Von Marburg v Aldred & Anor

2 The plaintiff does not currently have a statement of claim. His last pleading was struck out by my order on 19 June 2015. On 30 October 2015 I refused leave to the plaintiff to file a proposed further amended statement of claim.[1] That was his seventh attempt at pleading his claims. The plaintiff seeks leave to file and serve a statement of claim in the form of the proposed pleading titled 'Third Statement of Claim' dated 19 November 2015.

3 The defendants oppose the plaintiff's application.

4 The plaintiff has not, by affidavit, put before the court any explanation about the change in the basis of the allegations now being made or identifying his prospective sources of the evidence to be led at trial. Assessment of the tenability of the principal allegations must be based upon the adequacy of the particulars provided in the proposed pleading.

5 The first publication was posted on the Facebook page on or about 16 October 2014. It was in these terms:

[Photo of Plaintiff]

Here is a photo of the only doctor in Albury Wodonga who would stand outside a legal, Women's Health Clinic, violating women's privacy! This is, in our opinion, highly unethical and against the public statement by the highest authority of Women's Health in Australia, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists:

RANZCOG Statement, April 2013: "Women have the right to access any medical service without their privacy being infringed or being subjected to harassment".

Ref: www.ranzcog.edu.au Women's Health Statements C-Gyn 17

This is why the petition to NSW government banning anti-abortion protesters outside Women's Health Clinics MUST succeed.

6 For the first time, the plaintiff now proposes to allege that the second defendant was an author or the originator of the first publication.

7 Once the first publication appeared on the Facebook page, it attracted comments posted directly to the Facebook page, authored by others (whose identity appears capable of being ascertained). The second publication is comprised of the first publication and three of such comments posted on 16 and 17 October 2014.

(a) Under the name Julie Newell - 'Is this Roland Van Marburg, the "Butcher" ...';

(b) Under the name Anna Ferrinda - 'Careful with those rosary beads Roland, wouldn't want to accidently [sic] snort them up with your cocaine';

(c) Under the name Cade Newell - 'To each his own Erin, but the man butchered me during surgery and then provided no post op care whatsoever. Julie has a right to express her personal opinion as do you.'

8 The proposed pleading alleges, by paragraphs 2, 4, 5, 6, 8, 9, 10, 12, 13, 15, and 17, that the first defendant is a primary publisher as a person who was knowingly involved or intentionally assisted in uploading the first publication to the Facebook page. By reason of his control and supervision over the contents of the Facebook page, the first defendant was instrumental in both the initial act of, and the continuing, publication of the second publication and the first defendant is a secondary publisher of both publications.

9 By paragraph 2, the proposed pleading alleges that the first defendant was an administrator, and a person exercising control over the content appearing on the Facebook page because of the rights enjoyed by an administrator over such matters. Next, by paragraph 6 the proposed pleading alleges four possible ways in which the first defendant published the first publication, namely;

(a) he published the post as administrator in that he was -

(b) he was instrumental in publishing the post as administrator in that he was -

10 Counsel suggested in argument that the first defendant, as administrator, actually uploaded the second defendant's post to the Facebook page, but that allegation cannot be fairly drawn from paragraph 6 and its particulars. If it was directly alleged and proved at trial, that fact could establish that the first defendant was a primary publisher. Counsel conceded the allegation was that the first defendant had the best capacity to have uploaded the post to the Facebook page. On its own, an allegation of capacity to perform a task does not establish that the actor did so.

11 The paragraph 6 allegations are not adequately supported by the particulars. First, the particulars repeat the particulars to paragraph 2 of the pleading and the reader is left to ponder which of the allegations in paragraph 6 that ought to be particularised are being particularised by that cross-reference. Second, 'intentional assistance' is particularised as arising by inference from the fact that the first defendant was 'the person most capable of uploading' the post. Even if that fact were established at trial,[2] it cannot be inferred from that characterisation of the first defendant's capacities or abilities that he did anything, let alone intentionally assisted in uploading the post to the Facebook page. This allegation is also embarrassing as it invites a comparison of the first defendant's capabilities with an unidentified other. No basis is provided for an inference of 'intentional assistance' to properly be drawn and the basis for the assertion that the first defendant either published or was instrumental in uploading the post by that method is obscure.

12 The alternative method is that the first defendant was' knowingly involved' in publishing or being instrumental in uploading the post. No particulars are provided, as are required by r 13.10 of the Supreme Court (General Civil Procedure) Rules 2015 of either knowledge or intention.

13 Paragraph 6 pleads distinctly different claims in two different ways. First, the pleading invokes the alternative notions of publishing or being instrumental in uploading. Second, the pleader invokes notions that the first defendant was either 'knowingly involved' or that he 'intentionally assisted'. This form of pleading is productive of obscurity and is embarrassing. As the High Court observed in Forrest v Australian Securities and Investments Commission:[3]

The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it. In this case, there were hundreds, if not thousands, of alternative and cumulative combinations of allegations. As Keane CJ observed in his judgment in the Full Court:

"The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues".

(Citation omitted)

I do not characterise paragraph 6 as a forest of forensic contingencies, but, nonetheless the observation is apposite.

14 For these reasons, I will not grant leave for a proposed pleading that includes paragraph 6, and without that paragraph the pleading does not disclose a cause of action on the basis that the first defendant was a primary publisher of the first publication.

15 The pleader's use of alternatives also infects the allegations in paragraph 10 that the first defendant was instrumental in publishing the second publication. The proposed pleading alleges that the first defendant could and did apply word blocking filters. The fact that he could do so is irrelevant to the notion that he was instrumental in the act of publication. The words 'could and' are redundant must be struck out. However, the allegation that the first defendant did apply word blocking filters goes nowhere. The pleader does not identify how the filters operated or whether they provided a means of control over comments, permitting an inference that the defendant was instrumental in the second publication. The pleader invites an inference that a blocking words filter moderation setting was applied because the first defendant was the only person who could manage the page settings and had earlier stated that any future comment posted on the Facebook page would have to be approved before it gets published. These facts, if later established, could not support an inference that the first defendant was instrumental in the second publication because it is not possible to conclude that any comment forming part of the second publication was caught by a filter and then approved for posting by the first defendant. Sub-paragraph 10(a) and the particulars in subparagraphs (B) and (C) are embarrassing and will not be permitted.

16 Next, the pleader alleges that the first defendant had the ability to approve comments caught by the filters. Again, an allegation about a capacity to take action, without more, is incapable of establishing that the first defendant was instrumental in the act of publication. Sub-paragraph 10(b) is also embarrassing and will not be permitted.

17 The pleader then alleges that the first defendant uploaded the first publication or alternatively became aware of it shortly after it was uploaded. No particulars are given of the allegation that the first defendant uploaded the first publication and it must be presumed that the pleader is cross-referencing back to paragraph 6. For the reasons already stated, that allegation cannot stand.

18 Striking out the allegations about the word blocking filters has not wholly demolished the pleader's contention. Stripped back to permissible allegations, the pleader alleges in paragraph 10 that the first defendant was instrumental in publishing the second publication as by 8:35 pm on 16 October 2014, he was aware of the first publication and the comments that had been made in response to it prior to that time. The first defendant could reasonably expect that the first publication was likely to attract third party comments about the plaintiff, and was at that time involved in monitoring comments to the post.

19 There is a material difficulty with the pleaded allegation of the time when the first defendant posted his comment. The copy of the relevant Facebook page that is annexed to the original statement of claim shows the first defendant's comment, which is set out verbatim in the particulars, to have been made at 2:35 am on October 16. The apparent typographical error in the pleading was not clarified when raised during submissions, but I will proceed on the basis that the particulars to paragraph 12 should specify that the comment was posted at 2:35 am on October 16. The time difference is material.

20 Turning to the four paragraphs of particulars of the paragraph 10 allegations, the difficulty with the first of them is that the pleader again refers to particulars to earlier paragraphs (3, 5 and 6), leaving it to the reader to speculate about how those earlier particulars relate to the pleaded allegations that ought to be particularised. To add to the confusion, paragraph 3 makes allegations against the second defendant, when the allegations being particularised are against the first defendant. The particulars to paragraph 5 are particulars of the extent of publication of the first publication of no apparent relevance to the allegations made in paragraph 10. For the reasons already given, the cross-reference to paragraph 6 will be ineffective.

21 The second and third paragraphs of the particulars are referable to the blocking words filter allegation and will not be permitted to stand for the same reasons as exclude the material allegation.

22 The fourth paragraph of the particulars identifies that the plaintiff will seek to prove that the first defendant could reasonably expect the first publication to attract comment about the plaintiff because of the extensive number of persons who receive posts to the Facebook page in their own newsfeeds and the text of the first publication, particularly the expression 'highly unethical'. I will permit this particular. It is evident from the print out of the Facebook page that is annexed to the original statement of claim that the first defendant himself posted a comment to the post at 2:35 am on 16 October 2014. That printout also shows that two of the particular comments identified as forming part of the second publication were posted prior to that time and would have been visible to the first defendant. Julie Newell's comment was posted at 2:10 am and Anna Ferrinda's comment was posted at 2:04 am. However, Cade Newell's comment appears to have been posted at 4:16 pm, about 14 hours later.

23 The allegations that I have permitted to remain in paragraph 10 are not tenable allegations that the first defendant was instrumental in publishing the second publication at the time that is first completely appeared on the Facebook page. This paragraph of the proposed pleading does not disclose a tenable cause of action that the first defendant was a primary publisher of the second publication. However, the allegations that remain in paragraph 10 could contribute to a claim of secondary publication of the second publication, which is a claim developed in paragraphs 12, 13, and 15 of the proposed pleading. The remaining allegations in paragraph 10 seem best suited to stand as particulars of paragraph 15.

24 In paragraph 12, the pleader alleges that the defendant acquired knowledge of the existence of the first and second publications in the period between 16 October 2014 and 14 November 2014. The particulars repeat the fact that the first defendant was participating in the dialogue on the Facebook page by posting a comment at 8:35 pm (sic) on 16 October 2014. As I have noted, the particulars are not capable of demonstrating knowledge of all posted comments. The pleading also alleges the first defendant later acquired knowledge of both publications when the plaintiff's Concerns Notice dated 31 October 2014 was sent and from 7 November 2014 after service of the writ.

25 In paragraph 13, the pleader alleges, and particularises, that the first defendant exercised the highest level of control over the Facebook page as an administrator and, in paragraph 15, the pleader alleges that upon becoming aware of the publications, as alleged in paragraph 12, the first defendant could have, but did not, remove the material and thereby acquiesced in, authorised, or ratified the continuing publication of the material on the Facebook page.

26 There are issues with the particulars to paragraph 15. Yet again, the pleader has cross-referenced the particulars to paragraphs 2, 10, 12 and 13 without identifying for the benefit of the reader how these cross-references provide proper particulars of the allegations in paragraph 15. The cross referencing statement is embarrassing and will not be permitted. Further, the matters particularised in sub-paragraph (A)(i),(ii), and (v) of the particulars are also embarrassing. I cannot determine what aspect of the allegation in paragraph 15 is being supported by those subparagraphs. If it be the allegation that the first defendant acquiesced in or authorised or ratified the continuing presence of the publications on the Facebook page, the facts particularised are not capable of supporting that contention. At the highest they constitute evidence of capacity or opportunity rather than of the conduct that is alleged.

27 The allegation of secondary publication against the first defendant is completed by paragraph 17, which alleges that the first defendant failed to remove the material from the Facebook page within a reasonable time after becoming aware of it.

28 In summary, I will not permit the following parts of the pleading against the first defendant.

• Paragraph 6 and its particulars;
• Part of paragraph 10 and its particulars cannot stand. What remains of paragraph 10 reads as follows, and should stand as particulars of paragraph 15 -

10. The first defendant [... strike out]:

(c) ... was aware of the First Publication at approximately [2:35 am] on 16 October 2014;

(d) could reasonably expect that the First Publication was likely to attract third party comments about the plaintiff; and

(e) was involved in monitoring the contents [through to the end of that subparagraph which I need not here set out]

Particulars

[only the existing paragraph D will remain]

• Sub-paragraph (B) of the particulars to paragraph 12;
• The first sentence of the particulars to paragraph 15 that cross-references the particulars to other paragraphs, and sub-paragraphs A(i),(ii), and (v) of those particulars.

29 By reference to the principles that I set out in my earlier ruling, I am satisfied that the claim that remains pleaded against the first defendant by the proposed pleading constitutes a tenable cause of action that the first defendant was a secondary publisher of the each publication for a period commencing on the expiry of a reasonable time after the first defendant acquired knowledge of the existence of those publications, or part of them, as alleged in paragraph 12. In that context the allegations cannot establish that the first defendant was aware on 16 October 2014 of the comment posted by Cade Newell. Subject to the other considerations yet to be addressed, I would grant the plaintiff leave to file and serve the proposed statement of claim amended to comply with my reasons.

30 The proposed pleading alleges, by paragraphs 3, 4, 5, 7, 8, 9, 11, 12, 14, 16, and 18, that the second defendant is a primary publisher as an author of the first publication to the Facebook page. By reason of his control and supervision over the contents of the Facebook page as an administrator or editor, alternatively by directing and instructing the first defendant, the second defendant was instrumental in both the initial act of, and the continuing, publication of the second publication and the second defendant is a secondary publisher of both publications.

31 By paragraph 3, the pleader alleges, relevantly, that the second defendant exercised control over the contents of the Facebook page as an administrator or editor, is to be inferred from the fact that he did publish posts or comments on the Facebook page, as the Page, as and when he thought fit. Alternatively he directed and instructed the first defendant to publish posts or comments on the Facebook page, as the Page, on his behalf. The second defendant does not take issue with this paragraph.

32 By paragraph 7, the pleader alleges that the second defendant was an author of the first publication. The particulars to this paragraph alleged that authorship can be inferred from the text of the first publication, the text of an earlier post to the Facebook page by the second defendant, as the Page, and from the fact that the second defendant is a member or former member of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. The second defendant only faintly suggested that it is untenable for that inference to be drawn from the allegation, if uncontradicted and proved at trial. Rather, relying on Aon Risk Services Australia Ltd v Australian National University,[4] the second defendant contended that leave to file and serve the proposed pleading should be refused because the plaintiff has not proffered any explanation for his failure to make this allegation in any of the earlier iterations of his proposed pleading.

33 While there is considerable force in this submission, I am satisfied that the explanation for this failure is plain enough. Although I cannot precisely attribute responsibility between the plaintiff and his legal advisers on the material before the court, either the plaintiff has failed to provide proper instructions or there has been a want of due care and attention on the part of the plaintiff's legal advisers when analysing his instructions and in the preparation of earlier versions of the statement of claim. The plaintiff is now represented by different counsel, and in consequence, different allegations have been drawn from the underlying circumstances. I have been in a position, through the case management of this proceeding, to observe the history of the plaintiff's pleadings. Commonly, an affidavit is not filed when this is the case and the absence of an explanation from the plaintiff's camp permits me to more readily draw that inference.

34 Section 8 of the Civil Procedure Act 2010 requires the court to give effect to the overarching purpose in the exercise of discretion to grant leave to file and serve an amended pleading. A primary consideration in furthering the overarching purpose is the objective of ensuring the just determination of the civil proceeding. Where it is possible, as it is in this case, to adequately deal with other relevant considerations by costs orders or other conditions, identification of an arguable cause of action that ought to go to trial is a powerful factor in favour of granting leave for the amendment. I am unpersuaded that considerations that militate against granting leave such as a prejudice and delay are in this case sufficient to warrant summary determination of the proceeding.

35 I will permit the allegation that the second defendant was a primary publisher of the first publication as an author of it.

36 By paragraph 11, the pleader, cross-referencing back to the allegations in paragraph 3, alleges that the second defendant exercised control over the contents of the Facebook page and was instrumental in publishing the second publication in that he:

(a) knew that word blocking filters could and had been applied;

(b) had the ability to instruct or direct the first defendant to apply word blocking filters or alternatively the ability to supervise and approve comments caught by such filters;

(c) as the author of the first publication could reasonably expect that it was likely to attract third party comment about the plaintiff.

37 For the reasons already set out, the allegations in relation to word blocking filters are embarrassing and will not be permitted. Nonetheless, the allegations that remain, if established at trial could go part of the way to establishing a claim that the first defendant was a secondary publisher. I do not accept that these allegations can constitute the second defendant as a publisher of the comments forming part of the second publication without prior knowledge of the fact that such comments had been posted to the Facebook page. It is not tenable to suggest that the second defendant published the comments that form part of the second publication at the time that those comments first appeared on the Facebook page when he had no knowledge of their presence there. For the reasons set out in my earlier ruling, liability as a secondary publisher is activated by a finding that the defendant was, or ought to have been, aware of the publication. As the second defendant submitted, to hold a defendant liable for unforeseen responses to a communication, essentially of a different character to the imputations contended for, misunderstands the use of the word 'instrumental' by Isaacs J in Webb v Bloch.[5]

38 I will permit the following parts of paragraph 11 to remain in the proposed pleading.

The second defendant as a leader and public spokesperson for RPA and a person exercising control over the contents of the RPA Facebook page as pleaded in paragraph 3 above and as an author of the first publication could reasonably expect that the first publication was likely to attract third party comments about the plaintiff.

Particulars

It can be inferred that the second defendant could reasonably expect from the extensive number of persons who receive RPA Facebook page posts in their news feed that the first publication was likely to attract third party comments that were critical of the plaintiff, particularly where the first publication used words such as "highly unethical".

39 However, the plaintiff alleges that the second defendant did acquire knowledge of the existence of both publications in the period between 16 October 2014 and 14 November 2014. Such knowledge is alleged in paragraph 12 of the proposed pleading and in the particulars provided. I do not accept the second defendant's objection to sub-particular (F) on the basis that it is speculative and will permit that particular to stand.

40 Paragraph 14 of the proposed pleading is essentially repetitive of earlier allegations.

41 By paragraph 15, the pleader alleges that the failure of the second defendant to remove the material from the Facebook page after becoming aware of it as earlier alleged was acquiescence, authorisation or ratification of that material that constituted the second defendant to be a secondary publisher of it. Apart from striking out the generic, and embarrassing, cross-referencing to earlier allegations that forms the opening statement of the particulars, the particulars can stand and were not the subject of specific objection by the second defendant.

42 Again, by reference to the principles that I set out in my earlier ruling, I am satisfied that the proposed pleading alleges a tenable claim against the second defendant that he was a primary publisher of the first publication as an author, and was a secondary publisher of each publication for a period commencing on the expiry of a reasonable time after the second defendant acquired knowledge of the existence of each alleged comment, as alleged in paragraph 12. Subject to the other considerations yet to be addressed, I would grant the plaintiff leave to file and serve the proposed statement of claim amended to comply with these reasons.

43 The defendants submitted that if I was minded to grant the plaintiff leave to amend, such leave should be conditional on payment by the plaintiff of all outstanding costs orders. The defendants offered, in support of that submission, undertakings to expeditiously tax and enforce those orders.

44 The second defendant submitted that the court should stay the proceeding exercising the power to do so under s 29 of the Civil Procedure Act 2010. I will not exercise that jurisdiction because that section provides that a court may make any order it considers appropriate in the interests of justice once it is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation. The contravention of an overarching obligation by a litigant or his legal advisers is a matter of significance and ordinarily requires that before the court makes a finding that a person has contravened an overarching obligation, particulars of the allegation are provided and an adequate opportunity for that person to respond is given.

45 I am not satisfied that adequate notice has been given to the plaintiff of the contentions that the second defendant seeks to put to enliven the court's jurisdiction under s 29. The second defendant's written submission identifies the legal basis for a stay to be r 63.03(3)(a). Reliance on submissions made on an earlier occasion, without notice of an intention to revive the submission, is not sufficient in the circumstances. Moreover, the second defendant's written submission identifies the legal basis for a stay to be r 63.03(3)(a), not s 29.

46 The usual power exercised by the court to stay a proceeding for non-payment of an interlocutory costs order is that rule. It states:

(3) Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so -

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant's defence shall be struck out.

47 The rule was considered by the Court of Appeal in Gao v Zhang.[6] Ormiston JA, following a review of the authorities, stressed the need to examine carefully the substantive effect of granting a stay of proceedings, including a seemingly temporary stay. His Honour noted that the rule was not intended as a means of debt collecting but rather to ensure justice as between the parties in the conduct of litigation. Although the power be not exceptional, a temporary stay order of the kind sought by the defendants should ordinarily be made only if the court believes or at least has reason strongly to suspect that the party refusing to pay the orders for costs is being recalcitrant and will in fact pay the order if it is forced to do so.

48 There is no evidence on this application of a failure by the plaintiff to pay costs or that once costs are taxed the plaintiff would be recalcitrant or would decline to pay the costs. Further, it is not in the interests of achieving the overarching purpose of civil litigation that the proceeding remain unresolved and grounded, not steaming towards trial. It is premature in the circumstances to seek a stay of the proceeding on the basis of this rule.

49 In respect of prior applications concerning the plaintiff's pleadings, costs have been awarded against the plaintiff and I have further ordered that they may be immediately taxed. Although the plaintiff has succeeded in obtaining leave to file and serve the third statement of claim, amended so as to comply with these reasons, the plaintiff has won an indulgence.

50 I will order that the plaintiff pay the costs of the defendants of this latest application for leave to amend and further that such costs may immediately be taxed, for the same reasons as were articulated on prior occasions.

[1] Von Marburg v Aldred & Anor [2015] VSC 467.

[2] See the affidavits of Rebecca Anne Litton sworn 16 June 2015 and Veronica Scott sworn 15 June 2015 that identify two other persons who, at the relevant time, were administrators of the Facebook page and two other persons who, at the relevant time, were moderators of the Facebook page.

[3] [2012] HCA 39, (2012) 247 CLR 486, [27].

[4] [2009] HCA 27; (2009) 239 CLR 175, [92], [102]-[103], [111]-[114].

[5] [1928] HCA 50; (1928) 41 CLR 331, 363-366.

[6] [2005] VSCA 200; (2005) 14 VR 380.