Supreme Court of Tasmania|2000-11-10|Before: Evans J

Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157 (10 November 2000)

CITATION: Louis v Commonwealth of Australia and

State of Tasmania [2000] TASSC 157

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Pleadings - Pleading inadequate and may tend to prejudice or delay the fair trial of the proceeding.

Meckiff v Simpson [1968] VicRp 7; [1968] VR 62; Holderness-Roddam v Roberts Limited A68/1996, followed.

Defamation - Actions for defamation - Pleading - Tasmania - Pleading inadequate and may tend to prejudice or delay the fair trial of the proceeding.

Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; Hadzel and Another v De Waldorf (1970) 16 FLR 174; DDSA Pharmaceuticals Ltd v Times Newspapers Ltd and another [1972] 3 All ER 417; Bloemen v Atkinson (1977) 6 ATR 33; Mirror Newspapers Limited v World Hosts Proprietary Limited (1978 - [1979] HCA 3; 1979) 141 CLR 632; Bowes v Felberg and Others 43/1998; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, followed.

Defendant: Commonwealth Australian Government Solicitor and Director of Public Prosecutions

Judgment Number: [2000] TASSC 157

GRAHAM JAMES LOUIS v COMMONWEALTH OF AUSTRALIA and

1 The defendants seek an order striking out the plaintiff's statement of claim.

2 The endorsement on the plaintiff's writ states that his causes of action against the defendants are defamation and invasion of privacy. By order of the High Court dated 1 April 1998, pursuant to the Judiciary Act 1903 (Cth), s44, the proceedings were remitted to this Court for determination.

3 Throughout the proceedings the plaintiff has represented himself. He has no legal training and it is manifest that he has little, if any, understanding of the procedural requirements and substantive law applicable to a defamation action. In pleading a defamation action, it is necessary to pay regard to a number of unusual and technical requirements. It is difficult, if not impossible, for a person who lacks legal training to properly prepare a statement of claim in a wide ranging defamation action. The plaintiff has resisted encouragement to obtain the assistance of a lawyer as he says he cannot afford to do so. Inevitably, the progress of the action has been beset with problems.

4 The statement of claim initially attached to the plaintiff's writ was patently deficient. That statement of claim included an assertion that from 1990 to 1997 the defendants "perpetually engaged in defaming the plaintiff". Detailed particulars of the statement of claim were sought by the defendants but not provided by the plaintiff, as he delivered an amended statement of claim filed on 21 May 1998. That amended statement of claim was also patently deficient. In response to a request for particulars of the amended statement of claim, the plaintiff delivered a document, dated 14 September 1998, headed "Developed Particulars of Plaintiffs Original and Amended Statement of Claim for the First and Second Defendants". Its contents were not responsive to the request which had been made. Instead of clarifying the plaintiff's claim, the particulars further confused the matter. Interlocutory applications then filed on behalf of each party sought a variety of directions. The applications were heard by me on 12 October 1998. In the course of that hearing, the inadequacies of the plaintiff's then amended statement of claim were canvassed. I endeavoured to explain the deficiencies to the plaintiff and referred him to the relevant provisions in the Rules of the Supreme Court. I provided him with a copy of O21, together with copies of several pages from Cairns, B C, Australian Civil Procedure, 4th ed, referable to pleadings and particulars. I also provided him with a brief document I prepared detailing some matters which were required to be pleaded in a statement of claim alleging defamation. The hearing of the interlocutory application was adjourned in order that the plaintiff could review his statement of claim and explore obtaining the assistance of a lawyer. Regrettably, the adjournment was to no avail. The plaintiff did not engage a lawyer. On 12 April 1999, the plaintiff obtained leave to deliver a further amended statement of claim which he had prepared. Like the earlier statements of claim, this pleading is patently deficient. It does not comply with the Supreme Court Rules, r227 (formerly O21, r3). Specifically:

* it does not contain in summary form a concise and explicit statement of all the material facts on which the plaintiff relies. The document is prolix and rambling. Insofar as facts can be discerned, they are overlaid by comments and observations of the plaintiff that should not be in a pleading; and

* each separate allegation is not contained in a separate paragraph. For example, a multitude of different allegations are made in par7 in relation to a report asserted to have been made by a police officer on 23 November 1995; a report asserted to have been made by a police sergeant on 17 September 1990, and a letter asserted to have been sent by the Minister for Police on 20 October 1992.

5 The further amended statement of claim is inter-laced with claims which, as pleaded, are incapable of sustaining a cause of action, including:

* a claim that the defendants wrongly investigated the plaintiff "in a joint and several operation to gather invisible non-existent evidence from" various sources;

* claims that the defendants' actions have injured the plaintiff's privacy;

* a claim that involves the proposition that the plaintiff has a cause of action in defamation arising from the plaintiff's distribution of documents he obtained from the defendants to media outlets;

* a claim to the effect that in 1992 the Minister of Police wrote a letter to the Attorney-General which showed that, amongst other things, the Minister for Police had no regard for just decisions by judicial authorities, had a bias towards the plaintiff and failed to recognise the plaintiff's right to complain about police conduct;

* a claim that the defendants have frustrated the plaintiff's endeavours to obtain information;

* a claim that the defendants have acted out of spite and malice towards the plaintiff.

6 The pleading includes claims that the plaintiff has been defamed in five different documents prepared or received on the following dates: 17 September 1990, 1 October 1990, 24 October 1990, 9 January 1992, 23 January 1992, 20 October 1992 and 23 November 1995. In an action for defamation it is necessary to plead the exact words complained of, Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 469. The pleading should clearly identify the particular words in each document which the plaintiff asserts are defamatory, Hadzel and Another v De Waldorf (1970) 16 FLR 174, DDSA Pharmaceuticals Ltd v Times Newspapers Ltd and another [1972] 3 All ER 417, and Bloemen v Atkinson (1977) 6 ATR 33. This has not been done.

7 In the pleading, the plaintiff asserts numerous defamatory imputations which he says can be implied from words contained in the various documents. It is not apparent whether the plaintiff asserts that the imputations are based on the natural and ordinary meaning of the words in the documents, or that they are imputations conveyed in the light of extraneous circumstances. This should be made clear and, if the latter, the extraneous circumstances should be pleaded, Mirror Newspapers Limited v World Hosts Proprietary Limited (1978 - [1979] HCA 3; 1979) 141 CLR 632 at 641, Supreme Court Rules, r239(3). In some instances, a plea of what can be implied from particular words includes more than one imputation. A plaintiff is not permitted to roll up a number of imputations into one plea. Such a plea can produce positive mischief when a particular defence is available to some but not all of the imputations. For this reason, such a plea should be struck out, Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 157. The imputations relied on must be alleged with specificity and precision, Bowes v Felberg and Others 43/1998. In summary, the plaintiff must:

* identify and plead the words in the document which he contends are defamatory;

* decide what imputations he asserts the words pleaded give rise to;

* decide whether it is appropriate to plead any false imputations he asserts and, if so, plead the same; and

* plead any true imputations he asserts, together with particulars of the facts and matters upon which he relies to support the same.

It is not consistent with the role of a judge in an adversarial system to endeavour to elicit from the plaintiff what he has in mind in relation to these matters and guide him in drafting his statement of claim.

8 Coupled with the deficiencies to which I have made reference, it can be fairly said of the plaintiff's further amended statement of claim that it is a muddled, convoluted, conglomeration of allegations which are likely to embarrass the defendants. It should be struck out pursuant to the Supreme Court Rules, r258(1), which empowers a judge to strike out any pleading which may tend to prejudice or delay the fair trial of the proceedings. The purpose of that Rule is ensure compliance with the rules of pleadings, Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70, and Holderness-Roddam v Roberts Limited A68/1996. I order that the further amended statement of claim be struck out in its entirety.

Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157

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Judgment (32 paragraphs)

Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157 (10 November 2000)

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