Billis v McLernon

[2013] WASC 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BILLIS -v- McLERNON [2013] WASC 128

CORAM:   LE MIERE J

HEARD:   22 FEBRUARY 2013

DELIVERED          :   17 APRIL 2013

FILE NO/S:   CIV 2307 of 2012

BETWEEN:   ANTHONY BILLIS

Plaintiff

AND

TERENCE JOHN McLERNON
First Defendant

PURPOSE HOSTING
Second Defendant

REDBACK STUDIOS AUSTRALIA PTY LTD
Third Defendant

TONI FITZGERALD
Fourth Defendant

LAURENCE KERRY FITZGERALD
Fifth Defendant

Catchwords:

Practice and procedure - Defamation - Application to amend statement of claim - Proposed amended statement of claim deficient

Legislation:

Nil

Result:

Leave refused

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M S Khosa

First Defendant            :     In person

Second Defendant        :     No appearance

Third Defendant           :     No appearance

Fourth Defendant         :     In person

Fifth Defendant            :     In person

Solicitors:

Plaintiff:     Angove Law

First Defendant            :     In person

Second Defendant        :     No appearance

Third Defendant           :     No appearance

Fourth Defendant         :     In person

Fifth Defendant            :     In person

Case(s) referred to in judgment(s):

Marchant v Ford [1936] 2 All ER 1510

1. LE MIERE J:  The plaintiff has applied for leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed 1 February 2013, which I will refer to as the statement of claim.  The defendants oppose leave being granted.

The Publications

1. The plaintiff sues upon publications which he says are defamatory of him and have caused him loss and damage.  The material the plaintiff sues upon appears on a series of pages on the world wide web downloaded from a website entitled 'the McLernon File Website' (the Website).  The plaintiff pleads that on various dates until September 2012 the first defendant, Terence John McLernon, designed, uploaded and modified, or caused to be designed, uploaded or modified and the other defendants, Redback Studios Australia Pty Ltd (Redback Studios), Toni Fitzgerald and Laurence Fitzgerald, assisted Mr McLernon to design, upload and modify the words and images on the Website so that the matters of and concerning the plaintiff appeared on the Website in September 2012 which are annexures A to J of the statement of claim and are described as the First to Tenth Publications.  The plaintiff does not sue on the Publications as publications giving rise to a cause of action.  The plaintiff pleads in [21] that by reason of the publication of the Matters Complained Of the plaintiff suffered loss and damage.

Matters Complained Of

1. The plaintiff pleads that each of the Matters Complained Of was downloaded from the Website and viewed by people in Western Australia, Australia and the world from early July 2012 until 18 September 2012.  The Matters Complained Of are not the Publications, or annexures to the statement of claim, or the whole of the material in each of those Publications.  The Matters Complained Of consist of separate items or postings to the Website and which are to be found in the Publications which are the Annexures to the statement of claim.  There are 10 Publications.  The Matters Complained Of are items or posts appearing in the Publications.  There are 22 Matters Complained Of.

2. The allegations that Redback Studios, Toni Fitzgerald and Laurence Fitzgerald published the words and images on the Website, which includes the Matters Complained Of, is a statement of conclusion.  The plaintiff must plead all of the facts which he relies upon to establish that Redback Studios, Toni Fitzgerald and Laurence Fitzgerald published the Matters Complained Of.  Paragraph 6(b) pleads that Redback Studios, Laurence Fitzgerald and Toni Fitzgerald assisted McLernon to design, upload and modify the relevant words and images on the Website.  It is arguable that there is no civil action for assisting in publishing defamatory material and the plea of 'assisting to publish' is essentially the same as alleging publication:  see Marchant v Ford [1936] 2 All ER 1510 and David Lindsay 'Liability for the Publication of Defamatory Material via the Internet', Research Paper No 10, University of Melbourne, Centre for Media Communications and Information Technology Law, March 2000, pages 38 - 40. Nevertheless, the plea should not be struck out: Marchant v Ford (1512 ‑ 1513).

Imputations

1. The plaintiff pleads that the words in each of the Matters Complained Of in their natural and ordinary meaning give rise to one or more imputations defamatory of the plaintiff.  None of the imputations are pleaded to arise by way of innuendo.  It is not pleaded that any of the imputations pleaded arise from words other than those in the relevant Matter Complained Of.  It is not pleaded that any of the imputations arise from the Publications as distinct from the Matters Complained Of.

2. Having regard to the way the plaintiff has chosen to plead in the statement of claim, each of the imputations must arise from the words contained in the relevant Matter Complained Of.  As I have said, there is no plea that any of the Matters Complained Of give rise to a meaning by reason of any extrinsic facts or by reason of any words or images appearing in a part of the relevant Publication other than the relevant Matter Complained Of.

3. The plaintiff pleads that all but one of the Matters Complained Of give rise to multiple imputations and that the Matters Complained Of together give rise to 72 imputations.  It is unusual for a statement of claim to plead 22 separate publications and 72 imputations.  It is particularly important where, as here, so many imputations are pleaded that the imputations are clear, precise and discrete.  Effective case management requires that the court should ensure that the statement of claim does not proceed in a form which contains imputations which are not capable of arising from the relevant Matter Complained Of, or are ambiguous or uncertain, contain unnecessary detail or are repetitive.

1st Matter Complained Of

1. Imputation (i) rolls up two imputations in one.

2nd Matter Complained Of

1. Imputation (ii) rolls up two imputations in one.

2. Imputation (iii) fails to distil the defamatory sting and fails to express the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged.

3rd Matter Complained Of

1. Imputation (ii) is not capable of arising.

4th Matter Complained Of

1. Imputation (i) is not capable of arising.  The 4th Matter Complained Of makes no reference to any public companies.

5th Matter Complained Of

1. Imputation (iii) is two imputations rolled into one.  The second imputation 'involved with criminal gangs' is repetitive of the first imputation that the plaintiff is a gangster.

6th Matter Complained Of

1. Imputation (i) consists of two imputations rolled into one and connected by the word 'and'.

7th Matter Complained Of

1. In imputation (ii) all of the words after 'the plaintiff has committed perjury' are unnecessary.  The ordinary meaning of perjury is wilfully telling an untruth whilst giving evidence in a court after taking an oath or affirmation.

8th Matter Complained Of

1. In imputation (i) the words 'in his business practices' are either unnecessary or add a qualification that does not arise from the words complained of.

2. In imputation (iii) all of the words after 'cannot speak English' are unnecessary detail and in any event do not arise from the words complained of which make no reference to the plaintiff's Croatian ethnic background.

9th Matter Complained Of

1. In imputation (iii) the words 'with his gang members as his accomplices' make imputation (iii) not sufficiently distinct from imputation (ii).

11th Matter Complained Of

1. Imputation (iv) is not capable of arising.  There is nothing in the words complained of that says that the plaintiff 'employs' corrupt former police officers or any police officers.

12th Matter Complained Of

1. None of the imputations are capable of arising from the words complained of because they do not refer to the plaintiff.  The 12th Matter Complained Of appears in the Fifth Publication.  Paragraph 15 gives particulars of the Fifth Publication and 'particulars of identification'.  The particulars of identification are:

   The Fifth Publication included numerous references to the plaintiff's name, picture and various nicknames given to him by the defendant, as well as other material concerning his business interests, from which the plaintiff can be easily identified.

   Presumably, the plaintiff wishes to rely upon words or facts in the Fifth Publication which are extrinsic to the 12th Matter Complained Of to establish that the words in the 12th Matter Complained Of refer to the plaintiff.  If so, he must plead those words or facts and that they were read by or known to the readers of the 12th Matter Complained Of.  It is not sufficient to plead that the Fifth Publication included numerous references to, amongst other things, various nicknames given to the plaintiff by the defendant.  The plaintiff must plead the nicknames, where they appear and all facts relied upon to establish that the readers of the 12th Matter Complained Of knew those matters and thereby identified the plaintiff as the person referred to in the 12th Matter Complained Of.  Similarly, it is not sufficient to give as particulars 'other material concerning his business interests'.  The material must be identified and it must be pleaded that the readers of the 12th Matter Complained Of identified the plaintiff as the person referred to in the 12th Matter Complained Of by reason of that material.

14th Matter Complained Of

1. Imputation (ii) is not capable of arising.  Imputation (iii) is not capable of arising.  The words refer to only a pistol not 'unlicensed firearms'.

15th Matter Complained Of

1. Imputation (i) is not capable of arising.  The words complained of say in effect that discreditable false material about wives and kids appeared on the Website.  There is nothing about threatening women and children.

2. Imputations (iii) and (iv) are not sufficiently distinct.

16th Matter Complained Of

1. Imputations (ii) and (iii) are not sufficiently distinct.  Imputation (iv) is not capable of arising.  There is nothing in the words complained which says or implies that the plaintiff is armed with weapons 'at all times'.

17th Matter Complained Of

1. Imputation (ii) is not capable of arising.

2. Imputation (iii) rolls two imputations into one.  Further, the first imputation ‑ that the plaintiff is subject to the receipt of many writs ‑ fails to distil the sting of the defamation, it fails to state the precise act of condition asserted of, or attributed to the plaintiff or with which he is charged.

3. Imputation (vii) fails to state the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged.  In its terms the imputation does not say that the plaintiff registered new shareholders in false names, but merely that he is a director of a company that does that.

4. Imputation (viii) rolls up two imputations into one.

5. Imputation (ix) rolls two imputations into one.

18th Matter Complained Of

1. The words 'associated with criminal gangs' in imputation (ii) are unnecessary detail.

19th Matter Complained Of

1. The imputations pleaded are not capable of arising.  The words in the 19th Matter Complained Of make no reference to the plaintiff.  The 'particulars of identification' pleaded in [20] in relation to the Tenth Publication are insufficient for the same reasons as the 'particulars of identification' given in [15] in relation to the Fifth Publication.

20th Matter Complained Of

1. The imputations are not capable of arising from the 20th Matter Complained Of.  If the plaintiff relies on words or material not contained in the 20th Matter Complained Of then he must plead them, whether they appear elsewhere in the Tenth Publication or somewhere else.

21st Matter Complained Of

1. The imputations are not capable of arising from the 21st Matter Complained Of.  Imputation (ii) appears to be an imputation about Ivo Sulenta not the plaintiff.

22nd Matter Complained Of

1. None of the imputations are capable of arising.  The words complained of make no reference to the plaintiff.  The 'particulars of identification' in [20] in relation to the Tenth Publication are insufficient for the same reasons that the 'particulars of identification' in [15] in relation to the Fifth Publication are insufficient.  Furthermore imputations (i) and (ii) are not sufficiently distinct.  Imputations (iii) and (iv) are not sufficiently distinct.

Conclusion

1. I will refuse leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed on 1 February 2013.  There are substantial deficiencies in the proposed statement of claim which I have identified in these reasons.  It is appropriate to allow the plaintiff a further opportunity to plead a statement of claim because parts of the publications complained of are defamatory of the plaintiff.  I will give the plaintiff leave to file and serve a further minute of proposed amended statement of claim.