Desfosses v Martinson
[2018] WASC 114
•13 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DESFOSSES -v- MARTINSON [2018] WASC 114
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 13 APRIL 2018
FILE NO/S: CIV 2746 of 2017
BETWEEN: JOSE LOUIS HENRI DESFOSSES
Plaintiff
AND
MARIE THERESE JOCELYN MARTINSON
Defendant
Catchwords:
Procedure - Conditional appearance - Application to dismiss proceedings on ground court has no jurisdiction
Procedure - Conditional appearance - Application to dismiss proceedings on ground court is a clearly inappropriate forum
Legislation:
Rules of the Supreme Court 1971 (WA), O 12 r 6(2), O 10 r 1
Result:
Defendant's application to dismiss proceedings dismissed
Conditional appearance to operate as unconditional appearance
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Bennett + Co |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Agar v Hyde (2000) 201 CLR 552
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80‑691
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Jameel v Dow Jones & Co Inc [2005] QB 946
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jones v Sutton (2004) 61 NSWLR 614
Mardas v New York Times Company; Mardas v International Herald Tribune SAS [2008] EWHC 3135 (QB)
Noorani v Calver [2009] EWHC 561 (QB)
Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, No 11262 of 1991, 15 August 1997)
Smith v Lucht [2016] QCA 267
LE MIERE J:
Summary
The plaintiff commenced this action in which he claims that the defendant, his sister, defamed him in a letter published to the plaintiff and others. The plaintiff seeks damages and a permanent injunction restraining the defendant from repeating publication of the letter or similar words.
The defendant filed a conditional appearance in which she denies the jurisdiction of the court and further states that the court should, in its discretion, refuse to hear this matter on the ground that the court is a clearly inappropriate forum. The defendant is resident in the United States of America. I made directions for the parties to file affidavit evidence and submissions in relation to the matters raised by the defendant's conditional appearance and directed that those matters be determined on the papers.
For the reasons which follow the defendant's application that the action be dismissed or stayed is dismissed and the defendant's conditional appearance shall, in accordance with O 12 r 6(2) of the Rules of the Supreme Court 1971 (WA) (RSC) become and operate as an unconditional appearance.
The plaintiff's claim
On 10 October 2017 the Master of this Court granted the plaintiff leave to serve the writ on the defendant outside Australia. The plaintiff caused the writ of summons to be issued on 17 October 2017. The writ was subsequently served on the defendant in the United States.
The indorsement of claim states that the plaintiff's claim arises in respect of a defamatory publication by letter from the defendant published to the plaintiff and others on or about 25 March 2017 (the Letter) which letter is of and concerning the plaintiff. The plaintiff claims a permanent injunction restraining the defendant from repeating publication of the Letter or words similar thereto and damages.
Conditional appearance
On 22 December 2017 the defendant sent to the court by facsimile the following documents:
(1)a conditional appearance dated 22 December 2017 in which the defendant denies the jurisdiction of the court and states that the court should, in its discretion, refuse to hear the matter on the ground that the court is a clearly inappropriate forum;
(2)a letter of 22 December 2017 in which the defendant states that this matter is beyond the jurisdiction of the court and the court should in its discretion refuse to hear this matter on the ground that the court is clearly an inappropriate forum to hear the matter and the matter is frivolous, vexatious and an abuse of process;
(3)a document entitled 'Affirmative defence';
(4)an affidavit sworn by the defendant on 21 December 2017; and
(5) a notice of self‑representation in which the defendant says that she has no lawyer acting for her in this matter.
Further material filed by defendant
On 23 January 2018 the defendant filed affidavits sworn by Marie Illette Belletty, Marie Gilberte Poilly and Lisette Downing. On 25 January the defendant filed a motion to dismiss dated 24 January 2018 in which she moves the court to dismiss this case on the ground of lack of jurisdiction and merit. The defendant filed submissions dated 24 January 2018 in support of her contentions.
Directions for hearing of application
On 30 January 2018 I made the following orders in relation to the matters raised by the defendant's conditional appearance and her letter to the court dated 22 December 2017 (which I will refer to together as the Application):
1.by 13 February 2018 the plaintiff file and serve any affidavits and outline of written submissions in opposition to the Application;
2.by 27 February 2018 the defendant file and serve any affidavits and/or submissions in reply;
3.the Application be determined by Justice Le Miere on the papers; and
4.costs reserved.
On 16 February the plaintiff filed an affidavit of Kassie Simone Comley and submissions in opposition to the defendant's Application.
Defendant's motion to dismiss
The defendant delivered to the court a 'Request for Motion for Dismissal' dated 16 February 2018 in which the defendant requested the case be dismissed due to the plaintiff's failure to abide by the court orders.
The plaintiff filed a further affidavit of Kassie Simone Comley sworn 16 February 2018. Ms Comley explains the circumstances leading to the plaintiff's submissions being filed on 16 February 2018. The court had directed that the submissions be filed by 13 February 2018 and Ms Comley says that the defendant agreed to extend the time for the filing and service of the submissions to 15 February 2018.
I am satisfied that the plaintiff has provided an adequate explanation for the late filing of his submissions. There is no evidence that the defendant has suffered any prejudice as a result of the plaintiff's late filing of his submissions. I will dismiss the defendant's motion for dismissal and extend the time for the plaintiff to file his submissions to 16 February 2018.
Matters asserted or raised by the defendant
The documents filed by the defendant arguably assert or give rise to the following affirmative defences:
1.the defamatory imputations carried by the Letter are true;
2.the Letter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations;
3.the circumstances of publication were such that the plaintiff was unlikely to sustain any harm;
4.the matter is the honest opinion of the defendant;
5.the first amendment to the United States Constitution;
6.the fifth amendment to the United States Constitution;
7.the Letter was published in circumstances attracting qualified privilege.
The documents filed by the defendant arguably assert or give rise to, in addition to the affirmative defences raised by the defendant, the following matters in support of her contention that the action should be dismissed or stayed:
1.the circumstances of publication were such that the plaintiff was unlikely to sustain any harm;
2.the defendant is not in Australia and is not legally represented;
3.the defendant is the United States citizen resident in the United States and has minimum contact with Western Australia;
4.the plaintiff's claim is an abuse of process in that the resources of the parties and the court needed to determine the plaintiff's claim would be wholly disproportionate to the subject matter of the claim; and
5.the defendant has agreed to be restrained from further publishing, or not to further publish, the matters about the plaintiff in the Letter.
Orders that may be made on the defendant's application
It is arguable that on hearing and determining the defendant's application the court may:
1.set aside the writ of summons;
2.set aside service of the writ of summons on the defendant;
3.discharge the order of the Master of 10 October 2017 which granted leave to serve the writ on the defendant outside Australia;
4.permanently stay the action; or
5.dismiss the defendant's applications as a result of which the defendant's appearance would become unconditional.
Evidence before the court
The defendant has filed a number of affidavits. In her affidavit of 21 December 2017 the defendant says that on 25 March 2017 she wrote the Letter, which she describes as a personal letter to the plaintiff, her brother, outlining his behaviour, deception and misconduct during the decline, death, funeral execution of the estate and laying of the ashes of their late mother. The defendant says she mailed the Letter to three other family members due to the plaintiff 'implicating them in matters involving our late mother'. The defendant says that everything in the Letter is true. She says that the purpose and nature of her visits to Australia in the past five years were to visit her aged, ill mother who passed away on 13 January 2017. The defendant says that she is currently unemployed and has no funds to appoint a Western Australian based lawyer or to travel to Australia for a hearing.
The defendant has filed affidavits sworn on 22 January 2018 by Marie Illette Belletty and Marie Gilberte Poilly respectively. Ms Belletty and Ms Poilly are each a sister of the plaintiff and the defendant. The defendant has also filed an affidavit sworn on 22 January 2018 by Lisette Downing who was the niece of both the plaintiff and the defendant. In their affidavits Ms Belletty, Ms Poilly and Ms Downing each set out points which they say outline some incidents relating to the plaintiff which highlight his lack of character and his questionable behaviour.
On 21 February 2018 the defendant delivered to the court the following further documents supporting her submissions of 19 February 2018:
1.copy of the Securing the Protection of Our Enduring and Established Constitutional Heritage Act 2010, Public Law 111‑223‑Aug 10, 2010;
2.copy of Litigation News, a publication of the ABA section of litigation, entitled 'First Amendment & Media Litigation, The Speech Act Provides Protection Against Foreign Libel Judgments';
3.proof of transmission and receipts;
4.document entitled 'References'; and
5.copies of photographs taken at funeral service of the mother of the plaintiff and defendant.
The defendant delivered a further affidavit sworn by her on 19 February 2018. In her affidavit the defendant says that the statement that she has received assistance from an Australian solicitor is false. The defendant also delivered further submissions dated 19 February 2018.
The plaintiff relies upon an affidavit of Kassie Simone Comley, a legal practitioner employed by the plaintiff's solicitors, sworn on 16 February 2018. Ms Comley sets out the steps she took for the following documents to be served on the defendant by the Central Authority of the United States of America pursuant to the convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965 (The Hague Service Convention):
(1)notice of the writ of summons dated 30 November 2017;
(2)copy of the sealed writ of summons dated 17 October 2017; and
(3)covering letter from Bennett + Co to the defendant dated 30 November 2017.
Ms Comley provides evidence of the service of the documents on the defendant in the United States by the Central Authority. The plaintiff has filed submissions of 16 February 2018.
Court has jurisdiction
Jurisdiction is the authority that a court has to deal with a particular case, according to its own rules of competence. This court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable 'long arm' provisions of the RSC have been invoked: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 [25] (Gleeson CJ & Gaudron, McHugh, Gummow & Hayne JJ).
The plaintiff invoked the court's long arm jurisdiction, that is, the competence of the court to exercise jurisdiction over persons not within its territorial jurisdiction through the provisions of the RSC. The Master of the court gave the plaintiff leave to serve the writ on the defendant in Idaho, USA.
The plaintiff must show that the nature of the allegations made by the plaintiff brings his claim within one or more of the grounds of jurisdiction set out in RSC O 10 r 1 which provides that the court may grant leave to serve a person outside Australia with a writ that begins an action if the action falls within any of the subparagraphs of O 10 r 1(1).
The plaintiff's claim is founded on a tort allegedly committed within the jurisdiction. RSC O 10 r 1(1)(k) provides that the court may grant leave to serve a person outside Australia with a writ that begins an action if the action is founded on a tort committed within the jurisdiction. The evidence before the court is that the Letter was sent by the defendant to the plaintiff and three other persons, namely Ms Michelle Poilly, Mr Daniel Poilly and Mr Terence Belletty, each of whom read and therefore received the Letter in Western Australia. The tort of defamation is taken to have been committed where the communication was received. Therefore, the alleged defamation occurred in Western Australia.
The Letter is on its face defamatory of the plaintiff. Words are defamatory when they tend to lower the plaintiff in the estimation of right thinking members of society generally. The defendant asserts that the Letter is not defamatory because what it says about the plaintiff is true. True words can be defamatory, although not unlawful. The truth or falsity of the matter complained of is irrelevant to its defamatory nature. If words tend to lower the plaintiff in the estimation of right thinking members of society generally they are defamatory. If the defendant proves that the words are true then that is a good defence to the plaintiff's claim; the words even though defamatory will not be unlawful and the plaintiff's claim would be dismissed. In short, service of the writ on the defendant in the United States was authorised by the RSC.
A writ served on a person outside Australia has no effect unless the person was served under O 11A and The Hague Convention. The United States of America is a signatory state to The Hague Convention. The affidavit of Ms Comley sworn and filed on 16 February 2018 confirms the steps taken by the plaintiff to effect service in accordance with The Hague Convention. The plaintiff made a request to ABC Legal, the Central Authority for the United States of America under The Hague Convention, which was reviewed by ABC Legal and service of the writ and notice was effected on the defendant. There is no defect in the service of the process upon the defendant.
Court is not a clearly inappropriate forum
The defendant submits that this court is a clearly inappropriate forum for this hearing. The principle of forum non conveniens (inconvenient forum) is a discretionary power that allows the court to dismiss a case if the court finds that it is itself a clearly inappropriate forum for the determination of the proceedings. Where the substantive law of the forum applies to the proceedings that is a very significant, although not decisive, factor in the exercise of the court's discretion on the convenient forum issue: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 [162]. In a defamation action the place of publication is where the allegedly defamatory material was received and read by the reader. In this case the applicable law is that of Western Australia. The other matters referred to by the defendant are not sufficient to make this court a clearly inappropriate forum.
Merits of plaintiff's claim
The defendant has foreshadowed a number of affirmative defences. This is not the time for the court to determine the merits of the plaintiff's claim. The plaintiff has not filed a statement of claim. At this time the court is only concerned whether the court has jurisdiction to hear the case, whether it should dismiss or stay the case on the ground that it is a clearly inappropriate forum or, arguably, that the court should set aside service of the writ on the grounds that the claim has insufficient prospects of success.
In Agar v Hyde (2000) 201 CLR 552 (Agar) at [55] the High Court held that if the defendant applies for service of initiating process to be set aside, or for the court not to exercise its jurisdiction, then the defendant could argue any of three issues. First, the nature of the allegations made did not bring the claim within in one (or more) of the grounds of jurisdiction set out in the rules. I have already determined that the allegations made by the plaintiff fall within O 10 r 1(1)(k) of the RSC. Secondly, the court was a clearly inappropriate forum for the determination of the proceedings under the relevant principles of forum non conveniens. I have determined that this court is not a clearly inappropriate forum.
Thirdly, the claim has insufficient prospects of success to warrant an overseas defendant being put to the time, expense and trouble of the litigation. Gaudron, McHugh, Gummow and Hayne JJ held that there has to be a high degree of certainty about the ultimate outcome of the proceeding and it is not sufficient that it is merely likely or probable that the plaintiff will fail at trial. The test is the same as that applied in local proceedings where a defendant can secure summary judgment that the matter not go to trial: Agar [60]. It is not appropriate at this stage of the proceedings that I embark upon an analysis of the merits of the case beyond what is necessary to determine whether there is a sufficiently high degree of certainty that the defendant will ultimately be successful to warrant dismissing the proceedings at this early stage. The defendant does not dispute publication of the Letter nor that it is defamatory of the plaintiff in the sense that I have explained. The defence that the statements in the Letter are true, and other defences raised by the defendant, are matters on which the defendant will bear the onus of proof. Those matters can only be determined after evidence has been given and tested at trial. I will not dismiss the case at this early stage.
I wish to make some brief remarks about the defence of triviality. The defendant puts forward the defence of triviality pursuant to Defamation Act s 33. It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
In his written submissions the plaintiff makes two points. First, the relevant matter for consideration is the quality of the circumstances of the publication with respect to its proneness to cause harm. The plaintiff refers to dicta of Moffitt P in Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80‑691. Moffitt P said that to establish the defence of triviality under s 13 of the Defamation Act 1974 (NSW), on which Defamation Act s 33 is modelled, it is not sufficient to establish that a defendant merely proves 'in all the circumstances' that it is unlikely the plaintiff will suffer harm. His Honour was calling attention to the requirement that the inquiry is directed to the circumstances of publication and not to subsequent events. However, the inquiry is not limited to the nature of what was published. In Jones v Sutton (2004) 61 NSWLR 614 at [14] Beazley JA, with whom Santow JA and Stein AJA agreed, referred to the decision of Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, No 11262 of 1991, 15 August 1997) in which Badgery‑Parker J explained why it is that the publication of serious content that is defamatory may still be caught by the statutory defence of triviality. Badgery‑Parker J concluded that the major circumstance of the publication that would make it unlikely that the plaintiff would suffer harm, apart from content, was the extent of publication, the nature of the recipients and their relationship with the plaintiff.
Secondly, the plaintiff said that the proper construction of the word 'harm' is not without its difficulties and the authorities have not expressed a concluded view as to whether harm is confined to injury to reputation or extends to injury to the plaintiff's feelings. Amongst the authorities referred to by the plaintiff is Smith v Lucht [2016] QCA 267 where the majority held that harm is confined to reputational harm and does not extend to hurt feelings. Unless and until a contrary view is expressed by the High Court or an intermediate Court of Appeal, a single judge of this court is bound to follow Smith v Lucht unless persuaded that it is clearly wrong.
No abuse of process has been established
No civil action can be maintained for defamation unless the words complained of have been published. In order to constitute publication, the matter must be published to at least one person other than the plaintiff. It has been held in England in a number of cases that it may be an abuse of process to bring an action in respect of a limited publication. The seminal decision in the consideration of abuse of process in the context of defamatory publications is Jameel v Dow Jones & Co Inc [2005] QB 946 (Jameel) in which it was held that as only five people who had known the plaintiff had seen the publication (three of whom were friends and associates of the plaintiff), the reputation of the plaintiff had not been affected to such an extent as to be worth judicial consideration.
It is more than a mere numbers game. In Mardas v New York Times Company; Mardas v International Herald Tribune SAS [2008] EWHC 3135 (QB) Eady J remarked:
[W]hat matters is whether there has been a real and substantial tort within the jurisdiction (or at this stage arguably so). This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case [15].
As well as the number, the nature of publishees is important. The relationship between the plaintiff and the persons to whom the material complained of has been published may be sufficient to give rise to the inference that the publishees were unlikely to have thought the worse of the plaintiff on account of the material complained of. For example, in Noorani v Calver [2009] EWHC 561 (QB) a defamation action in respect of comments made to the wife and daughter of the claimant that he was an Islamist terrorist was struck out. Coulson J held following Jameel and the subsequent line of authorities, the case did not serve the legitimate purpose of protecting the claimant's reputation; the words allegedly spoken were spoken briefly in a street; they were published to just two people who were persons wholly within the claimant's 'camp' and there was no evidence of any damage to the claimant's reputation.
In this case the Letter was published to three persons. Although the publishees are related to the plaintiff and the defendant, it is not possible to establish at this stage what the publishees knew of the matter in the Letter and whether the Letter is likely to have lowered the plaintiff in their estimation. The case should not be dismissed as an abuse of process, at least at this stage of the proceedings.
No ulterior purpose established
The defendant says that the plaintiff has commenced this proceeding for an ulterior purpose. The defendant says that the plaintiff's purpose is to obtain a judgment against the defendant to prevent her from entering Australia in the future and for financial gain. There is no direct evidence of the plaintiff's alleged purpose and the material before the court is not sufficient for the court to make that conclusion by way of inference.
No sufficient undertaking given by defendant
The defendant has said that she has provided an undertaking to the plaintiff which makes the continuation of the proceeding unnecessary. The plaintiff says that the defendant has not provided an undertaking to the plaintiff that she will refrain from publishing, republishing, or causing to be republished any false or defamatory statements concerning the plaintiff in the future in a form which is capable of acceptance by the court or the plaintiff. The plaintiff says that all the defendant has provided is confirmation that she will not contact the plaintiff again. The plaintiff says this provides no assurance to the plaintiff that the defendant will not repeat the material of which he complains to third parties. In the absence of an undertaking by the defendant to the court that she will not republish to third persons the matters complained of by the plaintiff, I cannot dismiss the case on the basis of the alleged undertaking.
Conclusion
The defendant's various applications and in particular her application that the action be dismissed on the ground of lack of jurisdiction or inconvenient forum will be dismissed. Consequently, the defendant's conditional appearance will become unconditional.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO LE MIERE J13 APRIL 2018
3
6
1