HER HONOUR: These are proceedings for defamation commenced by Ms Sophia McGinn against four defendants. The proceedings come into this list with some history. Proceedings were previously commenced against Ms McGinn in the Equity Division evidently arising out of a dispute between her and the Owners Corporation of a building.
In those proceedings, Ms McGinn filed a cross-claim for defamation. That cross-claim was struck out and the proceedings were then referred to this list. Ms McGinn then filed a statement of claim in September and then an amended statement of claim on 26 October 2018. The defendants have all taken objections to the form of the amended statement of claim.
During the course of argument concerning those objections, most of the objections were resolved or accepted by Ms McGinn, who has indicated a desire to re-plead. None of the defendants opposes that course.
Accordingly, I propose to take the course in this judgment of simply recording the matters argued and the basis on which I understood them to be resolved so as to enable Ms McGinn to understand the basis for the orders to be made and facilitate the process of re-pleading.
Before proceeding to record those matters, I should mention prayer 7 in the relief claimed. None of the parties addressed this issue, but it seeks an order that each of the defendants issue a letter of apology to be circulated to the owners. The Court has no authority to make any such order. That claim for relief should be omitted from any amended pleading.
Turning to the pleading of the causes of action, all of the defendants objected to paragraphs 8 to 23. Those paragraphs set out the history of the dispute in the other proceedings. They are irrelevant to the claim in defamation and should be omitted from any amended pleading.
The pleading of the claims in defamation commences at paragraph 24 of the amended statement of claim. The first matter complained of is relied upon as a cause of action against a company, Peter Clisdell Pty Limited. The letter appears under the hand of a Mr Armstrong, who is identified as a licensee of "Clisdell's Strata Title Managers". The pleading does not articulate any fact, matter or circumstance on the strength of which it can be understood how the company would be liable for the conduct of the licensee. The plaintiff has indicated that she accepts the need either to plead that information or, as she indicated just recently, to consider suing Mr Armstrong instead of the company. Paragraph 24 in its current form should be struck out.
McGinn v Peter Clisdell Pty Ltd [2018] NSWSC 1856 | Case summary | Zoe
A separate objection to the same paragraph relates to the manner in which the imputations have been pleaded. Paragraph 24 is a good example of a problem that pervades the whole of the pleading. It appears in the following terms:
"He accused the plaintiff spreads bare-faced misinformation "the purpose of this letter is to bring you the truth which will contradict the current bare-faced misinformation which is currently being peddled to you by the Secretary of your Strata Scheme, Sophia McGinn""
As submitted by Mr Lewis on behalf of the first and third defendants, the pleading in that form impermissibly intermingles an apparent specification of an imputation and the extract from the matter complained of intended to be relied upon to give rise to that imputation.
The plaintiff accepts the need to re-plead the imputations. It was explained to her during the hearing that the proper approach is, in separate paragraphs of the statement of claim, to specify the matter complained of; next, to specify the defamatory imputations allegedly conveyed by that matter and to include no other information in those paragraphs.
Paragraph 25 of the amended statement of claim includes an allegation as to the material relied upon by Mr Armstrong, the author of the letter, to support those imputations. As submitted, I think by all defendants, that is an irrelevant and impermissible pleading. Separately, the pleading fails to comply with r 14.30(1) of the Uniform Civil Procedure Rules 2005 (NSW) in that the allegations in paragraph 25 include allegations that the matter or parts of the matter are not true. Those allegations are embarrassing and should be omitted from any amended pleading.
Paragraph 26 pleads the second matter complained of alleged to be published by the second defendant, Mr Miller. The annexure is, in fact, a letter under the name Gary Finn. The same difficulty arises as in respect of the first matter complained of, namely, that the pleading fails to specify the facts, matters and circumstances relied upon to support any allegation that Mr Miller is liable as a publisher of a letter published under the name of Mr Finn.
That paragraph also suffers from the same vice as paragraph 24 in the manner in which the imputations are specified and is liable to be struck out for that additional reason.
Paragraph 28 pleads a publication allegedly published by the third defendant, Ms Cregan. There is no issue concerning publication in respect of that matter, Ms Cregan being the named author of the letter in question. However, the pleading of the imputation suffers from the same vice as paragraph 24 and is liable to be struck out on that basis.
Paragraph 29 is in the same form as paragraph 25 and is liable to be struck out for the reasons I have indicated.
Paragraph 30 pleads the matter complained of as against the fourth defendant, Mr James Moir. The pleading of that publication suffers from the same difficulty as the first and second matters complained of, namely, that it is a document which does not appear under the hand of Mr Moir and in respect of which no facts, matters or circumstances are pleaded to explain how he should be held liable as a publisher of it. It also carries the same difficulty in respect of the specification of the imputations.
There is in addition a discrete point taken by Ms Rubagotti on behalf of the fourth defendant that part of what appears to be an imputation sought to be relied upon is an attribution not reasonably capable of being conveyed by the letter. That is the allegation that the plaintiff "opened an illegal account to collect levies". The letter contains no reference to that issue.
Paragraph 31 is in the same form as paragraph 25 and is liable to be struck out for the same reason.
Paragraph 32 contains a rolled up allegation concerning publication. Each of the defendants objected to that paragraph as being an inadequate pleading of the allegation of publication of each matter complained of to the 134 owners in the strata scheme. In my respectful opinion, that allegation is adequately clear. It is clear enough that Miss McGinn will at the hearing allege that each of the matters complained of was published to each of the 134 owners in the strata scheme. If particulars are required as to the method of publication, they can be sought. However, owing to the other difficulties in the pleading of publication, paragraph 32 in its present form will have to be struck out.
Paragraph 33 is the first example of a difficulty that infects a number of the paragraphs that follow, namely, that it asserts a proposition of law. I endeavoured during argument to explain to Ms McGinn why such allegations should be excluded from the pleading, even if the proposition stated is correct as a matter of law. I am not confident that Ms McGinn understood that explanation but the fact remains that allegations of propositions of law have no place in the pleading and should be excluded from any amended pleading. I will not identify every discrete paragraph to which that rule applies as they are identified in the correspondence by reference to which argument proceeded this morning.
Paragraph 35 attempts to plead a case of republication against the second defendant on the basis that he is alleged to have attached the first matter complained of to an application in proceedings brought in the NSW Civil and Administrative Tribunal (NCAT). That claim would appear to be hopeless. As noted by Mr Sibtain on behalf of the second defendant, clause 33 of Schedule 1 to the Defamation Act 2005 (NSW) has the effect that matter "published to or by" the tribunal attracts absolute privilege. The filing of originating process in the tribunal would appear by operation of s 27 of the Defamation Act to attract that privilege. However, that is a point I raised only in argument. If the plaintiff wishes to pursue any claim in respect of that particular publication, I will afford her an opportunity to be heard, if she wishes to address any further issue. That paragraph nonetheless should be struck out at this stage for the separate reason identified by Mr Sibtain, namely, that it is unclear precisely what publication it alleges. The proposition that it was attached to the originating process in NCAT was asserted only orally by Ms McGinn and should appear in any amended pleading if that allegation is maintained.
Paragraph 35A includes an allegation of law and should not be repeated in any amended pleading.
Paragraph 35B is part of the pleading of publication against Mr Miller in respect of the letter published under the name of Mr Finn and is liable to be struck out for the reasons I have already indicated.
Paragraph 37 is in the nature of a submission or legal proposition and is liable to be struck out.
Paragraphs 38 to 48 address a claim for aggravated damages. The defendants acknowledged that the plaintiff is entitled to plead some of the matters there alleged, which are the facts, matters and circumstances relied upon to support that claim. However, those paragraphs are intermingled with allegations of law and also scandalous allegations. The allegations that fall into that category should not be repeated in any amended pleading.
Similarly, paragraphs 49 to 61 include a combination of propositions of law, relevant allegations and irrelevant allegations addressing the question of assessment of damages and interest on damages. Any re-pleading of those paragraphs should adhere to the rulings I have already indicated.
For those reasons the amended statement of claim filed 26 October 2018 is struck out with leave to re-plead.
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Decision last updated: 04 December 2018