Media Publications Pty Ltd [2013] NSWSC 1987
Category: Procedural and other rulings
Parties: Plaintiff: Charlie Lynn
Defendant: Leonard Thompson
Representation: Counsel:
Plaintiff: AM Legal Solutions
Defendant: Stanford Lawyers
[2]
Solicitors:
Plaintiff: Ms R White
Defendant: Mr R Rasmussen
File Number(s): 2017/193069
Publication restriction: None
[3]
Judgment
These are my reasons for orders made on 26 October 2017 concerning the following:
1. An application pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and r 14.30 in relation to imputations pleaded to arise from the matter complained of the subject of these proceedings; and
2. An application for summary dismissal of the proceedings on the principles set out in Bleyer v Google Inc (2014) 88 NSWLR 670 (as recently endorsed by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5]) and pursuant to s 60 Civil Procedure Act 2005 (NSW).
The matter complained of is asserted to be an email "sent to a number of recipients, the identity of many of whom the plaintiff is presently unaware" but which included a Mr Malcolm Sayers, who forwarded the email to the plaintiff. Unfortunately, the schedule to the statement of claim attaches only the email Mr Sayers sent to the plaintiff. It is unclear whether he sent it to the plaintiff care of the Gmail address identified in the matter complained of or some other email address which is unknown.
The plaintiff's failure to attach the email sent to Mr Sayers, or to indicate how he came upon it, either in the pleadings or in subsequent correspondence, is a significant difficulty. In addition, if Mr Sayers and other persons did republish the defendant's email, and a claim is brought on the principles of Speight v Gosnay (1891) 55 JP 501, these publications must be pleaded with some care to avoid the trap of the court being misled as to whether these are publications sued upon as causes of action or merely as going to damages (as to which see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231). In addition, issues such as "the grapevine effect" which go to damages, should not be included in the particulars of publication.
The defendant's attack upon the proportionality of these proceedings is put on the following bases:
1. The award of damages is likely to be minimal given the very limited nature of publication demonstrated by the statement of claim, in that the matter complained of consists of the defendant's email being on-forwarded by its recipient to the plaintiff, which would not be actionable;
2. The factual issues are complex, in that it would require investigation into events occurring in Papua New Guinea over a potential 20 year period and may require witnesses being called from overseas as well as within Australia and Papua New Guinea government departments.
This argument cannot proceed until such time as the plaintiff has set out the precise basis upon which publication is alleged by the defendant and to whom. If the email in question was some form of circular email to, for example, members of a RSL Club or organisation (as seems possible from the format of the letter), that must be set out. If reliance is placed upon republication being an actual and probable consequence, whether by Mr Sayers or not, that must be specified with some care, and it must be identified whether the extent of that publication is relied upon as going to liability or merely quantum.
The plaintiff sought an adjournment of the argument so that particulars of the extent of publication could be administered and the result of inquiries already instituted on behalf of the plaintiff could be considered. Mr Rasmussen indicated he would not oppose the granting of an adjournment of the argument provided that his client's costs were paid on an indemnity basis.
The pleading of a claim for defamation where electronic publication is involved can often be a very technical exercise, requiring considerable care and skill. Unfortunately, in the present case, the pleading suffers a series of pleading defects ranging from failing to attach the correct matter complained of to the conflating of damages and liability issues in the particulars of publication.
The extent of publication is a significant issue in any application for summary dismissal, and not merely in an application based on Jameel principles (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946). In Bode v Mundell [2016] EWHC 2533 (QB), Warby J noted as an alternative finding to the question of serious harm that the proceedings would have had failed an abuse of the Jameel variety even if his Honour had concluded that the case should not be struck out on the basis of absence of serious harm for the purposes of s 1 Defamation Act 2013 (UK) by reason of the matter complained of being addressed to two individuals in circumstances where the harm could have been put right without any need for litigation.
[4]
The form of the interrogatories
What should be the interrogatories to be administered, and should these be settled by the court?
This is a different publication problem to that encountered by McCallum J in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101, where her Honour formulated the interrogatories at paragraph 29 in circumstances where there was doubt about whether the defendant had published the matter complained of at all.
There are two reasons for my not adopting the procedure taken by her Honour. The first is that applications of this nature often proceed on the basis of evidence as to the extent of publication (as was the case in Bleyer v Google Inc), whereas the application made in Dank v Cronulla-Sutherland District Rugby League Football Club was of the traditional kind, namely information about whether the defendant actually published the matter at all.
The second reason is neither the parties nor the court have the information necessary to draft these interrogatories. The defendant in the present case admits publication to a third party, but nothing more. I have very little information as to what the nature and extent of the publication in question may be. The opening sentences of the matter complained of and the absence of personal information directed to the recipient are suggestive of the possibility that this email was sent to a group of persons such as club members but I have no other indications as to what the extent of publication would be.
In the circumstances, in the interests of the claim proceeding without unnecessary supervision by the court, I propose to leave it to the plaintiff to draft the appropriate interrogatories for the purpose of a Bleyer v Google Inc argument.
[5]
Form and capacity of the imputations
This brings me to the reasons for striking out imputations 2(c) and 2(d) as not differing in substance from imputation 2(b) and the striking out imputations 2(e) and 2(f) on the basis of form.
The imputations are as follows (paragraph 2 of the statement of claim):
1. The plaintiff is a liar;
2. The plaintiff pretends to care about the heritage and preservation of the Kokoda Trail but really he is just interested in advancing his own egotistical aspirations and personal interests;
3. The plaintiff is self-interested;
4. The plaintiff is an egotist;
5. The plaintiff is an awful person who has made promises to the villagers along the Kokoda Trail over 20 years and has failed to deliver on any of them;
6. The plaintiff has let down the villagers along the Kokoda Trail, most of whom despise the plaintiff;
7. The plaintiff caused tensions between the people of Papua New Guinea and visiting Australians;
8. The plaintiff owes an apology to the public for his shameful self-promotion antics;
9. The plaintiff is untrustworthy.
Imputations 2(c) and 2(d) both arise from the same portions of the matter complained of. All three imputations (i.e. imputations 2(b), 2(c) and 2(d)) are imputations of condition. Whereas the first imputation puts a more specific condition, imputations 2(c) and 2(d) merely separate out the words "self-interested" and "egotist", as separate imputations.
Ms White admitted that a plaintiff could plead an imputation of condition in precise form and then plead an imputation in more general form, citing Toben v Milne [2014] NSWCA 200 at [13]:
"[13] An example of the application of the 'test' articulated by Hunt J is to be found in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484. In that case, McColl JA held that the imputation that the plaintiff had gate crashed a social function knowing she was not invited was different in substance from the imputation that the plaintiff had merely gate-crashed a social function, because to prove the first it would be necessary to demonstrate the respondent's state of mind, whereas that was not necessary for the latter. Her Honour found that although there was clearly a significant overlap in the imputations pleaded, there was a point of difference sufficient to support the independent pleading of the different imputations."
The plaintiff's self-interest and egotism really amount to the same thing, namely his real motive for his activities, as opposed to merely pretending to care about the heritage and preservation of the Kokoda Trail. The identical passages of the matter complained of are relied upon. Given the close similarity in content as well as form, this general charge should not be broken down into three overlapping imputations in the manner pleaded. I accordingly struck out imputations 2(c) and 2(d) as not differing in substance.
Imputations 2(e) and 2(f) contain words which are ambiguous. Imputation 2(e), which pleads that the plaintiff "is an awful person", although admittedly set out the basis for saying this, fails to identify what that awful conduct amounts to, in terms of whether it is untrustworthiness, dishonesty or mere unreliability. The word does not appear in the matter complained of. It is a poor choice of word and it is preferable to strike the imputation out rather than run the risk that it will be repleaded in a manner which does not differ in substance from the other imputations.
I have similarly struck out imputation 2(f) on the basis that an imputation that the plaintiff "has let down the villagers along the Kokoda Trail" is insufficiently specific, however the plaintiff will have leave to replead.
I also note that imputation 2(g) was reworded during argument, by reason of the word "caused" being a "weasel word": Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt J.
I must note, however, that there are unfortunately conflicting decisions on this issue as a result of recent decisions in the Federal Court of Australia. In Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [52] - [60] Wigney J, ruling on a series of imputations using this word (for example, that the applicant, a police officer, "improperly caused a number of drug charges to be dropped against a violent criminal"), expressed dissatisfaction with the New South Wales Court of Appeal's decision to the contrary in Amalgamated Television Services Pty Ltd v Marsden, observing:
"[55] It is, with the greatest respect, difficult to see how a plain English word like "caused" could be described as a "weasel word". That would depend entirely on the context in which the word is used. It could perhaps be accepted that in some circumstances, considered in isolation and in the abstract, the words "improperly" or "caused" might be of uncertain import. Read in isolation, they might in some circumstances prompt the questions: "how is it said that the conduct was improper" or "how is it said that the conduct caused something to occur"?"
While I note that Wigney J was not prepared to follow the New South Wales Court of Appeal, I must do so, particularly where the judgment in question was that of Hunt CJ at CL, whose expertise in defamation law in Australia is undoubted.
An additional reason for not being persuaded to discard the New South Wales Court of Appeal's decision is Wigney J's rulings on other words, such as "improper". Despite decisions of the New South Wales Court of Appeal (such as Australian Broadcasting Corporation and Anor v Hodgkinson [2005] NSWCA 190), and despite the word "improper" having a statutory use (see, for example, Commissioner of Taxation v Day (2008) 250 ALR 388), which may give rise to the kind of ambiguity of meaning which fatally doomed the trial in Singleton v Ffrench (1986) 5 NSWLR 425, Wigney J refused to strike this word out. A challenge to the word "wrongly" was also dismissed, despite the New South Wales Court of Appeal's decision in Ma Ching Kwan v John Fairfax Publications Pty Ltd (New South Wales Court of Appeal, 30 July 1998, unreported), although Ma Ching Kwan v John Fairfax Publications Pty Ltd was followed by the Federal Court of Australia in Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 and relied upon to strike out the word "inappropriately" on the basis that it was similarly flawed (see similar observations by Rothman J in Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 1987 at [24] - [27]). These rulings should all be viewed in the same light, as Wigney J was not taken to the relevant authorities when determining these issues.
[6]
Costs
Only in very rare cases should an order be made for indemnity costs in the course of case management of defamation proceedings.
I briefly note my reasons for making such an order in relation to the hearing on proportionality, which has now been adjourned twice in the Defamation List and which cannot be ready to go ahead until the plaintiff has provided the matter complained of (as opposed to the copy forwarded by the recipient to the plaintiff) and particulars or evidence of publication of the kind that would demonstrate the extent of publication sufficient to combat the defendant's arguments.
The making of an order for indemnity costs requires an significant departure from the obligation of a litigant to conduct litigation in a speed and efficient manner (Oshlack v Richmond River Council (1998) 193 CLR 72). In the present case, Mr Rasmussen pointed to the following factors as being relevant:
1. Particulars of the extent of publication had been sought and had been answered with a statement that this was "a matter for evidence" at the trial;
2. The argument had been ready to proceed in the Defamation List on 21 September 2017 and had been adjourned to suit the convenience of the plaintiff's counsel;
3. The application for adjournment had been made at a very late stage, namely the day before the hearing was to proceed, and was made only in the alternative, namely if the argument on proportionality were likely to succeed; and
4. The failure to attach the matter complained of in the form of the email from the defendant to Mr Sayers, rather than his on-forwarding of this document to the plaintiff.
The unreadiness of the plaintiff on this second occasion, when the defendant was ready to proceed, is complicated by the difficulty that the plaintiff first proposed interrogation as to the extent of publication only yesterday, and then as an alternative to the argument failing. The argument cannot go ahead in any event with the matter complained of in its present form.
Mr Rasmussen also told the court that his client is a pensioner who resides in Queensland, with all the attendant difficulties of representation that this connotes.
The allegations made about the plaintiff in the matter complained of are very serious, and he is entitled to seek redress from the court expeditiously. That requires, however, compliance with the principles set out in ss 56 - 62 Civil Procedure Act 2005 (NSW) as well as with the relevant practice note for conduct in this list. Time in the Defamation List is limited and when an argument is not ready to proceed on two occasions, that causes real difficulty in terms of accommodating other cases before the court, as well as straining court resources.
Parties must be ready to proceed when arguments are listed for hearing. While I do not make this order for the purpose of "encouraging others" not to do so (to use Voltaire's explanation of the execution of Admiral Byng), ensuring compliance with court timetables and readiness for hearing are an essential part of case management. This is particularly the case in defamation proceedings where a defendant is not an experienced media litigant and where the very substantial costs of defending a defamation action can be the cause of significant worry and anxiety. Accordingly, an order for costs on an indemnity basis for this part of the application before me today is warranted.
[7]
Orders
1. Grant leave to the plaintiff to interrogate the defendant as to the extent of publication with particular regard to publication to the email address vvaacsheadsup@gmail.com in 7 days.
2. Defendant's answers to interrogatories 14 days thereafter.
3. Imputation 2(c) is struck out as not differing in substance from imputation 2(b).
4. Imputation 2(d) is struck out.
5. Note imputation 2(i) differs in substance from imputation 2(b).
6. Imputation 2(e) is struck out, with the result that no finding needs to be made as to whether imputations 2(e) and 2(f) differ in substance.
7. Challenge to imputations 2(a) and 2(i) as not differing in substance is dismissed.
8. Strike out imputation 2(f) with liberty to replead.
9. Grant leave to replead imputation 2(g) by replacing the word "caused" by "heightened".
10. Plaintiff pay the defendant's costs of the vacating of the proportionality argument (including the costs of 21 September 2017).
11. Plaintiff pay the defendant's costs of the r 28.2 Uniform Civil Procedure Rules 2005 (NSW) argument (on capacity) and r 14.30 Uniform Civil Procedure Rules 2005 (NSW) argument (on form) on an ordinary basis.
12. Amended Statement of Claim in 14 days.
13. Matter stood over to the Defamation List on Thursday 23 November 2017 at 9:00am (for argument).
[8]
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: 31 October 2017