Plaintiffs v Defendants

Supreme Court of Victoria|2012-09-07|Before: BEACH J

DEFAMATION - Practice and procedure - Pleadings - Defence - Ambit of publication - Polly Peck imputations - Permissible variants - Qualified privilege - Extent of publication - Whether internet publications are necessarily to the world at large - Mass media publications distinguished - Particulars.

1 In this proceeding, Robert Raymond Cripps and Redleg Museum Services Pty Ltd claim damages for defamation from Dimitrios Vakras and Lee-Anne Raymond. The proceeding relates to the publication of three articles which are alleged to be available to be downloaded from the internet. The articles are described by the parties as "the first Vakras article", "the second Vakras article" and "the Raymond article".

2 This proceeding was commenced on 1 April 2011. Subsequently, there have been a number of amendments made to the plaintiffs' statement of claim and the defendants' defences. The current pleadings consist of the plaintiffs' further amended statement of claim dated 22 May 2012, the first defendant's further amended defence dated 15 June 2012 and the second defendant's further amended defence dated 15 June 2012. Additionally, there have been a number of directions hearings. There has been discovery and interrogation, and a mediation was conducted in March this year.

3 Notwithstanding these matters, and the fact that this proceeding is designated for trial by judge alone, the plaintiffs now wish to make complaint about parts of the defendants' defences. Further, the plaintiffs seek orders for particulars of certain paragraphs of the defendants' defences, and leave to administer additional interrogatories to the first defendant on the issue of publication of the second Vakras article. Specifically, the plaintiffs seek the following orders:[1]

"1. An order that the words '...together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial' be struck out from paragraph 5 of the Further Amended Defence of the First Defendant;

2. An order that paragraphs 8A(a), 8A(c), 8D, 8F, 9D and 12B be struck out from the Further Amended Defence of the First Defendant.
3. An order that the particulars of justification at 8A(4) (page 8) be struck out of the Further Amended Defence of the First Defendant;
4. An order that the defence of justification to paragraph 8(d) of the Further Amended Statement of Claim be struck out from the Further Amended Defence of the First Defendant;
5. An order that paragraphs 16A(f), 16D and 17D be struck out from the Further Amended Defence of the Second Defendant;
6. An order that the Defendants provide the further and better particulars of their Further Amended defences requested in the Plaintiff's (sic) letter of 3 July 2012;
7. An order that the Plaintiff (sic) has leave to administer further interrogatories to the First Defendant on the issue of publication of the second matter complained of;

4 Paragraph 8F of the first defendant's defence pleaded contextual truth pursuant to s 26 of the Defamation Act 2005. Following the making of this application and the serving of the plaintiffs' submissions concerning paragraph 8F, the first defendant abandoned the contextual truth defence pleaded in it.[2]

5 In paragraph 5 of the further amended statement of claim, the plaintiffs plead the publication of the first Vakras article in the following terms:

"5. In or about 21 August 2009 (sic), the first defendant wrote and first uploaded the words (first Vakras article) reproduced and accessible from the uniform resource locator www.vakras.com/guildford_land_gallery (Vakras website).

PARTICULARS

The first Vakras article comprises the words set out in annexure A hereto. A copy of the first Vakras article is in the possession of the solicitors for the plaintiffs and can be inspected by appointment."

6 Paragraph 5 of the further amended defence of the first defendant is in the following terms:

"5. He admits the allegations made in paragraph 5 and further says that the first Vakras article consisted of the words set out in annexure A to the further amended statement of claim, together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial."

7 The plaintiffs seek an order that the words "together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial" be struck out from paragraph 5 of the further amended defence of the first defendant. The plaintiffs submit that it is "not open to the defendants unilaterally to add to the matter complained of other material". They then submit that if there is other material that should be included, then the defendants' remedy is to make application for an order that the plaintiffs include that material. However, they go on to submit that any such application would be hopeless because it cannot be said that the material relied upon by the plaintiffs must reasonably be regarded as part of a publication that includes the hyperlinks pleaded by the defendants.[3]

8 Remembering that this is a pleading summons, the plaintiffs' application to strike out the reference to hyperlinks in paragraph 5 of the further amended defence of the first defendant must be dismissed. It is at least arguable that the judge hearing this case might conclude that the material relied upon by the plaintiffs is part of a publication that includes the hyperlinks pleaded by the first defendant. In such circumstances, while the first defendant may fail at an interlocutory stage to require the plaintiffs to plead the additional material, it is, again, at least arguable that the first defendant may itself plead that additional material in its defence.[4]

9 While I will permit the first defendant to maintain his plea in respect to hyperlinks, in my view, the pleading as it currently stands lacks necessary precision. In its current form, it might be possible for the first defendant to rely on any number of pages from the internet that might be hyperlinked to the first Vakras article, either directly or via a chain of hyperlinks. In the circumstances, I will order the first defendant to provide particulars of the hyperlinks referred to in paragraph 5 of his further amended defence and particulars of the precise words and images upon which the defendants will rely as alleged in that paragraph..

Paragraphs 8A(a) and 8A(c): the first defendant's Polly Peck imputations

10 In paragraph (8) of the further amended statement of claim, the imputations defamatory of the first plaintiff alleged to have been conveyed by the publication of the first Vakras article are pleaded as follows:

"(a) the first plaintiff is a disgraceful individual who is to be avoided assiduously;

(b) the first plaintiff used economic duress to force the first and second defendants to agree to terms that were not in the original contract for rental of space at the gallery;

(c) the first plaintiff, having made a profit from the first and second defendants' art exhibition at the gallery, then deliberately inhibited the first and second defendants' capacity to promote the exhibition, causing the exhibition to fail; and

(d) the first plaintiff is a racist who has embraced the view of National Socialism; and

(e) the first plaintiff is a bellicose bully."

11 Paragraph 8A of the further amended defence of the first defendant relevantly pleads, so far as this application is concerned:

"8A Further or alternatively, he says that if the first Vakras article was defamatory of the first plaintiff (which is denied) then in its natural and ordinary meaning the first Vakras article meant and was understood to mean that:

(a) the first plaintiff treated the defendants in a disgraceful manner and other artists should avoid him;

...

(c) the first plaintiff profited from the defendants' art exhibition, notwithstanding that he inhibited the defendants' capacity to promote the exhibition, causing it to fail;

...

and in each of those meanings the first Vakras article was ... true in substance and in fact ... ."

12 A defendant in a defamation case is entitled to deny a plaintiff's pleaded meanings, and to seek to justify a variant of the plaintiff's meanings, provided that the variant is not substantially different from the pleaded meaning and that it is no more injurious or serious than the pleaded meaning.[5]

13 The plaintiffs contend that the first defendant's pleaded variant in paragraph 8A(a) changes the meaning relied on [by the plaintiffs in paragraph 8(a)] from a general one of being a disgraceful person to a much more limited one of having treated the defendants disgracefully, and from a general statement that he is to be avoided to the more limited proposition that he is to be avoided by other artists. It is then submitted that "such a confinement of meaning goes beyond what the plaintiff would be entitled to ask the tribunal of fact to find and therefore goes beyond what the defendant is permitted to plead and justify".

14 So far as the first defendant's pleaded variant in paragraph 8A(c) is concerned, the plaintiffs submit that the essence of the plaintiffs' meaning in paragraph 8(c) is that he (the first defendant) deliberately inhibited the defendants' promoting of their exhibition, and it is that deliberateness that makes the profiting from the exhibition morally wrong. The first defendant then submits that by taking the element of deliberateness out of paragraph 8A(c), a quite different meaning is conveyed - and a meaning that may not even be defamatory.

15 The plaintiffs' submissions may ultimately be shown to have some merit at trial. However (and bearing in mind that this proceeding will be tried by a judge alone), I am not persuaded that the first defendant's pleas in paragraphs 8A(a) and (c) are so unarguable as to justify striking them out at this stage. In my view, it is at least arguable that the meanings pleaded in these paragraphs are permissible variants of the plaintiffs' meanings. Of course, this says nothing as to the conclusion likely to be reached at trial on this issue.

The first defendant's qualified privilege defences: paragraphs 8D, 9D and 12B

16 Paragraphs 8D, 9D and 12B of the further amended defence of the first defendant contain pleas of qualified privilege. The plaintiffs seek to strike these paragraphs out on the basis that the relevant articles (the first Vakras article and the second Vakras article) are both publications on the internet, and to the world at large. The plaintiffs then call in aid the well known line of authority that publications to the world at large are generally not made on an occasion of qualified privilege.[6]

17 In response to the plaintiffs' submissions, the first defendant contends that publication on the internet is not made to the world at large in the same way traditional mass media publications are made. Rather, it is submitted that publication on the internet is established by the plaintiffs showing that the matters complained of were downloaded and read.[7]

"The plaintiffs will have to establish by admissible evidence that the matters complained of were so downloaded and read. If the evidence establishes that publication was limited, it may be open to the defendants to show that the publication was made on an occasion of qualified privilege."

19 Reliance is then placed by the first defendant upon a ruling made by Kaye J in Belbin & Ors v Lower Murray Urban and Rural Water Corporation (Ruling No 2),[8] wherein his Honour permitted a defendant at trial to amend its defence to plead qualified privilege in relation to an internet publication.

20 The question of whether the articles complained of in this case were published on an occasion of qualified privilege is capable of debate. Again, I am not persuaded that the pleas of qualified privilege made by the first defendant are so unarguable as to justify them being struck out at this stage. In my view, this issue is best left to the trial judge, who can determine it once the nature and extent of publication has been established by evidence at trial.

Paragraph 8A(d): the first defendant's Polly Peck imputation that "the first plaintiff is a racist who holds views that are similar to those of Adolf Hitler"

21 In paragraph 8A(d), the first defendant pleads a Polly Peck imputation that "the first plaintiff is a racist who holds views that are similar to that of Adolf Hitler". In the particulars in paragraph 8A(4), the first defendant then provides particulars of the truth of this Polly Peck imputation as follows:

"(i) at the opening of the exhibition on 18 June 2009, the first plaintiff said to the first defendant words to the effect of one or more of the following statements in reference to an essay written by the first defendant and posted on the wall next to one of his paintings:

'Your essay is insensitive to Palestine'

'It absolves the Jews from what they're doing in Palestine'

'I am against the Jews and their state in Palestine'

'I do not like the Jews and their state in Palestine'

'The Jews were the cause of the problems in Palestine not the Koran or Islam'

(ii) the first plaintiff's statements above, or alternatively one or more of them, are consistent with Adolph Hitler's disdain for Jews because Hitler expressed similar views in Mein Kampf and elsewhere and consistent with views expressed by Hitler in Mein Kampf and elsewhere to the effect that the Jews were responsible for conflicts in which they were involved and that Jews should not be permitted in Palestine;

(iii) by reason of the matters referred to above, the first plaintiff is a racist who holds views that are similar to those of Adolf Hitler."

22 The plaintiffs seek to strike out the particulars on the basis that they are not capable of supporting the imputation pleaded. They then submit that the particulars given fall so far short of justifying the imputation that the imputation itself should also be struck out.

23 In my view, in their current form, the particulars provided are not capable of supporting the plea of justification[9] in relation to the imputation pleaded by the first defendant in paragraph 8A(d). In the first paragraph of the particulars, the first defendant contends that the first plaintiff said "words to the effect of one or more" of the statements identified in that paragraph. Taking the first statement ("your essay is insensitive to Palestine"), it could not be said that the mere statement that an essay is insensitive to Palestine could support the proposition that "the first plaintiff is a racist who holds views that are similar to those of Adolf Hitler". Further, the reference to "similar views in Mein Kampf and elsewhere" in the second paragraph of the impugned particulars and the use of the word "consistent" is embarrassing in the technical sense.

24 The vagueness of both paragraph 8A(d) and the particulars alleged to support it is a matter of some concern, even though the plaintiffs only seek to attack this part of the first defendant's pleading on the basis that the particulars fall a significant way short of justifying the imputation pleaded. It is enough for present purposes to say that I accept the plaintiffs' submissions on this point concerning the inadequacies of the present particulars.

25 That said, I propose to give the first defendant an opportunity to provide proper particulars of the truth of the imputation pleaded in paragraph 8A(d) of his defence. If the first defendant is not able to provide appropriate particulars of this imputation (and by that I mean particulars which properly justify the imputation), then it is likely that paragraph 8A(d) will ultimately be struck out. However, at this stage I will merely strike out the particulars in paragraph 8A(4) of the first defendant's defence.

Paragraphs 16A(f), 16D and 17D of the further amended defence of the second defendant

26 The plaintiffs seek an order that paragraphs 16A(f), 16D and 17D of the further amended defence of the second defendant be struck out.

27 In paragraph 16 of the plaintiff's further amended statement of claim, eight false innuendos are pleaded as being conveyed by the publication of the Raymond article. The imputation in paragraph 16(f) is pleaded in the following terms:

"The first plaintiff, in his arts transportation business, is universally despised."

28 In paragraph 16A(f) of the further amended defence of the second defendant, the second defendant pleads, as a permissible variant of the first plaintiff's meaning, the following:

"(f) The first plaintiff is a person who is widely despised."

29 In not confining this variant to the first plaintiff in respect of his arts transportation business, it is arguable that the imputation in paragraph 16A(f) is not a permissible variant because in some aspects it might be said to be a more serious imputation than that pleaded by the plaintiff. However, the particulars in support of the truth of imputation 16A(f) are limited in the second defendant's pleading to a contention that the first plaintiff is despised by "many or alternatively all" of six identified people who are themselves, at least, arguably connected with the first plaintiff's business. In the circumstances, I do not propose to strike out paragraph 16A(f) of the further amended defence of the second defendant. The matter can be debated at trial.

30 Paragraphs 16D and 17D of the further amended defence of the second defendant contain the second defendant's qualified privilege defences in respect of the Raymond article. For the same reasons that I have decided not to strike out the first defendant's qualified privilege defences, I do not propose to strike out these defences. Again, as with the first Cripps article and the second Cripps article, the question of whether the Raymond article was published on an occasion of qualified privilege is capable of debate. Further, as with the qualified privilege defences in respect of the two Cripps articles, this debate is best left to the trial judge, who can determine it once the nature and extent of publications has been established by evidence at trial.

The request for further and better particulars of the further amended defences

31 By letter dated 3 July 2012, the solicitors for the plaintiffs requested further and better particulars of the further amended defences of the first and second defendants. The letter sought further particulars in relation to specific parts of paragraphs 8A, 8B, 8C, 8E, 9B, 9C, 9E, 12A(2) and 12C of the first defendant's further amended defence and paragraphs 16A, 16B, 16C, 17B and 17C of the second defendant's further amended defence.

32 In their written submissions, the defendants contend that the particulars contained in paragraph 12A(2) of the further amended defence of the first defendant are sufficient particulars of imputation 12A(b). The balance of the request for particulars is dealt with by the defendants as follows:

"The plaintiffs have had more than ample opportunity since the first defences were filed on 6 July 2011 to obtain particulars of the matters sought. A large number of the interrogatories for the examination of the defendants were answered, notwithstanding that they were in substance requests for further and better particulars and thereby oppressive."

33 Paragraph 12A of the further amended defence of the first defendant is the first defendant's Polly Peck plea in relation to the second Vakras article. The imputation pleaded in paragraph 12A(b) is that the second Vakras article meant that "the first plaintiff has sexually harassed volunteers and staff at his gallery".

34 The particulars given in support of the truth of this imputation are set out in paragraph 12A(2) in the following terms:

"(a) in or about April or May 2009, the first plaintiff made several sexual advances at the Gallery to Laila, a woman who was a staff member or volunteer at the Gallery at that time;

(b) in or about November 2009, the first plaintiff made sexual comments at the Gallery to Laila and Thao, two female staff members or volunteers at the Gallery at that time, about their appearances and said to each of them that he wanted to buy them dinner because they were 'gorgeous' or words to that effect;

(c) in or about November 2009, the first plaintiff said to a female staff member or volunteer at the Gallery, whose identity the defendants object to disclosing prior to trial, that she 'looked like she has been shagging all night' or words to that effect."

35 In their request for further and better particulars of paragraph 12A(2), the plaintiffs seek:

(a) "the facts, matters and circumstances to be relied upon by the first defendant in support of the allegation in 12A(2)(a) that the [first] plaintiff made several sexual advances at the Gallery to Laila"; and

(b) "the substance of each of the comments alleged in 12A(2)(b) to be sexual in nature and to have been made to Laila and/or Thao". Specifically, the plaintiffs ask whether it is alleged that there were comments of a sexual nature other than the dinner invitation referred to in that sub-paragraph.

36 The plaintiffs are entitled to the best particulars the first defendant can give as to the truth of the imputation pleaded in paragraph 12A(b) of the further amended defence of the first defendant. I do not accept the defendants' submission that the particulars currently provided are sufficient. The first defendant should provide a proper response to the request for particulars in relation to paragraph 12A(2) contained in the plaintiffs' solicitor's letter of 3 July 2012.

37 I turn now to the balance of the request for particulars in the letter of 3 July. In my view, the defendants should provide a response to all of the requests for particulars in the letter of 3 July 2012. It was not submitted by the defendants that any particular request was improper. The defendants' resistance to providing particulars was made on the basis that the opportunity to request particulars has passed and that in any event, interrogatories for their examination had been answered, even though such interrogatories were, in truth, requests for particulars.

38 While there is some force in the defendants' position, this case is not without its complexities. In my opinion, there ought to be identifiable particulars in relation to each of the defences pleaded by the defendants. This matter should not be allowed to proceed to trial where one side or the other might be able to say that the particulars of specific pleadings can be found in an answer or answers to interrogatories. There should be no doubt in either the parties' minds or on the part of the Court at trial as to what particulars have been provided in respect of which allegations. In the circumstances, there will be an order that the defendants provide a response to the requests for particulars in the plaintiffs' solicitor's letter of 3 July 2012.

The plaintiffs' application to administer a further interrogatory

39 The plaintiffs seek leave to administer a further interrogatory to the first defendant in the following terms:

"Look at the second Vakras article and answer the following questions:

(a) Did you write any part of parts of that article?

(b) If the answer to (a) above is 'yes', which part of parts did you write?

(c) Did you upload any part or parts of that article to the www.vakras.com website?

(d) If the answer to (c) above is 'yes', which parts did you upload?

(e) In April 2011, were you the person with principal control over the material displayed on the www.vakras.com website?"

40 In their submissions in support of their application for leave to administer this interrogatory, the plaintiffs note that in paragraph 10 of the further amended defence of the first defendant, the first defendant does not admit publication of the second Vakras article. They then submit that it would appear from answers to interrogatories already served that the first defendant does admit publication of the second Vakras article. Finally, the plaintiffs submit that there is a need to clarify the basis for the non-admission in paragraph 10 of the first defendant's defence, and that the interrogatory they (the plaintiffs) wish to administer would enable them "to correct what appears to be an oversight in their earlier interrogatories".

41 The defendants submit that the proposed further interrogatory is unnecessary and oppressive. They say that they have already been extensively interrogated by the plaintiffs, and that in any event, "it is apparent from the first plaintiff's further answer to interrogatory 6 dated 11 May 2012 that he admits publication of ... [both] the first Vakras article and the second Vakras article ...".

42 During argument, I asked counsel for the defendants whether, apart from issues of downloading, the first defendant disputed any part of the plaintiffs' allegations in respect of publication of the second Vakras article. I was told that the first plaintiff did not dispute these allegations. In the circumstances, I do not propose to give leave to administer the interrogatory sought. However, in the event that any relevant dispute concerning this issue arises, I will in all likelihood revisit this decision.

43 Subject to hearing any submission from the parties concerning the precise form of orders, the orders I propose are as follows:

(1) The first defendant file and serve particulars identifying the hyperlinks referred to in paragraph 5 of the further amended defence of the first defendant and the precise words and images on the hyperlinked pages upon which the defendants will rely at trial.

(2) Paragraph (4) of the particulars under paragraph 8A, and paragraph 8F, of the further amended defence of the first defendant are struck out.

(3) The first defendant file and serve particulars of the truth of the imputation pleaded in paragraph 8A(d) of the further amended defence of the first defendant.

(4) The defendants provide a response to the request for further and better particulars of their further amended defences requested in the plaintiffs' solicitors' letter of 3 July 2012.

(5) The plaintiffs' summons filed 26 July 2012 is otherwise dismissed.

44 I will hear the parties on the question of costs.

[1] Plaintiffs' summons filed 26 July 2012.

[2] See paragraph (1) of the defendants' submissions dated 24 August 2012.

[3] Cf Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605, 606 [2] (per Hodgson JA, with whom Ipp JA agreed). See further Perry v McIntosh [2010] VSC 85, [13] (Kaye J).

[4] See Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, 414-415; Burrows v Knightley (1987) 10 NSWLR 651, 656; Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130; Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 and Leighton v Garnham & Ors [2012] WASC 314, [44]-[53].

[5] David Syme & Co Limited v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667; Soultanov v The Age Co Limited [2009] VSC 145; (2009) 23 VR 182, 195 [33].

[6] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 572.

[7] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

[9] At common law or under s 25 of the Defamation Act 2005.

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Judgment (81 paragraphs)

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Cases Cited (6)