Henderson & Ors v White

The procedural history of the claim

1. The defendant's legal representative brought an application for summary dismissal at the first opportunity. When it was first listed before me for hearing, on 18 November 2021, it was evident that many of the objections related to the form of pleading for identification and extrinsic facts and the way in which the matters complained of were set out. No application for summary dismissal could occur until these matters were rectified, and I made the following orders: "Orders: (1) I strike out the Statement of Claim with leave to replead, such leave to be exercised by 23 February 2022, such amended pleading to include: a) Precise date and time of each MCO, with careful delineation of each MCO from each other. b) Imputation pleaded in each MCO, for each of the plaintiffs. c) Particulars of identification and/or extrinsic facts for each MCO, including but not limited to the identification of persons/group of persons who knew the extrinsic facts/ particulars of identification pleaded. d) Particulars of download for each MCO. e) Pursuant to UCPR r14.30, the amended pleading is to include a typed copy of each MCO with paragraph and line number as well as a clear copy of each MCO. (2) The defendant's challenge to the claim on the basis of proportionality is deferred until the amended pleading is provided. (3) The plaintiff is to pay the defendant's costs of today. (4) Matter stood over to the Defamation List on Thursday 24 February 2022 at 9am for directions."
2. An amended statement of claim was not filed until 2 March 2022, following which a defence was filed on 6 May 2022. The plaintiffs foreshadowed an intention to amend and a timetable was made to permit this on 26 May 2022. The plaintiffs did not comply and on 16 June 2022 the following orders were made: "Orders: (1) The date for the plaintiffs to provide to the defendant their Proposed Further Amended Statement of Claim ("PFASOC") be extended to 4pm on 17 June 2022. (2) The date for the defendant to serve upon the plaintiffs any objections to the PFASOC be extended to 4pm on 6 July 2022. (3) By 4pm on 12 July 2022, and in the absence of any objections by the defendant to the PFASOC, the plaintiffs have leave to file a Further Amended Statement of Claim in the form of the PFASOC. (4) Costs of the directions hearing of 16 June 2022 be reserved; (5) Any Amended Defence by 26 July 2022. (6) The plaintiff is to file a Reply by 11 August 2022. (7) Matter stood over to the Defamation List on 18 August 2022 for a timetable for discovery and interrogatories and/or any application to strike out the proceedings summarily."
3. The further amended statement of claim served on 17 June 2022 did not last long. In response to objections, the plaintiffs provided a second further amended statement of claim on 19 July 2022. On 18 August 2022 I made the following orders "Orders: (1) Grant the plaintiff leave to file the further amended statement of claim as attached to the affidavit of Ms Mackintosh of 15 August 2022 and dispensed with service. (2) The defendant is to provide full written submissions setting out all objections to the FASOC, including all submissions in relation to summary dismissal claim in14 days. (3) The plaintiff is to reply 14 days thereafter. (4) Both order 1 and 2 are self-executing in nature. (5) Matter stood over for hearing on 29 September 2022 with an estimate of 1 hour+ at 9am. (6) Reserve the costs of today."
4. As a result of those orders the application for summary dismissal proceeded on 29 September 2022, almost a year after the application was first brought.

The adequacy of the pleading and the conduct of the litigation

1. Mr Rasmussen relies on a series of factors as supporting the grounds upon which summary dismissal are sought. The first of these factors is the asserted dilatory and incompetent conduct of the litigation, which is claimed to be evidence of abuse of process and to have rendered the costs disproportionate to the damages likely to be awarded. This conduct is identified as follows: 1. The plaintiffs did not commence until the last day of the limitation period. 2. The statement of claim is hopelessly drafted, has been through a series of changes and remains hopelessly drafted. 3. The plaintiff's conduct of the litigation has been unsatisfactory in that they have frequently been unready as well as being unable to draft the pleadings properly.
2. I will deal with each in turn.

Delay in commencement

1. It has long been the case that, where a plaintiff commences proceedings at the end of the limitation period and thereafter delays or misconducts the litigation, a harsher view may be taken of such delay than would otherwise be the case. Levine J, in Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998), stated: "Where the plaintiff has been late in the initiation of proceedings, first, the quality of the remedy sought in defamation will or could be, severely affected both in terms of quantum and costs; and second, the requirement in a plaintiff diligently to prosecute the action will be one that demands strict adherence to the Rules of Court or directions given."
2. There are, however, a number of compassionate grounds in the present case. The plaintiffs, who live in a remote part of New South Wales, had just lost everything in the bushfires. The pandemic which followed was also a difficulty. They also changed solicitors during this period.
3. Taking such matters into account, I do not consider that the degree of delay in these proceedings since their commencement has been such as to warrant summary dismissal, either of itself or in combination with the other factors.

Hopeless pleadings

1. The statement of claim has not been well drafted from the beginning. Even in its current form, it clearly requires the matters complained of to be published in context, including the original post on the Cobargo Wildlife Sanctuary, which should be set out in full rather than in extracts in paragraph 7. If portions of a publication are to be relied on in relation to the issue of identification, they should be treated as if they form part of the matter complained of.
2. In addition, paragraph 36 of the current pleading, which sets out particulars of serious harm, should be struck out, as all the publications predate the commencement of the amendments to the legislation incorporating this requirement. These proceedings were, in fact, commenced before the new legislation was introduced. There are publications after 1 July 2021, but these would still fall to be considered under the pre-existing legislation by reason of the transition provision set out in s 46 of the Defamation Act 2005 (NSW). I note, however, that Mr Rasmussen did not raise this objection; it was a matter that I raised.
3. Mr Olson acknowledged that a further pleading is necessary but submitted that this is a matter compensable by a costs order, not by summary dismissal: Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132 ("Lunt") at [21] - [22] per Kiefel CJ, Gageler, Keane and Gordon JJ.
4. These pleading disputes remain unresolved because, as occurred in Lee & Ors v Hwang & Ors; Hwang v Lee & Ors [2022] NSWDC 182, a lot of angry correspondence about summary dismissal was sent, but no rulings on the defective pleadings were sought. This meant that a number of objections Mr Rasmussen raised, all of which were "highly technical, if not pedantic" (Muriniti v Kalil [2022] NSWCA 109 at [83]), are asserted to be proof of hopelessness even though no ruling has been made. However, any such ruling could just as likely be in favour of the plaintiffs as the defendants.
5. The pleading errors identified by Mr Rasmussen are matters which could, and should, have been dealt with by appropriate rulings from the court and, where appropriate, costs orders. They are not matters warranting summary dismissal at all, for the reasons explained by the High Court in Lunt.

Dilatory and incompetent conduct of proceedings

1. Mr Rasmussen provided a chronology of the delays in these proceedings, which I have relied upon in setting out the procedural history of this action. He points to the repleadings of the statement of claim over a period of a year and to the unreadiness of the plaintiff on several directions hearing dates.
2. Case management of the Defamation List during 2021 and 2022 was heavily impacted by the pandemic. Many practitioners failed to comply with timetables. It was a difficult time for everyone. The delays and unreadiness of the plaintiffs over this period need to be seen in that context. This is not conduct warranting summary dismissal of the kind identified in Ghosh v NineMSN Pty Ltd [2014] NSWCA 180.

Abuse of process

1. The second group of factors relied upon by Mr Rasmussen are the ancillary dominant improper purpose of these proceedings.
2. In her submissions, the defendant makes allegations to the effect that: 1. the pleading "appears to be designed" to obfuscate. 2. the pleading "serves to hide the true purpose of the proceedings which is not to seek to vindicate their reputation but to seek to place pressure on a third party who is independent of this litigation". 3. "The course of pleading and re-pleading to date is strongly suggestive of threecard monte, beloved of the hucksters of New York". 4. There is a reasonable inference that the dominant purpose of the proceeding is not to vindicate the Plaintiffs' reputation but is rather "a desire to influence a third party".
3. Most if not all of these objections are rhetorical flourishes at best. The course of pleading and repleading should, if it causes problems, result in applications to the court for rulings (including costs) to correct the pleadings. This course, rather than summary dismissal, is the appropriate way forward. In Lunt at [18]-[20], Kiefel CJ, Gageler, Keane and Gordon JJ explained: "… The power to stay, or summarily dismiss, proceedings because one party has abuses the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter. … In cases where proceedings are brought for an improper purpose, "no remedy is likely to be appropriate other than a stay of the proceedings" because, in such cases, the abuse of the court's processes cannot be remedied in any other way. But where a court is able, by means less draconian than summary termination, to cure any apprehended prejudice to a fair trial so as to ensure that justice is done, the court's responsibility to the parties, and to the community, requires that those other means be deployed so that the matter before the court is heard and determined in accordance with the justice of the case. …""
4. The onus on a party seeking a stay of proceedings on the grounds of abuse of process is a heavy one. The power to grant a permanent stay on this basis is exercised only in the most exceptional circumstances: Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ; Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 at [16].
5. Mr Rasmussen's second submission is, essentially, that the plaintiffs are pursuing the defendant, not in the desire to vindicate their reputations, but as a way of getting at Ms Harvey, whom they consider to be the moving force behind the defendant. The plaintiffs cannot really be interested in pursuing the defendant, he submits, as she has no money.
6. Whether or not the defendant has money is irrelevant. The plaintiffs are entitled to the public vindication of a judgment in their favour to nail the lie for the substantial and serious publications made by the defendant. They are entitled to the solace to their hurt and distress, at a time when it may be argued they were particularly vulnerable due to the losses they suffered in the fire. In those circumstances, they would be entitled to seek the personal consolation of a judgment which assesses damages at an appropriate figure, whether they can recover this or not.
7. Nor is it the case that the form of the pleadings demonstrates a desire to obfuscate, or is "strongly suggestive of three-card monte, beloved of the hucksters of New York" (submissions, paragraph 12). I accept and adopt Mr Olson's response (submissions, paragraph 13) that Mr Rasmussen's description of him and of his instructing solicitors as "hucksters" is "inappropriate".
8. The heavy onus on the defendant of establishing an abuse of process has not been discharged.

Proportionality

1. The High Court's decision in Lunt largely overwrites many of the earlier judgments on proportionality, which must now be viewed with caution.
2. Mr Rasmussen submitted that those few persons who had read the matters complained of had not believed what the defendant said, and that the damages would be minimal. He added that decisions such as Bazzi v Dutton [2022] FCAFC 84 were supportive of his claim that publications on social media were not taken seriously, and that the publications would have been disregarded. His client had offered to apologise and had taken the posts down. As a result, any damages awarded would be nominal.
3. There would be few cases less suitable for such an application than this one, for the following reasons: 1. This was not one publication. It was ten publications and these were made to the world at large on Facebook. The identities of the plaintiffs would have been evident to those who read the original post describing the destruction of their home and the death of their animals, and it is clear from the responding comments that many did identify them, although in the social media sense rather than in the "real world" sense of an actual meeting. Some appear to have been considering making a donation. If so, that is sufficient for identification purposes. 2. These posts were about a topic that was the most talked-about in Australia at the time, namely the bushfires and the terrible devastation suffered. The extent of the publication to persons identifying the plaintiffs is not merely 14 people; the subject matter was one to which the grapevine effect would have been particularly apposite. 3. The imputations were of serious fraud and dishonesty of criminal conduct on a major scale. The repetition of these allegations inflates the harm. Unlike Bazzi v Dutton, these are not publications that a social media reader would discount, because the defendant is saying that she was there and knew what had really happened. 4. The imputations were published to the plaintiffs at a time of utmost personal distress. They had just lost their wildlife family and most of their possessions. They had had to bury the corpses of the animals they loved. Mr Henderson is described as being on his knees, crying, as he euthanised some of the animals. The component of damages for hurt to feelings would be high. 5. There is a claim, not properly pleaded or particularised, for special damages. Mr Rasmussen raised no objection to it so I assume he has accepted it in its current form. It is unclear whether the original post by Cobargo Wildlife Sanctuary would have attracted offers of financial assistance, or whether that was in fact the purpose of the original post. The plaintiffs would need to set out this claim in considerably more detail, but I am prepared to assume that there might be a claim relating to seeking financial assistance and/or using the Facebook page to obtain donations. If so, the presence of the 10 matters complained of on the site would be devastating. 6. The posts appear to have been visible at various times up until 17 July 2021. In view of their strong content, even a short period of time would have been of significance. 7. The defendant's failure to respond to Mr Stanarevic's email is a significant factor in relation to willingness to apologise. It was a generous offer for 10 very serious social media posts.
4. While I would not suggest that the award of damages would be on a par with decisions such as Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221, it shares more factual features with those proceedings than it does with Dutton v Bazzi or, for that matter, with Bleyer v Google Inc (2014) 88 NSWLR 670, where there was publication to a handful of persons as well as compelling defence and enforcement of judgment issues.
5. Viewed in the light of these factors, it is hard to imagine proceedings less open to claims of disproportionality than the present case.
6. The next basis upon which Mr Rasmussen submitted that the costs of these proceedings would be out of proportion was that expert evidence would be required by both parties and that the costs of these experts would be out of all proportion to the damages to be awarded. He submitted that there were strong mitigating factors coming from the failure of the plaintiff's to take this material down from their own site and that evidence of the kind called in the proceedings at first instance in Defteros v Google Inc [2020] VSC 219 where, he asserted, expert evidence was vital to the case.
7. I do not accept these submissions. First, I consider the damages to be awarded in these proceedings could be substantial, for the reasons set out above.
8. Second, I do not accept that it will be necessary to call expert evidence as to how Facebook works. The expert evidence called in the proceedings brought by Mr Defteros against Google are described in somewhat disdainful terms (Defteros v Google Inc [2020] VSC 324 at [23]) as being more or less a waste of time which resulted in a costs order adverse to the plaintiff for requiring him: "(d) Nearly an entire day of the trial was spent on the evidence of Dr Kondepudy, which formed the basis for my findings about the internet and the operation of the Google search engine,[4] and was relevant to the issue of publication. Most of this time was taken up by a mystifying cross-examination that bore little relationship to Mr Defteros' pleaded case, or to his opening or closing submissions. Dr Kondepudy's evidence was consistent with findings of fact made in earlier defamation proceedings against Google.[5] The matters covered by him were the subject of a detailed notice to admit served by Google in June 2018, much of which was not admitted by Mr Defteros,[6] but which was not contested by him at trial. This meant that Google was put to proof of matters that were, in the end, not contentious. Rather than attempting to strictly apply rr 35.06 and 63.18 of the Rules,[7] I have taken the pragmatic approach of reducing the proportion of Mr Defteros' costs that is to be paid by Google." (Footnotes omitted)
9. Additionally, as Mr Olson points out, the question is whether the plaintiffs would be accepted in their evidence as to what they said that they would try to do. There is no doubt that the posts in question could still be seen on the site as late as 17 July 2021. The attempts the plaintiffs made (or failed to make) to remove them are matters for cross-examination at the trial.

The future conduct of these proceedings

1. Mr Rasmussen invited me to impose costs orders and other sanctions on the plaintiffs as an alternative to summary dismissal.
2. I consider this summary dismissal application to be entirely without merit. There are pleading errors made by the plaintiffs, but these can be addressed by rulings with appropriate costs orders to follow those rulings. There has been delay, but there are reasons for it which I am prepared to accept. The claim of some kind of vendetta against Ms Harvey is fanciful.
3. Accordingly, I do not intend to make any special costs orders against the plaintiffs, indemnity, forthwith or otherwise.
4. One order I have made is for the plaintiffs to file a third further amended statement of claim. It is to be hoped that the pleader will set out the text of the matters complained of to include contextual material and in particular identification material from the original article upon which these persons to whom the defendant responded were commenting. There are genuine errors, including the serious harm particulars and the failure to plead special damages properly, that must be attended to, despite Mr Rasmussen not having raised them.

Order: 1. Defendant's application for summary dismissal of these proceedings dismissed. 2. Defendant to pay plaintiff's costs of this application. 3. Plaintiff file any amended statement of claim in 28 days. 4. Any amended defence 14 days thereafter. 5. Reply 7 days thereafter. 6. These proceedings stood over for further directions, including discovery and interrogatories, to 15 December 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2022