Elliott v Tomkins

Judgment 1These proceedings demonstrate case management issues common to defamation actions. The complexities of defamation law require the parties to plead and particularise their case with precision. However, not all aspects of defamation law are complex. Particulars of how an unnamed plaintiff was identified (and by whom), or of the circumstances in which a publication on the Internet was downloaded, are simple issues of fact. 2The continued difficulties the plaintiff has had in providing this essential information are particularly difficult to understand, for two reasons. First, the plaintiff has foreshadowed a claim for special damages arising from lost transactions with customers who read the matter complained of (and who presumably identified him). Second, the plaintiff's complaints about the defence filed in these proceedings are such that an application was brought to strike out the defence and have the proceedings listed for assessment of damages. 3As is set out in my judgment of 28 February 2014, the defendant, a litigant in person who resides and works in remote parts of Western Australia, appeared by telephone link to defend this application. He had filed a defence pleading a s 25 defence of truth, but it contained a great deal of discursive and irrelevant material. He sought an adjournment to obtain legal advice and file an amended defence. The plaintiff's application for summary judgment was stood over for hearing to 28 February 2014. 4On 28 February 2014 Mr Goldsmith appeared for the defendant. He stated that it was not possible to file a defence to the statement of claim in its current form, and handed up a copy of his letter of 25 February 2014, in which he had pointed out the plaintiff's failure to comply with r 15.19 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). No particulars had been provided of publication (a particular concern since the six matters complained of are published on the Internet) and identification (in that the plaintiff is named in only one of the six publications). In addition, there appeared to be no reason for commencing these proceedings in New South Wales, as the plaintiff appeared to reside in Queensland while the defendant resided in Western Australia. 5UCPR rule 15.19 provides: "15.19 Particulars in relation to statements of claim for defamation (1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following: (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified, (b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified, (c) if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning-particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including: (i) full and complete particulars of the facts and matters relied on to establish a true innuendo, and (ii) by reference to name or class, the identity of those to whom those facts and matters were known, (d) if the plaintiff is not named in the matter complained of-particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, and (e) particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation. (2) Such of the following as is applicable must be filed and served with a statement of claim seeking relief in relation to the publication of defamatory matter (or any amended statement of claim) and be referred to in the statement of claim or amended statement of claim: (a) a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy, (b) a typescript, with numbered lines, of: (i) if the original publication is in English-the text of the original publication, or (ii) otherwise-a translation of the text of the original publication. (3) Subrule (2) (b) must be complied with in respect of radio and television publications." 6In my judgment of 28 February 2014, I set out the deficiencies of the pleading requiring an amended statement of claim, as well as the reasons why I propose to dismiss the plaintiff's application to strike out the defence. I reserved the issue of costs, over Mr Goldsmith's protestations, for the reasons set out in paragraph 16 of the judgment. 7When the matter came before me on 28 March 2014, an amended pleading was provided which corrected only one of the complaints raised by Mr Goldsmith, namely establishing a connection with New South Wales. However, the other issues identified in Mrs Goldsmith's correspondence (notably publication and identification issues), were not attended to. This was despite Mr Goldsmith setting out, at length, in his second letter, dated 26 March 2014, objections to the amended pleading as well as the reasons for each of them. The concluding paragraph of that letter stated: "In the circumstances, would you please not that we have been instructed to apply, this Friday, to strike out the amended statement of claim, for judgment for the defendant and for costs (and, if thought fit, upon the indemnity basis)." 8On 28 March 2014, Ms Nguyen appeared on behalf of the plaintiff. She argued her client's position very ably, making concessions where appropriate and, as a further amendment to the statement of claim was accordingly to be filed, I considered there was no utility in dealing with Mr Goldsmith's application to strike out the statement of claim. I made the following orders: (1)Strike out the amended statement of claim with leave to amend, such further amended statement of claim to be served, and provided to the court, by 4:00pm Monday 7 April 2014. (2)Matter stood over for mention to Wednesday 9 April 2014 at 9:30am before Gibson DCJ. (3)Costs reserved. 9When the matter came before me this morning, no amended pleading had been filed or served, nor was one likely to be served at any time in the near future. Mr Zada, who appeared for the plaintiff, sought an adjournment of at least three weeks in order to obtain the necessary particulars of publication and identification, which he told me he did not have, but which he hoped his client would be able to obtain over a time frame of this kind. 10That application was opposed by Mr Goldsmith, who renewed his application for summary dismissal of the statement of claim. Mr Zada opposed that application, principally on the basis that Mr Goldsmith's objections to the statement of claim in its current form were unacceptable. 11Mr Zada's submissions, partly oral and partly in writing (Exhibit A), may be summarised as follows: (a)Pleadings should never be struck out where there remains dispute as to the material fact of the case (Bank of Queensland Limited v Industrial Court of New South Wales (No 2) [2008] FCA 1435 at [20]). There are real questions of fact to be tried (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), and in those circumstances the matter should go to trial. To strike out the plaintiff's statement of claim summarily would amount to a lack of procedural fairness and natural justice. (b)The history of the matter showed that the defendant had already been granted a considerable indulgence, in that he had filed two hopeless defences, the first of which was struck out and the second of which the defendant had agreed to withdraw. The defendant's failure to file that defence by reason of asserted defects in the identification and publication particulars in the statement of claim should not be accepted because Mr Goldsmith's submissions as to the law were wrong. (c)Any question of identification and/or extent of publication is not a matter for pleading (or able to be struck out if pleaded inadequately), but a matter for the trial (John Fairfax Group Pty Ltd v Farley (Federal Court of Australia, Gallop, Burchett and Gummow JJ, 2 May 1994)). (d)Alternatively, the pleading in its current form satisfied the tests both for publication on the Internet (for which no special pleading is needed) and for identification, the test for which is as follows: "[209] Similarly, a publication can be defamatory of a person even if it does not name him or her. Where a plaintiff is not named in a publication the common law test is to ask whether publication was made in circumstances in which it could reasonably lead persons acquainted with the plaintiff to believe that he or she was the person referred to (David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 122 per Lord Atkin, 124 per Lord Porter; Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86)." (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466 at [209]) (e)It was not necessary for the plaintiff to prove publication, as the defendant had made admissions that he had published the matters complained of. While the plaintiff conceded that it was not sufficient for the purposes of proving publication merely to state that material was posted on the Internet (Creative Resins International Ltd v Glassam Europe Ltd [2006] All ER (D) 178), it was not necessary to set out particulars of when each of the matters complained of was downloaded from the web server, or how the persons who downloaded it identified the plaintiff. Alternatively, if the plaintiff were obliged to set out the persons who identified him, he did not need to do more than describe these persons as a class. (f)It is unnecessary, in Internet publication cases, to identify when or where the material is downloaded, or to provide particulars of identification or the names and addresses of one or more persons to whom those particulars of identification were known and who were thus able to identify the plaintiff. It is sufficient that there is a "class of persons" acquainted with the plaintiff, and the plaintiff may then rely upon the contents of the publication as containing material (which it is not necessary to specify) which would lead those persons to believe that the plaintiff was the person referred to in the published material (Knupffer v London Express Newspaper Ltd [1944] AC 116). That "group" would, for example, include any person who has transacted or interacted with the plaintiff on his Ebay site, or who sent the plaintiff any emails through Ebay, as these provide details of his identification (although it is conceded that his full name is omitted and his Ebay username is contained in many of these transactions). It is sufficient to state there is a class of such persons without individually identifying them. 12Mr Zada's submissions about identification conflate group libel actions with the requirement of an unnamed individual plaintiff to set out the basis upon which he or she (and not some other person) is identified. Precise particulars of identification are necessary not only in order to found the claim for defamation, but to the defences available (in particular, qualified privilege and unlikelihood of harm) and damages. In Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188, Hunt J (at 191-192) stated: "The plaintiff should also have given in his Statement of Claim particulars of the identity of the persons to whom the publication is alleged to have been made. The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial or trivial damages (Fullam v Newcastle Chronicle & Journal Ltd (supra), at 659), and the application of the defence of unlikelihood of harm afforded by s 13 of the Defamation Act (Chappell v Mirror Newspapers Ltd (Court of Appeal, 14.6.1984, unreported), at 13), will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published." 13Additionally, it should be pointed out that if any of the persons identifying the plaintiff have downloaded one or more of the matters complained of in a jurisdiction outside Australia, such as the United States, the defences to apply will be the defences in the jurisdiction where the publication is downloaded: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. 14The requirement for identification evidence is not restricted to limited publications of the kind occurring in Lazarus v Deutsche Lufthansa AG, supra. It may also be sought in newspaper cases where appropriate (Lazarus v Deutsche Lufthansa AG, supra, at 193) as well as in cases where the publication is made on the Internet: Jenman v McIntyre [2013] NSWSC 1100 at [3]. This includes information about when and how the plaintiff was identified, as this may be relevant to limitation issues; Hunt J illustrates the dangers of not having such particulars by reference to Emmerton v University of Sydney (1970) 2 NSWR 633. It is for all these reasons that Hunt J warned (at 194) that the plaintiff must "name those persons, or suffer the loss of his action". 15That is not to say that the plaintiff cannot bring proceedings if he or she does not know who those relevant identifying persons, as Hunt J goes on to note. In Williams v Ramsdale (1887) 3 WR 125, where slanders were uttered in a public room in front of persons whose identity was unknown to the plaintiff, he was ordered to "state all the names that he could - "that is to say, the best particulars that he can"". This is what in fact occurred in Lazarus v Deutsche Lufthansa AG, supra. It was, however, a sufficiently unusual set of circumstances for Hunt J to direct that the plaintiff verify those assertions, and his lack of knowledge of the identity of those persons, on oath (at 195).The circumstances in which a plaintiff can identify a class of persons are thus the exception rather than the rule. This exception could not apply to facts such as the present. 16Mr Zada's reliance upon Knupffer v London Express Newspaper Ltd, supra, and John Fairfax Group Pty Ltd v Farley, supra, confuses the entitlement of one of a group of individually unnamed plaintiffs to bring a claim for group libel (where it should be added, the plaintiff is required to provide similar particulars in any event) and the court's reluctance to use summary judgment procedures to determine disputed issues of fact as to whether those particulars will survive. 17The plaintiff's reluctance to provide these particulars is difficult to understand, since it has been foreshadowed that he proposes to bring a claim for special damage by reason of loss of business arising from the publications. The identity of those persons who have refused to deal with him should be known to the plaintiff. I do not propose to repeat the matters set out in my judgment of 28 February 2014 concerning the obligations of parties to plead and particularise Internet publications with care: Dow Jones & Co Inc v Gutnick, supra, at [25]-[28] and [44]; Jenman v McIntyre, supra, at [3]. 18However, it is an extreme step to take to strike out a statement of claim simply by reason of failure to comply with pleadings rules. The preferable course is to grant leave to amend. Mr Goldsmith submitted that this caused considerably hardship on his client, this being the third time he had appeared in court on this application, and that the date for today had been chosen with two purposes in mind, one being that it was the only date available for the court to finalise this notice of motion and the other being that it had been his anticipation that after today the matter could be returned to the Defamation List for case management. In addition, Mr Goldsmith put before me that he had done everything he could to assist the solicitors for the plaintiff and indeed his letters of 25 February 2014 and 26 March 2014 (Exhibit 1) could not have set out more fully the nature and extent of his concerns about the inadequacies of the pleadings. The unsatisfactory result was that this interlocutory application would have to be listed in May 2014, and he would have to appear for a fourth time, in circumstances where the plaintiff had failed to comply with orders for the court or to answer his correspondence other than in a dismissive fashion. 19I consider Mr Goldsmith's complaints can be cured by an appropriate costs order. Taking all of the above into account, I propose to grant the plaintiff a further extension but it must be the last one. Accordingly, I have made a peremptory order for provision of the Further Amended Statement of Claim by Wednesday 14 May 2014 and stood the proceedings over to Monday 26 May 2014 at 9:30am. However, an order for costs should follow as the plaintiff's solicitor's explanation for the failure to file an amended statement of claim is unsatisfactory. If there were difficulties in obtaining this information, or Mr Zada has had personal difficulties due to his son's illness, these are matters he should have raised with Mr Goldsmith before this morning.