Dean v Vrettos

ex tempore Judgment 1Before me are competing applications by the parties to either strike out their opponent's pleadings or otherwise obtain judgment in their favour. To place these applications in context it is necessary to say something about the background to the proceedings. 2The plaintiff, Mr Robert William Dean, sues the defendant, Mr Peter Vrettos, in defamation. He has identified thirty-four matters complained of in his first amended statement of claim. The matters complained of are all said to be posts placed by Mr Vrettos on an Australian based internet Australian Stock Exchange chat forum located at the website "topstocks.com.au". 3Mr Dean contends, but Mr Vrettos does not necessarily accept, that "topstocks" operates in a manner whereby members can post comments in relation to particular stocks, and members and non-members can view those comments. Mr Vrettos repeatedly referred to the fact that it is an anonymous forum. By that I understand him to contend that it is at least the practice of the forum for persons not to use their name but instead to use some form of pseudonym, presumably associated with their user name. Be that as it may, no part of the internet is a defamation-free zone so that it is, of course, conceivable that posts on an anonymous forum can nevertheless defame someone if they are capable of being identified. 4On 8 October 2013 the proceedings came before McCallum J. Prior to that time Mr Dean filed a notice of motion seeking to strike out Mr Vrettos' defence and the entry of judgment. On 8 October 2013 her Honour struck out Mr Vrettos' defence and granted him leave to file and serve an amended defence within twenty-one days. The proceedings were stood into the defamation list on 4 November 2013. They were then stood over to the defamation list in December 2013. 5On 2 December 2013 her Honour considered an application by Mr Dean to strike out a further defence that had been filed on behalf of Mr Vrettos. Her Honour considered that application was premature because the statement of claim did not contain adequate particulars of identity. Mr Dean used a pseudonym when accessing "topstocks". By and large, the posts concerning him also used that pseudonym. Her Honour ordered that Mr Dean file an amended statement of claim providing particulars. Her Honour also ordered that Mr Vrettos file a further defence. 6Since then Mr Dean has filed a further amended statement of claim. There are some parts of it whose relevance is not entirely clear, but in substance, paragraph 17 does appear to comply with her Honour's orders. It provides details of some persons who Mr Dean claims know his pseudonym and, at least in respect of some of them, have been said to have viewed the matters complained of. Mr Vrettos disputes the accuracy of the particulars. He says that at least some of them are simply false. As I explained during argument, that is generally a question for a trial. Mr Vrettos has also filed a further defence. Unfortunately, the defence is inadequate in that it simply does not engage with the allegations in the statement of claim and indicate whether they are in issue or admitted. 7Turning to the various applications, Mr Vrettos seeks some form of dismissal of Mr Dean's statement of claim and the proceedings generally on the basis that the evidence cannot support, amongst other matters, the capacity of any person to identify him as the person being referred to in the matters complained of. He also submitted that there was no evidence that Mr Dean had suffered damage. 8As I explained to Mr Vrettos, McCallum J's orders did not require Mr Dean to put on evidence of publication but simply to provide particulars. Mr Dean did that. The issues raised by Mr Vrettos are all matters for trial, not for striking out or summary dismissal. The fact that he raises them is significant for reasons I will explain shortly. Nevertheless, Mr Vrettos' application to strike out the statement of claim and dismiss the proceedings must be rejected. 9As I have said, Mr Dean seeks to strike out Mr Vrettos' defence and enter default judgment. Insofar as he seeks to strike out the defence, the application will have to be acceded to. As I have indicated, the defence is simply inadequate and does not identify the issues in dispute. This is the third attempt by Mr Vrettos to file a defence that conforms with the Uniform Civil Procedure Rules 2005 (NSW). It seems to me clear that he is simply unable to do so. 10The question then arises as to what the consequences of that inability are. In Graham v Powell (No 2) [2013] NSWSC 2026 at [12] to [13], McCallum J adverted to the potential disparity that would arise from striking out a defence prepared by an unrepresented person in a defamation case and then entering a default judgment in the plaintiff's favour without there being a hearing on such issues as whether the imputations alleged to be conveyed were in fact conveyed. In my view, the Court needs to be careful to ensure that its processes, including the pleading rules, do not operate in an oppressive manner against an unrepresented defendant in defamation proceedings. 11The fact that the onus is placed upon a defendant in defamation proceedings to prove, for example, the truth of any imputation is a matter established now by statute. It has the consequence that the pleading rules mean that it is a very difficult task for an unrepresented defendant to properly plead any defence involving such matters as justification or the like. 12However, simply because a defendant is unable to formulate a proper defence should not, in my view, have the consequence that the plaintiff can thereby obtain a judgment on the issues upon which it bears the onus of proof, such as identification, extent of publication, and whether the publication conveys the matters complained of. If it becomes apparent that there is a real issue about such matters, then in my view the preferable course is for the Court to identify those issues and dispense with the need for a defence, at least in relation to those matters. In that way, the Court would be acting consistent with the strictures of s 56 of the Civil Procedure Act 2005 (NSW). 13In an effort to at least identify, on the plaintiff's case, what the issues in dispute are, I enquired of Mr Vrettos whether he was the author of the posts referred to. The answers I received were somewhat equivocal and unsatisfactory. The nature of those answers is such that at the moment I am not persuaded that there is a real issue about whether he was the author of those posts. However, from the matters outlined by Mr Vrettos and the materials generally, I accept that there is a real issue raised as to the identity of the person said to be defamed or, put in other words, whether the various publications were published of and concerning Mr Dean. Also, I think it is sufficiently clear that there is an issue as to the extent of the publication of the matters complained of, whether they conveyed the imputations pleaded in the amended statement of claim, whether the imputations as conveyed were defamatory, and of course a real question as to the quantum of any damages that may be awarded. 14In my view, the appropriate course is to make the orders, in the form that I will outline shortly, which dispense with the need for a defence in respect of those issues and allow the matter to proceed with the issues defined as I have stated them. If the time comes that Mr Vrettos seeks to agitate any other issues, then he will need the leave of the relevant court to do so. Generally such leave would not be granted unless a properly pleaded defence was put forward to support it, along with some acceptable explanation for why the application was being made at that point in time. 15If no such application is made and granted, then the matter will simply proceed to trial on the issues that I have identified. There is no doubt that this is not perfect justice. However, in my view, it avoids the potential injustice that might be occasioned in circumstances where a defendant such as Mr Vrettos does not have the means or the capacity to prepare a defence in proper form and a plaintiff thereby obtains a default judgment without having established the essential elements of their own cause of action, even though it is apparent that some of them truly are in dispute. From the plaintiff's perspective, it means that they can progress the balance of the proceedings knowing exactly what is in issue and not having to meet any other issues unless and until the leave of the Court has been granted to Mr Vrettos to raise them. 16The other matter that arises is whether this matter should be transferred to the District Court. Earlier today I gave judgment in the matter of Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174 in which I transferred those proceedings to the District Court. In the course of that judgment I outlined various considerations affecting that decision and I will not repeat them. 17In a thoughtful submission, Mr Dean sought to resist the transfer of the proceedings to the District Court. He pointed to the fact that there are thirty-four matters complained of, that the imputations pleaded as having been conveyed were, in his submission, seriously defamatory of him, and that the extent of the publication was, on his explanation of how "topstocks" operates, very significant. In those circumstances, he submitted, there is a real possibility that the damages that would be awarded would exceed $750,000. 18I have considered those matters closely. I should say that even accepting the case as Mr Dean put it, I do not consider that there is any realistic prospect that this limit would be exceeded. However, even if I be incorrect in that regard, I note that protection will be afforded to Mr Dean by s 44(1)(e) of the District Court Act 1973 (NSW), which would have the effect that the District Court's jurisdiction would not be limited if the matter was transferred. 19Nevertheless, in light of the conclusion I have expressed, I am satisfied that this is a matter that could have been commenced in the District Court. Further, in light of Mr Vrettos' circumstances and the issues as I have defined them, I do not consider that it is a particularly complex or novel case. I think the parties are likely to obtain the benefit of an earlier hearing date in the District Court than they would if the matter was to remain in this Court. 20In all the circumstances, I am satisfied that it is appropriate to transfer the proceedings. Accordingly, I will deal with the matter as follows. 21Firstly, the Court notes that the issues in dispute in these proceedings are: (1)Whether the matters complained of in the first amended statement of claim were published of and concerning the plaintiff? (2)The extent of the publication of the matters complained of? (3)Whether the matters complained of conveyed the imputations pleaded in the first amended statement of claim? (4)Whether any such imputations that were conveyed were defamatory? (5)The quantum of damages to be recovered by the plaintiff, if any (including whether they are aggravated)? 22Further, the Court orders that: (1)The filing of a defence that raises the issues noted by the Court be dispensed with. (2)Subject to further order, the matter proceed to hearing only in respect of the issues noted by the Court. (3)Pursuant to s 146(1) of the Civil Procedure Act 2005, the proceedings be transferred to the District Court.