HER HONOUR: This is an action for defamation arising out of the publication of an electronic book written by the fourth defendant. The book, titled "Have you seen my child? The quest to recover a stolen child", is based on an actual family involved in proceedings in the Family Court. The plaintiff is the mother of the child in question. The book openly accuses her of kidnapping the child. The sixth defendant is the father of the child and is depicted as having undertaken a lengthy quest to recover the child. The first, second and third defendants are companies sued as joint publishers of the book.
In the circumstances of this case, there is an obvious tension between the remedy for defamation, which affords public vindication of reputation in open court, and the statutory protection of the anonymity of children involved in proceedings in the Family Court. At an early stage of the proceedings, I made pseudonym orders and orders suppressing the publication of information tending to reveal the identity of the child (obviously including information tending to reveal the identity of the plaintiff), for the reasons stated in YZ v Amazon [2013] NSWSC 1522 at [4] to [5].
The book is plainly capable of conveying meanings defamatory of the plaintiff. However, the plaintiff represents herself and has experienced considerable difficulty bringing the pleadings into acceptable form. The proceedings were commenced by statement of claim filed 11 June 2013. On 31 July 2013, the proceedings came before Harrison J as duty judge to hear an application by some of the defendants to strike out the statement of claim. His Honour adjourned the proceedings to October 2013, giving the plaintiff an opportunity to amend.
No amended pleading was filed and, on 18 October 2013, I struck out the original statement of claim pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW): YZ v Amazon [2013] NSWSC 1522.
The plaintiff was given a further opportunity to amend but did not avail herself of that opportunity. I considered, however, that the delay during that period was adequately explained by the fact that she was then facing criminal proceedings in the District Court. In those proceedings, the plaintiff was tried before Woodburne DCJ with a jury for an offence of taking the child from Australia at a time when she knew a parenting order made by the Family Court of Australia provided for the child to spend supervised time with the father of the child (the sixth defendant).
The plaintiff was at that time struggling under the strain of a number of legal proceedings in which she was representing herself (it should be observed that the sixth defendant also faced much of that strain). On 7 April 2014, I referred the plaintiff to the pro bono panel for legal assistance in settling an amended statement of claim: YZ v Amazon (No 2) [2014] NSWSC 415.
To the credit of the barrister concerned, the referral was accepted and assistance provided. Unfortunately, however, those events appear to have complicated rather than simplified the process, at least in the mind of the plaintiff. On 26 May 2014, a draft amended statement of claim settled by the barrister was sent to the defendants. That document was filed in Court on 2 June 2014 and was referred to by the parties as the June draft. Directions were made for the defendants to notify the plaintiff of any objections to the June draft. The defendants served their objections and the plaintiff served written submissions in response to those objections. However, following that exchange, on 2 July 2014 the plaintiff served a notice of motion seeking leave to file an amended statement of claim dated 28 June 2014. That version was referred to by the parties as the July draft.
The defendants submitted that the plaintiff should not be permitted to propound any further version of a pleading beyond the June draft, settled with the assistance of the barrister who responded to the referral to the pro bono scheme. They further submitted that, even if the Court were minded to consider permitting the plaintiff to amend once more and abandon the June draft, the July draft suffers from many of the same vices and should not be allowed to be filed in its present form.
The plaintiff's position reflected the misconception that a plaintiff in defamation proceedings can amend as often as may be required. There is ample authority to support the defendants' position that, on the contrary, notwithstanding the strategic importance of a carefully chosen battleground (delineated by the imputations specified by the plaintiff), there will be a point at which "enough is enough": McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 at [59] to [61]. However, the question of when to say that point is reached is complex in the present case. It may be accepted that there has already been unacceptable delay. However, the plaintiff contends that, in settling the June draft, the barrister removed important imputations upon which the plaintiff wishes to sue.
It should be noted that the plaintiff was under the impression that she had not signed the version settled by the barrister and that it remained a draft. In fact, the June draft was filed in Court on 2 June 2014 and is signed, apparently by the plaintiff. In any event, the simple fact is that the June draft does not plead the plaintiff's case in a manner with which she agrees. When asked to address that version of the pleading, the plaintiff said:
"I am not going to argue on the June draft because I disagree with it. I can't argue on a legal document that I disagree with that came from a pro bono barrister. It would be like forcing me to rely on someone else's document. I can't do that."
The circumstances are accordingly very different from those which prompted the former Defamation List judge, Nicholas J, to draw the line in the matter of McMahon. The form of the imputations is important to the plaintiff in the present case; the choice as to those on which she would wish to sue is essentially a personal decision. I have accordingly determined that, in the unusual circumstances of this case, I should not reject the application for leave to file the July draft peremptorily without some consideration of basis for the application.
That determination of that application must, however, be informed by the history of the plaintiff's attempts to plead her case and the fact that the July draft is still not in a form that is acceptable, even to the plaintiff. It is accordingly appropriate to begin by considering the June draft.
[2]
Third and fourth defendants' objections to the June draft
The first imputation objected to is imputation (b), which is:
The plaintiff inflicted enormous emotional abuse on the son.
The imputation is drawn in terms from a passage at p 31 of the book, as follows:
I've also discovered that when allegations of sexual abuse are made by a mother against the father that all the controls are placed on the father while the mother is free to interact with the child. This provides her with both the opportunity and the motive to flee and if she decides to act she can inflict enormous emotional abuse on the child indefinitely while the father is totally hamstrung.
The imputation was objected to on the grounds of both form and capacity. As to form, Mr Potter, who appears for the defendants, submitted that the phrase "enormous emotional abuse" is vague and imprecise. He submitted that this is not a publication which does not permit any further precision: cf Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. He submitted that the book provides substantial detail on the facts and circumstances surrounding the activities of the plaintiff.
Separately, Mr Potter submitted that the imputation lacks precision in that the reference to "the" son could mean anyone's son, not just the plaintiff's son. I do not think there is any force in that separate complaint. Plainly the imputation is intended to refer to the child the subject of the book.
Mr Potter stated that the defendants would not oppose the form of the imputation if it were amended so as to read:
"The plaintiff inflicted enormous emotional abuse on her son by removing him from Australia and excluding his father from his life."
In my view, the imputation in its present form does suffer from a degree of vagueness that would be cured by the addition of those words.
As to capacity, Mr Potter submitted that the reference to "enormous emotional abuse" (set out above) is part of a general description of what can happen when allegations of sexual abuse are made against a father. He submitted that it is not a direct allegation against the plaintiff. The plaintiff also relies on a passage at p 14 of the book where it is stated that the father "knew that [the mother's] allegations were false and he believed that her actions in denying [the child] a relationship with him were a form of emotional abuse". Mr Potter submitted that that is a reference to emotional abuse towards the father by the plaintiff but I do not think that is unequivocal. The plaintiff also relies on a passage p 63, where there is a comparison between the behaviour of the child after his removal from Australia (where he is described as "emotionally fragile" and the often anxious behaviour of children who "have to move around a lot").
This issue must be judged according to the content of the book as a whole. As noted by the plaintiff, the whole premise of the book is that her allegations of sexual assault were false which supports the defamatory imputation that her removal of the child was unjustified and likely to cause harm to the child. The language of the book is strong and is highly critical of the position adopted by the mother. In my view, the book is reasonably capable of conveying the imputation set out above at [17]. An imputation in that form will be allowed to go to the jury.
The next imputation objected to is imputation (c), which is:
The plaintiff said that the son's father had been sexually abusing him (allegations) knowing that the allegations were false.
That imputation is objected to on the grounds of form and capacity.
As to form, Mr Potter submitted that it is not made clear to whom the plaintiff "said" those things. He accepted that could be cured by including the words "made allegations to authorities".
Mr Potter also submitted that it is not clear who is referred to by the words "the son's father", asking "which son's father?" I do not think there is any force in that complaint - read in context, the reference is perfectly plain.
It was also submitted that it is impermissible and embarrassing to have the word "allegations" in brackets. Whilst the form is not ideal, I do not think it matters and I do not think such an objection warrants the attention of an interlocutory application. In any event, that issue is addressed by the proposed additional words.
As to the objection on the grounds of capacity, it was submitted that nowhere in the book is there anything (express or by inference) to convey an imputation that the plaintiff knew her allegations were false. Mr Potter noted the general statement at p 10 of the book that it "is well known in legal, medical and psychiatric circles that women can make such allegations without foundation". He noted, however, that the last paragraph on that page states the reasons for the plaintiff's belief that the father was sexually abusing the child. Mr Potter noted the reference on p 14 (cited above) to the fact that the father knew the allegations were false but submitted that there is no reference to the mother having that knowledge. Mr Potter submitted that in fact the opposite is the case. The book contains references to the mother's "mistaken belief" and her "delusion" that the father is a threat to the son (page 68).
The plaintiff provided detailed written submissions as to the passages of the book that sustain the imputation of knowledge of falsity. In my view, although alternative theories are explored, the book is reasonably capable of conveying that imputation and it should be left to the jury.
The next objection is to imputation (d), which is:
The plaintiff said that the son's father had prior convictions for child sexual abuse under an alias.
The imputation is objected to on grounds that, in terms, it is not defamatory. The relevant passage of the book (at p 24) discusses a letter allegedly written by the plaintiff and forwarded to a journalist by another person. The book says "[the journalist] said that [the plaintiff] had made further allegations against [the father] in her letter, including a claim that [he] had prior criminal convictions for sexual abuse under an alias". The passage continues with a discussion of the journalist's attitude to the allegations, stating that, in his discussion with the journalist, the father "began to sense that perhaps [the journalist] was beginning to question [the plaintiff's] allegations."
The plaintiff submitted that that passage implies that she lied. She clearly intended to specify an imputation that she made the statement falsely, to her knowledge. In my view, the book is plainly capable of imputing that act to the plaintiff. With the addition of a clarification to that effect, that imputation should be allowed to stand.
The next objection is to imputation (e), which is:
The plaintiff made the allegations so that she could have the son to herself.
The first objection was on the grounds of form and imprecision. This objection again focusses on the use of a defined term ("allegations") in an imputation. It was submitted that the use of the defined term renders the imputation vague and non-defamatory, unless the allegations are specific.
In my view, although it is an unusual form of pleading, the meaning is clear. In the previous imputation, the term "allegations" is defined to mean "the plaintiff said that the son's father had been sexually abusing him". If those words are imported into the imputation, it reads:
The plaintiff made false allegations to authorities that the son's father had been sexually abusing him so that she could have the son to herself.
The imputation is also objected to on the grounds of capacity. For the reasons stated in respect of imputation (c), in my view, it is reasonably capable of being conveyed. However, as submitted by Mr Potter, that the imputation does not differ in substance from imputation (c). The plaintiff should elect between those two imputations.
The next objection is to imputation (f), which is:
The plaintiff made the allegations to emotionally abuse the father.
Leaving aside a repetition of the objection to the use of a defined term in an imputation, the objection was on the grounds of capacity. The submissions of both parties on this issue substantially repeated the submissions in respect of imputation (d).
The whole emphasis of the book is the emotional harm inflicted by the mother by her choice to remove the son from Australia. In my view, imputation (f) is reasonably capable of being conveyed by the matter complained of.
The next objection is to imputation (g), which is:
The plaintiff misinterpreted normal behavior as signs of sexual abuse.
The first objection is that the imputation is bad in form, since it is unclear what is meant by "normal behavior" and unclear by who or to whom. The imputation is drawn from pp 10 and 15 of the book, which describe the conduct from which the plaintiff is suggested to have formed her opinion. The plaintiff submitted that, from those passages, the meaning of the imputation is clear - the book suggests that the belief she formed was ridiculous and totally unfounded. That is not what the imputation says. In its current form, it is not capable of being defamatory, which is the defendants' second objection. Imputation (g) should be struck out.
The next objection it to imputation (h), which is:
The plaintiff is paranoid or delusional.
Imputation (h) was objected to as to form on the grounds that two alternative imputations are impermissibly rolled up into one. The plaintiff's response is that both terms are used in the book and that they mean the same thing. In that event, the plaintiff should elect between one term or the other.
The next objection is to imputation (i), which is:
The plaintiff is not a safe mother.
I accept, as submitted on behalf of the defendants, that this imputation is vague and imprecise. It should be struck out on that basis.
The next objection is to imputation (j), which is:
The plaintiff told the father there there [sic] NSW police and DOCS were conducting investigations into the allegations when she knew that it was false.
Imputation (j) was objected to on the grounds of form. It was submitted that the imputation was vague and imprecise because it is not clear what the plaintiff knew was false (that the police were conducting investigations or the sexual abuse allegation?). The defendants also repeated the complaint as to the use of the defined term.
In my view, as submitted by the plaintiff, the meaning is clear. According to the grammar of the sentence, it is that the plaintiff knew it was false that police and DOCS were conducting an investigation. The objection to that imputation is rejected.
The next objection is to imputation (k), which is:
The plaintiff was obstructing the father's access to the son
Imputation (i) was objected to on the grounds of form. It was submitted that, in its present form, the imputation lacks any pejorative context since there may be legitimate reasons to obstruct a father's access to his son. In my view, there is force in that submission. If greater specificity were provided, it seems unlikely that the imputation would differ in substance from (b) or (e). Accordingly, the imputation is struck out.
The next objection is to imputation (l), which is:
The plaintiff wrote JIRT a letter dated 15 January 2008 threatening to expose the father and a paedophile ring that she alleged he belonged to on Channel 7 program Today Tonight.
Mr Potter submitted that imputation (l) was not defamatory; that it is not defamatory of the plaintiff to say that she wrote such a letter to JIRT. The plaintiff's submissions made plain that she meant to specify an imputation that the matter she threatened to expose was false, to her knowledge. She submitted that it is distressing to think the general public would believe that she would lie about the father in order to ruin his reputation. If the imputation were clarified so as to make that clear (by specifying that the threat was to allege, falsely, that he belonged to a paedophile ring) it would be permissible, in my view.
The next objection is to imputation (m), which is:
The plaintiff falsely accused the father of being part of an international Australian-based paedophile ring that sexually abused the son, with five other masked men, in the "House of Horrors".
Imputation (m) was objected to on the ground of form. Mr Potter submitted that the imputation was vague and imprecise as to the references to "the" father and then to "the" son in that they do not identify those who are named in the book and therefore should do so specifically. I do not think there is any force in that complaint.
It was further submitted that the words "House of Horrors" assumes a known meaning within the imputation but is vague and confusing when the book states (at p 70) that the allegation made by the plaintiff was that the assaults took place at the former family home.
I do not think it is an immutable requirement of pleading that the imputations must be specified in such terms as to stand completely independently of the context in which they are conveyed. As stated by Gleeson CJ in Drummoyne, any dispute as to whether an imputation is stated with adequate specificity should be resolved by reference to practical justice rather than the study of words. The meaning is plain from the context.
Imputation (n) is:
The plaintiff falsely accused the father of other accusations to [sic] extreme to write here in the book.
The objection to that imputation is on the ground of form. It was submitted that, without knowing what the specific accusations were, such an imputation is impermissibly vague and imprecise. In my view, the imputation is impermissibly unclear. Without any specification by the author of the content of the allegations, there is simply no meaning that can be attributed to the imputation. The imputation is struck out.
The next objection is to imputation (o), which is:
The plaintiff emotionally abused her son by making him use a different name.
Imputation (o) is objected to on the ground of capacity. The book records, at p 60, a journalist's statement that a pastor told him "[the son] would at times object to his false surname, insisting "I'm not [false surname]" and giving his real surname. It was submitted that there is no mention of any conduct of the plaintiff, let alone any conduct inflicting emotional abuse upon her son. In my view, there is force in that objection. I do not think the references to the false surname are reasonably capable of sustaining any imputation of abuse.
The next objection is to imputation (p), which is:
The plaintiff did not give her son a stable home and the lifestyle in Europe.
Imputation (p) was objected to on the ground that it was vague in form and imprecise. It was also submitted that the imputation is not capable of being defamatory.
In my view, there is force in those objections. The plaintiff submitted that it is generally accepted that stability is important to the welfare of children. Although difficult to dispute, that is a proposition pitched at such a high level of generality as to be almost meaningless.
The next objection is to imputation (q), which is:
The plaintiff did not cooperate with authorities when the plaintiff refused to provide details to the authorities on where and how the plaintiff had lived in Europe.
It was submitted that this imputation was vague and imprecise in form and that it fails to distil a defamatory sting of and concerning the plaintiff. The plaintiff submitted that the imputation is that she was disrespectful of authority and not honest about her activities in Europe. That is not what the imputation says. In my view, the meaning of the imputation is unclear and it is liable to be struck out on that basis.
The next objection is to imputation (r), which is:
The plaintiff refused to cooperate and provide her son's passport.
Imputation (r) was objected to as to form on the basis that it is vague and imprecise and that it fails to distil a defamatory sting of and concerning the plaintiff.
As with imputation (q), the plaintiff submitted that the imputation is that she was disrespectful of authorities and not honest. That is not what the imputation says. In my view, the meaning of the imputation is unclear and it is liable to be struck out on that basis.
The next objection is to imputation (s), which is:
The plaintiff committed crimes incurring up to 13 years in prison.
The first objection to imputation (s) is on the grounds of form. It was submitted that the imputation is vague and imprecise and, in its present form, does not make sense. In my view, the meaning is clear enough (although this is an instance where the plaintiff could equally have appropriated the words of the matter complained of). The book states (at p 74):
If [a proposed cross-border mediation] succeeded, the Hague application, and Joan's appeal against extradition by the Australian government to face up to 13 years in prison, would not be necessary".
In my view, an imputation that the plaintiff committed crimes as a result of which she faced up to 13 years in prison distils the sense of those words with adequate specificity.
The second objection is on the grounds of capacity. It was submitted that the statement set out above makes it clear that the reference to 13 years is a maximum sentence period for a finding of guilty to charges which the plaintiff could face in Australia after extradition. He submitted that there is no capacity in those words to convey an imputation that the plaintiff was guilty of crimes in which she would incur a period of up to 13 years in prison.
I do not accept that submission. Read in the context of that passage as a whole (and indeed having regard to the tenor of the whole book, which champions the cause of the father and broadly denigrates the mother), I am satisfied that the book is reasonably capable of imputing guilt to the plaintiff of offences for which she would face the nominated maximum penalty.
The next objection is to imputation (t), which is:
The plaintiff was charged with contempt of court.
That imputation was objected to as to form. It was submitted that the imputation fails to distil a defamatory meaning. The defendants acknowledged that the reference to her facing criminal charges of contempt of court "may give rise to an imputation of reasonable suspicion on the part of the Federal police", but that an imputation that a person has been charged with an offence would not adequately distil a defamatory imputation.
There is force in that objection. The plaintiff should have leave to amend that imputation in the manner suggested by the defendants; that is, so as to read:
The plaintiff so conducted herself as to be reasonably suspected by the Australian Federal Police of being in contempt of court.
The next objection is to imputation (u), which is:
The plaintiff was planning to abduct her son using a helicopter company.
Imputation (u) was objected to on the grounds of both form and capacity. It was submitted that the imputation fails to distil a defamatory meaning of and concerning the plaintiff. In my view, the imputation adequately specifies an act; namely, the act of planning the abduction of a child. Read in the context of the whole of the relevant passage (at p 75), the book is clearly capable of imputing that the plaintiff was making enquiries of helicopter companies with a view to executing a second abduction of the child. The imputation does not have to be stated in terms in order to be capable of arising. Imputation (u) will go to the jury.
The next objection is to imputation (v), which is:
The plaintiff falsely alleged that she held sole custody at the time of her departure when there had been no custody hearings.
The imputation was objected to on the ground of both form and capacity. It was submitted the imputation was vague (the sole custody of who; at the time of her departure to where; and when there been no custody hearings where). I think those matters are readily discernible from the context of the relevant passage (at p 76). However, the objection on the grounds of capacity is made good, in my view. I have read the relevant passage in context and the plaintiff's submissions on this issue. I simply cannot see how the imputation is reasonably said to arise. As submitted by Mr Potter, the sense of the passage in question is that the lawyers had failed to put her case for sole custody before she fled Australia; it does not say the plaintiff falsely alleged that she had sole custody.
The final objection is to imputation (w), which is:
Dr Dube was a trusted friend of the plaintiff and said the plaintiff was a high flight risk.
Imputation (w) is objected to on the ground of form; that is, that it is vague and imprecise and fails to distil any act or condition on the part of the plaintiff which is defamatory of her.
The imputation is drawn from a passage of the book (at p 77) which refers to the plaintiff as a "high flight risk" and says that was a sentiment that had also been expressed by her trusted friend, Dr Dube. The plain sense of the imputation (which is plainly capable of being conveyed) is that the plaintiff was a high flight risk. The plaintiff should have leave to amend in that form.
[3]
Consideration of the July draft
The foregoing indicates my rulings in respect of the June draft of the amended statement of claim. It remains to consider whether any different rulings should be made in light of the plaintiff's application for leave to file the July draft.
The July draft seeks to plead 145 imputations. The plaintiff said in argument that, even as to that version of the pleading, she was not saying it was "ready and complete to go". Conversely, the plaintiff made plain that she does not wish to sue on the existing version of the pleading, regarding it as a document which wholly fails to capture the case she wishes to prosecute.
Pressed as to the detail of the imputations it omits, the plaintiff indicated that the principal difficulty with the version drafted by the barrister is that it rests on imputations that the plaintiff made the allegations of sexual assault against the father knowing they were false. She submitted that the book also conveys the sense that her claims were ridiculous; that they were due to a mistaken belief; that they were concocted on the spur of the moment or in an irresponsible manner and so on. Imputations of that kind are propounded in part B of the proposed new draft but, as submitted by Mr Potter, those imputations are not in proper form at this stage.
This is not an easy issue to resolve. On the one hand, there is considerable force in the contention that it is important for the plaintiff to choose the battle ground on which she will prosecute this action. Indeed, she stated at the hearing that, if not allowed to amend, she will appeal and will not pursue any claim on the basis of the existing pleading. That seems to me to be an extreme position; the existing pleading does include a number of important defamatory imputations which, I would think, capture aspects of the plaintiff's grievance. In any event, that is her stated position.
Conversely, the defendants have been put to considerable inconvenience, delay and expense due to the plaintiff's failure to launch a properly pleaded claim in the first instance. I do not think it is appropriate to allow the plaintiff at this point of the proceedings to disregard the work done to date and propound 145 imputations afresh, as if the proceedings had just begun.
Doing the best I can to accommodate those competing interests of justice, I have concluded that the plaintiff should be granted leave to re-plead strictly confined to pleading one or at most two imputations that capture the issue identified by her in oral submissions as set out above at [84].
Based on the imputations proposed in the July draft, it appears that the sense sought to be captured is:
1. "the plaintiff acted unreasonably in forming the belief that her husband had been sexually abusing her son" or;
2. "the plaintiff acted irresponsibly in acting on the belief that her husband had been sexually abusing her son".
In my view, the plaintiff should have leave (if sought) to re-plead the imputations in part B of the July draft so as to plead imputations to that effect. Otherwise, I would accede to the defendants' submission that no further opportunity to amend should be afforded.
The plaintiff is directed to file and serve an amended statement of claim in accordance with these reasons within 14 days.
[4]
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Decision last updated: 21 August 2015