IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Major Torts List
S ECI 2021 04431

OLA HASSAN MOHAMMED OUDA & ORS	Plaintiffs	
		
v  		
		
TODD HUNTER & ANOR	Defendants	

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JUDGE:	John Dixon J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 May 2023	
DATE OF JUDGMENT:	19 May 2023	
CASE MAY BE CITED AS:	Ouda v Hunter	
MEDIUM NEUTRAL CITATION:	[2023] VSC 264	

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PLEADINGS —Defamation —Application for leave to file further amended defence — Defence of honest opinion — Proper materials alleged to be the basis of the opinion not identified as revealed by the defamatory matter — Defamation Act 2005 (Vic) s 31.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	Mr D P Gilbertson KC with Mr M J Hoyne	Rose Legal Barristers & Solicitors Pty Ltd 	
			
For the Defendants	Ms L De Ferrari SC	Johnson Winter & Slattery	

HIS HONOUR:
1	The defendants sought the court’s leave to file and serve an amended defence in a defamation proceeding. Following further consideration of the pleading, a second proposed amended defence was handed up in court and the parties agreed that the application be resolved on the basis that leave was being sought to file and serve that document.
2	Not only did the plaintiffs oppose the application, they submitted that paragraphs 15 and 16 of the filed defence, which constituted the defendants’ original expression of their honest opinion defence, should be struck out for failing to articulate an arguable defence.
3	The proposed amendments are limited to providing varied, and further, particulars of the allegation that the defamatory matter was protected by the defence of honest opinion pursuant to s 31 of the Defamation Act 2005 (Vic). The defamatory matter, defined as the Press Conference Words, allegedly conveyed, inter alia, the meaning, ‘Each of the plaintiffs is dishonest and unable to be trusted’. The Press Conference Words were spoken by the first defendant, a Commander in the Australian Federal Police, at a press conference about a police operation, Operation Iris Ayton, that had led to the arrest of the first and second plaintiffs. A transcript of the Press Conference Words is Schedule A to the plaintiffs’ statement of claim. The defendants contend that statement is an expression of opinion.
4	Presently, the defence provides particulars of the material allegation that the opinion was based on proper material as follows:
Commander Hunter’s opinion was based on information provided to him by Operation Iris Ayton investigators, including in an:
(i)	Affidavit for Warrants to Search Premises and Persons sworn by AFP member, Judy Goldsmith, on 24 November 2020; and
(ii)	Affidavit for Warrants to Search Premises and Persons sworn by AFP member, Thomas Angus Sutherland, on 23 November 2020.
The information provided to Commander Hunter was:
(i)	substantially true; and/or
(ii)	published on an occasion of absolute privilege, namely in the course of proceedings in an Australian court.
5	The proposed amendment to the particulars will:
(a)	Add the following material to the material identified in the particulars:
(i)	Operation Iris Ayton Press Conference talking points;
(ii)	Operation Iris Ayton Media Factsheet;
(iii)	Operation Iris Ayton Media Release.
(b)	Delete the second statement about the nature of the information provided to Commander Hunter. 
(c)	Allege that:
The affidavit material (the Goldsmith Affidavit and the Sutherland Affidavit), was set out in general terms in the press Conference Words and/or apparent to the ordinary reasonable attendee from the context of a press conference held by a senior officer of the AFP after the issue and execution of warrants, the arrests of accused persons and court appearances.
(d)	Set out 17 statements, being matters stated by Commander Hunter as recorded in the Press Conference Words, that are substantially true and/or based on the affidavit material. 
(e)	Allege that five further statements also drawn from the Press Conference Words are matters of substantial truth, which completes the material particularised as the proper material on which the opinion was based.  
6	Section 31 refers to the ‘publication of defamatory matter’ and that is a reference to the matter complained of in its defamatory sense. The defamatory sense of the published matter is determined by findings of the tribunal of fact (the judge or the jury) that the matter carries or conveys defamatory imputations or meanings. Although technically, the pleader ought to allege that the matter published (as opposed to a particular imputation pleaded) was an expression of opinion, I would not strike out the paragraph on this objection to form, as invited to do by the plaintiffs. I am satisfied that the proper allegation is sufficiently clear to the plaintiffs.
7	A second objection to form taken by the plaintiffs, was that in both the current pleading and the proposed amended pleading, the plaintiffs and the court were left to speculate as to how it was put that the defamatory matter is an expression of opinion. That is, in the sense of whether the particular meaning relied on is a deduction, inference, conclusion, criticism, judgment, remark or observation arrived at by the speaker from facts stated or referred to by them, or in the common knowledge of the speaker and those to whom the words are addressed, and from which their conclusion may reasonably be inferred. However, this is not merely a matter of form. It goes to the substance of the plaintiffs’ objections that the particulars do not show that the defence is tenable and is dealt with further below.
8	Thirdly, the existing particulars alleged that the information provided to Commander Hunter, and on which his opinion was based, was published on an occasion of absolute privilege, namely in the course of proceedings in an Australian court. The defendants contended that the two affidavits referred to in the particulars were sufficiently referenced in the Press Conference Words to properly identify that the opinion was based on material that was so published. 
9	The plaintiffs contended that, taken at their highest, the particulars did not establish facts that, if proved at trial, would enable the ordinary reasonable listener/viewer to identify that the matters stated by Commander Hunter were based on any facts found in the documents identified in the existing or the proposed particulars or that such documents were published in the course of proceedings in an Australian court.
10	There is merit in this objection and I do not accept the defendants’ submission. The ordinary reasonable listener/viewer of the press conference is not made aware of either affidavit, let alone their contents, by the Press Conference Words. They are not mentioned at all, nor are any proceedings in an Australian court nor the course of those proceedings identified either directly or indirectly. The defendants submitted that the indirect referencing of court proceedings was sufficient.
11	There were two difficulties with these contentions. The defendants submitted that the ordinary reasonable attendee at the press conference (a concept to which I will return) would infer that Commander Hunter’s statements were based upon those affidavits and that those affidavits were published in the course of proceedings in an Australian court from the statements set out in the proposed amended particulars. Counsel  stated:
So, the reasonable attendee is not left to speculate at all. All the facts are stated there. He states there has been a big operation, he states there has been lots of search warrants executed, he states these people have been charged with fraud offences and have been bailed. So, that’s all the basis upon which that opinion would have been based if it’s conveyed. There is nothing more we can say in the pleadings to make it clear to the jury what matters the ordinary reasonable attendee of that press conference would have wanted to know in terms of … on what basis Commander Hunter… conveyed that [meaning] as an opinion.
12	Counsel sought to confine the ordinary reasonable listener/viewer to a more limited concept. The words were spoken in a press conference which was attended by journalists and the defendants submitted that the relevant characteristics of the hypothetical listener/viewer would be those of a reasonable journalist, because it was only journalists who were attending the press conference. The relevant hypothetical person for the applicable test became, in their submission, the ordinary reasonable press conference attendee and the press conference was only attended by journalists (not a pleaded fact). In substance, the defendants invited me to apply an ordinary reasonable journalist test. 
13	While I accept the proposition that the characteristics of the hypothetical reader/viewer may vary depending on the nature and circumstances of the publication, how the defendants formulated the test was misconceived in two respects: First, it unreasonably confined the audience to experienced journalists at a press conference. Second, it postulated that these experienced journalists would reasonably infer from the references to the execution of search warrants, the laying charges and the granting of bail that the basis upon which Commander Hunter was expressing his opinion, that each of the plaintiffs is dishonest and unable to be trusted, was the Goldsmith and Sutherland affidavits and the additional material to be added by the amendment, and that such material was published in the course of proceedings in an Australian court. 
14	The defendants cited no authority for a proposition that, in my view, unreasonably restricts the proper application of the hypothetical listener/viewer test. The nature of this test was restated by the High Court of Australia in Trkulja v Google LLC. Although this statement is in the context of determining whether the published material conveys defamatory imputations, the same hypothetical person is central to the test for evaluation of the honest opinion defence. The court said: 
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, ‘[s]ome are unusually suspicious and some are unusually naïve’. So also are some unusually well-educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, ‘[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject’.
15	The concept of ‘what ordinary reasonable people would understand’ cannot be confined to journalists at a press conference. The stated aim of Commander Hunter was to widely publicise the police operation to the community, evident from the fact of the press conference and what he said. Further, it was the natural and probable consequence that the media represented at the press conference by journalists would cause far reaching and extensive publication of what Commander Hunter said. So much is specifically put in issue by paragraph 10 of the plaintiffs’ statement of claim that alleges that there would, from the press conference, be and was extensive and far reaching publication of the defamatory imputations. That allegation is appropriately supported by particulars. Save to admit that Commander Hunter did hold a press conference in the foyer of the AFP’s Melbourne headquarters at 383 Latrobe Street, Melbourne lasting approximately 20 minutes and attended by members of the press in person, the allegation is denied. For present purposes, it is clearly a relevant triable issue.
16	While the plaintiffs’ allegation that there was further publication of the Press Conference Words is primarily made for the purpose of holding the defendants liable for damage caused by that further publication, it does not follow that it is an irrelevant circumstance in identifying the characteristics of the hypothetical listener/viewer for the proper application of the test.
17	In substance, the defendants contended that in determining whether it is open, as a matter of law, to maintain the allegation that expressions of opinion were based on proper material― 
(a)	the characteristics of the hypothetical listener/viewer are appropriately constrained to those of a reasonable journalist; and 
(b)	accordingly, this hypothetical person has an understanding of the legal system and of the processes by which warrants are obtained, charges are laid and bail is granted; and
(c)	on a casual exposure to the Press Conference Words, this hypothetical person would understand or infer that Commander Hunter’s statements were based upon either the affidavits of Goldsmith and Sutherland referred to in the particulars to the existing defence, and/or the additional material referred to in the particulars in the proposed defence, and that such material was published in the course of proceedings in an Australian court, because of their understanding of what needs to be done to obtain a search warrant. 
18	I reject this contention. Such inferences simply cannot be reasonably drawn on the basis of the Press Conference Words on the application of the proper test for the following reasons.
19	Even if these inferences were open, there was no indication that the material relied on by Commander Hunter was made on a privileged occasion. Publication in the course of proceedings in an Australian court is an occasion of absolute privilege. However, it is convenient to note Comalco Ltd v Australian Broadcasting Corporation. In this proceeding, the court was concerned with a defence of fair comment at common law. The principle identified in this case is applicable to the defence under s 31 of the Act because the common law required that a statement made on a privileged occasion, without regard to whether it is true, may be proper material on which a speaker may base an opinion. Blackburn CJ said,
It was proved in evidence that the Minister did say this in the Parliament of Queensland. The defendant contended that the matter therefore came within the principle of Mangena v Wright [1909] 2 KB 958 at 976-7, and Grech v Odhams Press Ltd [1958] 2 QB 275 at 285, namely that fair comment is available as a defence in relation to a factual statement which was made on a privileged occasion, without regard to whether it is true.
I reject this contention. I do not accept that the Mangena v Wright principle can be applied to a statement which does not purport to be, or to be, a report of a statement made on a privileged occasion. The statements in question in Mangena's and Grech's cases both did so appear. If the law were as counsel contended, a statement made twice, once on a privileged and once on an unprivileged occasion, and quoted by a defendant without specifying the occasion on which it was made, would be subject to the Mangena rule even if the defendant had quoted the statement in ignorance that it had been made on the privileged occasion. The rationale of the Mangena rule is surely that the person to whom the comment is published should know the status of the factual statement (ie that it was made on a privileged occasion) just as he is expected to be able to judge for himself the soundness of the comment.
20	I am satisfied that the contention that the honest opinion was based on material published on an occasion of absolute privilege cannot be maintained and, to that extent, must be struck out from the existing defence and not repeated on the same basis in any proposed amended defence.
21	Next, at the heart of the defendants’ contentions that the opinion was based on proper material lay the alternative proposition that what Commander Hunter said at the press conference was based upon the sources identified in sub-paragraph (i) of the particulars, which matters, if not published on an occasion of absolute privilege, were true. Whether or not such matters were substantially true is a matter for trial that, for present purposes, is assumed. The plaintiffs contended that the particulars did not identify a proper basis for the opinion as that expression is properly understood. The proper basis for the opinion cannot be extracted from a bare reference to the execution of search warrants, that being the only connection between the affidavits and the Press Conference Words. That is not a reference that identifies the documents particularised in (i) as the basis for what Commander Hunter said. 
22	In Agustin-Bunch v Smith (No 2), I set out my analysis of authority touching on this issue. Neither party took issue with this analysis. I there stated the principles that I am now applying and do not propose to repeat what I said. I will briefly emphasise the following matters that are not given sufficient weight by the defendants in their contentions or which demonstrate why the defendants’ contentions cannot be accepted.
(a)	In Buckley, the Court of Appeal rejected the proposition that the statutory defence of honest opinion under s 31 requires only that the opinion is honestly based on proper material and that material need not be known to the reader. The Court of Appeal said there is no material difference as to the need for the facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader, between the common law fair comment defence and the statutory honest opinion defence. The defendants’ submission that what the affidavits disclosed was being repeated by the statements made in the press conference and were based on them is entirely unconvincing as a basis on which a jury could conclude that the basis for Commander Hunter’s opinion was apparent to the reader to be the facts stated in particular affidavits submitted to a court on an application for a search warrant.
(b)	The test as to whether a matter is based on proper material is now found in s 31(5)(a) of the Act, which has been amended since the press conference was held. Nevertheless, it is appropriate to note the correlation between common law principle and the clarifying words of the amendment. That material is not set out in specific or general terms in the published matter (s (5)(a)(i)). It is not notorious (s (5)(a)(ii)). It is not accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage) (s (5)(a)(iii)). It is not otherwise apparent from the context in which the matter is published (s 5(a)(iv)).  It is only the last of these categories that could be, and was, relied on. But, accepting that the reference to the proper material need not be more specific than an allusion, what must be ‘otherwise apparent’ are the facts presented to the minds of the listener/viewer, not the speaker, to enable them to assess the opinion for themselves. The references to executing search warrants is not an allusion to the facts presented in the affidavits. In context, the facts sourced from the affidavits remain completely undisclosed. 
(c)	As the High Court made clear in Manock, the listener/viewer must be able, when considering the defamatory material, to judge for themselves that the relevant meaning is an expression of opinion (or comment) and the extent to which the opinion expressed in the defamatory matter is well founded. This is the conceptual basis of the defence. 
(d)	Whether the material on which the opinion is alleged to be based is proper and truly the basis for it, is determined by reference to what the ordinary reasonable listener/viewer would have understood from the defamatory matter to have been intended by the speaker to be considered as the basis for his or her opinion or comment.
23	I have concluded that the hypothetical listener/viewer could not have understood from the Press Conference Words that Commander Hunter, when conveying his opinion that each of the plaintiffs is dishonest and unable to be trusted, was expressing an opinion based on facts stated in the documents identified in sub-paragraph (i) of the proposed particulars. The material particularised as the proper materials cannot enable the hypothetical person to assess his opinion, assuming they so perceive the defamatory matter, for themselves.
24	Accordingly, the hypothetical listener/viewer cannot identify from the Press Conference Words that the documentary material on which the defendants propose to rely is the material on which the opinion is based and that person cannot judge whether an opinion was expressed or the basis for it in order to evaluate it. Neither can the hypothetical listener/viewer identify from the Press Conference Words that the words spoken were based on material published on an occasion of absolute privilege. 
25	By subparagraph (iv) and (v) of the proposed particulars, the defendants allege that 22 statements made by Commander Hunter are substantially true and are the proper material on which the hypothetical person can assess his opinion. While I would not permit the words ‘and/or based on the affidavit material’ in sub-paragraph (iv) for the reasons already explained, whether those 22 statements, if substantially true, could provide a proper basis for the meaning borne by the defamatory matter that is said to be an expression of opinion, was not specifically addressed by the parties in argument. The defendants did not seek to put any other form of the pleading before the court so as to attract such submissions and it is not the role of the court to settle the defence in a properly particularised form.
26	I will order that paragraphs 15 and 16 of the defendants’ filed defence dated 22 February 2022 be struck out and I refuse the defendants’ application for leave to file and serve the second proposed amended defence dated April 2023.
27	Subject to any further submission, I would be inclined to order that costs should follow the event; that the defendants be ordered to pay the plaintiffs’ costs of and incidental to this application. I will give appropriate directions should either party wish to make a further submission in respect of costs.