Parke v Rubenstein (No 2) [2021] FCA 107

Parke v Rubenstein (No 2) [2021] FCA 107

The applicant did not show that the honest opinion pleading was evasive, ambiguous, prejudicial, embarrassing, delaying, or failed to disclose a reasonable defence under r 16.21; the issues concerning whether the publications were fact or opinion and whether proper material was sufficiently identified were appropriate for trial. A dux litis or split-case order was not justified because it would depart from the conventional trial process, the applicant's submissions were general, the pleadings and foreshadowed evidence did not demonstrate unfairness, and there was overlap with the applicant's plea of malice. The discovery sought was not shown to be directly or sufficiently relevant to...

Jurisdiction
Australia
Judgment Date
16 February 2021
Procedural Posture
Defamation Proceedings / Interlocutory Application to Strike Out Honest Opinion Defence, for Dux Litis Order, and for Non Standard Discovery
Outcome
Interlocutory application dismissed/refused; costs reserved for further hearing.
Legal Topics
['strike Out of Pleading' 'honest Opinion Defence' 'qualified Privilege' 'dux Litis' 'discovery' 'proper Material' 'public Interest']
['practice and Procedure' 'defamation'] ['strike Out of Pleading' 'honest Opinion Defence' 'qualified Privilege' 'dux Litis' 'discovery' 'proper Material' 'public Interest']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Application to Strike Out Honest Opinion Defence, for Dux Litis Order, and for Non Standard Discovery

Legal Issues

  1. 1 ["Whether the first respondent's defence of honest opinion should be struck out under r 16.21 of the Federal Court Rules 2011 (Cth)." 'Whether the first respondent should be made dux litis on the defences of honest opinion and qualified privilege.' "Whether the first respondent should be ordered to give discovery of documents concerning AIJAC's Rambam study program and funding of political parties, politicians, media organisations and journalists."]

Ratio Decidendi

The applicant did not show that the honest opinion pleading was evasive, ambiguous, prejudicial, embarrassing, delaying, or failed to disclose a reasonable defence under r 16.21; the issues concerning whether the publications were fact or opinion and whether proper material was sufficiently identified were appropriate for trial. A dux litis or split-case order was not justified because it would depart from the conventional trial process, the applicant's submissions were general, the pleadings and foreshadowed evidence did not demonstrate unfairness, and there was overlap with the applicant's plea of malice. The discovery sought was not shown to be directly or sufficiently relevant to...

Court Disposition

Interlocutory application dismissed/refused; costs reserved for further hearing.

Orders

  • ['The interlocutory application filed on 18 August 2020 is dismissed.' 'The Court will hear from the parties in respect of costs.']