Defamation Act 2005 (WA), s 8

1 LE MIERE J: The plaintiff has applied for leave to file a statement of claim in accordance with a minute of proposed statement of claim dated and filed on 1 February 2013. I will refer to the minute of proposed statement of claim as the statement of claim. The defendant opposes leave being granted.

2 The court will not grant leave to amend the pleading into a form which ought to be struck out. The court will not give leave to make a defective amendment. The court will not give leave to make an amendment which discloses no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action.

3 The statement of claim pleads that the Matters Complained Of are defamatory of the plaintiff and by reason of the publication of the Matters Complained Of the plaintiff has suffered loss and damage. There are 28 Matters Complained Of. They appeared on files or pages of 'the McLernon File website' (the Website).

4 Paragraph 2(d) pleads that the defendant is the author of three selfpublished books which are available for purchase from, and extracted on, the Website. Paragraph 2(e) pleads that the defendant is a publisher of the books and any material published on the Website. The plaintiff's action concerns publication of the Matters Complained Of, not the books. The only further reference to the books in the statement of claim is in the particulars of aggravated damages subjoined to [42]. Those particulars refer to the continuous publication of the Matters Complained Of of and concerning the plaintiff on both the Website and in his books which were advertised on the Website.

5 A plaintiff may rely in aggravation of damages on the publication by the defendant on other occasions of statements that are allegedly false and have some connection with the allegations in the publications sued upon. However, as I say in considering [42], the particulars concerning the books are inadequate. If the plaintiff maintains that each of the Matters Complained Of is published in each of the books, then he should give particulars of where each of the Matters Complained Of appear in each book. Those particulars are necessary for the defendant to know the case he has to meet and for the court to be able to identify the issues and determine the relevance and hence admissibility of evidence led which relates to those issues.

6 Paragraphs 2(d) and (e) insofar as they refer to the books, depend upon [42]. Unless the particulars of aggravated damages, in relation to the books, subjoined to [42], are properly particularised the reference to books should not be allowed.

7 Paragraphs 5 and 6 plead that the plaintiff sent the defendant a 'Concerns Notice' which complained about material published on 29 September 2011. The statement of claim does not plead a cause of action arising from material published on 29 September 2011. The particulars of aggravated damages subjoined to [42] refer to matters happening 'following the issuing of Concerns Notices and the commencement of these proceedings'. The Concerns Notices referred to there appear to be Concerns Notices in relation to the Matters Complained Of and not the Concerns Notice pleaded in [5] and [6]. Paragraphs 5 and 6 disclose no reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action by raising a false issue.

8 Paragraph 7 pleads that the defendant placed material on the Website and that the plaintiff downloaded the Website on 17 August 2012, 6 August 2012 and 29 September 2011. As I have said, the statement of claim does not plead any cause of action arising from a publication on 29 September 2011. Insofar as [7] refers to the plaintiff downloading the Website on 29 September 2011, it is irrelevant, discloses no reasonable cause of action and may delay, prejudice or embarrass the fair trial of the action by raising a false issue.

9 The particulars subjoined to [2(e)] say that the Website consists of a varied array of pages, articles, stories, comments, alleged rumours, alleged facts, alleged documents and pictures concerning various Perth businessmen, police, former police, former politicians and alleged criminal identities and that the material on the Website was available until on or around 18 September 2012. Paragraph 3 pleads that on various dates until September 2012 the defendant uploaded or caused to be uploaded to the Website various articles, words, pictures and links of and concerning the plaintiff which are referred to as the Publications. Paragraph 4 pleads that the First Publication, Second Publication and Third Publication were published on 17 August 2012 and the Fourth Publication was published on 6 August 2012. Paragraph 9(a) pleads that the Publications were available for viewing and downloading from the Website on 6 and 17 August 2012 and on 29 September 2011. That appears to be inconsistent. Material published on 6 August and 17 August 2012 could not have been available for viewing and downloading on 29 September 2011. Paragraph 9(b) pleads that the Matters Complained Of were downloaded and viewed by various third parties in Western Australia, Australia and the world. Paragraph 9(c) pleads that the defendant 'thereby published the Publications containing the Matters Complained Of'.

10 Publication occurs when it is downloaded onto the computer of a person who has used a web browser to pull the material from the web server: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. Paragraph 9(b) pleads that on 17 August 2012, 6 August 2012 and 29 September 2011 the Matters Complained Of were downloaded and viewed by various people in Western Australia, Australia and the world. The publications sued upon are confined to the publications occurring when people downloaded and viewed material from the Website on those three dates. On the other hand [9(a)] pleads that the Publications containing the Matters Complained Of were available for viewing and downloading from the Website on those three dates and until the website was shut down on 18 September 2012. The particulars subjoined to [9] state that the Publications containing the Matters Complained Of were downloaded and viewed in Western Australia during this period by numerous persons including 14 named persons, and in addition it can be inferred that the Publications containing the Matters Complained Of were downloaded and viewed by other persons. The pleading is confusing and embarrassing. It is not clear whether the publications sued upon consist only of material downloaded and viewed by people on 17 August 2012, 6 August 2012 and 29 September 2011 or whether the plaintiff sues upon each publication that occurred when someone downloaded and viewed the material on the Website between those dates and 18 September 2012.

11 Paragraph 10 pleads the First Publication. The First Publication is annexure A to the statement of claim. It appears to be a screen shot of the Website downloaded on 12 November 2012. It consists of six pages. In those pages there are numerous references to the plaintiff and other persons. The material in annexure A contains 51 separate items, stories or articles. Most of those items refer to the plaintiff. Section 8 of the Defamation Act 2005 (WA) provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. If the First Publication was a publication sued upon as a cause of action, then the plaintiff may be required to give particulars of which words in the First Publication give rise to the imputations alleged. However, the plaintiff does not plead the First Publication as a publication giving rise to a cause of action. Rather, the plaintiff pleads two parts of the First Publication which are described as the 1st Matter Complained Of and the 2nd Matter Complained Of and which constitute the matters sued upon as giving rise to a cause of action. That can be seen from [41] where the plaintiff pleads that by reason of the publication of the Matters Complained Of, the plaintiff has suffered loss and damage. The plaintiff does not plead that he has suffered loss and damage as a result of the publication of the Publications. It appears that the plaintiff's case is that each Matter Complained Of is a separate publication.

12 In [10] the plaintiff pleads particulars of identification. The particulars are that the First Publication included numerous references to the plaintiff's name, picture and various nicknames given to him by the defendant, as well as other material concerning his business interests, from which the plaintiff can be easily identified. That appears to be a pleading that readers of the First Publication identified the plaintiff by reason of facts not stated in the 1st or 2nd Matters Complained Of. If so, the plaintiff may be required to plead the extrinsic facts, that is, the material not stated in the 1st or 2nd Matters Complained Of, and that they were known to the readers of the 1st and 2nd Matters Complained Of, or to some of them.

13 The plaintiff has set out in his statement of claim the meanings of words complained of in their natural and ordinary meaning, that is, the imputations alleged to arise from each of the Matters Complained Of. Imputations are liable to be struck out as embarrassing unless they are precise and unambiguous. They should distil for the defendant what is said to be the defamatory sting. An imputation should express the precise act or condition asserted of, or attributed to, the defendant with which the defendant is charged. Distinct imputations should be separately and precisely pleaded without irrelevant detail. In that context, a reasonable test of distinctness is whether justification would be substantially different. The statement of claim pleads 28 Matters Complained Of which are pleaded to give rise to 68 imputations. The trial of the action will be completely unmanageable unless the imputations are precise and distinct.

14 Paragraph 13 pleads the Second Publication which is annexure B. The Matters Complained Of in the Second Publication are pleaded in [14] to [19] and are described as the 3rd to 9th Matters Complained Of. Again, the plaintiff does not sue upon the Second Publication as a cause of action. It appears that the plaintiff's case is that each of the 3rd to 9th Matters Complained Of are separate publications.

15 The Third Publication is pleaded in [20] and is annexure C. Particulars of identification are given. The particulars are that the plaintiff is named in the Second Publication. Presumably, that is an error and it is intended to refer to the Third Publication. Paragraphs 21 to 23 plead the 10th, 11th and 12th Matters Complained Of in the Third Publication.

16 The Fourth Publication is pleaded in [24] and is annexure D. Particulars of identification are given. The particulars are that the Fourth Publication includes numerous references to the plaintiff's name, picture and various nicknames given to him by the defendant, as well as other material concerning his business interests, from which he could easily be identified. That appears to be a plea that the plaintiff is identified by extraneous material. If so, the plaintiff must plead the extraneous material and that it was known to the readers of the relevant Matters Complained Of or to some of them. Paragraphs 25 to 40 plead the Matters Complained Of in the Fourth Publication.

17 The 1st Matter Complained Of is pleaded in [11] which also pleads the imputations said to arise from the 1st Matter Complained Of. The same approach is taken to pleading each of the other Matters Complained Of in the statement of claim. As I have said, the plaintiff sues upon each Matter Complained Of as a separate publication, rather than suing upon each of the Publications as a publication of defamatory matter giving rise to multiple imputations. It follows that in considering whether or not each alleged imputation is capable of arising from the relevant Matter Complained Of, the court should only consider the words contained in the Matter Complained Of and not words or images appearing elsewhere in the relevant Publication.

18 The 1st Matter Complained Of are the words 'Dodgy Douglas, going to gaol on absconding debtor's warrants, taken off the planes and more, all in one weekend'. The plaintiff pleads that those words give rise to four imputations. Imputation (ii) is that the plaintiff was seeking to evade his debtors by leaving the jurisdiction. Imputation (iii) is that the plaintiff had to be restrained from doing so by the police. Each imputation must reflect a discrete assertion. Imputations which are repetitive will be struck out as embarrassing. Imputations (ii) and (iii) are not sufficiently distinct. Imputation (iv) is 'as a result of which he was going to gaol'. That fails to express the precise act or condition asserted of or attributed to the plaintiff, or with which the plaintiff is charged. It is not clear whether the imputation is that the plaintiff is going to jail as a result of being dishonest or as a result of seeking to evade his debtors by leaving the jurisdiction. Further, the imputation does not appear to be sufficiently distinct from the other imputations pleaded.

Introducing Dodgy's missus's Xmas gift. Yes from typist to law firm partner in one bound. Perhaps a new name now Dodgy de facto Director is running the show from his home/office.

The second imputation pleaded to arise from those words is:

The plaintiff was acting as a de facto director of the law firm of which his wife is a director while he is an undischarged bankrupt in breach of the Corporations Act 2001 (C'th).

That imputation is not capable of arising from the words complained of. The words complained of make no reference to the plaintiff being an undischarged bankrupt nor to any breach of the Corporations Act 2001 (Cth). If the plaintiff's case is that the 2nd Matter Complained Of bears the meaning set out in the second imputation by reason of facts known to readers which do not appear in the words complained of, then the plaintiff must plead the extraneous material and that it was known to the readers of the 2nd Matter Complained Of.

Alas, it would appear that THE DODGY ONE, Oliver George DOUGLAS, aka Dishonest Infamous Pay Day lender, recently Bankrupted for many millions, in two States, namely NSW and WA has now lost his Title and favourite job as Media Manager.

The plaintiff pleads that the imputations arising from those words include:

(b) that his bankruptcy was as result of his dishonest conduct as a microlender.

Perhaps a 'pay day lender' may be understood to be a microlender, but the words complained of are not capable of meaning that the plaintiff was bankrupted as a result of his dishonest conduct as a microlender.

21 The plaintiff pleads that one of the imputations arising from the 6th Matter Complained Of is that the plaintiff is 'not averse to committing crimes of dishonesty'. The imputation fails to state the precise act or condition asserted of or attributed to the plaintiff, or with which the plaintiff is charged.

22 The 8th Matter Complained Of is the words 'Dodgy has in the past several years and indeed months, obtained numerous milliondollar loans by filing false loan applications'. One of the imputations the plaintiff says arises from those words is that the plaintiff 'has done so whilst an undischarged bankrupt'. That imputation is not capable of arising from the words complained of. The words complained of make no reference to the plaintiff being an undischarged bankrupt. Furthermore, the imputation is embarrassing in form. It is not clear what the words 'he has done so' refers to. The imputation should stand on its own. The defendant and the court should not be required to interpret the pleading and draw conclusions as to what is meant by 'he has done so'.

ALL and I mean ALL the relevant Authorities have been notified by numerous victims over many years and All and I mean All have failed to act.

24 The plaintiff says that those words give rise to the imputation that 'such victims have complained to the authorities'. That imputation fails to identify the precise act or condition asserted of or attributed to the plaintiff, or with which the plaintiff is charged. A further imputation pleaded is 'that the authorities will not take action because of the plaintiff's conduct as set out in paragraphs 11(b)(i) and (ii) above'. It is embarrassing for an imputation to be pleaded by reference to other paragraphs. The imputation should clearly set out the precise act or condition asserted of or attributed to the plaintiff, or with which the plaintiff is charged. This imputation fails to do so.

Now Oliver George 'DOUGLAS' Media Member For the Fat Wallet Mob is facing Criminal and Civil Charges and allegations in three states.

26 The plaintiff pleads that those words give rise to the imputation that 'the plaintiff is a member of organised crime through his involvement with the Fat Wallet Mob headed by Anton Bilis, a "Convicted Fraudster and Gaolbird"'. The words 'headed by Anton Bilis, a "Convicted Fraudster and Gaolbird"' are unnecessary detail. They do not add to the sting of the imputation. Furthermore, the 10th Matter Complained Of makes no reference to Anton Bilis. A further imputation pleaded is that 'the plaintiff is engaged in criminal activity as he is facing criminal charges in three states'. That fails to distil the sting of the imputation and is embarrassing. If the imputation is that the plaintiff is engaged in criminal activity then it should be so pleaded. If the imputation is a lesser imputation imputing to the plaintiff something less than guilt then that should be pleaded.

27 The plaintiff pleads that the 11th Matter Complained Of gives rise to the imputation that the plaintiff is often prosecuted for criminal offences and as a result is familiar with this type of litigation. The words 'and as a result is familiar with this type of litigation' are irrelevant detail and embarrassing. A further imputation pleaded is that 'the plaintiff associates with liquidators who assist the plaintiff in fraudulent activity through Phoenix company scams'. The 11th Matter Complained Of is not capable of giving rise to that imputation. The 11th Matter Complained Of says that the plaintiff manipulates liquidators to assist with Phoenix company scams, not that the plaintiff associates with liquidators who assist with Phoenix company scams.

28 The plaintiff pleads that the 12th Matter Complained Of gives rise to the imputation that the plaintiff was responsible for the fraudulent activities of a company named Sun Sovereign Pty Ltd, and the further imputation that the plaintiff was responsible for the fraudulent activities of another company named Rothwells Ltd which was involved in a financial scam. It is often submitted that 'responsible' is a weasel word which has a variety of meanings so that the use of the phrase 'was responsible for' is ambiguous or equivocal. Whether or not it is depends upon the words of the imputation in the context of the publication complained of. In this case the words complained of are that the plaintiff was 'the last Treasurer out of' the Sun Sovereign fraudulent saga and Laurie Connell's Rothwell's financial scam. In that context the imputation fails to make clear the sense in which the phrase is to be understood in that it fails to specify in what respect the plaintiff is said to be responsible for the fraudulent saga and financial scam respectively.

29 The plaintiff pleads that the 14th Matter Complained Of gives rise to the imputation that the plaintiff is dishonest. The words complained of refer to cyber bullying, threats and abuse. They are not capable of giving rise to the meaning that the plaintiff is dishonest.

The Board of Directors of Cyclone Magnetic Engines Inc has issued breach of trademark and copyright notices to Jonathon Peter MacArthur and Oliver George Douglas.

31 The plaintiff pleads that those words give rise to the imputation that the plaintiff had unlawfully interfered with the property of the company named Cyclone Magnetic Engines Inc. That imputation, in the context of the words complained of, is ambiguous and embarrassing. It is not clear whether the imputation means that the plaintiff has interfered with the property of the company by breaching its trademarks and copyrights, or that it has interfered with the property of the company in some other way.

32 The plaintiff pleads that the 16th Matter Complained Of gives rise to the imputation that the plaintiff is a person who had defamed others who intend to sue him for damages. The words 'who intend to sue him for damages' are unnecessary detail and are embarrassing.

Dodgy has been running pornography sites for some time.

The plaintiff pleads that those words give rise to the imputation 'that the plaintiff is an immoral (in the everyday meaning of the word) person in that he operates pornography websites'. The words 'in the everyday meaning of the word' are unnecessary and embarrassing. The plea is the ordinary and natural meaning of the 18th Matter Complained Of. It is embarrassing to include in the imputation itself a word and then specify that the word is meant in its everyday meaning.

34 The plaintiff pleads three imputations said to arise from the 19th Matter Complained Of. The second and third imputations take the form: 'the plaintiff does this ...'. That is embarrassing. It is not clear what 'the plaintiff does this' is referring to. Each imputation should stand alone, and the defendant and the court should not have to ascertain its meaning by reference to other imputations.

35 The plaintiff pleads that the 21st Matter Complained Of gives rise to five imputations. The first imputation is:

That the plaintiff operates and deals in websites that publish filth. A reasonable person would understand that to mean that the material is immoral, humiliating and degrading.

That is embarrassing in form. The imputation should set out what a reasonable person would understand the words complained of to mean. The imputation should not include a reference to a reasonable person understanding other words in the imputation to mean something.

36 The second imputation is 'that the plaintiff uses Facebook, Twitter and emails to do so'. Once again, the inclusion of the words 'to do so' in the imputation is embarrassing. Each imputation should stand alone and the court and the defendant should not be required to interpret what it means or refers to. The words complained of make no reference to Facebook, Twitter or emails.

37 The plaintiff pleads that the 23rd Matter Complained Of gives rise to the imputation:

That the plaintiff, as an undischarged bankrupt, is about to reopen and operate a microfinance company in contravention of the Corporations Act 2001 (C'th).

The 23rd Matter Complained Of is not capable of giving rise to that imputation. The words complained of make no reference to the plaintiff being an undischarged bankrupt or to contravening the Corporations Act 2001 (Cth). The further imputation pleaded that 'the plaintiff has done this in the past to avoid paying creditors' again suffers from the vice that it is not a stand alone imputation, but requires the defendant and the court to interpret what is meant by 'has done this'.

Colin 'Circles' Pace, bent cop, Drops 'Dodgy Douglas' like a CCC bug.

The plaintiff pleads that this gives rise to the imputation that the level of the plaintiff's dishonesty is such that corrupt police officers are disassociating themselves from him. The words complained of are not capable of giving rise to that meaning. The words say only that a bent cop has dropped Dodgy Douglas but do not say that he, let alone police officer(s), has or have done so because of the level of the plaintiff's dishonesty.

The 'Dodgy' trail goes way back with the Court Document Of Arrest for over $150,000,000 from years ago. And where is the money now?

Those words are not capable of giving rise to the pleaded imputation that the plaintiff concealed the money from his trustee in bankruptcy. The words complained of make no reference to the plaintiff's bankruptcy or to his trustee.

40 The plaintiff pleads that the 27th Matter Complained Of gives rise to the imputation that 'the plaintiff is using his son to conceal assets from his creditors and his trustee in bankruptcy'. The words complained of are not capable of giving rise to that meaning. The words complained of make no reference to the plaintiff's bankruptcy or to his trustee in bankruptcy. The plaintiff also pleads that the words complained of give rise to the imputation that 'the plaintiff is deliberately falsifying ASIC records'. The words complained of are not capable of giving rise to that meaning. The words complained of do not say or imply that the plaintiff has falsified ASIC records.

41 The plaintiff pleads that the 28th Matter Complained Of gives rise to the imputation that the plaintiff perverts the course of justice in return for financial gain. The words complained of are not capable of giving rise to that meaning. The words say that the plaintiff 'signed up a Bent Cop and [a] Supergrass' to 'Tell All'. The natural meaning is that he signed them up to tell the truth, not to pervert the course of justice.

42 A further imputation pleaded is that 'the plaintiff caused, whether directly or indirectly, Tony Lewandowski to hang himself'. The imputation is ambiguous, uncertain and embarrassing. In the context of the words complained of, the words 'caused whether directly or indirectly' are weasel words. They fail to state the precise act with which the plaintiff is charged. The imputation might mean something to the effect that Mr Lewandowski hanged himself because of the financial circumstances he found himself in as a result of the plaintiff failing to deliver some promised or expected financial outcome. On the other hand the words might mean that the plaintiff played some more active role in bringing about Mr Lewandowski hanging himself. Or the imputation might mean something else altogether.

43 In [41] the plaintiff claims damages including general damages for damage to his trading reputation. That is a claim for general not special damages. Nevertheless, the plaintiff should plead the material facts giving rise to that claim.

44 Paragraph 42 pleads a claim for aggravated damages. Particulars are given.

45 Particular (a) refers to the continuous publication of the Matters Complained Of of and concerning the plaintiff on both the Website and in his books which are advertised on the Website. The plaintiff may rely in aggravation of damages on the publication by the defendant on other occasions of statements that are allegedly false and have some connection with the allegations in the publications sued upon. However, the plaintiff must identify the statements published on other occasions that are allegedly false and connected with the Matters Complained Of. Particular (a) fails to do that. It fails to state whether each of the Matters Complained Of is published in each of the books, or if some of the Matters Complained Of are published in some of the books and if so in which.

46 Particular (b) is that the defendant published the Matters Complained Of as part of a malicious campaign against the plaintiff. No particulars are given, and should be, of the facts constituting the malicious campaign. In the absence of such particulars the defendant does not know the case he has to meet and the court cannot determine what evidence may be relevant to that allegation.

47 Particular (e)(I) is that the defendant uploaded further matters defamatory of the plaintiff 'including' the matter complained of in prominent and easily accessible positions on the Website. If the plaintiff wishes to refer to matters other than the Matters Complained Of then they must be identified.

48 Particular (e)(II) is that the defendant attacked and harassed the plaintiff's solicitors, Peter Neil, Manraj Khosa and its counsel, Mr Toby Mullen by publishing defamatory matters concerning Peter Neil on the Website and elsewhere. On the face of it, the defendant could not have attacked and harassed Mr Khosa and Mr Mullen by publishing defamatory matters concerning Peter Neil.

49 Particular (e)(III) is that the defendant sent numerous abusive and intimidating emails to 'all of the above'. The plaintiff should identify 'all of the above' and should identify each of the emails complained of.

50 Particular (e)(V) is that the defendant has continued to harass the plaintiff, 'including' by sending numerous threatening and highly abusive emails to him, his business associates, his friends and his wife. The plaintiff must plead all of the facts relied upon to establish that the defendant has continued to harass the plaintiff. It is not enough to say that those acts 'include' sending threatening and abusive emails.

51 I will refuse leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed on 1 February 2013. There are substantial deficiencies in the proposed statement of claim which I have identified in these reasons. In particular, there are deficiencies in the pleading of the imputations said to arise from the Matters Complained Of. The statement of claim pleads 28 separate publications which are said to give rise to 68 imputations. The trial of the action will be completely unmanageable unless the imputations are precise and distinct, although more than one publication might give rise to the same imputation. Each imputation must stand alone. In a statement of claim that pleads 28 publications and 68 imputations it is particularly important that the defendant and the court know precisely what the alleged imputation is and which published words are said to give rise to the imputation. The proposed statement of claim fails to achieve those objectives.

52 It is appropriate to allow the plaintiff a further opportunity to plead a statement of claim because parts of the publications complained of are clearly defamatory of the plaintiff. However, the defendant should not be burdened with having to deal with repeated defective statements of claim or proposed statements of claim. It is unusual for a statement of claim to plead as many as 68 imputations arising from 28 publications sued on as separate causes of action. The plaintiff is at liberty to do so if each of the imputations is precise and discrete. However, he has not yet done so.

53 I will give the plaintiff leave to file and serve a further minute of proposed amended statement of claim.