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Supreme Court of Victoria |
Last Updated: 20 May 2019
AT MELBOURNE
MAJOR TORTS LIST
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE – Summary judgment/strike out application – Whether defence of qualified privilege has a real, and not fanciful prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, referred to
DEFAMATION – Defences – Qualified privilege at common law – Publication to the world at large – Public interest in food safety and regulation – Whether defendant had an interest in making the defamatory statements and the recipients had a reciprocal interest in receiving them – Voluntary disclosure of information to a broad audience about the conduct of the chief executive officer of a private business – Public interest and concern insufficient to establish reciprocity – Marshall v Megna; Megan v Tory; Tory v Megna [2013] NSWCA 30, referred to and applied – Gutnick v Dow Jones (No 4) [2004] VSC 138, referred to – Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366, distinguished – Whether the publications could attract the defence of qualified privilege by reason of the implied freedom of communication with respect to government and political matters – Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, referred to – Summary judgment granted
DEFAMATION – Defences – Qualified privilege – Reply to attack – Whether reply by defendant privileged – Kennett v Farmer [1998] VR 991, referred to – Properly the subject of full evidence and argument at trial
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Addison Lawyers
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For the Defendant
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AAV Law
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1 The first plaintiff, Hive & Wellness Australia Pty Ltd (‘Capilano’)[1] is a major producer of honey, which is marketed through a number of brands in Australia and elsewhere. The second plaintiff, Mr Ben McKee, is Capilano’s Chief Executive Officer. The defendant, Mr Simon Mulvany is, among other things, the founder of ‘Save the Bees Australia’, which has been described as a ‘social media enterprise which advocates for bee health and locally produced honey’. Mr Mulvany is either the operator of or one of the operators of:
(a) a personal Facebook page;(b) a ‘Bee the Cure’ Facebook page;
(c) a ‘Save the Bees Australia’ Facebook page;
2 Mr Mulvany is also the registrant of the domain name ‘beethecure.com.au’ and the publisher of a website connected with that domain name. This proceeding concerns a large number of articles and posts published on the social media accounts referred to above (‘publications’).
3 This proceeding was commenced in the Supreme Court of New South Wales on 15 February 2016. At that time, the plaintiffs sought interlocutory relief to restrain Mr Mulvany from publishing certain matters concerning the plaintiffs. Relief was sought with respect to what was said by them to be ‘a persistent and damaging campaign against them by the defendant in online publications and social media that began in about June 2015’.[2] The plaintiffs consider that ‘the defendant’s campaign against them was designed to inflict commercial and reputational harm’.[3] Capilano seeks relief on the basis of injurious falsehood, and the second plaintiff on the basis of defamation.
4 On 23 February 2016, Mr Mulvany, by his solicitor, provided undertakings to the Court to the effect that he would not publish the following representations and imputations:
5 It is not necessary for the purposes of this application to provide a detailed history of the proceeding, save to note as follows:
(a) the plaintiffs filed a statement of claim on 30 September 2016;(b) the defendant filed a defence on 5 April 2017, which admitted publication of the matters complained of, denied that the representations and imputations pleaded were published of and concerning the second plaintiff, and otherwise pleaded no substantive defences to the defamation claim made by the second plaintiff; and
(c) the proceeding was listed for a two day trial scheduled for 25 May 2017. However, the trial was vacated after Mr Mulvany dismissed his legal team the day before. The ‘price’ of the vacation of the trial date was that the undertakings would be replaced by interlocutory injunctions. Rothman J also made orders prohibiting Mr Mulvany from publishing representations and imputations:
6 The orders made by Rothman J on 25 May 2017 (‘Rothman J orders’) also required Mr Mulvany to take down certain online publications. The Rothman J orders largely remain in force, notwithstanding applications made in the New South Wales Supreme Court and this Court for them to be varied,[4] and allegations made since that time that Mr Mulvany has breached the Rothman J orders.
7 As the plaintiffs accept that Mr Mulvany is a person of limited means, the plaintiffs’ objective in this proceeding is to obtain permanent injunctions in similar terms to the Rothman J orders.
8 The proceeding was transferred to this Court on the application of Mr Mulvany following orders made by McCallum J on 30 May 2018. On 7 September 2018, Mr Mulvany filed and served an amended defence, which pleaded substantive defences, but not the defence of truth. A further amended defence filed on 5 November 2018, after Mr Mulvany’s current solicitor took over conduct of the file, pleaded truth simpliciter. The further amended defence was struck out on 11 December 2018. These orders were not made by consent, but were not vigorously opposed. Mr Mulvany’s solicitor sought the opportunity to file and serve a second further amended defence to better plead the matters sought to be alleged by Mr Mulvany in his defence, to clarify what publications were and were not admitted by Mr Mulvany, and to incorporate further and better particulars requested by the plaintiffs. A second further amended defence (‘defence’) was filed on 30 January 2019. The defence is the subject of the current application.
9 The plaintiffs’ summons filed 15 February 2019 sought the following relief:
(a) The paragraphs concerning the defendant’s common law qualified privilege defence to the defamation cause of action (10111, including paragraph ‘13’ (sic) on page 88)); and(b) The paragraph concerning the defendant’s reply to an attack defence to the defamation cause of action (113).
10 Mr Mulvany filed a summons on 11 February 2019 seeking the following relief:
(a) Capilano provide further and better particulars of its amended statement of claim filed 16 August 2017; and
11 At the time of the first return of the parties’ applications, the parties were awaiting a listing date from the Court of Appeal for the hearing of an appeal by Mr Mulvany against the orders of John Dixon J refusing an application to vary the Rothman J orders in other aspects.[5] That appeal has not yet been heard. Given that there may be some overlap in the issues in the current application and the Court of Appeal, and given that the proposed variations are relatively minor, I decided to defer consideration of this aspect of Mr Mulvany’s summons until after the hearing and determination of the application for leave to appeal.
12 If the plaintiffs’ application, which was made under sections 61 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), and rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), is successful, the only defences to the defamation action brought by the second plaintiff against Mr Mulvany would be defences to the effect that some of the material published was not of and concerning the second plaintiff, some of the material published was not capable of conveying the imputations contended for by the plaintiffs, and that some of the imputations were embarrassing to plead to, as there was duplication of some imputations, or because there were ‘rolled up’ imputations. Mr Mulvany also defends publications which are said to carry the imputation that the second plaintiff is a bully, and is misogynist and sexist, on the basis that they are substantially true. Accordingly, if the plaintiffs were to be successful in their application, the proceeding would not be brought to an end, as the application does not concern the remainder of Mr Mulvany’s defences to the second plaintiff’s claims in defamation, or his defences to the injurious falsehood claim brought by Capilano.
13 There was no dispute between the parties regarding the applicable test for the grant of summary judgment under s 63 of the CPA. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[6] the Court of Appeal, in an oft-cited decision, stated as follows:
(a) the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[7]
14 Further, it is not uncommon to be referred to the following statement made by Neave JA (who otherwise concurred with the statements made by the majority above):
... I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposing of [the CPA], imposed by s.8.[8]
15 The plaintiffs relied upon an affidavit sworn by Mr Richard Keegan, their solicitor, on 13 February 2019, which deposed to the following matters:
(a) a history of Mr Mulvany’s approach to defending the defamation claim brought by the second plaintiff in this proceeding;(b) the apparent objective (at least as perceived by the plaintiffs) of Mr Mulvany in publishing material about the plaintiffs and Capilano’s business. The plaintiffs’ view is that the publications were made ‘as a way to raise his profile and gain notoriety’;
(c) the availability of the publications to the public at large;
(d) the proactive steps taken by Mr Mulvany to make his publications more widely accessible and to increase their reach;
(e) the wide reach of the publications;
(f) the television programs and news articles relied upon by Mr Mulvany to support his defence of qualified privilege; and
(g) the publication by Capilano said by Mr Mulvany to be an attack on him, and relied upon by him as being ‘replies to an attack’.
16 The plaintiffs submitted that Mr Mulvany’s defence of qualified privilege has no real prospects of success, based upon the settled line of authority concerning the availability of the defence of qualified privilege at common law. In particular, Mr Mulvany will be unable to establish the necessary reciprocity of duty and interest between him and the recipients of the statements made in the publications, given that the publications are accessible to the public at large. Further, as a bee keeper, and a seller of merchandise, Mr Mulvany has published the publications not out of a sense of duty, but in pursuit of his own selfinterest. Also, the publications were made voluntarily, not in response to a request for information, or in circumstances where the recipient was at risk of imminent danger, or some other harm.
17 Counsel for the plaintiffs submitted that, even if, contrary to her submissions, the publications were made on an occasion of qualified privilege, Mr Mulvany must also establish that the publications fell within the scope of the occasion, and not include ‘extraneous, irrelevant, or marginal, and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual.’ It was submitted that the publications went well beyond the ambit of what subject matter might be protected by the defence of qualified privilege.
18 In the alternative to their application for summary judgment, the plaintiffs submitted that the defence of qualified privilege ought to be struck out pursuant to rule 23.02 of the Rules as unmaintainable.
19 The plaintiffs also sought summary judgment with respect to a number of paragraphs of the defence which asserted that certain of the publications (being a relatively limited number of the publications) were protected by qualified privilege at common law by reason of them being publications which were a ‘reply to an attack’. Counsel for the plaintiffs submitted that this defence has no prospects of success, as the publications were, first, not commensurate with, relevant to and sufficiently connected with the asserted attack (being an article published by Capilano on Facebook on 19 July 2016, and subsequently amended on 23 September 2016 (‘Capilano Facebook Article’), and secondly, were not, as a matter of fact, published as a reply to an attack. Rather, the publications concerned were best characterised as a further riposte or retort which is beyond the scope of the qualified privilege conferred upon a reply to an attack.
20 In response, the solicitor for Mr Mulvany made the overarching submission that the complaints made by the plaintiffs about the defence of qualified privilege are all matters for evidence and argument at trial.
Defence of Qualified Privilege – General
21 The plaintiffs submitted that, in assessing whether Mr Mulvany is entitled to rely upon the defence of qualified privilege at common law, it is necessary to consider first, whether the publications were made on an occasion of qualified privilege, and secondly, whether the imputations pleaded by the plaintiffs were relevant to that occasion.
22 Counsel for the plaintiffs submitted that an occasion of qualified privilege only arises when a publisher has a legal, moral or social duty to provide information or make statements regarding certain matters, and the recipient has a corresponding interest in receiving that information. The plaintiffs submitted that the matters pleaded in the defence do not make out a case of mutual duty and interest between Mr Mulvany and the readers of the publications. First, the publications are made to the world at large. Secondly, the information in the publications is published not out of a sense of duty, but as a matter of business or self-interest. Thirdly, the publications were made voluntarily, rather than in response to a request for information. When one considers each of these matters in insolation, and in combination, the defence should be struck out.
23 Counsel for the plaintiffs referred to the following summary of the applicable principles in the decision of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd,[9] as follows (omitting footnotes):
At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it. Lord Campbell CJ stated the principle in Harrison v Bush as follows:A communication made bona fide upon any subject matter in which the part communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.
The common law describes the occasion on which such a communication is made as an occasion of qualified privilege. The protection is lost – hence the name qualified privilege – if the occasion was used for a purpose or a motive foreign to the duty of interest that gave rise to the occasion. In determining whether the occasion was privileged, the court examines all the circumstances of the case. They include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it. Evaluating these questions of duty and interest usually involves questions of public policy. In Toogood v Spyring, Parke B said that ‘[i]f fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society’. Griffith CJ cited this passage with approval in Howe & McColough v Lees. There, Griffith CJ explained that the reference to the welfare of society did not mean that the person who made the communication was under an obligation to publish and was justified in publishing it to the public at large. Rather, according to his Honour, the phrase means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected.
It is of the first importance to understand that references to concepts such as ‘the common convenience and welfare of society’ and similar phrases record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege. Such concepts are not the determinants of whether the occasion is privileged. They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question. As Jordan CJ pointed out in Andreyevich v Kosovich, it is necessary to ‘show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party’. It is only when the defendant has a duty to publish or an interest in publishing the particular communication and the recipient has a corresponding duty or interest that the occasion is privileged. It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society. (emphasis added).[10]
24 Counsel for the plaintiffs submitted that, in the current case, the availability of the publications to the public at large is fatal to there being any reciprocity of duty and interest. Further, the authorities provide that qualified privilege will only protect statements made voluntarily (as opposed to those made in response to a direct request for information) where the statements are made to protect the legitimate interests of the defendant or a third party. As stated by McHugh J in Bashford:[11]
But not every relevant answer to a request for information concerning the character, reputation or creditworthiness of another is published on an occasion of qualified privilege. The occasion will not be privileged unless the person making the inquiry has a legitimate interest in obtaining the information. Interest for this purpose – and the law of qualified privilege generally – means more than an interest in the information ‘as a matter of gossip or curiosity’. The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection. The interest of the recipient, said Evatt J in Telegraph Newspaper Co Ltd v Bedford, must be ‘a real and direct personal, trade, business or social concern’. The occasion will not be privileged simply because the defendant believes that the recipient had a relevant interest in receiving or duty to receive the communication. (citations omitted) (emphasis added)[12]
25 As for the question of whether the publications attract a defence based upon the implied right to freedom of political communication in the Constitution (‘Lange defence’),[13] counsel for the plaintiffs submitted that while it could be argued that food safety regulation is a government matter, the statements in the publications concerning the second plaintiff went well beyond comment upon government and political matters. The publications are not levelling any criticisms of the government’s failure to act on these matters, but rather are attacking the plaintiffs.
26 Mr Mulvany submitted that his defence of qualified privilege had a real, and not fanciful prospect of success. As such, summary judgment should not be granted. The written outline of submissions filed on behalf of Mr Mulvany referred to the following extract of ‘Defamation Law in Australia’[14] (omitting footnotes) concerning how a court will approach the task of determining whether there is a reciprocity of duty and intent:
The principles to be applied in determining whether the occasion of the publication of the matter complained of was an occasion of qualified privilege are well known and well settled. The principal authority is Toogood v Spyring:In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
The circumstances in which the law recognises such occasions of qualified privilege are difficult to identify as they cannot be ‘catalogued or rendered exact’.
The categories established by precedent are not exhaustive, but apply the underlying principle of public policy.
The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive ‘frank and uninhibited communication’ of particular information from a particular source.
In order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’.
The court examines all the circumstances of the case which include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication.
After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it. Evaluating these questions of duty and interest usually involves questions of public policy or the ‘welfare of society’.
This may be determined by reference to the type of statement made rather than the particular statement itself as to whether this advanced the welfare of society and the public interest:
... [R]eferences to concepts such as ‘the common convenience and welfare of society’ ... are not the determinants of whether the occasion is privileged ... the reference to the welfare of society did not mean that the person who made the communication was under an obligation to publish and was justified in publishing it to the public at large. Rather ... the phrase means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected ... It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society.
27 Mr Mulvany relied upon the following matters (referred to in the particulars to paragraphs 10 and 11 of the defence) to support his contention that there was a reciprocity of duty and interest between him and the recipients of the publications, such as to attract the defence of qualified privilege.
https://www.todaytonightadelaide.com.au/stories/australian-honey
28 Mr Mulvany largely accepted the plaintiffs’ characterisation of the principles concerning whether a defamatory publication was sufficiently connected with or relevant to the privileged occasion in order to attract the defence of qualified privilege. However, he submitted that the amended defence adequately exposes (save in some minor instances) the relevance of each publication to the various questions identified by Mr Mulvany as a matter of public interest.
29 In the defence, Mr Mulvany identified the following ‘qualified privilege questions’, being topics regarding which it was said that the Victorian and Australian community had an interest in receiving information about, being:
(a) the toxicity of honey;(b) whether toxic honey is being dumped in Australia to Australian consumers;
(c) factors that put their health at risk;
(d) the adequacy of testing imported honey for adulteration, contaminants and residues before that honey is blended with Australian honey for sale;
(e) risks to or actual damage and tarnishing of the reputation of Australia as a producer of honey;
(f) the labelling of honey products;
(g) beekeeping practices that are harming the bee population in Australia;[15] and
(h) monoculture farming practices that are harming the bee population of Australia.[16]
30 Mr Mulvany relied upon the decision of the New South Wales Court of Appeal in Capilano Honey Ltd v Dowling (No 2)[17] in support of his contention that the qualified privilege questions are matters regarding which the general public has an interest in receiving information, concerning questions of trade, and health and safety regulation. In that decision, the Court dismissed an appeal against orders made refusing to extend interlocutory injunctions made against another critic of Capilano. The Court held, among other things, that the judge did not err in taking into account considerations of free speech and the ability of Mr Dowling to participate in public debate about matters of concern to the community, being health and safety issues concerning honey, when refusing to extend the injunctions. He contrasted the position in the current case with the circumstances considered by the Full Court of the Supreme Court of South Australia in Google Inc v Duffy,[18] where the plaintiff’s personal reputation was under attack, but the publications concerned raised no issue of broader public interest.
31 Mr Mulvany also relied upon excerpts from two current affairs television programs from 2008 and 2011, along with an abstract of a research paper, in support of his contention that the quality and safety of honey produced, packaged, and sold within Australia is a matter of public interest, such as to attract the defence of qualified privilege.
32 Mr Mulvany also relied upon a number of publications and media reports in 2015 and early 2016 to support his contention that:
... leading up to the publication the Victorian and Australian community was particularly receptive to information on the trade, and health and safety regulation of honey products, as there had been widespread media reporting on or about [20 January 2016] of a scientific research report which found Australian honey is contaminated with toxins;
and noted that all but four of the 103 publications were published after 20 January 2016, many of which were ‘clustered around’ 20 January 2016, when the quality of Australian honey was the subject of widespread media attention.
33 Mr Mulvany submitted as follows:
Each question of interest is naturally a wide interest as it concerns the welfare of society in questions of trade, and health and safety of honey products;
All the questions of interest pleaded by the Defendant are sufficiently arguable as a qualified privilege defence to be properly ventilated at trial.
34 Mr Mulvany submitted that he is not necessarily motivated by selfinterest, but rather, as a member of the community, he has the same interest as the rest of the community.
35 Accordingly, the issues in this application are:
(a) whether the publications were made on an occasion of qualified privilege; and(b) if so, whether the publications, or any of them, fell within the scope of the occasion of qualified privilege.
36 For the purposes of determining the application, I make the following preliminary observations:
(a) I have considered the plaintiffs’ primary argument to be that summary judgment ought to be granted in favour of the plaintiffs with respect to the qualified privilege defence. If summary judgment ought not be granted, there is nothing particularly objectionable about the form in which the defence of qualified privilege is pleaded such that the relevant paragraphs ought to be struck out;(b) I accept that, for all intents and purposes, the publications were made to the world at large (noting that this issue was not contested by Mr Mulvany);
(c) I accept that questions regarding the quality and safety of honey available to consumers in Australia are questions of legitimate public interest;
(d) I do not consider that Mr Mulvany’s occupation as a bee keeper, or his merchandising activities, lead to the inevitable conclusion that in making the publications, Mr Mulvany is acting exclusively or even predominantly out of selfinterest;
(e) in determining this application, in addition to the matters raised by the parties in their submissions, I have given some consideration as to whether Mr Mulvany may be able to defend the publications, or some of them, on the grounds that the publications were statements made in the course of discussion of government and political matters, such that at common law, a defence of qualified privilege is maintainable, provided that Mr Mulvany is found to have acted reasonably;[19] and
(f) should it be found to be at least arguable that the publications were made on an occasion of qualified privilege, it does not seem to me to be appropriate to determine on a summary basis, whether individual publications fall within or outside the scope of any occasion of qualified privilege. While upon an initial review it does seem as if at least a number of the publications would fall outside the scope of any occasion of qualified privilege, granting summary judgment in respect of particular publications would be, in effect, a trial by way of desktop review, rather than based upon evidence and full argument at trial.
37 From my review of the authorities, the defence of qualified privilege ought to be struck out, and summary judgment ought be given in favour of the plaintiffs, on the basis that, on the uncontroversial facts, the defence is not maintainable. The defence of qualified privilege at common law is available only in three recognised categories of circumstances:
(a) where there is a reciprocity of duty and interest between a publisher of information and recipients of that information with respect to that particular kind of information;(b) where the publications concern matters of government and political matters, provided that the publication is reasonable in all of the circumstances; and
(c) in the relatively confined circumstances of publications with respect to an immediately pending election.
38 The last category clearly does not apply here. The authorities make it clear that, in cases of mass publication, it will be very rare for there to be a reciprocity of duty and interest with respect to matters of public interest unless the publications concerns matters of government or political matters which attract the Lange defence (which also imports a requirement of reasonableness). Put another way, there is no intermediate or additional category where there can be mass publications concerning matters of public interest, not being matters of government administration or political matters, which attract the defence of qualified privilege at common law.[20]
39 Further, Mr Mulvany does not rely upon the Lange defence, and in my view, he could not. First, he has not pleaded that the publications were reasonable in all of the circumstances (which would also be required if he were to rely upon the statutory defence of qualified privilege in s 30 of the Defamation Act 2005 (Vic) (‘Act’)). Secondly, while I expect that the types of issues which might attract the Lange defence are not closed, I do not consider that they extend to all matters of public interest, or all matters which might be affected by public policy and/or government action, such as food safety regulation and trade.
40 It must be remembered that the Lange defence is founded in the implied right to free speech concerning government and political matters in the Commonwealth Constitution, derived from the establishment by the Constitution of a system of representative government. It is, in effect, an exception to the common law principle that publications made to the world at large can rarely, if ever, attract the defence of qualified privilege. The Lange defence is not based upon a free standing right to freedom of speech, but is anchored in what the High Court has held to be the freedom of communication necessary for the proper functioning of the system of representative government. In Herald & Weekly Times v Popovic (‘Popovic’),[21] Winneke ACJ referred to the following statement in Lange:[22]
... the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution,[23]
Thus it is that the structure and text of the Constitution necessarily protects the freedom of communication between the people of Australia concerning political or government matters which enables the people to exercise a free and informed choice as electors.[24]
41 It may well be that commentary by Mr Mulvany and others regarding the adequacy of food safety regulation regarding honey, or the enforcement of those regulations, might attract the Lange defence, being matters of government policy and administration. However, I cannot see how the Lange defence could extend to publications concerning the commercial conduct of executives of private companies, even if that conduct could be said to be a matter of legitimate public interest. As noted by John Dixon J in Capilano Honey Ltd v Mulvany,[25] albeit in a different context (being Mr Mulvany’s application to vary the Rothman J orders):
... the public interest in discussion of issues about honey purity, as represented by the recent media coverage, cannot be conflated with the defendant’s interest in disseminating his particular allegations against the plaintiffs.[26]
42 A statement to similar effect was recently made by Kiefel CJ, Bell J and Keane J in Clubb v Edwards; Preston v Avery;[27] a decision handed down while judgment was reserved. This decision concerned the question of whether state laws imposing ‘protection zones’ around premises offering pregnancy termination services impermissibly burdened the freedom of communication about matters of government and politics implied by the Constitution. Their Honours observed as follows:
... The implied freedom protects the exercise by the people of the Commonwealth of a free and informed choice as electors. A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial. ...
43 Further, in Bashford,[28] McHugh J was at pains to emphasise that the reference in the authorities to ‘the common convenience and welfare of society’ does not mean that any discussion of matters of public interest gives rise to an occasion of qualified privilege. Rather, the phrase refers to there being a public interest in giving some protections to statements made in the context of a reciprocity of interest and duty between the recipients of a publication and its publisher. The fact that otherwise defamatory statements may canvass an issue of public interest (however legitimate and important) does not detract from or substitute for the need to establish that reciprocity of duty and interest. It is for that reason that the defence is largely unavailable to mass media publications with respect to publications concerning anything other than government and political matters, subject to the other requirements of the Lange defence being satisfied.
44 In Bennette v Cohen,[29] Campbell JA also commented upon the relationship between the public interest and qualified privilege, as follows:
It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.[30] (original emphasis)
45 To illustrate the distinction between the public interest in protecting communications where there is a reciprocity of duty and interest, and matters of ‘public interest’ generally, counsel for the plaintiffs drew an apt analogy with the current case concerning the public interest in and the public debate concerning climate change. This issue is clearly a matter of public interest and substantial political debate. Despite this, to extend the analogy further, while criticisms of government ministers regarding climate change policy may, subject to the requirement of reasonableness and the absence of malice, attract the defence of qualified privilege, defamatory statements regarding, say, the conduct of executives of coal mining companies would not, even though the commercial purpose of such enterprises may be controversial. In the current case, the undoubted public interest in the quality and safety of honey and the welfare of bees and beekeepers does not provide Mr Mulvany and others with permission to say whatever they like about the conduct of Capilano’s personnel, even when acting in their capacity as officers of Capilano.
46 The submissions made on behalf of Mr Mulvany in this application suggest that Mr Mulvany is seeking to do what McHugh J warned against in Bashford:[31] that is, he contends that publications where the subject matter is one of public interest and discussion are synonymous with publications where it can be established that there is a reciprocity of interest and duty between the recipients of the publication and the publisher. Such a reciprocity of interest and duty was found to exist by the majority in Bashford: this finding was the basis of the availability of the defence in that case, not the fact that occupational health and safety is generally a matter of public interest.
47 As noted above, the courts have observed that it is extremely rare for publishers of information to the world at large to be able to establish the necessary reciprocity of duty and interest to establish the defence of qualified privilege at common law. In Cheiko v Nationwide News Pty Ltd (No 4),[32] McCallum J rejected a defence put forward that the publisher of the Daily Telegraph had a duty to publish and its readers had an interest in receiving information about what occurred during a violent public assembly, describing the defence as ‘untenable’.[33]
48 Having reviewed the authorities referred to by counsel for Capilano, and others, it seems that the high water mark of the authorities, in terms of the potential scope of the defence of qualified privilege (apart from the Lange defence) is the decision of the High Court in Bashford.[34]
49 In Bashford,[35] the majority of the High Court held that the subscribers of a newsletter concerning occupational health and safety matters had an interest in receiving information from the publisher of the newsletter concerning such matters, such that an otherwise defamatory publication attracted the defence of qualified privilege. The Court held that the necessary reciprocity of duty and interest was established because only those persons responsible for occupational health and safety matters subscribed to the newsletter, and it dealt only with occupational health and safety matters. That is, the scope and the audience of the publication was quite limited.
50 In the current case, the publications are available to the world at large, and are promoted to the world at large. That much is accepted by Mr Mulvany, who in the defence refers to the ‘interest’ that members of the Victorian and Australian community have in receiving information about food safety and regulation.
51 Accordingly, the current case is more akin to the circumstances in Gutnick v Dow Jones (No 4) (‘Gutnick’),[36] a decision made shortly after the delivery of the judgment of the High Court in Bashford[37], where the publication concerned was a newsletter/magazine targeted at those working in the broking, finance and investment and mining industries. Bongiorno J held that even though the publications were only made to subscribers, there was no restriction on the class of persons able to enter into subscription contracts, and thus the necessary reciprocity of duty and interest did not arise.
52 It is noteworthy that the decision in Gutnick[38] was made in the context of a strikeout application, that is, prior to trial. Similarly, in the current case, I do not consider it is necessary for there to be a trial in order to reach the conclusion that the defence of qualified privilege at common law is not available. It is accepted that the publications are available to an unrestricted audience. It is accepted that food safety and quality is a matter of legitimate public interest and concern. However, that public interest and concern is insufficient, given the manner and circumstances in which the publications were made, to establish the necessary reciprocity of duty and interest.
53 The difficulty with the defendant’s position in the current case is further illustrated by the decision of the New South Wales Court of Appeal in Marshall v Megna.[39] Here, the Court rejected the trial judge’s conclusion that defamatory statements regarding a mayor and the chief executive of a local government authority distributed in the letterboxes of residents in the local government area (‘leaflets’) were protected by qualified privilege at common law. After discussion of the decisions of the High Court in Roberts v Bass,[40] an ‘election’ case, Allsop P stated as follows:
Here anonymous pamphlets from a nonexistent organisation were placed indiscriminately in the letterboxes of complete strangers, albeit in the local government area of Drummoyne. Thus, the recipients were strangers who lived or worked in Drummoyne. It can be accepted that many had the right (and duty) to vote in Council elections. There was no election called or in contemplation.The error in the primary judge’s conclusions as to the existence of occasions of qualified privilege can be seen at [181]-[185] of her Honour’s reasons. There it was said that if the content of the circulars related to the affairs and administration of the Council then each occasion would have been of qualified privilege. The necessary reciprocity in that subject matter was between Mr Marshall and Mr Tory (as the anonymous distributors) and anyone else in the Council area to whom the material was disseminated. At [189] the primary judge said:
For the purpose of the first question, I will proceed upon the basis (as mentioned earlier in this judgment) that Mr Marshall was a Councillor on the Council; that Mr Tory had a relevant interest in Council matters; and that the circulars were distributed to recipients who were ratepayers and residents of the Drummoyne municipality, and had a legitimate interest in receiving information (and opinion or comment) on the functioning of the Council and its Councillors including its Mayor.
This approach goes beyond the existing categories of qualified privilege (that is the election cases and Lange). This approach posits information about the functioning of local government as a sufficient basis for reciprocity between, on the one hand, unidentified persons and, on the other, complete strangers whose only connection with the subject matter is that they live or work in the local government area, accepting that many will be electors in the area. To conclude that such is an occasion of qualified privilege is to fashion a broad category of qualified privilege based on shared presumed political interest, without the conditioning of reasonableness articulated in Lange. If it were correct, it would apply Australia-wide to dissemination of political views and opinions to all Australians about national politics without any condition of exercise of reasonableness.[41]
54 Beazley JA agreed that the statements in the leaflets were not protected by qualified privilege at common law, concluding as follows:
As will be seen from what I have said, the appellants argued that the imputations subject of the crossappeal were protected by the defence of qualified privilege on a limited basis as had been found by the trial judge. I have concluded that on the present state of the law, there is no such available protection. It follows, therefore, that the respondents should succeed on this aspect of their crossappeal. This was not a case where the recipients of the information in the publications were members of, for example, an existing ratepayers association, thereby demonstrating that they had an active interest in the affairs of the Council. These were the views of one or two people only. In my view, there is no duty for any person to convey their personal political views nor is there any reciprocal interest in persons receiving such unsolicited comments. As the paragraphs referred to demonstrate, the trial judge considered the occasion was one of qualified privilege because the matters complained of were legitimately matters of public concern. However, as was established in Lange and Morosi v Mirror Newspapers Ltd, that is not sufficient for the purposes of the traditional common law defence.[42]
55 Beazley JA also considered the question of whether there is ‘an independent category of qualified privilege involving dissemination of political matter that does not import the requirement of reasonableness?’[43]
56 Her Honour concluded there was no such independent category. She noted, as follows:
An apparent attempt to carve out or create a third area of qualified privilege, not within the traditional common law approach and unaffected by the requirement of reasonableness, was rejected by Basten JA in The Korean Times Pty Ltd & Anor v Un Dok Pak [2011] NSWCA 365. His Honour, at [30], considered that it was apparent from Roberts v Bass ‘that there [was] no room for some third category of cases, limited only by a requirement of honesty of purpose’. Rather, as his Honour explained, at [33]:... there may be cases, like the present one and Roberts v Bass, where a defendant whose publication appears to fall squarely within the scope of the expanded doctrine, seeks to rely upon the traditional scope of the defence, thus avoiding the need to prove the reasonableness of their conduct. That there may be an area of overlap, does not, however, demonstrate that there is a third category, involving an extension of the conventional area, but governed only by an exclusion of malice or abuse of purpose.
In my opinion, neither Lange nor Roberts v Bass provides support for the appellants’ argument. Neither case creates or supports an argument for the existence of an independent category of case, which does not fall within the traditional category of qualified privilege and which is unconfined by the requirement of reasonableness. Although in The Korean Times v Un Dok Pak, I did not join in the comments of Basten JA to which I have just referred as I considered the case was properly determined on a different basis, I agree with his Honour’s remarks that the authorities do not establish a third category of qualified privilege.[44]
57 The subject matter of the defamatory statements in Marshal v Megna[45] were perhaps more likely to be found to be concerning government and political matters than the subject matter of the publications in this proceeding. In that case, as in this proceeding, the defendants did not plead that the statements were reasonable. Given the scurrilous and inflammatory nature of the statements made by the defendants in Marshal v Megna[46], such an argument was almost certainly bound to fail. It is not necessary for present purposes to consider the likely fate of such an argument in this proceeding. The decision in Marshal v Megna[47] is otherwise almost on all fours with the circumstances of the current case: the widespread and indiscriminate publication of the defamatory statements, albeit on a matter of ‘public interest’, without any concern as to whether the recipients had an actual interest in receiving the information, was not an occasion protected by qualified privilege.
58 The question might be raised, given the reasonably detailed analysis of the legal position in these reasons, and the fact that the determination of this aspect of the plaintiffs’ application will not finally dispose of the proceeding, whether Mr Mulvany should not be able to plead the defence of qualified privilege, and have the matter determined at trial. The answer to this question is that the CPA requires the Court to use its powers to, among other things, facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute. In circumstances where it can be determined, based upon clear High Court and intermediate appellate authority, on the uncontroversial facts that a defence is untenable at law, then to allow the defences to be maintained and prosecuted at trial is to allow at least part of the trial to be consumed by a false issue.
59 I will therefore strike out those paragraphs of the defence which rely upon the defence of qualified privilege at common law. I will give Mr Mulvany one last opportunity to consider whether he wants to amend his defence to rely upon any other statutory or common law defences in relation to the publications.
Defence of Qualified Privilege: Reply to attack
60 The plaintiffs also seek to strike out paragraph 113 of the defence, where Mr Mulvany relies upon four of the publications (‘relevant publications’) as being protected by qualified privilege on the bases that the relevant publications constitute a ‘reply to an attack’. The ‘attack’ is said to be the Capilano Facebook Article, which was first published on 29 July 2016, after the commencement of this proceeding in New South Wales, and subsequently amended on 23 September 2016.
61 The Capilano Facebook article stated as follows:
To all our loyal followers:For those who may be concerned by the recent accusations directed at Capilano Honey by #SaveTheBeesAustralia, this post is to provide an update on the legal action we first discussed on June 3 and to provide detail on why it has since escalated.
Before doing so, I wanted to take this opportunity to thank you for your ongoing support. We were encouraged by the overwhelming positive feedback we received last time I discussed this issue and as such, I felt it only fair to keep you all informed.
Let me stress that legal action was the absolute last resort in this scenario and one Capilano never wished to pursue. However, we have progressed legal action because Mr Mulvany of #SaveTheBeesAustralia has continued to target our organisation as part of a smear campaign with information that has been proven by a court of law to be completely unfounded and defamatory. Despite this, he continues to breach these court orders by sharing misinformation on his social platforms.
Let me be clear – we are not bullying Mr Mulvany as he suggests. We are simply asking him to stop spreading significant mistruths; accusations which have been proven by a court of law to have no substance. If there was any truth to his assertions, we would not have been successful in seeking an injunctions.
As stated previously, we fully welcome all customer feedback and healthy industry debate on topics such as bee welfare. However this discussion needs to be balanced and grounded in facts and science. As a fifth generation beekeeper myself with a PhD in Bee Science, I can assure you I would not lead a company that did not have bee welfare at the heart of its operations.
We welcome any direct queries on this matter.
62 On 23 September 2016, the article was amended to correct the statement to the effect that the publications had been found by a court to be completely unfounded, defamatory, and without substance.
63 On or about 9 May 2017, Mr Mulvany posted the following statement on his Facebook page (omitting some links to other websites):
15 months after global honey corporation Capilano Ltd used a court order to gag bee activist Simon Mulvany it now seeks to sue the beekeeper and single father of Oscar aged 7 in the NSW Supreme Court.Capilano corporation and its CEO Ben McKee are suing Mulvany founder of #savethebeesaustralia using an abstract legal action ‘industrious falsehood and defamation’.
Most Australians believe a corporation can not sue an individual. This is not the case.
If Capilano are successful suing Mulvany, who works as a gardener to support is son, a precedent will be set allowing corporations to impugn, sue and gag other individuals who speak out against the immoral behaviour of corporations such as Monsanto, Bayer, Mc Donald’s, Coca Cola or live animal exporters.
Defending a Supreme Court Action costs a fortune. Simon is now in debt and forced to arrange care for his son, lose income and travel interstate from Victoria Australia to Sydney three times to defence himself in the Supreme Court.
The final hearing court dates for the matter Capilano Honey Ltd vs Simon Mulvany set for the 25th and 26th of May 2017.
Capilano, formerly one of Australia’s most trusted companies, has admitted it imports millions of kilos of honey each year from China, Argentina and Mexico to blend and sell as product of Australia under numerous subsidiary brands (sometimes illegally).
All Simon has done is post comments online which are critical of Capilano’s importing regime. The company now seeks to personally bankrupt him for exposing its greed.
The Lead up
January 2016
...
News Limited published an article that devastated the Australian beekeeping industry titled ‘Australian honey could be making us sick’.
Simon was tipped off by another beekeeper that the toxins were not from Australian honey rather the cheap Argentine honey that was being blended with Australian honey. In response to the bad press Australian honey was getting Simon wrote article which is now banned encouraging consumers to avoid imported honey and to support Australian honey.
The post that targeted Capilano subsidiary brand Allowrie was subsequently shared more than 30000 times and read millions of times.
After being assured by Capilano CEO Ben McKee that under new labelling laws Capilano would label all the honey they sold with country of origin Simon agreed, as a gesture of goodwill, to take the article down along with several others.
Despite 37000 signatures on a change.org petition Capilano still refuse to label with country of origin the new labelling laws do not require the country of origin of blended honey.
Capilano Honey Ltd vs Simon Mulvany may come down to whether Simon has defamed CEO Ben McKee. I asked Simon about Ben McKee this was his response:
“Ben and I have met. Ben agreed that he would prefer all honey at supermarkets to be labelled with country of origin. Unfortunately the board did not agree and Ben could not implement the change. Ben told me he knew my articles were not a personal attack on him rather his capacity as CEO to implement changes to labelling. He assured me he would never personally sue me for deformation [sic].”
Please urge Capilano and Ben McKee via email or their Facebook page cease court action Simon Mulvany. Their actions are hurting the whole beekeeping industry including 600 contract beekeepers who have unfairly been tarnished because of Capilano’s choice to import honey and not label imported honey with country of origin.
Another journalist Shane Dowling also covered the story and is also now being sued by Capilano Ltd.
Savethebeesaustralia has changed the way many source honey. The free honeymap has now been viewed 240000 times.
Consumers choosing to buy direct means beekeepers can charge retail prices for raw honey rather than the $5kg Capilano offer. Paying beekeepers more means they are better equipped to look after their bees. Between $15kg to $20kg is a fair price to pay a beekeeper.
“Savethebeesaustralia is run by volunteers. Over forty thousand people follow the page on Facebook.
Greed cannot defeat an ideology. Corporations such as Bayer, Monsanto (Croplife), Woolworths, have all legally threatened Savethebeesaustralia but they can’t take an ideology to court.
When I asked Simon what the likely court result would be he responded:
“I have little faith in the court system that has allowed a corporation to disrupted [sic] my family in this way. I have been warned they Sydney supreme court system is a boys club and biased in favour of corporations. We may lose the court battle but win the war. Regardless of the result it will shine the spotlight on neonicotinoids insecticides. I may be left with absurd costs order of hundreds of thousands of dollars designed to scare others from whistle blowing. This will highlight the efforts of corporations are willing to go to disguise the orgins [sic] of their products.
We are raising funds as for #savethebeesaustralia to cover the true version of events and pay for costs incurred.
Seeking $3000 to cover:
* Flights for three.
* Accomodation [sic]
* Transport costs
Donations more that [sic] $10 will receive an updated sticker and a packet of organic heirloom seeds supplied by www.diggers.com.au (http:///www.diggers.com.au)
64 The article reproduced above was also published on the change.org website and the Save the Bees Facebook page on or about the same date. Later in May 2017, Mr Mulvany posted the following statements on the Save the Bees Facebook page:
Capilano Honey want me gagged because they know I have so much information that they don’t want consumers to know. These clip was shot at a Capilano open day.When CapilanoHoney are not importing honey from China their #beekeepers are feeding bees irradiated Chinese pollen. How can we be sure the Chinese pollen is not contaminated?
Bee expert Jeffery Gibbs “if one batch of contaminated Chinese pollen gets through it could carry a disease that can wipe out apiaries” This is why beekeepers irradiate pollen before feeding bees. Australia importing Chinese pollen is not worth the risk. We need to lawn [sic] from the importing of prawns that is ruining our prawn industry.
Bees like us need a variety of nutrition to remain healthy.
Listen for yourself it’s is [sic] common practice for Capilano’s contract beekeepers to feed there [sic] bees Chinese pollen mixed with gmo soy powder. In my opinion if the pollen is Chinese the honey is Chinese such is the synergy of the hive. Some Australian honeys sold overseas are coming up with Chinese Pollen residual. This threatens Australia’s reputation as a honey producer.
Capilano has a business model that relies on the ignorance of its customers.
Jeffery Gibbs has recipes of organic pollen substitutes if colonies must be fed. It is a sad state of affairs if we are relying on GMO soy and Chinese pollen to keep bees alive.
Beekeepers can contact Jeffrey through Northern Light Beeswax Candles.
Please support our campaign
Gofundme
https://www.gofundme.com/kj8nz-capilano-ltd-vs-simon-mulvany
paypal cleantrans@gmail.com
Bee the cure bank account
BSB 633000
ACC 153832084
Contributing will send a powerful message to corrupt corporations.
65 The Save the Bees Facebook page also contains a number of additional posts in response to various posts on the page in response to the article referred to in paragraph 63 above.
66 The plaintiffs submitted that the defence of ‘reply to an attack’ has no prospect of success. The chronology of events shows that the Capilano Facebook Article was itself a reply to the attacks made on Mr Mulvany. At best, using the language of Nathan J in Kennett v Farmer,[48] the publications said to be protected by the reply to attack defence:
... are correctly described as a further riposte or retort that is beyond the scope of the qualified privilege attaching to a reply to an attack.[49]
67 Further, counsel for the plaintiffs submitted that any reply to an attack must be
... commensurate with, relevant to and sufficiently connected with the asserted attack.[50]
68 In the current case, the relevant publications:
... reveal a degree of disproportionality and lack of relevance and connection, especially in light of the lengthy period of time after the Capilano Facebook Article over which the ‘replies’ were published; and the inclusion of seemingly irrelevant and extraneous material in the purported ‘replies’ including accusations unrelated to what is asserted to be the original ‘attack’.[51]
69 The plaintiffs also complain that the particulars provided in the defence do not define the scope of the asserted privilege, such that the plaintiffs have difficulty in identifying the case they have to meet.
70 Mr Mulvany submitted that he has a real prospect of success of defending the plaintiffs’ claims with respect to the relevant publications. The pleading on its face are clearly not unsustainable. He described the Capilano Facebook Article, which was published under the name of the second plaintiff, as a ‘monumental attack’ upon Mr Mulvany. He noted that in Kennett v Farmer,[52] Nathan J qualified his statement that a reply to an allegedly defamatory retort, made itself in response to a defamatory statement is not protected by qualified privilege. This qualification is to the effect that
if the plaintiff’s response to the initial attack was excessive or was in the nature of a fresh and distinct defamatory allegation against the defendant, then the defendant’s reply to this attack might well be made on an occasion of qualified privilege.[53]
71 Accordingly, given the (allegedly) serious and excessive misstatements made by the second plaintiff in the Capilano Facebook Article, Mr Mulvany submitted that he has a prima facie defence of qualified privilege in relation to the relevant publications, which address the bullying of him or attempts to silence him by the plaintiffs.
72 In my view, while I doubt that Mr Mulvany’s prospects of success in relation to this defence are particularly strong, they do not seem to me to be so negligible as to warrant summary dismissal. Ultimately, the determination of the question of whether the publications in question attract the defence requires an analysis of the background, chronology, and context of the publications, and, possibly, Mr Mulvany’s motivations for publishing the purported ‘reply’, and the reasons for his delay in publishing the purported reply. That is an exercise which is inherently unsuitable to undertake in the absence of all of the evidence and full argument.
73 If further particulars are required for the plaintiffs to properly understand how the case is put, they should be requested and provided.
Request for further and better particulars
74 Mr Mulvany’s summons seeking the provision of further and better particulars of the further amended statement of claim was made following some months of correspondence and the provision of some further and better particulars by the plaintiffs in November 2018. Essentially, the plaintiffs resist provision of further and better particulars on the basis that ‘a party is not entitled to seek evidence under the guise of particulars.’[54]
75 The plaintiffs also relied upon the decision of French J in Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd,[55] where his Honour said:
The function of particulars was described by Gleeson CJ in Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 at 371, where is Honour said:The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. [Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13].
What are ‘necessary’ particulars of any claim, defence or other matter pleaded is a matter of judgment. The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.
Against that background I have no hesitation in rejecting a request for particulars which begins with the words ‘... specify every fact, matter, reason, inference and thing relied upon ... ‘. The immediate and apparent vice of such an illdisciplined request is that it will seek to rope in the other party’s evidence. ... [56]
76 I agree with the submissions of counsel for the plaintiffs that the request for further and better particulars is, for the most part, an impermissible request for evidence. That the earlier request by the plaintiffs for further and better particulars of Mr Mulvany’s defence could be characterised as suffering the same vice does not constitute sufficient grounds for ordering the plaintiffs to provide particulars that they are not required to provide.
77 Essentially, the further particulars sought by Mr Mulvany fall into eight categories, as follows:
(a) details regarding the contents of food labels for the various honey products marketed by Capilano;(b) the legal and regulatory requirements governing food labelling for Capilano’s honey products;
(c) testing procedures undertaken by Capilano and the results of such testing;
(d) details of ‘exceptional and/or rare cases of unintended conduct’ where the honey sold by Capilano did not match the contents of the onpackage statements;
(e) further particulars in relation to the plaintiffs’ denial of the truth of the representation that the plaintiffs have engaged in bullying conduct;
(f) product specifications and testing standards for imported honey;
78 Each of these categories will be considered briefly below. I would, however, make the following general observations:
(a) a number of the requests for particulars could be dealt with more conveniently and cost effectively in another way, such as through discovery and/or the exchange of lay and expert evidence;(b) to the extent that the topics about which particulars are sought will be dealt with by evidence, while I would not order that the parties file and serve witness statements, this is the type of proceeding which could benefit from reasonably detailed outlines of lay evidence, as well as any expert evidence to be relied upon by the parties;
(c) to the extent that the request for further and better particulars (and, later, discovery) concerns the actual tests carried out by Capilano and the results of such tests, I consider there is a need to put some boundaries around the ambit of discovery and evidence that Capilano should be compelled to provide; and
(d) while, as a matter of principle, the plaintiffs would not ordinarily be compelled to specify what legislation and regulations they refer to in the statement of claim given that Mr Mulvany is legally represented, I propose to adopt a pragmatic approach to this aspect of the dispute.
Contents of food labels
79 Provided that the plaintiffs discover copies of the food labels for the products that it markets (with the appropriate time frame to be the subject of further discussion), then I do not consider it necessary for further particulars to be provided. The contents of the labels will speak for themselves.
Legal requirements for food labelling
80 I do not consider it necessary for the plaintiffs to identify which provisions of the Australian Consumer Law (and their state and territory counterparts)[57] which they say govern food labelling. The provisions prohibiting misleading and deceptive conduct are well known. However, given that no doubt there are Capilano personnel who are very familiar with the regulatory regime governing food labelling, it would be useful for the Court as well as for Mr Mulvany and his solicitor to be directed to the particular regulations and standards the plaintiffs say govern food labelling.
Testing of Capilano products
81 As noted above, I am a little concerned that this proceeding could get irretrievably bogged down in the evidence concerning the results of Capilano’s testing over an undefined period. That said, the plaintiffs have made assertions regarding the adequacy of Capilano’s testing regime, and assert that its tests prove, among other things, that their products are 100% Australian honey, that they are not adulterated, and that they are not dangerous to human health. Those assertions having been made, Mr Mulvany is entitled to test those assertions.
82 It seems to me that this topic is probably best addressed by discovery and the early provision of expert evidence and outlines of lay evidence, subject to the caveats referred to at paragraph 78(c) of these reasons.
Exceptional cases
83 Given that the plaintiffs have made the assertion that the instances of honey sold by Capilano not conforming with the onpackage statements are exceptional, rare, and unintended, the plaintiffs should provide particulars of those instances within their knowledge. I do not consider that this is a request for evidence.
Bullying allegations
84 I simply do not understand how the further and better particulars requested will assist Mr Mulvany to better understand the plaintiffs’ case that the allegation that the second plaintiff is a bully, and is using this proceeding to silence Mr Mulvany, is false.
Product specifications and testing standards for imported honey
85 To the extent that this request seeks further particulars of the standards applicable to imported honey, I refer to my observations in paragraph 80 above. To the extent that this request refers to Capilano’s testing of imported honey (and the results of such testing), I refer to my observations in paragraph 81 above.
86 However, I see no reason why Capilano ought not provide further and better particulars of the specifications Capilano requires imported honey to meet.
Particulars of Malice
87 While I note that the observations of French J in Police & Nurses Credit Society Pty Ltd v Burgess Rawson (WA) Pty Ltd,[58] carry some weight in assessing this request, I will order that the plaintiffs provide further and better particulars of this request, with some modification. The particulars to be provided by the plaintiffs should be limited to identifying the statements the plaintiffs rely upon to support their allegation that Mr Mulvany’s conduct was actuated by malice, rather than the ‘facts, matters, and circumstances’ relied upon by the plaintiffs in making this allegation.
Particulars of Loss and Damage
88 In my view, this request will be addressed by the plaintiffs’ discovery. The request for particulars seeks details of customer complaints said to have been made by reason of the publications, along with a notification of concern by a major institutional shareholder. Given that the plaintiffs rely upon these matters as supporting its allegation that the publications have caused them loss and damage, documents recording or evidencing these notifications are discoverable.
S CI 2018 02367
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HIVE & WELLNESS AUSTRALIA PTY LTD (formerly Capilano Honey Ltd)
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First Plaintiff
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BEN McKEE
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Second Plaintiff
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- and -
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SIMON MULVANY
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Defendant
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[1] On 9 April 2019, while judgment was reserved, the plaintiffs filed a notice pursuant to rule 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) notifying the Court of the change of name of the first plaintiff. The former name of the plaintiff is used in these reasons.
[2] Capilano Honey Ltd v Mulvany [2018] VSC 672 [2].
[3] Ibid.
[4] An application before McCallum J in August 2017 was partially successful. An application to vary the interlocutory orders was dismissed by John Dixon J on 9 November 2018 (Capilano Honey Ltd v Mulvany [2018] VSC 672). This decision is subject to a pending application to the Court of Appeal.
[6] [2013] VSCA 158; [2013] 42 VR 27.
[7] Ibid [35].
[8] Ibid [40].
[9] [2004] HCA 5; (2004) 218 CLR 366 (‘Bashford’). McHugh J dissented in the result, but his statements have been referred to on a number of occasions as representing the correct approach to be adopted in assessing whether a publication has been published on an occasion of qualified privilege. See, for example, Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 [89] (‘Marshall v Megna’).
[10] Ibid, 385-387.
[11] [2004] HCA 5; (2004) 218 CLR 366. See also Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534.
[12] Ibid, 392.
[13] Lange v Australian Broadcasting Corporation (1992) 189 CLR 250.
[14] George, P, LexisNexis Butterworths, (2nd ed, 2011), 358-360.
[15] Paragraph 25 only.
[16] Ibid.
[19] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
[20] See Marshall v Megna [2013] NSWCA 30, discussed further at paragraphs 53 to 57 of these reasons.
[21] [2003] VSCA 161; (2003) 9 VR 1.
[22] [1997] HCA 25; (1997) 189 CLR 520.
[23] Ibid, 561.
[24] Popovic [2003] VSCA 161; (2003) 9 VR 1, 9 [7].
[26] Ibid [36].
[27] [2019] HCA 11 [29].
[30] Ibid [207].
[31] [2004] HCA 5; (2004) 218 CLR 366.
[33] Ibid [61].
[34] [2004] HCA 5; (2004) 218 CLR 366.
[35] Ibid.
[37] [2004] HCA 5; (2004) 218 CLR 366.
[38] Ibid.
[39] Marshall v Megna [2013] NSWCA 30.
[40] [2002] HCA 57; (2002) 212 CLR 1.
[41] Marshall v Megna [2013] NSWCA 30 [29]-[31].
[42] Ibid [178].
[43] Ibid [144].
[44] Ibid [173]-[174].
[46] Ibid.
[47] Ibid.
[48] [1988] VicRp 90; [1988] VR 991.
[49] Plaintiff’s submissions [71].
[50] See Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31, 46, and Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219, 233.
[51] Plaintiff’s submissions [72].
[52] [1988] VicRp 90; [1988] VR 991.
[53] Defendant’s submissions [24].
[54] Conway v Mercedes-Benz AustraliaPacific Pty Ltd [2010] FCA 72 [7].
[56] Ibid [16]-[18].
[57] For example, Competition and Consumer Act 2010 (Cth).
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