Anna Von Marburg v Aldred
[2016] VSC 566
•21 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06844
BETWEEN:
| ANNA VON MARBURG | Plaintiff |
| v | |
| ETHAN ALDRED and PIETER MOURIK | First Defendant Second Defendant |
AND BETWEEN:
| PIETER MOURIK | Plaintiff by Counterclaim |
| and | |
| ANNA VON MARBURG | Defendant to Counterclaim |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 June 2016 |
DATE OF RULING: | 21 September 2016 |
CASE MAY BE CITED AS: | Anna Von Marburg v Aldred and Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 566 |
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DEFAMATION – Pleadings – Defences – Application to strike out various paragraphs of each defendant’s defence.
PRACTICE AND PROCEDURE – First defendant’s application that proceeding be heard by jury – Supreme Court (General Civil Procedure) Rules 2015 r 47.02 – Roland Von Marburg v Aldred and Anor [2016] VSC 565.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Houghton QC with Mr J C Hooper | Russell Kennedy |
| For the First Defendant | Mr J Castelan with Ms E Tadros | Belbridge Hague |
| For the Second Defendant | Ms N Hickey | Minter Ellison |
HIS HONOUR:
Introduction
The plaintiff is a supporter of organisations ‘Abortion Hurts Albury’ and ‘Helpers of God’s Little Infants’ (‘HoGPI’). She alleges that the defendants were, in the relevant period, persons exercising control over the Rights to Privacy Albury Facebook page (‘the RPA Facebook page’) and that posts and statements pleaded as four separate publications, which are allegedly defamatory of the plaintiff, were uploaded to the RPA Facebook page during that period. The defendants deny that the imputations pleaded by the plaintiff are conveyed by the publications, and plead certain defences. There is a medical clinic located in Englehardt Street, Albury (‘the clinic’) at which pregnancy termination procedures are performed. The first defendant relies on conduct which he alleges was engaged in by the plaintiff, as an opponent of abortion, outside the clinic to make out a number of justification or honest opinion defences. The second defendant pleads by counterclaim that the plaintiff was, together with her husband, in control of the Rights to Privacy Albury Exposed Facebook page (‘the RPA Exposed Facebook page’) and was responsible for posts and statements uploaded to that page which are alleged to be defamatory of the second defendant.
This proceeding is related to an associated proceeding, Roland Von Marburg v Aldred & Anor,[1] (‘the related proceeding’). The plaintiff’s claim is set out in the second statement of claim, dated 26 February 2016 (‘2SOC’). The defence of the first defendant is dated 1 April 2016. The second defendant relies on a proposed further amended defence and counterclaim, which is an exhibit to the affidavit of Veronica Clare Scott, sworn 9 June 2016.
[1][2016] VSC 565.
The 2SOC pleads four publications, and alleges that a number of defamatory imputations are conveyed by those publications. Each of the publications is constituted by a number of posts and statements allegedly uploaded to the RPA Facebook page. By summons filed 19 May 2016, the plaintiff applies to strike out various paragraphs of each defence. On that application, the following issues arise:
(a)In relation to the first, third, and fourth publications, the first defendant pleads an extended thread of posts and statements on the RPA Facebook page, alleging that the thread is relevant as context when determining the natural and ordinary meaning of each publication. Counsel for the plaintiff submit that that part of the first defendant’s defence ought be struck out because the plaintiff is only obliged to plead the words she alleges are defamatory and not context or background; that in any event, the first defendant has not discharged the onus of explaining how the context created by the thread can possibly alter the natural and ordinary meaning of the publication; and finally, that the proper course for the first defendant to adopt is to make application to ‘strike in’ the thread.
(b)The first defendant pleads justification to the imputations alleged to arise from the second, third and fourth publications. Counsel for the plaintiff submit that a number of the particulars provided to support the justification defences offend the rules of pleading and should be struck out, that the particulars which survive do not arguably make out a justification defence, and that the first defendant is not entitled to rely on discovery to make out a justification defence. It is submitted that, in those circumstances, each of the justification defences should be struck out.
(c)The first defendant pleads honest opinion to the second and fourth publications. Counsel for the plaintiff submit that the imputations alleged are incapable of being an opinion or, alternatively, are not based on facts stated or referred to in the publications and are not based on proper material.
(d)In the proposed further amended defence and counterclaim, the second defendant pleads a counterclaim against the plaintiff in respect of posts and statements on the RPA Exposed Facebook page. Counsel for the plaintiff submit that the particulars pleaded by the second defendant are insufficient to support the pleading that the plaintiff ‘operated or controlled’ the RPA Exposed Facebook page, or that the plaintiff ‘uploaded or caused to be uploaded’ the defamatory posts, and that accordingly the counterclaim should be struck out.
The plaintiff’s application was heard at the same time as an application in a related proceeding which dealt with a number of the same issues.
I will deal with these issues in turn.
Pleading the thread
The first publication, as pleaded in the 2SOC, appears to consist of 19 posts containing statements which it is alleged were uploaded on the RPA Facebook page on 18 September 2014. In the first statement of claim the plaintiff pleaded as the first publication a thread of approximately 150 posts and statements (‘the first publication thread’). The first defendant responds to this amended pleading by pleading that he does not admit the first publication, and by further pleading in response the first publication thread, alleging that the thread must be read as a whole when determining the natural and ordinary meaning of what the plaintiff alleges to be the first publication. Most of the posts and statements in the first publication thread bear the date 18 September, though some are dated 19, 20 and 21 September. It is not possible to know in what form the posts and statements were published or received by a reader. It is not possible to conclude that all of the posts and statements which form part of the first publication thread should be considered to be part of the one publication. The first defendant does not plead how the first publication thread arguably affects the meaning of the first publication. The first defendant takes a similar approach in respect of his pleading to the third and fourth publications in the 2SOC — namely, that the posts constituting those publications are contained within threads that must be read as a whole in order to determine their ordinary and natural meaning — and the same issues there arise. arise in relation to the pleading of the first defendant responding to the third and fourth publications in the 2SOC.
As in the related proceeding, the course which the first defendant is entitled to adopt is to:
(a)apply to ‘strike in’ the extended thread of posts and statements. Such an application must be made on proper material which establishes how the meaning of the publication is arguably altered by identified parts of the extended thread;
(b)plead posts and statements from the extended thread to assist in establishing a defence on which he relies; and/or
(c)use the extended thread as evidence at trial relevant to the case pleaded by him.
For the same reasons given in greater detail in the related proceeding,[2] those parts of paragraphs 4, 8 and 10 of the defence of the first defendant which plead the first publication thread, the third publication thread and the fourth publication thread will be struck out.
[2]Ibid [50]-[51].
Justification
The first defendant pleads a justification defence to the second, third and fourth publications. The second publication consists of two posts of statements allegedly uploaded on to the RPA Facebook page, the first of which details an alleged interaction between a 13-year-old girl and the plaintiff over approximately 5 minutes. The particulars to the justification defence appear to be entirely reliant on the contents of the first post included as part of the second publication. The plaintiff pleads as the imputations conveyed by the second publication that the plaintiff:
(a)had harassed a 13-year-old girl outside the clinic;
(b)had engaged in such serious misconduct in relation to a 13-year-old girl outside the clinic that it warranted reporting to the police.
The imputations relate directly to conduct engaged in by the plaintiff. By contrast, the particulars in substance simply allege that:
(a)a 13-year-old girl was approached by the plaintiff;
(b)after that approach, the girl was distressed, and the mother reported the events to Albury police;
(c)the police have a record of the incident.
Because the particulars do not focus on conduct of the plaintiff which could arguably amount to harassment, or was so serious as to justify reporting the matter to the police, the particulars cannot make out the defence. I accept the submission of counsel for the plaintiff that the first defendant is not entitled to rely on discovery or the production of subpoenaed documents to make out the defence, and that the pleading in its current form should be struck out. Counsel for the plaintiff goes further and submits that ‘harassment’ means ‘to disturb persistently’, and that the five-minute interaction detailed in the relevant post and statement cannot arguably amount to harassment. I disagree. While the statement refers to a five-minute interaction, evidence might establish that the period was longer. The statement records that the girl told the plaintiff on a few occasions, during the interaction, that she (the girl) had to leave because she was late. It is possible that it could be concluded at trial that the girl was thereby attempting to extricate herself from the interaction but that the plaintiff was persisting with conduct which amounted to harassment or that the conduct of the plaintiff was so serious as to warrant report it to the police. Without hearing the evidence, I am unable to conclude that the defence is not arguable. I will give the first defendant leave to re-plead the particulars.
The third publication is pleaded as eight posts containing statements uploaded to the RPA Facebook page. The statements detail an interaction alleged to have occurred between the plaintiff, a woman who was in distress and vomiting, her partner and a person by the name of Julie Colman, who it is said intervened in the interaction and was pushed by the plaintiff. The plaintiff pleads imputations conveyed by the third publication mean that the plaintiff:
(a)had so harassed a woman attending the clinic as to cause her to vomit; and
(b)had physically assaulted one Julie Colman outside the clinic when Ms Colman offered assistance to a woman attending the clinic.
The particulars pleaded by the first defendant read as follows:
(i)Ms Julie Colman was walking near the Clinic and observed a woman in the gutter outside the Clinic, vomiting;
(ii)Ms Colman observed that the plaintiff was standing over the woman, holding pamphlets and saying words to the effect that “you don’t have to do this, you don’t have to, read the pamphlets”;
(iii)Ms Colman observed that the plaintiff was acting in a relentless fashion and accordingly, Ms Colman intervened;
(iv)Ms Colman offered assistance to the woman and asked the woman if she would like to use the toilet at the offices of Ms Colman’s work;
(v)The plaintiff then stood between Ms Colman and the woman and started pushing Ms Colman away;
(vi)The plaintiff told Ms Colman to stop intervening;
(vii)The plaintiff blocked the woman from getting up initially, but then the woman was able to get up from the gutter and went across the road.
The first imputation directs attention to conduct of the plaintiff which so harassed the woman as to cause her to vomit (‘harassment causing vomiting imputation’). The particularised conduct of the plaintiff standing over the woman, while holding pamphlets and saying certain words, seems to follow after the woman was already in the gutter and vomiting. It is not particularised where and how the plaintiff first approached the woman, what the plaintiff did over the period of the interaction, what was the woman’s reaction to the plaintiff’s actions and words directed towards her, or how the conduct of the plaintiff caused the woman to vomit. I agree that describing the plaintiff as ‘acting in a relentless fashion’ is conclusory and bad. In their current form the particulars do not arguably give rise to a justification defence in respect of imputation (a) above.
Particular (iii) is irrelevant and conclusory, and should be struck out. Particular (iv) is potentially relevant as background. Particular (v) arguably establishes the assault imputation. Particulars (vi) and (vii) can be relevant as background.
Subject to particular (iii) being struck out, the pleading can survive as a justification defence to the assault imputation. I will give the first defendant leave if he wishes to attempt to re-plead with proper particulars to the harassment causing vomiting imputation.
The fourth publication consists of two posts of statements uploaded to the RPA Facebook page. The plaintiff pleads as imputations conveyed by the fourth publication that the plaintiff:
(a)is a person who habitually incites unrest;
(b)is a person who has a total lack of empathy and understanding of others.
The first defendant pleads justification to both imputations, relying on the following particulars:
(i)The plaintiff is a supporter of a local anti-abortion organisation called “Abortion Hurts Albury” which aims to deter women (and their partners) from undertaking an abortion.
(ii)The plaintiff is also a supporter of an international anti-abortion organisation called the “Helpers of God’s Precious Infants” (HoGPI) which is affiliated with the Catholic Church. This organisation encourages supporters to gather outside the entrance of medical clinics where abortion procedures are conducted in both Australia and America and deter women from undertaking an abortion.
(iii)Supporters of the HoGPI group have employed a variety of methods to deter women from undertaking an abortion, including:
a. standing outside the entrance of medical clinics;
b. approaching women and preaching to them;c.approaching women and showing them graphic images of foetuses and babies;
d.approaching women and offering them pamphlets, “counselling” and support services;
e.approaching women and telling them that abortion is unsafe;
f.filming or photographing women who use the services;
g.conducting prayers and vigils; and
h.conducting protests (HoGPI’s activities).
(iv)HoGPI supporters have been regularly gathering outside the Clinic and have participated in HoGPI’s activities for a number of years.
(v)A number of people, including staff, clients and women who have entered or tried to enter the Clinic have reported to the Clinic, to the police, to politicians, to councillors, to media outlets, and to other outlets, including the RPA Facebook Page, that they have felt harassed and intimidated and that their privacy has been violated through HoGPI’s activities.
(vi)RPA believes that women have the right to access fertility control in privacy, free from intimidation and harassment and advocates for an exclusion zone outside the Clinic through, amongst other things, a petition.
(vii)At all material times, given the regular involvement and support of “Abortion Hurts Albury” and HoGPI by the plaintiff, it is to be inferred that the plaintiff was aware that some staff, clients and women have felt that HoGPI’s activities outside the Clinic have been unnecessarily confrontational and have violated the privacy of those women that attended the Clinic;
(viii)At all material times, the plaintiff was aware of RPA, the RPA Facebook page and its petition;
(ix)In spite of the above, the plaintiff has, on numerous occasions, participated in HoGPI gatherings and engaged in HoGPI’s activities outside the Clinic.
(x)The first defendant further refers to the Vomiting Outside the Clinic Events and the Approach of the 13 year old girl Incident.
(xi)Further and better particulars will be provided after full and proper discovery and prior to trial.
Particulars (i) and (ii) are background. Particulars (iii) and (iv) refer to HoGPI’s activities being engaged in outside the clinic, but do not particularise which, if any, of the activities were engaged in by the plaintiff, or when or how often that occurred, and as currently pleaded are irrelevant. Particular (v) does not detail who made the complaints, when the complaints were made, what the substance of the complaints was, which of HoGPI’s activities were the subject of complaint, or how any of this is relevant to the imputations pleaded by the plaintiff. Particular (vi), which goes to certain RPA beliefs, is irrelevant. Particular (ix), which must be the nub of the defence, is vague and imprecise. It is not pleaded what activities were engaged in by the plaintiff which make out the imputations that she habitually incites unrest or that she has a total lack of empathy. If the first defendant wishes to proceed with this justification defence, he will need to particularise the activities in which it is alleged that the plaintiff engaged which make out the imputations. The first defendant cannot rely on discovery to provide the basis of the defence. I will strike out the current particulars and give the first defendant leave to re-plead.
Honest opinion
The first defendant pleads honest opinion as a defence to the imputations pleaded by the plaintiff as arising from the second publication, detailed in [8] above. For reasons consistent with those expressed by me in respect of the related proceeding,[3] I conclude that the meanings alleged by the plaintiff are capable of being opinion. There is no dispute that the imputations relate to matters of public interest. The remaining question is whether the opinion, if it is one, is based on proper material.
[3]Ibid [25]-[27].
Counsel for the plaintiff submit that there are no facts in the second publication which can support an opinion that the plaintiff harassed the 13-year-old girl. For the reasons expressed at [10] above, I consider it possible that a court could, subject to the evidence called to support the defence, find that the conduct of the plaintiff did amount to harassment of the 13-year-old girl. The second imputation alleged to arise from this publication is that the plaintiff engaged in such serious conduct as to warrant reporting to the police. Argument was not developed as to what would constitute the conduct in question. I consider that that is properly a matter for trial. Currently, the particulars of honest opinion rely on the justification particulars, which I have concluded are inadequate in relation to the second publication. As with justification, if the plaintiff wishes to persist with the honest opinion defence to the second publication imputations, he will need to re-plead the particulars.
The first defendant also pleads honest opinion to the imputations pleaded by the plaintiff as arising from the fourth publication, which are recorded in [15] above. In written submissions, counsel for the plaintiff did not contend that the meanings pleaded by the plaintiff could not possibly be an expression of opinion rather than a statement of fact. Rather, counsel argued that:
(a)The facts which form the basis of the opinion are not stated or referred to in the publications, and are not pleaded as being notorious; and
(b)The facts pleaded do not establish the basis for the opinion, because the particulars focus on the conduct of others (HoGPI) rather than the plaintiff.
I agree. For the reasons stated above in relation to the justification defence to the fourth publication, the current particulars pleaded by the first defendant are inadequate. The facts relied on as forming the basis of the opinion do not appear to be stated or referred to in the fourth publication. It is not pleaded that those facts are part of the context in which the imputations arise, or are matters of common knowledge to those to whom the words of the publication are addressed. I will strike out the current particulars and given the first defendant leave to re-plead.
Counterclaim of second defendant
The second defendant proposes to plead by counterclaim that the plaintiff is responsible for the publication of a series of defamatory posts which appeared on the RPA Exposed Facebook page. That claim depends on a pleaded allegation that the plaintiff, together with her husband, operated or controlled the RPA Exposed Facebook page and uploaded or caused to be uploaded the posts which it is alleged are defamatory. The pleading against the plaintiff mirrors a counterclaim pleading of the second defendant in the related proceeding.
For the reasons given in the judgment of 21 September 2016 in that related proceeding,[4] I conclude that, as pleaded, the counterclaim is arguable and should not be struck out.
[4]Ibid [47].
Mode of trial
The first defendant made application, relying on r 47.02(2) of the Supreme Court (General Civil Procedure) Rules 2015, that the proceeding be tried by jury. The same application was made in the related proceeding. For the reasons given in the judgment of today’s date in the related proceeding, I will dismiss the application of the first defendant.[5]
[5]Ibid [57]-[63].
Conclusion
I will make the following orders:
1. The following is struck out of the amended defence of the first defendant:
a) Paragraphs 4, 8 and 10, insofar as they plead the first publication thread, the third publication thread and the fourth publication thread respectively; and
b) The particulars to paragraphs 27, 28, 29(iii), 30(iii), 31, 33, 34 and 35(iii);
with leave to re-plead in accordance with these reasons.
2. The first defendant’s application for trial by jury is dismissed.
I will hear from the parties as to the appropriate form of orders, including as to costs.
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