Du Buisson Perrine v Carrello - [2018] WASC 392

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   DU BUISSON PERRINE -v- CARRELLO [2018] WASC 392
CORAM:   KENNETH MARTIN J
HEARD:   20 NOVEMBER 2018 AND BY FURTHER WRITTEN SUBMISSIONS OF 21 AND 29 NOVEMBER 2018
DELIVERED          :   13 DECEMBER 2018
FILE NO/S:   CIV 2115 of 2018
BETWEEN:   LOUIS JEAN-MIC DU BUISSON PERRINE
Plaintiff
AND
GIOVANNI MAURIZIO CARRELLO
Defendant

Catchwords:

Defamation - Strike-out application - Alleged lack of particularity as regards publication - Recipients - Alleged failure to disclose arguable cause of action - Legally embarrassing character of irrelevant paragraphs

Legislation:

Architects Act 2004 (WA)
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)

Result:

Substantial striking out of most paragraphs of the amended statement of claim

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr S K Shepherd

Solicitors:

Plaintiff	:	In Person
Defendant	:	Clyde & Co (Perth Office)

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

Carrello (as Liquidator of Perrinepod Pty Ltd) (in liq) v Perrine Architecture Pty Ltd [2016] WASC 145
Crookes v Newton [2011] 3 SCR 269
Duffy v Google Inc [2015] SASC 170; (2015) 125 SASR 437
Hird v Wood (1894) 38 Sol J 234
Perrine v Carrello [2017] WASCA 151
Visscher v Maritime Union of Australia [No 6] [2014] NSWSC 350

KENNETH MARTIN J:

I am dealing with the defendant's application in this defamation action advanced under its minute of 24 October 2018 (court document 8) seeking to strike out for various reasons pursuant to RSC O 20 r 19 almost all of the 53 paragraphs which comprise the plaintiff's Amended Statement of Claim filed 25 October 2018 (ASOC).
The plaintiff acts in person. He appeared and represented himself at the hearing of the present strike-out application, which he resists.
The plaintiff has already had one attempt at pleading a statement of claim on 3 September 2018. Plainly, there was some dialogue with the defendant's solicitors about that first document. It was duly amended to its current form under the ASOC.
The defendant raises multiple objections, some of a rather technical kind, against the plaintiff's ASOC.
In order to evaluate the multiple grievances which are raised against the ASOC on the present application, it is necessary to have some insight towards the content of that pleading.

The plaintiff's ASOC

In short compass, the plaintiff, who is an architect, alleges that he was defamed by Mr Carrello, who is the liquidator of the corporation Perrinepod Pty Ltd.
The plaintiff says he was defamed by a complaint submitted by the defendant to the Architects Board of Western Australia (ABWA) on or about 17 October 2017, which was lodged by the defendant on the standard ABWA complaint form (form 21).
For the purposes of the present application, the plaintiff (without objection) provided the four-paged complaint form as Appendix A, to his written submissions of 15 November 2018 resisting the strikeout application. The complaint form concludes with a declaration signed by the defendant on 17 October 2017 declaring that the information he provided to the ABWA was true. His declaration was made pursuant to the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).
There is an attached Schedule A that is referred to on page 3 of the pro forma complaint form. Section 4 of the form read:
4.Details of the Complaint
What section of the Architects Act 2004 do you allege the architect has breached?
The blank line underneath that question contains the handwritten insertion - '56(1)(b)'.
Underneath that continued:
Please provide details of your complaint including:
·details of the circumstances leading to your complaint;
·what the architect did or did not do; and
·the dates of the conduct or behaviour you are complaining about.
If there is not enough space on this form, please attach additional pages.
The blank lines underneath that sentence contained the following longhand response:
'PLEASE SEE ATTACHED SCHEDULE A.'
A fourth page within the completed complaint form to ABWA was entitled 'Schedule A'. Because of its importance, I need to set out the content of the Schedule in full.
But first I will observe at an early stage that it is only the third of three mentioned (and underlined) https references made by Schedule A which presents as problematic subject matter (from the plaintiff's perspective) upon the present application.
It will also be seen that in the concluding paragraph of Schedule A the complainant says there in explicit terms that he was of the opinion that the plaintiff was 'not a fit and proper person to be an architect'. The reason for that opinion is stated in this same sentence, which ends:
[A]s he [has] been the director of and involved in the management of many companies which have been wound up in insolvency and further, he is an undischarged bankrupt.
Before leaving the complaint form to look more closely at its Schedule A, I need to elaborate concerning the earlier reference to a section of the Architects Act 2004. The reference was to s 56(1)(b) of the Architects Act. This law relevantly provides a process for disciplinary proceedings and disciplinary action to be taken where available against registered West Australian architects.
Subparagraph 56(1)(b) manifests within pt 5 of the Architects Act under the heading, 'Disciplinary proceedings'.
It is found as the first section within div 1 of that Act and carries a subheading, 'Disciplinary action'.
Section 56 itself is prefaced by a heading 'Causes for disciplinary action'.
Subsection (1) is seen to span some five subparagraphs - all under the ambit of a commencing chapeau to s 56(1) that reads:
Proper causes for disciplinary action in respect of a person are any of the following things -
…
The following subparagraph (b) of s 56(1) says:
(b)that the person has done or omitted to do something, or engaged in conduct (whether in this State or elsewhere and whether before or after registration) that renders the person unfit to be registered;
…
So, in overall context here, the longhand insertion under s 4 of the complaint form concerning the details of the complaint made to the ABWA was an intended reference by the complainant (defendant) to the above provision.

The Schedule to the complaint

I can now proceed to set out, as I mentioned, the full content of Schedule A to the complaint form sent to the ABWA by the defendant. I direct particular reference to the Schedule's three https references and particularly the last. This displays a reference to a website operated by the newspaper organisation referred to by the plaintiff in his ASOC at par 7.9 (in reference to a copy of an article published in The West Australian newspaper concerning the plaintiff on or about 2 September 2017). [See also pars 14 - 17 of the ASOC.]
The Schedule reads in terms:
SCHEDULE A
I am the liquidator of Perrinepod Pty Ltd (In Liquidation) (Perrinepod), having being [sic] appointed on 1 March 2012 when the Supreme Court of Western Australia ordered that the company be wound up in insolvency.
Mr Perrine is one of the directors of Perrinepod. In 2014 I commenced proceedings against Mr Perrine and the other director of Perrinepod in the Supreme Court of Western Australia alleging that the directors engaged in, amongst other matters, insolvent trading.
On 12 May 2016 the Honourable Justice Chaney found that Perrinepod was insolvent from July 2010 and that Mr Perrine and the other director of Perrinepod had engaged in insolvent trading and were liable to Perrinepod for over $1.7 million.
A copy of the Honourable Justice Chaney's judgment detailing the history of Perrinepod and the management of that company by Mr Perrine can be found at: and the other director of Perrinepod, Mrs Mercedes Perrine appealed Justice Chaney's decision and on 17 August 2017 the Supreme Court of Western Australia's Court of Appeal upheld Justice Chaney's decision. A copy of the Court of Appeal's decision can be found at: http//decisions.justice.wa.gov.au/supreme/supdcsn.nsf/judgment.xsp?documentld=988AA779C44598684825817F0024CF87&action=openDocument
As part of my role as liquidator of Perrinepod I conducted various investigations into the affairs of that company, and the conduct of Mr Perrine as one of its directors.
During my investigations I was made aware that Mr Perrine had been the director of other companies that have been wound up, or wound up in insolvency including:
1.Perrinepod, which was wound up in insolvency.
2.Perrine Architecture Pty Ltd (In Liquidation), which was wound up in insolvency.
3.Citylife Holdings Pty Ltd, which was wound up in insolvency.
4.Twobox Pty Ltd, which was wound up in a creditors' voluntary liquidation.
On 16 August 2017 Mr Perrine declared himself bankrupt. I understand that there is a substantial pool of creditors and insufficient assets to support a return to creditors. The West Australian has written about Mr Perrine's bankruptcy and the circumstances leading up to that bankruptcy and a copy of the article can be found at: is my opinion that Mr Perrine is not a fit and proper person to be an architect as he as [sic] been the director of and involved in the management of many companies which have been wound up in insolvency and further, he is an undischarged bankrupt.

The ASOC's components

The primary pleading grievance advanced by the defendant at the strike-out hearing commences at par 4 of the ASOC.
For convenience, I will set out most of pars 4 - 10 of the ASOC. They present under a heading 'The Publications by the Defendant'.
4.On or about 17 October 2017 the defendant, in his personal capacity, published defamatory matter in the form of a complaint to the ABWA, the subject of which was the plaintiff (the Complaint).
5.The defendant lodged the Complaint using the standard ABWA Complaint Form, Form 21 (the Complaint form), which provided for the defendant to respond to questions by ticking boxes or filling in answers.
6.The defendant completed the details requested and questions asked on the Complaint form, by stating that:
…
[In effect, proceeding to set out the information which was said to be inserted in longhand on the substantive four pages of the submitted complaint form alleged against the defendant.]
At par 7, the 'ASOC refers to Schedule A of the complaint' form to ABWA in terms:
7.In the Schedule the defendant states that:
7.1the defendant is the liquidator of Perrinepod having been appointed on 1 March 2012 when the Supreme Court of Western Australia ordered that Perrinepod be wound up in insolvency;
7.2the plaintiff is one of the directors of Perrinepod against whom the defendant commenced the Perrinepod action in the Supreme Court of Western Australia alleging, amongst other matters, insolvent trading;
7.3on 12 May 2016 Perrinepod was found by the Honourable Justice Chaney to be insolvent from July 2010 and that the plaintiff and the other director of Perrinepod had engaged in insolvent trading and were liable to Perrinepod for over $1.7 million;
7.4a copy of the Honourable Justice Chaney's judgment detailing the history of Perrinpod and the management of that company by the plaintiff could be found at: plaintiff and other director of Perrinepod, his wife, appealed Justice Chaney's decision and on 17 August 2017 the Court upheld the decision and that a copy of the Court of Appeal's decision could be found at: part of the defendant's role as liquidator of Perrinepod he conducted various investigations into the affairs of that company and the conduct of the plaintiff as one of its directors;
7.7during his investigations, the defendant was made aware that the plaintiff had been the director of other companies that had been wound up, or wound up in insolvency including:
7.7.1     Perrinepod;
7.7.2     Perrine Architecture;
7.7.3     Citylife Holdings;
7.7.4     Twobox;
7.8the plaintiff declared himself bankrupt on 16 August 2017 and that the defendant understood that there was a substantial pool of creditors and insufficient assets to support a return to creditors;
7.9the West Australian had written about the plaintiff's bankruptcy and the circumstances leading up to that bankruptcy and that a copy of the article by the West Australian could be found at the internet address of Web article); and
7.10in the defendant's opinion the plaintiff is not a fit and proper person to be an architect as he has been the director of and involved in the management of many companies which have been wound up in insolvency and further, he is an undischarged bankrupt.
Next in the ASOC follow pars 8 and 9 in terms:
8.On page 5 of the Complaint form, following the Schedule, the defendant makes a declaration, by signing his name in the presence of an authorised witness under the Oaths, Affidavits and Statutory Declarations Act 2005, declaring that, amongst other things, the defendant declares that the information provided by him is true and that the defendant knows that it is an offence to make a declaration knowing that it is false in a material particular (the Declaration).
9.In their natural and ordinary meaning, the response of the defendant in the Complaint, by way of the actions of ticking boxes and filling in the words pleaded at paragraphs 6.9 and 6.10 hereof, affirming that legal proceedings have been initiated in relation to the matters of the Complaint alleging that the plaintiff has breached section 56(1)(b) of the Act (the Responses), were defamatory of the plaintiff and contained defamatory imputations under the Defamation Act 2005 (WA) and the plaintiff refers to the defamatory imputations pleaded at paragraph 33 hereof.
For convenience, at this point I advance directly from par 9 to par 33 of the ASOC, which appears at page 17 under the ASOC heading, 'Defamatory Imputations':
33.In the Complaint published by the defendant to the ABWA, in their natural and ordinary meaning, the actions of ticking boxes and filling in the words of the Responses by the defendant in the Complaint pleaded at paragraphs 6.9 and 6.10 hereof, affirming that legal proceedings have been initiated in relation to the matters of the Complaint alleging that the plaintiff has breached section 56(1)(b) of the Act; meant and were understood to mean that:
33.1the plaintiff is not a fit and proper person to be an architect; and
33.2the defendant had begun legal proceedings against the plaintiff in respect of his allegation that the plaintiff breached section 56(1)(b) of the Act because the plaintiff is not a fit and proper person to be an architect.
At par 34 of the ASOC the plaintiff refers to essentially the last four concluding paragraphs of Schedule A - to contend he was defamed in respect of even further meanings which are the subject of pars 34.1 and 34.2.
However, the extra alleged par 34 defamatory imputations do not rely upon merely the words in Schedule A. That is explicit since after quoting verbatim the last four paragraphs of Schedule A, the plaintiff then adds:
... in combination with the words of the Web article pleaded at paragraph 35 hereof, meant and were understood to mean that:
34.1the plaintiff behaved in an unprofessional manner and lacked the qualification, knowledge, skill, capacity or moral or ethical standing to be a fit and proper person to be an architect; and/or alternatively
34.2the plaintiff's bankruptcy and the circumstances leading up to that bankruptcy as written about by WA Newspapers, rendered him not a fit and proper person to be an architect.
(my emphasis)
Paragraph 35 of the ASOC then repeats verbatim certain paragraphs from the West Australian Newspapers web article which are said to have been 'published by the defendant to the ABWA' (ie, published by this defendant).
At par 36 of the ASOC the further alleged defamatory imputation, to the effect that the plaintiff 'is not a fit and proper person to be an architect because he is a thief and a criminal', is pleaded to have arisen -this time from 'a Facebook page'.
That par 36 ASOC plea alleges that some Facebook content was published by this defendant because it was accessible by way of the hyperlink from the web article published by the defendant to the ABWA, in their 'natural and ordinary meaning'.
That par 38 ASOC reference is apparently to some hostile Facebook comments (directed at the plaintiff) posted on Facebook by a person or persons. But this was the West Australian Newspapers' Facebook social media page (par 18 ASOC).
Returning back to par 17 of the ASOC, the plaintiff contends that it was the West Australian Newspapers' web article that had provided a hyperlink to the newspaper's Facebook social media page.
So a Facebook link accessible from the West Australian Newspapers' web article to its Facebook page is the subject matter of the further complaint by the plaintiff seen under pars 19 through 24 of the ASOC -essentially by reference to adverse comments against the plaintiff thought to be posted by some persons on that page - including, it seems, by some hostile looking emojis (par 24)!
At pars 25 through 32 of the ASOC the plaintiff complains of even further newspaper articles published in the West Australian's 'West Business' section, then also, a PressReader article (ASOC par 25.2) said to be of and concerning the plaintiff. Somehow (unstated) these are all attributed to being published by this defendant, Mr Carrello, as well.

The plaintiff's grievance

As became relatively clear at the hearing by the verbal submissions of counsel and then by Mr Perrine himself, the heart of his defamation grievance against Mr Carrello is not so much what was on the ABWA complaint form, but rather, it was over the content of the West Australian Newspapers web article that is referred to therein - by Schedule A. That newspaper publication had separately given rise to defamation proceedings by Mr Perrine in this court - against that newspaper's publisher. A civil action, CIV 1325 of 2018, was also case managed by me, but it soon settled after its commencement and is now at an end.
Under par 29 of the ASOC in the present action, Mr Perrine relates that the West Australian Newspapers removed the web article, plus the PressReader article, on or about 19 July 2018.
At ASOC par 28 the plaintiff says West Australian Newspapers removed its Facebook page from the internet on 29 May 2018.
At ASOC par 30 Mr Perrine next pleads that he received an apology from The West Australian and WA Newspapers on 4 August 2018. It was, he pleads, published in the weekend edition of the Weekend West of 4 - 5 August 2017 in terms:
Society Architect Jean-mic Perrine
Mr Perrine was the subject of an article which appeared in The West Australian and on the internet in September 2017. It has come to our attention that there were a number of errors of fact in the article, which may have caused harm to Mr Perrine's reputation and caused him hurt. The West Australian apologises to Mr Perrine for any harm and hurt that may have been caused to him by the publication.

First evaluations

I can proceed immediately to say, bearing in mind Mr Perrine is acting for himself without legal representation, that his first contended imputation seen under par 33.1 of the ASOC, in terms 'the plaintiff is not a fit and proper person to be an architect' is, on my assessment, a viable plea and should not be struck out. This imputation does not need augmentation by reference to any other founding source - beyond the last paragraph of Schedule A to the complaint form. Indeed, such an imputation seems to be a natural consequence of a complaint made about a professional person to their governing professional regulatory body. Such defamatory imputation, however, stands as vulnerable longer term to a defence of qualified privilege, where the complaint is made bona fide.

Nevertheless, the balance of the other ASOC allegedly defamatory imputations sought to be contended for by Mr Perrine on his ASOC are, on my assessment, seriously defective.
In illustration, the further imputation seen under par 33.2 above is not arguably sustainable out of the words of the complaint form or the Schedule.

Evaluations as to other Defamatory Imputations

Legal proceedings referred to by the defendant were the subject of question 3.4 on the complaint form, where the 'Yes' box was ticked. Again, more details were provided in longhand: 'See answer to question 4'. As seen, question 4 refers back to Schedule A.
When Schedule A is seen, it is clear that the reference to legal proceedings is encompassed under the two 'http:' references at Schedule A, pars 4 and 5. The references display links to internet sources, being first to the reasons for decision of Chaney J at first instance in his decision, Carrello (as Liquidator of Perrinepod Pty Ltd) (in liq) v Perrine Architecture Pty Ltd [2016] WASC 145 (delivered 12 May 2016).
The next 'http:' reference in the following paragraph is to the reasons for decision of the WA Court of Appeal (Martin CJ, Mitchell and Beech JJA) delivered 17 August 2017, that appeal decision dismissing Mr and Mrs Perrine's appeals against some aspects of Chaney J's decision.
The appellate reasons can be found under the court's internal reference of Perrine v Carrello [2017] WASCA 151.
For extra background it is helpful at this point merely to see [1] - [3] of the joint reasons of the Court of Appeal in that decision. They read:
[1]Mr and Mrs Perrine, the appellants, were directors and shareholders of Perrine Architecture Pty Ltd, a company carrying on the business of architects. Perrine Architecture owned 39 million of the 49.5 million shares issued in Perrinepod Pty Ltd (Perrinepod), a company in the business of providing residual and commercial prefabricated buildings. Mr and Mrs Perrine were also directors of Perrinepod. Mr Carrello, the respondent (the Liquidator) is the liquidator of Perrinepod.
[2]The appellants' appeal against the decision of the primary judge, finding that they were liable to pay Perrinepod the sum of about $1.35 million, with interest, on the ground that as directors they had failed to prevent insolvent trading by Perrinepod thereby causing loss or damage to a creditor of Perrinepod, namely Perrine Architecture. The appeal challenges the finding in relation to causation of loss or damage.
[3]For the reasons that follow, we would dismiss the appeal.

Basic problem with the ASOC in its wider attempted linkage to the Newspaper Article

A core conceptual difficulty manifested by the ASOC creates an unacceptable level of legal confusion. Unless resolved by a curative amendment, the pleading as it stands also currently undermines the existence of a reasonably arguable defamation cause of action by the plaintiff - beyond what arises via the 33.1 bare imputation.
The core problem emerges out of the last (third) 'http:' reference in Schedule A to the complaint form.
Of the three 'http:' references, it is really only the last 'http:' reference 'thewest.com.au/news/perth/society-architect-declares-bankruptcy-ng-b88581311z', which is the basis for Mr Perrine's attempts at wider defamatory imputations.
The problem is that nowhere within the ASOC is it said that the ABWA complaint form and its accompanying Schedule were submitted to ABWA in an electronic format. For instance, it is not said that the complaint form and its Schedule A were submitted over the internet to the ABWA at the time the complaint form and its Schedule were submitted by the defendant. That is a significant and perhaps even a terminal problem for the plaintiff, because significant amounts of the ASOC pleading are reliant on making good a plea of an alleged publication by Mr Carrello to the ABWA of the full content of The West Australian article by the complaint.
For the purposes of assessing the respectable arguability of Mr Perrine's ASOC pleading (which is all I am concerned with at this interlocutory stage of the litigation) as a potential cause of action, I am prepared to accept that if the last 'http:' reference was correctly stated and an operative hyperlink capable of providing a direct electronic pathway to the West Australian Newspaper article that so much aggrieves Mr Perrine, then his position would be sufficiently arguable to allow his plea to proceed to a trial. However, that is not the position, as I explain.
First, the four pages of longhand content of the ABWA complaint form all suggest to me that the complaint form and Schedule were not completed over the internet. Nor were they likely submitted electronically, or in electronic format to the ABWA by the defendant.
Second, completion of the declaration by Mr Carrello under the Oaths, Affidavits and Statutory Declarations Act as seen at the last page of the form (headed page 5) - is also suggestive of a hard copy submission to the ABWA, rather than an electronic submission.
Third, so too do following words seen at the end of page 5 of the form suggest a physical submission to the ABWA of this form:
Please send the completed form and photocopied attachments to:
Architects Board of WA

33 Broadway

Nedlands WA 6009
As a result, given the ASOC is silent about this issue, there is a present level of uncertainty arising from the fact that, as matters stand, the content of Schedule A looks to be sent in non-electronic form to the ABWA. It presents as more likely than not, that Mr Carrello physically submitted only a paper complaint form inclusive of Schedule A, to the ABWA.
If it is the case the complaint form and its Schedule were submitted to the ABWA as hard copy (ie not electronically), then The West Australian article now complained about as having been part of the defendant's publication - could only then be accessed by ABWA personnel as recipients by the relevant person(s) manually inserting the as provided 'https:' details into a web browser - in order to reach and access the electronic content of the newspaper article online. Such a process stands in some strong contradistinction to the provision to the ABWA of an electronic version of the complaint - whereby the recipient of the form (and its Schedule A) might simply then access the newspaper article by using a mouse to click the 'https:' reference and thereby (assuming the 'https:' reference was correct and still live), to gain virtually instantaneous access to that online newspaper article's content.
The plaintiff's ASOC is wholly silent upon the publication media of the complaint form to the ABWA. ASOC pars 4 through 10, as seen mostly set out earlier, simply do not address the media of publication issue. In other words, there is no ASOC plea that the ABWA complaint form was submitted electronically by Mr Carrello, or that the observed 'http:' references in Schedule A, were at the time of submission operable hyperlinks capable of being speedily accessed by one or two mouse clicks.
That all being so, I must, in the end, proceed on the basis that, as framed, large components of the plaintiff's ASOC that rely as against Mr Carrello on the augmented 'https:' content from the West Australian Newspapers article, or from there even further onwards to content of hostile posts on the West Australian Newspapers Facebook page concerning this article - is simply too problematic to allow to go to trial.
When this issue was flagged at the hearing Mr Perrine, appearing in person, said to me, frankly, that he did not know what the position was in terms of the possible electronic submission of the complaint material, or otherwise to the ABWA. I accept that to be so. But, as a plaintiff, the burden still falls upon him to provide proper clarity upon this critical media of complaint publication to the ABWA aspect of his claim. If he cannot that may well prove fatal to this wider aspect of his defamation claims against Mr Carrello.
The fact Mr Carrello makes out this deficiency is essentially sufficient for all the following paragraphs within the ASOC to be struck out - on the basis that as currently framed they fail to disclose an arguable cause of action. They are also legally embarrassing by reason of the prevailing unacceptable level of obscurity likely arising in the running of a future trial upon this wider issue, namely, ASOC pars 11.1, 12, 13, 14 - 18, 19 - 24, 25 - 32, 33.2, 34, 35, 36 - 40, 41 - 45, 51 and 52.
Out of deference to the plaintiff's legal arguments and with respect to his position as a litigant in person, I will render some further short observations concerning the key defamation case authorities to which reference was made by him during arguments.

Defamation hyperlink cases

Hird v Wood (1894) 38 Sol H 234

Interestingly, the plaintiff's submissions commence by invoking attempted support for his position from an 1894 decision of the Court of Appeal of England and Wales - that is noted briefly in the Solicitors' Journal for that year (10 February 1894) at page 234.
Mr Perrine sought to gather support for his position, for an incorporation of the newspaper article by Mr Carrello, from this decision of the Court of Appeal, where a new trial was ordered. That was after the primary judge, Pollock B, had held that there was no evidence of publication and had directed a civil jury that there be verdict for the defendant.
The facts of Hird v Wood concerned the words of an elevated placard that was suspended from two poles, in the terms:
Subscriptions for Messrs Smith and Kellett, late boilermakers of Worth Village, who have been ruined in their business and their living taken away by the animosity of one man.
There was no trial evidence about who had written the words on the placard, or who had placed it on the roadway to be seen by passing members of the general public, particularly by those attending a gala taking place a short distance outside the village.
However, it was proved at the trial that the defendant, a Mr Wood, had taken up a position near this placard for a long time, sitting on a stool and smoking a pipe - whilst continually pointing at the placard above with his finger to attract the attention of passers by.
The Court of Appeal had ordered a new trial - on the basis it was arguable that the defendant's conduct did amount to a publication of the words on the placard, or was evidence thereof.
This venerable case was called upon in support by Mr Perrine to contend by an attempted analogy that Mr Carrello's Schedule A reference to the West Australian Newspaper article was directly on point.
With respect, that is not the case. In Hird v Wood any passing members of the general public whose attention was drawn to the words on the elevated placard by the defendant could simply direct their immediate gaze upwards to see above them the full content of the defamatory publication written on the placard.
But that is not the analogous position here, if the Schedule A last 'https:' reference to the West Australian Newspaper article was not, at the time of receipt by the ABWA, a functional and operative immediate hypertext link to that source, but only was a hard copy reference, that a recipient at the ABWA would need to take physical steps to enter into a web browser in order to access and read the newspaper article's contents.

Visscher v Maritime Union of Australia

A more recent decision relied upon by the plaintiff in support was the first instance decision of Beech‑Jones J in the New South Wales Supreme Court in Visscher v Maritime Union of Australia [No 6] [2014] NSWSC 350.
Commencing at [17] and then advancing to [31] of those reasons, Beech‑Jones J considered local and some overseas defamation case authorities concerning the legal publication implications of using a hyperlink. In particular, his Honour discusses, but ultimately distinguishes, the position taken regarding hyperlinks by the majority justices of the Canadian Supreme Court in Crookes v Newton [2011] 3 SCR 269.
It is clear, however, from the facts of Visscher that the decision was directly concerned on its facts with a fully functional operative hyperlink - used in an online publication of that defendant union in an article on the union's website.
That online article, as his Honour noted at [1] of the reasons:
[C]ontained a 'hyperlink' to a more detailed article found on the website of the Cootamundra Herald ('the Cootamundra Herald article') which expanded upon the concerns raised.
Beech‑Jones J distinguished the position of the majority justices in the Canadian Supreme Court decision of Crookes v Newton, in preference for the minority position as expressed by McLachlan CJ and Fish J (referred to at [26] of his Honour's reasons) as the preferred Australian position. That approach to hyperlinks, Beech‑Jones J observed at [29], was more in accord with Australian and United Kingdom case law. His Honour cited with approval paragraph [48] of the reasons of McLachlan CJ and Fish J in Crookes v Newton in these terms:
In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable.
At the end, Beech‑Jones J concluded at [31]:
Accordingly, to the extent that a reader downloaded and read the Cootamundra Herald article by viewing the MUA article and then clicking on the hyperlink in the MUA article, I am satisfied that the MUA published the Cootamundra Herald article.
I am guided by Visscher in terms of me accepting in principle the reasonable arguability of a plaintiff's position if, in fact, it were the case that a functional hyperlink to the West Australian Newspaper article was provided by Schedule A of the ABWA complaint form. But, of course, that is not the pleaded ASOC case. Nor is it likely from the complaint form itself which Mr Perrine himself submitted for use at this hearing. I repeat that the media of publication position is left unacceptably unaddressed. It needs to be clarified and made express to avoid the present level of unacceptable confusion.

Duffy v Google Inc

The last significant case authority relied on by Mr Perrine is a decision of Blue J in the Supreme Court of South Australia decision, Duffy v Google Inc [2015] SASC 170; (2015) 125 SASR 437.
The decision contains a comprehensive analysis of the process of internet and electronic searching, in reference to the facts of that litigation: see particularly [23] - [25] explaining the worldwide web, and [29] - [42] web searching - in that case, via a Google web search. At [29] the concepts of title, snippet and URL are all comprehensively explained.
Nevertheless, it is clear again from the facts of this case that it is entirely distinguishable from the present. The Google search results that became the subject matter of Dr Duffy's defamation grievances in that litigation were all clearly obtained within an environment of a fully functional internet searching regime.
Again, I point out that that is not said to be the case here, until the pleaded ASOC position is otherwise clarified to that end. In any event, the comprehensive reasons of Blue J from Duffy insofar as they address hyperlinked material are worthy of note: particularly commencing at [214] and following.
At [218] the scenario of a non-functional hyperlink is addressed by his Honour. With respect, Blue J's observations at this point are in alignment with my own earlier expressed views that, absent an environment of direct hyperlink functionality, a mere physical recording of a 'https:' address on paper - is not enough to argue that the contents of the 'https:' as referred source material has been incorporated within a referring physical publication.
At [218] Blue J said upon a non‑operative hyperlink reference situation now under consideration:
If a search of Dr Duffy's name had merely returned the URL of the first Ripoff Report webpage without functioning as a hyperlink and without accompanying text, it could not be said that Google was a publisher of the content of that material. To access the first Ripoff Report webpage, the user would need to enter the URL into the address box of the internet browser. Google's conduct in such a case would be analogous to that of a library catalogue that lists details of an allegedly defamatory book and external libraries at which the book can be found. It would be analogous to the author of an article including an allegedly defamatory book in the biography section without comment. (my emphasis in bold)
That position, as I respectfully assess the publication position here, is an appropriate analysis - absent a functionally operative hyperlink to The West Australian article given within the Schedule A of the complaint form sent to ABWA.
Hence, the weight of relevant case authority assessed on the present application is, on analysis, against the plaintiff's position. I would, on that basis, strike out the offending paragraphs of the ASOC which I have mentioned above.
That, of course, still leaves the residual ASOC paragraphs which effectively contain one viable defamatory imputation - under ASOC par 33.1. It would be open to the plaintiff to proceed to a trial simply on a basis of just that residual material. Hence, his ASOC as a whole will not be struck out.
Consequently, the appropriate dispositive orders that should issue on this application, prima facie, are in the following terms:
1.Offending Amended Statement of Claim (filed 25 October 2018) paragraphs 11.1, 12, 13, 14 - 18, 19 - 24, 25 - 32, 33.2, 34, 35, 36 - 40, 41 - 45, 51 and 52, are struck out.
2.The plaintiff has liberty to seek leave to amend the residual components of his ASOC by providing a minute or proposed amendments within 21 days of the date of publication of these reasons.
3.The plaintiff should pay the defendant's costs of the successful strikeout application, to be taxed, if not agreed.
That is a prima facie position in terms of dispositive orders giving effect to these reasons. I will hear the parties, if necessary, should there still be disagreement about them.
My reasons will now be provided to the parties. At the same time they will be published over the internet. From that point, the parties have a seven‑day opportunity to confer and to provide my Associate with agreed and signed dispositive orders, or, alternatively, indicate how they wish to proceed in terms of a further hearing or otherwise.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SDL
ASSOCIATE TO THE HONOURABLE JUSTICES K MARTIN AND CORBOY
13 DECEMBER 2018