Wayne v The Owners Corporation SP64622

Judgment

1. 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.
2. 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)
3. 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."
4. 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.
5. 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."