HER HONOUR: These are proceedings for defamation commenced by statement of claim which, according to what I was told during argument, was originally filed on 8 February 2018, although curiously the copy on the court file does not bear the registry stamp. That version of the pleading was not served until 25 June 2018, whereafter, following an exchange of correspondence concerning its form, the plaintiff agreed to serve an amended statement of claim. That occurred on 4 September 2018.
Accordingly, although commenced at the beginning of the year, the proceedings did not come before the Court for determination of the first listing issues until last Friday in the defamation list, that is, 12 October 2018. On that occasion Ms Chrysanthou, who appears for the defendant, objected to the form of the pleading of the matter complained of in the amended statement of claim.
It is convenient first to refer to the original statement of claim, which complained of a publication pleaded as a series of discrete posts by the defendant, Ms Nelson, on a Facebook page known as "Blocked by Pete Evans".
The amended statement of claim seeks to bring forward a cause of action in respect of two Facebook pages, the "Blocked by Pete Evans" Facebook page, and a Facebook page created by the plaintiff in the name "Liz Evans".
The first matter complained of, pleaded in paragraph 2 of the amended statement of claim, asserts that the defendant published on the "Blocked by Pete Evans" Facebook page "a number of comments". The text of those comments, and the context in which they appear, is reproduced in schedule A. That material, that is, the material set out in schedule A, is defined as "the first matter complained of" in terms in paragraph 2 of the amended statement of claim. It consists of some 131 pages, presumably printed out sequentially from the Facebook page, only a small number of which are posts under the name of the defendant, Ms Nelson. The dates of the various posts range over a period of some six months.
In the circumstances, the defendant might have objected to the pleading of the matter complained of on the strength of the principles considered by me in Noble v Phillips (No 2) [2018] NSWSC 25. However, that was not quite the point taken. Ms Chrysanthou did, however, object on what may probably be regarded as analogous or related reasons. In particular, she submitted that, where a publication is pleaded in that form, that is, as a collection of separate publications published over a period of time on the internet, then save in the case of a multi-media publisher, the plaintiff cannot be taken to have the benefit of any presumption of publication on the website.
That is a logical and obvious corollary of the fact that, as Ms Chrysanthou contended, there are billions of websites. Save in the case of publication by a mass media entity, it is not logical or reasonable to infer that any individual reader or group of readers is likely to have read each of a number of disparate, separately-dated posts unless that is an inference clearly to be drawn from the nature of the publications in question.
Ms Chrysanthou's submission finds support in the decision of Le Miere J in Marshall v Smith [2013] WASC 452. I think the passage relied upon by Ms Chrysanthou at [39] is probably to be regarded as obiter dicta, according to my reading of the judgment, but it provides support for the position contended for by the defendant. His Honour said:
"Paragraph 13.1 of the defence pleads that the 18 July letter was published to shareholders of Empire. The defence is not that the 18 July letter was published to the general public on an occasion of qualified privilege. Whether the publication was on an occasion of qualified privilege will require the court to determine whether the communication by means of the internet was reasonable and proportionate having regard to the interests sought to be protected. There is no presumption in law that a plaintiff on an internet defamation is able to rely on to prove publication: Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294 [37]. Whether the court is able or willing to infer that such publication has occurred will depend on all the circumstances. In the present case it is arguable that a publication to a shareholder will be protected by the defence of qualified privilege, so in order to succeed the plaintiffs have to prove, including by inference as well as by direct evidence, that there was a publication to a reader who was not a shareholder: Trumm v Norman [2008] EWHC 116 (QB) [35]. Whether or not the defence of qualified privilege at common law is maintainable should be decided at trial in light of the evidence concerning access to and downloads from the Changenow website, who read or is likely to have read the material and other circumstances bearing on whether communication to shareholders on the website was reasonably warranted by the exigency of the occasion."
The principle stated by his Honour was subsequently applied by the Western Australian Court of Appeal in Sims v Jooste (No 2) [2016] WASCA 83 at [18], where again it was reiterated that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media in print or by broadcast in order to establish that there has been "substantial publication" within the jurisdiction.
The footnote to those remarks at [18] in Sims v Jooste explains the reference to the phrase "substantial publication". It is there noted that, in England, a defendant may apply to have a plaintiff's claim struck out as an abuse of the Court's process if there has not been substantial publication of the allegedly defamatory material within the jurisdiction, citing Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946. I recently applied a cognate in unrelated proceedings in this list: see Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [31]-[43].
Finally, Ms Chrysanthou relied upon an earlier decision of Hunt J which is not concerned with publication on the internet but which states principles which have some resonance with the principles to which I have referred. His Honour said in Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 at 193E, after a review of a number of authorities:
"Such cases support the rule, as I have sought to express it, that in both oral and written defamation cases particulars should be supplied of the identity of the persons to whom the publication is alleged to have been made, when that identity is relevant to either the plaintiff's or the defendant's case."
Ms Chrysanthou submitted that the identity of any person who might have read the entire matter complained of is relevant in the present case because, if that person was a client of the plaintiff (who evidently provides nutritional advice) a defence of qualified privilege might be able to be established.
In my assessment, having reserved my decision since last week so as to have an opportunity to consider the content of the first matter complained of as now pleaded, the proposition that any single person would have traced through the entire exchange may be dismissed as fanciful. It may be that individual groups of people may have attended to individual passages for certain periods, but having subjected myself to the discipline of attempting to read the whole of the first matter complained of, I sincerely doubt whether any individual would have had the perseverance to do so, other than for the purpose of determining an issue in legal proceedings.
Separately, I think there is force in Ms Chrysanthou's submission that, even if an inference could be drawn that such a person might exist, it is necessary, as a matter of fairness in the proceedings, for the defendant to know the identity of that person in order to know what defences might be pleaded. For those reasons alone, on the strength of the propositions put by Ms Chrysanthou, I am satisfied that the pleading is bad in form and should be struck out.
There is an additional reason not raised by Ms Chrysanthou why I would have considered striking out the present pleading. It would appear, with great respect to the pleader, that little thought or attention has been given to how the trial might be run, if the matter is to be tried with a jury. The prospect of subjecting a jury to that same task of reading the matter complained of as presently pleaded from beginning to end, with its 129 pages and its mixed and cross-referencing dialogue between numerous people on numerous topics, is unattractive, to say the least. I think an argument might well have been mounted that the pleading is vexatious on that account.
In any event, those last remarks are incidental. The determinative ruling is that the objection taken by Ms Chrysanthou is good.
For those reasons, on the application of the defendant, the amended statement of claim is struck out.
[2]
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Decision last updated: 19 November 2018