Wayne v The Owners Corporation SP64622

District Court of NSW|2014-10-30|Before: McCallum J, Levine J, Hunt J

td v Morningstar Research (2002) 55 NSWLR 1 Glaser v Poole (No 2) [2010] NSWLEC 232 Harrigan v Jones [2000] NSWSC 814 Harrison v Schipp [2001] NSWCA 13 Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 Mbuzi v Hall [2010] QSC 359 Oliver v Bryant Strata Management Pty Ltd (Supreme Court of New South Wales, Levine J, 16 May 1995) Oshlack v Richmond River Council (1998) 193 CLR 72 Rossen v Airey [2012] WASCA 26 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Webb v Bloch (1928) 41 CLR 331 Texts Cited: Brown on Defamation (2nd ed., Carswell) Category: Interlocutory applications Parties: Plaintiff: David Wayne First Defendant: The Owners Corporation SP64622 Second Defendant: Ralf Harding Third Defendant: Francis Management Building Services Pty Ltd (ACN 107 531 055) Fourth Defendant: David Stanger Fifth Defendant: Phillip Warren Metcalf Sixth Defendant: Shaun Singh Representation: Plaintiff: In person First, Second and Sixth Defendants: Mr M Robertson (solicitor) Third, Fourth and Fifth Defendants: Mr M Richardson Plaintiff: In person First, Second and Sixth Defendants: Colin Biggers & Paisley Third, Fourth and Fifth Defendants: Lee & Lyons File Number(s): 2014/57777 Publication restriction: None

The limitation argument 9The statement of claim filed on 24 February 2014 does not need to be set out in full, as only part of that claim is now pressed. That part is paragraph 9 which reads as follows: "9. On or about 30 April 2013, the Second Defendant chaired an Executive Committee meeting of the First Defendant. The meeting was also attended by other Executive Committee members, including Ms Anna Shepherd, Ms Deborah Moore and Mr Gavin Napier. The fabricated allegations of the Fourth, Fifth and Sixth Defendants were presented to the meeting as irrefutable evidence and the matter was now subject to a NSW Police investigation." 10It is clear from this publication that the role of the first and second defendants was to hold an Executive Committee meeting. In the course of that meeting, according to the publication "the fabricated allegations" of Mr Stanger, Mr Metcalf and Mr Singh were presented to the meeting. There is no allegation of publication of those allegations by the first and second defendants. 11The amended statement of claim filed following the adjournment of the proceedings by Bozic DCJ pleaded in paragraph 9: "9. On or about 30 April 2013, the Second Defendant chaired an Executive Committee meeting of the First Defendant. The meeting was also attended by other Executive Committee members, including Ms Anna Shepherd, Ms Deborah Moore and Mr Gavin Napier. Also attending the meeting was the Fourth and Fifth Defendants representing the Third Defendant. The fabricated allegations of the Fourth, Fifth and Sixth Defendants were presented to the meeting as irrefutable evidence and the matter was now subject to a NSW Police investigation. At the conclusion of the meeting, all participants of that meeting communicated the matter complained of 9.1 Attached hereto and marked 'A' is an affidavit sworn by Mr Yahya Hamawi on 11 June 2014. Reference to point 9 details what Anna Shepherd, an Executive Committee member attending the meeting on 30 April 2014 [sic], repeats the matter complained of to him, "Phillip Metcalf told the meeting that David Wayne threatened to murder him" 9.2 On Friday 31 May 2013, at about 6:30pm Carole Rae Ferrier, registered proprietor of Apartment 1804 of the Owners Corporation SP64622, the First Defendant verbally communicated at Café Hernandez, 60 Kings Cross Road, Potts Point in front of the Plaintiff and other patrons "Yahya has been stealing and you threatened to kill Phil Metcalf... the police are involved... I was away... but the Executive Committee and other residents have told me... so it must be true"" 12If that was meant to amount to a publication by "all participants of that meeting", it is not only outside the limitation period but fails to identify the first defendant, which is a body corporate, or to suggest that any persons publishing these slander did so at the instigation of, or under instructions from, another, or pursuant to another person's authority, or by virtue of an agency relationship, or a common agreement: Brown on Defamation (2nd ed., Carswell) at [18.4(1)(a)]. 13In the amended statement of claim filed following my orders on 29 August 2014, the plaintiff identified the matter complained of as follows: "8. Particulars of Communication 1 - At 7pm on 30 April 2013 a meeting was held at 3 Kings Cross Road, Rushcutters Bay in the state of New South Wales. 8.1 A copy of the attendance list to this meeting is attached to this Statement of Claim and marked "Annexure A" 8.2 Phillip Warren Metcalf (Fifth Defendant) said to all the meeting attendees, the following: "I was standing beside Shaun Singh and David Stanger yesterday... the phone rang and David answered the phone... I could see the shock on his face... after the call ended David said to Shaun and I... that was David Wayne on the phone... he just threatened to murder me... the phone rang again and I answered it this time... it was David Wayne again... he said he was going [sic] murder us all... The language he used and the threats went on and on... the Police arrived and I handed them the phone... he heard David Wayne threatening to murder us as well, and swear... it went on and on... The Police then spoke and said to David Wayne that he knew who was on the phone and he was coming for him... We have a long list on David Wayne... this is really serious the Police are after him..." [Imputations pleaded to arise] 9. Particulars of Communication 2 - At 7pm on 30 April 2013 at the meeting held at 3 Kings Cross Road, Rushcutters Bay in the state of New South Wales. 9.1 A copy of the attendance list to this meeting is attached to this Statement of Claim and marked "Annexure A" 9.2 David Stanger (Fourth Defendant), as representative of Francis Management Building Services Pty Ltd (Third Defendant) said to all the meeting attendees the following: "... Yes everything that Phil said is true... ... we have a long list on David Wayne... ... David Wayne threatened to murder us... ... The Police heard the murder threats... ... Phil, Shaun and I are prepared to sign statements that everything we said happened..." [Imputations pleaded to arise] 10. Particulars [sic] Communication 3 - At 7pm on 30 April 2013 at the meeting held at 3 Kings Cross Road, Rushcutters Bay in the state of New South Wales. 10.1 A copy of the attendance list to this meeting is attached to this Statement of Claim and marked "Annexure A" 10.2 Ralf Harding (Second Defendant) and representing The Owners Corporation SP64622 chaired and directed the agenda of the meeting, said the following to all of the meeting attendees: "... well... there is all the evidence we need... David Wayne threatened to murder David and Phil... ... its now in the hands of the Police" [Imputations pleaded to arise]" 14Pursuant to my orders on 10 October 2014 the plaintiff filed another amended statement of claim on 29 October 2014 in which he identified the matter complained of as follows: "9. On or about 30 April 2013, Ralf Harding, the Second Defendant, and as representative of The Owners Corporation SP64622 chaired an Executive Committee meeting of The Owners Corporation SP64622 the First Defendant. The meeting was also attended by other Executive Committee members, including Ms Anna Shepherd, Ms Deborah Moore and Mr Gavin Napier. A copy of the attendance list is attached to this Statement of Claim and marked "Annexure A" The fabricated allegations of the Fourth, Fifth and Sixth Defendants were presented to the meeting as irrefutable evidence and the matter was now subject to a NSW Police investigation. 9.1 Phillip Warren Metcalf (Fifth Defendant) said to all the meeting attendees the following: "I was standing beside Shaun Singh and David Stanger yesterday. The phone rang and David answered the phone. I could see the shock on his face. After the call ended David said to me that it was David Wayne on the phone. David said that David Wayne had just threatened to murder him. The phone rang again and I answered it this time. It was David Wayne again. David Wayne said that he was going to murder us all. The language he used and the threats went on and on. The police arrived and I handed them the phone. The police officer heard David Wayne threatening to murder us as well. The police heard the swearing as well, it went on and on. The police then spoke and said to David Wayne that he knew who was on the phone and he was coming for him. We have a long list on David Wayne, this is really serious, the police are after him. 9.2 David Stanger (Fourth Defendant), as representative of Francis Building Management Services Pty Ltd (Third Defendant) said the following to all the meeting attendees: "Yes everything that Phil said is true. We have a long list on David Wayne. David Wayne threatened to murder us. The Police heard the murder threats. Phil, Shaun and I are prepared to sign statements that David Wayne threatened to murder us. 9.3 Ralf Harding (Second Defendant) and representing The Owners Corporation SP64622, said the following: "Well there is all the evidence we need. David Wayne threatened to murder David and Phil. It is now in the hands of the police."" 15This is the first time that any words have been attributed to the second defendant, who is referred to here as "representing The Owners Corporation SP64622". 16The potential for difficulties in relation to the limitation period has been made clear to the plaintiff from the commencement of this application before Bozic DCJ on 29 May 2014. No application for extension of time has been brought; I note the impact of such a failure is explained in Linnell v Channel Seven Sydney Pty Ltd at [10]. I have accordingly dealt with the limitation argument on the same basis as in Linnell.

Limitation issues where the words of the slander are unknown 17Where the matter complained of is a slander, the precise words of which is unknown to the plaintiff, the plaintiff may provide the best particulars he or she can and rely upon those pleadings in that form until such time as interrogatories concerning what was said can be administered: Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294. A party may seek discovery and/or interrogatories concerning the content of the matter complained of at any time: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11; r 21.2(1)(a) UCPR. In noting this entitlement in Ahmed, Nicholas J traced the long-standing recognition of the court's power to permit discovery and interrogatories has been explained in a series of cases dating from Cummings v 2KY Broadcasters Pty Ltd (1981) 1 NSWLR 246 to Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. Consequently, failure to provide the text of the matter complained of, or even to identify precisely what was said and by whom may, in the unusual circumstances of a slander, amount to sufficient evidence of publication in this narrow exception to the general rule that the entirety of the matter complained of must be the subject of proceedings commenced within the limitation period. 18However, what the defendants submit is that the statements set out in paragraph 9 failed to establish any publication whatsoever. This is the first argument that must be dealt with. 19First, the defendants submit that there is no evidence that any of the defendants (or persons on their behalf) spoke at the meeting, or that the fourth, fifth and sixth defendants were even present. However, the test for publication is neither speaking the words, nor even presence on the relevant occasion. The broad test is as set out in Webb v Bloch (1928) 41 CLR 331 per Isaac J: "In R v Paine it is held: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide."" 20It was not necessary for the fourth, fifth and sixth defendants to be present at the meeting if their allegations were presented to the meeting on 30 April 2013 in circumstances where the claim may be, if properly pleaded and particularised, that they were presented by some person or persons authorised on their behalf, or otherwise in circumstances fitting within the very broad definition of "publisher" as explained in Webb v Bloch. 21Subsequent forms of the statement of claim make it clear that the allegation against the fourth and fifth defendants was that they were in fact present and did in fact say those words. However, it is not until the most recent draft of the statement of claim that it is asserted that the second defendant, who was previously described as having chaired the meeting only, both made a statement and did so representing the first defendant (see paragraph 9.3 of the current statement of claim). 22Mr Richardson and Mr Robertson submit, and I accept, that the very limited circumstances in which a cause of action arises out of the same or substantially the same facts as the existing cause of action so as to enable a claim to be brought pursuant to s 65(2)(c) Civil Procedure Act 2005 (NSW) do not extend to pleading an entirely new publication in this fashion. Mr Richardson referred me to Linnell v Channel Seven Sydney Pty Ltd at [22]-[25]: "[22] The real difficulty for the existing pleading is that the amendment granting it was not supportable under s 65(2)(c) of the Civil Procedure Act such that the amendment does not obtain the benefit of s 65(3) and does not date back to the time when the proceedings were commenced. [23] The essence of a claim in defamation is, of course, the making of the relevant (defamatory) publication. For the purposes of s 65(2)(c) the facts that give rise to the existing cause of action are in this case the fact of the publication in the form of the broadcast of the programme on 30 November 2011. The new cause of action, being an interview with each of the third to sixth defendants, involves a different publication to a different person. [24] Questions as to whether the new cause of action arises from the same or substantially the same facts as those giving rise to the existing cause of action are always matters of fact and degree. However, at least in the context of defamation, the authorities indicate that the fact of a different publication to a different person tells, apparently decisively, against any favourable conclusion for the plaintiff (see Rossen v Airey [2012] WASCA 26 at [31]ff). [25] In this case at the time of the filing of the Amended Statement of Claim the proposed amendments did not have the benefit of s 65(3) of the Civil Procedure Act so that those amendments could not be said to have taken effect from the date on which the proceedings were commenced, namely 30 November 2012. It follows therefore those amendments were out of time, even if it can not be demonstrated as a matter of fact that the interviews were conducted before 30 November 2011. Accordingly, I will order that those parts of the Amended Statement of Claim be struck out as well." 23The same is the case here. No case was ever pleaded by way of publication against the first and second defendants, prior to the expiry of the limitation period. All that was stated in the original pleading was that the second defendant chaired a meeting of the first defendant at which these allegations were made. No connecting factor between those events is pleaded. Accordingly, claims against the first and second defendants have not been pleaded until after the expiry of the limitation period and must be struck out as time-barred. 24The claims against the fourth, fifth and sixth defendants (and the third defendant in its capacity as their employer) fall into a different category. There is sufficient material (although very barely) in the pleadings of particulars in the original statement of claim to identify that they were carrying out duties as security staff. This is sufficient for the claim to survive summary dismissal, although whether it is sufficient to establish publication at the hearing will be another issue. 25The claim against the third to sixth defendants will therefore survive the summary dismissal application. However there are other difficulties in relation to certain of the imputations pleaded, and to the claim for aggravated compensatory damages, to which I now turn.

Application to strike out imputations and particulars 26The statement of claim in its current form contains irrelevant material (I note the plaintiff has agreed to strike out paragraph 8), and the imputations are infelicitously drafted. I shall first deal with each of the imputations which are challenged.

Imputation (e): "A murder threat is an act of violence." 27It is self-evident from the structure of this imputation that this is neither an act nor a condition (Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)). This "imputation" must be struck out.

Imputation (f): "The Plaintiff uses threats of violence to intimidate other people." 28The matter complained of gives a statement that the plaintiff said he was going to "murder us all". However, there was no suggestion that these threats were made for the purposes of intimidation. To the contrary, they were statements of what he intended to do. Accordingly, this imputation is not conveyed.

Imputations (g) and (h): "The Plaintiff is being investigated by Police for making murder threats" and "The Police are going to charge The Plaintiff with making murder threats" 29Mr Richardson also objected to the form of imputations (g) and (h). 30While these imputations are poorly drafted, I am conscious of the assistance McCallum J afforded to the self-represented plaintiff in Bodenstein v Hope Street Urban Compassion (Supreme Court of New South Wales, McCallum J, 2 December 2013), where her Honour excused him from pleading any imputations at all. Accordingly, I am of the view that the terms of these imputations, each of which is conceded to arise, are sufficiently precise to survive an objection as to form. These imputations are capable of being conveyed.

Aggravated damages 31I have struck out the particulars of aggravated damages set out in paragraphs 14(ii), 14(iii) and 14(iv) by reason of their failure to comply with the requirements explained by Levine J in Harrigan v Jones [2000] NSWSC 814.

Costs 32The first and second defendants are entitled to the costs of these proceedings, and in view of their success, the third to sixth defendants are entitled to the costs of this argument. The first question is whether those costs should be borne on the ordinary basis or on an indemnity basis. 33Section 98 Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the court and may be awarded on an indemnity basis. Rule 42.2 provides that the costs will be payable upon the ordinary basis unless the court otherwise orders. In seeking costs on an indemnity basis, the defendants are asking the court to depart from its usual course: Glaser v Poole (No 2) [2010] NSWLEC 232 at [28]. 34The court may also exercise its discretion to make such an order assessable forthwith where the subject matter of the application completes the case between the parties on a discrete issue, particularly in defamation: Oliver v Bryant Strata Management Pty Ltd (Supreme Court of New South Wales, Levine J, 16 May 1995); Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 at [17]-[19]. Other relevant circumstances include unreasonable conduct of the litigation: Fiduciary Ltd v Morningstar Research (2002) 55 NSWLR 1 at 4 - 5. 35A litigant in person is not immune from an order for indemnity costs: Bhagat v Global Custodians Ltd [2002] FCAFC 51, or from such an order being assessable forthwith. 36UCPR r 42.5 provides: "42.5 Indemnity costs If the court determines that costs are to be paid on an indemnity basis: (a) in the case of costs payable out of property held or controlled by a person who is a party to the proceedings: (i) in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or (ii) in any other fiduciary capacity, all costs (other than those that have been incurred in breach of the person's duty in that capacity) are to be allowed, and (b) in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed." 37Where there is unreasonable action by a person whom a costs order is made, such as by multiple hopeless pleadings, abandoned claims, indulged in unreasonable delay or caused multiple adjournments, orders for indemnity costs may be appropriate: Oshlack v Richmond River Council (1998) 193 CLR 72; Harrison v Schipp [2001] NSWCA 13. This may include an unreasonable approach to pleading: Bevillesta Pty Ltd v D Tannous (No 2) Pty Ltd [2010] NSWCA 277. 38The statement of claim as originally pleaded set out an unidentifiable but large number of pleadings for the period 29 April to September 2013. All of those claims have now been abandoned except for the publication of statements to a meeting of the body corporate at which I am informed five persons were present. Additionally, particulars of the claim against the first and second defendants were only made in the most recent statement of claim, which is well outside the expiry of the limitation period. 39The plaintiff has been given repeated opportunities both by myself and Bozic DCJ to have his pleadings corrected and to obtain legal advice. His submissions have been of no assistance to the court in that they consist largely of statements that he has a good cause of action, and that the defendants are conducting themselves in a dishonest and reprehensible fashion.

The first and second defendants 40No claim was formulated against the first and second defendants until the most recent pleading. The assertion that the second defendant spoke the words attributed to him in that pleading should have been set out in the original statement of claim; no explanation for the failure to do so has been provided. The proceedings against them are time-barred. 41The solicitors for the first and second defendants promptly drew this failure to the plaintiff's attention in their letter of 14 March 2014 (see the affidavit of Mr Creighton sworn 20 May 2014). This letter, and the other correspondence from the first and second defendants' solicitors, contained warnings about costs. 42There was ample time for the plaintiff to amend his pleading prior to the expiry of the limitation period or, if he could not do so, to discontinue the claims against those defendants. The plaintiff's failure to do so is unexplained and these costs should be assessed on an indemnity basis.

The third to sixth defendants 43Mr Richardson submits that the plaintiff has been on clear notice from the first about the defects in his pleadings. If he was in doubt as to what was said, he could have brought a Dank application (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288); Mr Richardson also pointed out that the plaintiff's failure to follow up such an application in Dank led to the relevant portion of the proceedings being struck out. Conformably with the view taken in those proceedings of the need for the plaintiff to articulate the contents of the matter complained of at the first opportunity, the plaintiff in these proceedings should have been aware of the seriousness of failing to identify with precision the form and content of the publications as soon as he could. This is particularly the case with slander actions, where the nature of the matter complained of is so evanescent that prompt action is necessary. 44The successive versions of the statement of claim have required far more extensive surgery than is generally the case in defamation proceedings, where interlocutory applications generally relate to imputations or particulars arguments. In the present case, the plaintiff has produced four statements of claim in the course of an argument stood over on four occasions between May and October. In those circumstances, an order for indemnity costs is appropriate. 45I am satisfied that the dispute over the plaintiff's pleading is severable, the conduct of the plaintiff has been unreasonable and that the costs have been unreasonably enlarged by the plaintiff's repeated failures to plead the claim properly. In those circumstances, the indemnity costs order should be assessable forthwith.

Orders (1)Note the plaintiff consents to the striking out of paragraph 8. (2)Note imputations (a), (b) and (c) are withdrawn. (3)Imputation (e) is struck out. (4)Imputation (f) is struck out. (5)Imputations (d), (g) and (h) will remain. (6)Particulars of aggravated damages in paragraphs 14(ii), 14(iii) and 14(iv) are struck out. (7)Note the plaintiff has withdrawn his special damages plea. (8)Proceedings against the first and second defendants are dismissed. (9)The plaintiff is to pay the costs of the proceedings against the first and second defendants on an indemnity basis. (10)The plaintiff is to pay the costs of the third to sixth defendants of this application, including the costs of 2 May 2014, 20 June 2014, 29 August 2014, 10 October 2014 and today (30 October 2014), assessable forthwith and on an indemnity basis. (11)The plaintiff is to file and serve a Further Amended Statement of Claim in 14 days. (12)Matter stood over to the Defamation List on Friday 21 November 2014.

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: 11 December 2014

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