendants to prove the precise truth of the imputations pleaded.
• the plaintiffs have strayed from the sting of the publications. In many cases, the specific details in the pleaded imputations do not appear in the videos themselves.
• this made it impossible for their truth particulars to meet the sting of the meanings conveyed by the publications and also to meet permissible variants of the pleaded imputations, having regard to the context of each publication as a whole [54].

Analysis

Truth

The court stated that:

• The defendants impermissibly expanded the scope of the issue by referring to Dr Farrah’s products and her treatments. This is not a more general meaning that can be a permissible variant of the pleaded imputation [58]
• The cross referencing was prolix and embarrassing 
• the particulars raise false issues in respect of this imputation. Most have nothing to do with whether Dr Farrah is a doctor or not or whether she falsely represented herself to be a doctor. They relate to matters that may be relevant to proving the substantial truth of other pleaded imputations or of unidentified permissible variants of the meaning that the defence specifically responds to [59].
• the defendants did not particularise the notion of fraud, particularly the dishonest intention element.  It cannot be inferred that a doctor is a fraud simply because there is a disagreement between conventional medicine and natural medicine.
• alleging that the plaintiff engaged in what can be criminal conduct such as committing a fraud, requires particular precision. The meaning requires  a mental element; an intention. This must be identified so that the plaintiffs know the case they must meet [60]

Honest opinion

The court stated that:

• a major difficulty  is that the particulars of truth were ‘repurposed’ to meet the necessary elements of the defence [73].
• the defendants cross reference back to the particulars of truth instead of setting out the particulars to establish honest opinion.
• many of the particulars of truth that are pleaded or referenced in the particulars as stated or referred to in the various videos are not found in the relevant publication.
• while it is not necessary that a truth defence be based on material stated or referred to in the publication or otherwise notorious, the position is different for an honest opinion defence.
• many of the particulars of truth relied upon did\ not have a rational connection to, and cannot form the basis of, the honest opinion alleged.
• the pleading of the defence were embarrassing because:
  • the particulars are affected by extensive and circular cross-referencing.
  • the reference to the ‘context of the video as a whole’ fails to identify with sufficient precision either the permissible variant of the opinion that the defendants seek to defend or the basis for it [75].

Contextual Truth

The court stated that 

• the imputation that Dr Farrah is a fraud with the additional particular of the meaning ‘in that she falsely passes herself off as a real doctor’. However, the defendants pleaded the imputation without any qualification [82].
• the question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed on the basis that the publication is incapable of bearing a defamatory imputation. The test for whether a published matter is capable of being defamatory is what ordinary reasonable viewers of the videos would understand by the matter complained of [88].
• in respect of contextual imputations, as with permissible variants, the pleaded meaning is not identified with sufficient certainty and specificity [89].
• the particulars do not identify specific observations made in the video that convey the contextual imputation being alleged. It is necessary for the defendants to identify the precise passages of each video upon which they will rely to identify how the imputation that Dr Farrah is a fraud was conveyed. 
• Having regard to the view that might be taken by an ordinary reasonable viewer of the expression ‘a fraud’, the particulars ought to identify Dr Farrah’s conduct alleged to constitute the deceitful pretence, which would appear to be representations that were made by Dr Farrah on occasions other than those that can be identified from the content of the video [91].
• the particulars should more precisely and clearly identify how the defendants contend that the contextual imputation is conveyed must be specific to the publication [91] – [92].
• the extensive cross-referencing failed to distinctly and clearly identify the precise imputation, how it is conveyed by the publication, how it is said to be false and precisely how the defendants raise the issue of the intention of the plaintiffs [96].

The court concluded:

• by noting that the proceeding is particularly complex having regard to the number of imputations that are alleged and the structure of the schedules [97].
• the defence dids not, in my view, clarify for the benefit either of the plaintiffs or the court how the issues for trial are defined and limited.
• the vagueness appears to be a consequence of how the schedule of particulars is structured [97].
• the complexity of the defence is exacerbated by the attempt to meet permissible variants of the pleaded meanings, which have not been identified in terms, with the defences of truth and honest opinion

ISSUE

While the court responded to the pleadings summons and there was some detailed analysis of particular paragraphs pleaded the court did undertake an analysis of what is required to plead truth, contextual truth and honest opinion.  The court made very clear that specific pleading is the key  when responding to allegations and imputations.  That may sound trite but, as the defendant found, it is tempting to plead in general terms and engage in extensive cross referencing when dealing with a comprehensive statement of claim.