Elliott v Tomkins

Judgment 1These are my reasons for dismissing the plaintiff's application for summary judgment and assessment of damages. 2The plaintiff commenced proceedings for defamation by statement of claim filed on 20 August 2013, pleading defamatory imputations arise from six Internet publications between 21 and 23 August 2012. These publications consist of a negative EBay review and subsequent discussion on Australian Bowhunting Forum of the defendant's problems with a business named "Achilles Archery & Outdoors". 3The plaintiff is not named in five of the six publications in question. His name appears in the fourth matter complained of, in that a letter signed by "David Elliott" is reproduced in the text of the publication. However, no particulars of identification are provided for any of the publications. 4Additionally, the particulars of publication are deficient. These particulars do not identify any publication in Australia, and consist merely of referring to "the global internet accessibility and use of the EBay website" (statement of claim, paragraph 21) and "the global internet accessibility" of the website upon which the third to sixth matters complained of were respectively published. Since the claim is based upon material allegedly posted on the Internet, the plaintiff must, in order to establish publication, set out particulars of when each of the matters complained of was downloaded from the web server: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [25]-[28] and [44]; Jenman v McIntyre [2013] NSWSC 1100 at [3]. 5Accordingly, it is not only necessary for the plaintiff, in order to establish publication, to prove that each matter complained of was downloaded and seen by at least one person, but that any such person was able to identify the plaintiff, as well as the means by which that person was able to identify the plaintiff. Those occasions must be within the twelve month period preceding the commencement of proceedings: Jenman v McIntyre, supra, at [4]. 6Publication of each of the matters complained of also needs to be pleaded as having occurred in one or more of the States and Territories of Australia. The place of publication is of particular significance in the present case, where the statement of claim describes the plaintiff as a student residing in Queensland, and the defendant's place of residence is stated, correctly, to be in Western Australia. No connection with New South Wales has been identified and choice of forum issues may therefore also arise. 7Notwithstanding these deficiencies of pleading, the plaintiff brings an application to strike out the defence filed on 13 November 2013, enter summary judgment, and have the proceedings listed for assessment of damages. A claim for special damages is pleaded, but particularised in a very general way. 8The circumstances in which the defence under challenge came to be filed are as follows. The proceedings had an uneventful history in the Defamation List, starting with a first directions hearing on 11 October 2013 (when the matter was stood over to 25 October 2013, with the plaintiff's solicitor to inform the defendant of the date at the next directions hearing, the defendant being unrepresented), and a timetable for the filing of a defence on 25 October 2013. The defendant was also directed to give the plaintiff notice of any applications to transfer the matter out of New South Wales by 8 November 2013. A defence was filed on 13 November 2013, two days before the directions hearing on 15 November 2013. On 15 November 2013, these proceedings were listed before me, and the plaintiff made his application for summary judgment under UCPR r 14.28 without, it would appear, any or any sufficient prior notice to the defendant, who was self-represented at all relevant times up until today. 9The defence filed on 13 November 2013 is a discursive document, containing a history of events and attaching documents. It fails to identify proper defences under the Defamation Act 2005 (NSW). Despite these deficiencies, it is clear the defendant is attempting to plead a defence of justification. As the defendant (who had never appeared in court in person) was unrepresented, I stood the plaintiff's application over to 30 January 2014, directing the plaintiff to write to the defendant identifying defences under the Defamation Act 2005 (NSW) and directing the provision of an amended defence failing which the application to strike out the defence will proceed. This resulted in a draft defence which correctly identified s 25 Defamation Act 2005 (NSW) but still consisted of a long narrative of facts, rather than pleadings, and in unacceptable form. 10The defendant appeared by telephone link on 30 January 2014. He explained to the court that, while he resided in Perth, Western Australia, he spent much of the year working in remote parts of Western Australia and he had not had the opportunity to obtain legal advice. In the interim, he had provided a draft amended defence, attempting to plead justification under s 25 Defamation Act 2005 (NSW), both to the solicitor for the plaintiff and to the court. He proposed to seek legal advice and sought an extension of time to file an amended defence on or before Monday 24 February 2014. Arrangements were made for him to appear by way of telephone today in the event that he was unable to obtain legal advice, but he then advised my associate that he had retained a solicitor instead. The plaintiff's summary judgment application was stood over to today as well. 11When the matter came before me today, Mr Goldsmith appeared on behalf of the defendant. He indicated he had not yet had time to prepare a defence, but that an amended defence would be filed pleading justification, and other defences. Mr Goldsmith pointed out that no defence could be filed until the plaintiff amended the statement of claim to plead identification and publication, after which time the defendant could also consider whether the proceedings should be transferred to Western Australia. 12Despite Mr Goldsmith enumerating the flaws in the statement of claim to which I have adverted, and tendering correspondence to the plaintiff's solicitors in which he had pointed out these and other pleadings failings, Ms Nguyen informed me she was instructed to press her application to strike out the defence and enter summary judgment. Ms Nguyen submitted that even if an amended statement of claim needed to be filed, her client was still entitled to summary judgment. Ms Nguyen answered the objections raised by Mr Goldsmith by stating, from the bar table, that the plaintiff also resides in New South Wales, and that damage to reputation occurred in New South Wales. 13The power to strike out a pleading and enter judgment should be exercised only in plain and obvious cases. If the pleading can be cured by amendment, leave to amend should be granted rather than exercising the power to strike out. This is particularly the case where the party in question is a litigant in person: Mann v Cahill (1999) 149 FLR 298. The overriding purpose in s 56(1) Civil Procedure Act 2005 (NSW) is for the court to give directions aimed at achieving "just, quick and cheap" resolution of a dispute. Where a pleading contains embarrassing or prolix material, even if it does contain material factual allegations sufficient to constitute a cause of action, it may still be struck out (Northam v Favelle Favco Holdings Pty Ltd (Supreme Court of New South Wales, Bryson J, 7 March 1995)). However, this will not result in summary judgment where there is sufficient evidence to establish that the pleading does not reveal a hopeless case or some other bar to the granting of leave to amend, such as fraud or dishonesty. In particular, summary judgment cannot be granted where the claim brought on behalf of the plaintiff is to inadequately pleaded. 14The draft defence provided by the defendant pleading justification, while infelicitously drafted, is nevertheless sufficiently particularised to survive an application for summary judgment. The defects in the plaintiff's statement of claim, by comparison, fails to plead adequately the particulars of identification relied upon (which can have fatal consequences for a plaintiff: see Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188) or publication. Given the inadequacy of the statement of claim, the defendant arguably has a better case for summary judgment than does the plaintiff. 15The facts in this case, and the application brought by the plaintiff, highlight significant problems in the case management of defamation proceedings. One of the results of electronic publication and the Internet is that anyone (or perhaps I should say everyone) can be a publisher. In the past, defamation proceedings were mainly conducted against media or professional publishers, who had access to skilled legal advice, both for pre-publication and post-publication issues. Ordinary members of the community do not have these resources. Few understand that they can be sued for defamation for a complaint, or use of critical language, because these statements are now not only electronically recorded but available to a wide audience through the Internet. Still fewer understand that even while the publication may eventually be determined by the court to be excused, protected or justified by law, they will have to undertake the expense of defending the action all the way to trial because summary disposal procedures under Australian law are limited to the striking out of pleadings which fail to comply with defamation pleading rules, which rules some judges have compared, unfavourably, to the technicalities of the minuet (Setka v Abbott [2913] VSC 726 at [31] per Beach JA; Burrows v Knightley (1987) 10 NSWLR 651 at 654 per Hunt J; Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 at [40] - [41] per Levine J; cf Jecks v Taylor (Supreme Court of Western Australia, 9 November 1992) at 12 per Hawkins M, preferring "sarabande"). In addition, the degree to which courts should take a proactive approach in defamation proceedings where litigants in person find themselves in this position may present difficulties, given the limited role of the judge in the common law system: Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821. There are no simple answers to these increasingly common problems. 16I have reserved the issue of costs pending receipt of amended pleadings from both the plaintiff and defendant. I note the intention of the defendant, once proper particulars of publication are provided, to give notice of any application to transfer these proceedings out of New South Wales. The matter will be returned to the Defamation List for further case management once both parties have put their pleadings in order.