Practice and procedure - Defamation - Application to amend statement of claim - Proposed amended statement of claim deficient

1 LE MIERE J: The plaintiff has applied for leave to amend his pleading in accordance with the minute of proposed statement of claim dated and filed 1 February 2013 which I will refer to as the statement of claim. The defendants oppose leave.

2 Leave should not be granted to amend a pleading into a defective form. 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 Paragraph 2(c) pleads that the second defendant, Redback Studios Australia Pty Ltd (Redback Studios), is the registrant of the trading name of Purpose Hosting which has since been deregistered but its website is still active. That plea is ambiguous and embarrassing. Purpose Marketing Group Pty Ltd was initially a defendant to the action. The plaintiff discontinued the action against Purpose Marketing Group Pty Ltd because the company has been deregistered. Paragraph 2(c) pleads that Purpose Hosting is a trading name. It is not clear whether the pleading is that Redback Studios has ceased to trade under the name of Purpose Hosting, or whether it is a plea that the company Purpose Marketing Group Pty Ltd has been deregistered. If it is the latter then it is irrelevant to any other matter in the pleading.

4 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).

5 The Matters Complained Of are the same publications complained of by the plaintiff in his action against Mr McLernon in CIV 1930 of 2012. In this action the plaintiff pleads that the Matters Complained Of give rise to the same imputations that he pleads in CIV 1930 of 2012. The pleading of the imputations is defective for the same reasons that I stated in the plaintiff's application to amend his statement of claim in CIV 1930 of 2012: see Douglas v McLernon [2013] WASC 126. Leave to file the statement of claim will be refused for that reason.

6 I make a number of observations concerning the pleading of publication.

in or around midAugust 2012, the defendants designed, uploaded and modified, or assisted Mr McLernon to design, upload and modify, the material on [the Website] so that it displayed the various words and pictures of and concerning the plaintiff that appeared on the Dodgy Archives section of the Website as at 17 August 2012 (the First Publication).

The plaintiff makes a similar plea in relation to the Second, Third and Fourth Publications. That must be read together with [2] which pleads that Redback Studios is the web host and web designer of the Website, the operator of web design and web hosting business Redback Studios, and a publisher of the words and images on the Website. The plea that Redback Studios is a publisher of the words and images on the Website is a statement of conclusion.

8 The liability of web hosting services or internet service providers for defamatory material appearing on the world wide web is a developing area of law. The plaintiff should ensure that his statement of claim sets forth all the material facts he relies upon to establish that each of the defendants is liable for defamatory material appearing on the Website. For example, if the plaintiff relies upon the fact that the defendants, or any of them, failed to remove defamatory material which was within their control and they had the capacity to remove the material from the Website then that should be pleaded.

9 As I have said, [2] pleads matters the relevance of which is not obvious. Paragraph 2(c) pleads that Redback Studios is 'the registrant of the trading name of Purpose Hosting which has since been deregistered but its website is still active'. Paragraph 2(d) pleads that Redback Studios is the operator of web design and web hosting business Redback Studios. Paragraph 2(e) pleads that Redback Studios is 'the registrant of the domain name www.redbackstudios.com.au'. The relevance of those matters is not apparent.

10 Paragraph 3 pleads a number of matters in relation to Toni Fitzgerald. Paragraph 3(b) pleads that Ms Fitzgerald is 'the sole director, secretary and shareholder of Toni Fitzgerald & Associates Pty Ltd, which is the registered owner of the domain name www.purpose.com.au which is still an active website'. Paragraph 3(c) pleads that Ms Fitzgerald is 'the registrant contact and technical contact for the domain name www.purpose.com.au which is still an active website'. The relevance of those pleadings is not apparent.

11 Paragraph 4 pleads that Mr Fitzgerald is 'the registrant contact and technical contact for the domain name www.purposehosting.com.au'. Paragraph 4(c) pleads that Mr Fitzgerald is 'the registered owner of the business name "Purpose Hosting" which has since been deregistered but whose website is still active at www.purposehosting.com.au'. The relevance of those pleadings is not apparent.

12 Leave to plead a statement of claim in accordance with the minute of proposed statement of claim of 1 February 2013 is refused. The plaintiff will have leave to file and serve a further minute of proposed statement of claim and to apply to amend the statement of claim in accordance with that minute.