The sixth defendant brings an application for summary dismissal of the proceedings against him pursuant to r 13.4(1) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") on the basis that no reasonable cause of action is disclosed.
The current pleading in these proceedings, the Amended Statement of Claim filed on 13 November 2014, recites that the sixth defendant was "formerly employed" by a company no longer a party to these proceedings (paragraph 7) but the only reference to the sixth defendant is set out in a statement alleged to have been made by the fourth defendant as follows:
"Yes everything that Phil [the fifth defendant] 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 [the sixth defendant] and I are prepared to sign statements that David Wayne threatened to murder us." (paragraph 9.2)
This is the only reference to any statement involving the sixth defendant, although paragraph 9 commences with a claim that:
"Statements were made by the Fourth and Fifth defendants in person at this meeting and Sixth Defendants [sic] statements were presented to the meeting as irrefutable evidence that the Plaintiff made murder threats and the matter was now subject to a NSW Police Investigation."
There is no further particularisation of what those statements were, whether they were oral or in writing, whether the sixth defendant was even present at the meeting, or, if he was present at the meeting, whether he said or did anything at the meeting to indicate his endorsement of the statements made by the fifth defendant.
The concept of publication is broad. In Webb v Bloch (1928) 41 CLR 331 at 364 Isaacs J said, citing R v Paine (1910) AC 4:
"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."
However, there is nothing in the pleading, the "particulars of communication" or other particulars provided by the plaintiff to date to identify how it is that the sixth defendant authorised, endorsed or otherwise published the matter complained of. It does not appear to be in dispute that he was not present at the meeting (Annexure A, the attendance list referred to in paragraph 9 of the Amended Statement of Claim, shows that he was not present), and it is clear that there is no allegation that he spoke any words: Wayne v Owners Corporation SP64622 (No 2) [2014] NSWDC 245 at [16].
The submissions on behalf of the plaintiff appear to acknowledge this, in that he seeks to reopen his previous application for interrogatories concerning publication. I have already refused the plaintiff's application in this regard (Wayne v Owners Corporation SP64622 (No 2)) and I do not propose, particularly since the revised questions to be asked are not specified, to accede to the plaintiff's latest request (set out in paragraph 20 of his submissions) that the proceedings "should proceed to interrogation and discovery" so that he may discover what publications, if any, the sixth defendant made.
The plaintiff's submissions alternatively are that by referring to "irrefutable evidence", the fourth and fifth defendants impliedly or expressly including the sixth defendant as a publisher.
The way in which the pleading is framed is simply a statement that the sixth defendant was a publisher of the whole of the matter complained of, although that cannot have been the case; he was not even present when the defamatory words were spoken. Where a person has contributed to a publishing process, liability as a publisher will not ordinarily be established unless such a person has assented to its publication in some kind of final form: Dank v Nine Network Australia Pty Ltd [2014] NSWSC 1938 at [4], citing Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288. While this situation generally arises where a claim is brought against a source or contributor to part of a media publication, where liability of that contributor or source for the whole publication is claimed, the same principles apply to any publication where (as is the case here) a person is sued for publications part or most of which have clearly been made by other persons.
The precise nature of the case pleaded against the sixth defendant has never been satisfactorily delineated. The time for specifying what publication he actually made, and/or the circumstances in which he authorised the publication of one or more of the other defendants, has now passed. Any application to include any fresh publication must be met with a limitations defence: Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 at [24]. The only basis upon which the plaintiff can bring this claim is on the basis that the sixth defendant authorised it, and these are the particulars that the plaintiff has consistently failed to supply.
The plaintiff has been on notice since this application was first foreshadowed on 18 December 2014 of these problems and has failed to identify with precision, either by way of particulars or in submissions, the publications the sixth defendant is alleged to have made and/or authorised.
I note that the defects in pleading in these proceedings mirror the defects first identified by McCallum J in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101, where the first and sixth defendants moved to strike out a claim where they were fixed with publication of the whole of the matter complained of when they were at best minor contributors. It was following the failure of the plaintiff to administer those interrogatories that the proceedings were struck out permanently. McCallum J then refused a further application to join this defendant on the basis of authorisation: Dank v Nine Network Australia Pty Ltd.
The plaintiff in these proceedings has followed the same pattern of failing to identify with precision the precise publications and/or authorisations of publications necessary for the sixth defendant to be a party to these proceedings. The sixth defendant should not be required to continue to guess as to the nature and extent of the publications he is asserted to have made.
Accordingly, the proceedings will be struck out against the sixth defendant.
The plaintiff has also sought to canvass costs orders made in circumstances where he was not able to attend court through illness. No new material is put before the court; the plaintiff simply reargues his case. I do not propose to revisit those orders.
The plaintiff should provide an amended statement of claim deleting the claim against the sixth defendant. A further timetable will be set when this has been done.
[2]
Orders
1. Sixth defendant's notice of motion granted.
2. Strike out the plaintiff's claim against the sixth defendant.
3. Plaintiff to pay the sixth defendant's costs of the proceedings.
4. Liberty to restore in relation to costs.
5. The plaintiff is to file a Further Amended Statement of Claim in 14 days deleting any claim against the sixth defendant.
6. Stand the proceedings over for further directions to Thursday 16 April 2015 at 2:00pm.
[3]
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: 07 September 2015