Francine Edwards v Jay Gill
[2018] ACTMC 22
•17 October 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Francine EDWARDS v Jay GILL |
Citation: | [2018] ACTMC 22 |
Hearing Dates: | 12 September 2018 |
DecisionDate: | 17 October 2018 |
Before: | Magistrate Fryar |
Decision: | See [12] – [13] |
Catchwords: | DEFAMATION – Publication of images – identification of plaintiff and defendant – composite and separate publications. PLEADINGS – Statement of Claim – striking out pleadings – defective pleadings. |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rules 424, 6256 |
Cases Cited: | Bonighton v Nationwide News Pty Ltd and Anor [2006] ACTSC 7 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 David Syme & Co v Canavan (1918) 25 CLR 234 Steel v Mirror Newspapers Ltd [1974] 2 NSWLR 348 |
Parties: | Francine EDWARDS (Plaintiff) Jay GILL (Defendant) |
Representation: | Mr Polden of Counsel (Plaintiff) Mr Dibb of Counsel (Defendant) |
| Solicitors Aulich Civil Law (Plaintiff) Capital Lawyers (Defendant) | |
File Number: | CS 71/2018 |
MAGISTRATE FRYAR:
Introduction
This is an appeal from a decision of the Deputy Registrar handed down on 15 August 2018. Rule 6256 of the Court Procedures Rules 2006 (‘the Rules’) provides that an appeal from an order of the Registrar of this Court is to a Magistrate and the appeal is a rehearing of the matter anew. After hearing the appeal the Court may (a) confirm, amend or set aside the Registrar’s order; and (b) make any other order the Court considers appropriate.
Application
The plaintiff has commenced an action against the defendant for damages for defamation in relation to comments apparently published by the defendant on Facebook and Facebook Messenger. Before the Deputy Registrar, the defendant originally sought to have the following parts of the Statement of Claim in the matter struck out under rule 425 of the Rules:
a. Paragraph 1 and the 1st schedule;
b. Paragraph 4 and the 3rd schedule;
c. Paragraph 5; and
d. Paragraph 7.
On 15 August 2018 the Deputy Registrar made an order dismissing the defendant’s application, an order that the defendant pay the plaintiff’s costs of and incidental to the application, and made directions setting out a timetable for discovery and interrogatories. The defendant appeals from all of the Deputy Registrar’s decision.
Paragraph 1 of the Statement of Claim pleads the publication by the defendant on Facebook Messenger of a particular image of the plaintiff (annexed in the First Schedule) to a group of (at least) 72 people (‘the group chat’). The defendant submits that Paragraph 1 does not allege any defamatory meaning connected to the publication of the image and accordingly is embarrassing and should be struck out.
Paragraph 4 of the Statement of Claim pleads the publication by the defendant of a series of posts on Facebook (‘the Website Posts’) during the period 8 November 2017 and 12 November 2017. It is asserted that the words in the Website Posts complained of as being defamatory are set out in the Third Schedule. The defendant submits this paragraph and schedule should be struck out on the basis that the plaintiff is not identified on the face of the paragraph or schedule, nor is reasonably capable of being identified in either, given that identification is one of the elements of a claim for defamation. Paragraph 5 simply states the connection between Paragraph 4 and the Third Schedule, and Paragraph 7 sets out the defamatory imputations that are alleged from the words in the Website Posts referred to in Paragraph 4.
Rule 425 of the Rules provides :
Pleadings—striking out
(1) The court may, at any stage of a proceeding, order that a pleading or
part of a pleading be struck out if the pleading—
(a) discloses no reasonable cause of action or defence appropriate
to the nature of the pleading; or
(b) may tend to prejudice, embarrass or delay the fair trial of the
proceeding; or
(c) is frivolous, scandalous, unnecessary or vexatious; or
(d) is otherwise an abuse of the process of the court.
A decision to strike out a pleading under this rule is a discretionary one and is to be sparingly applied.
Consideration
In relation to Paragraph 1 the defendant submits that as it does not plead a cause of action and is not pleaded as part of the first matter complained of, it is therefore “prejudicial and embarrassing”. So long as a paragraph pleads a material fact, it is not necessary that it also plead a separate cause of action. In this case it is clear that the image in the First Schedule alleged to have been published by the defendant, although not alleged to be defamatory in itself, is material to the allegations of defamation alleged in paragraphs 2, 3 and 6. Accordingly in my view the contents of paragraph 1 and the First Schedule are neither prejudicial nor embarrassing, and may remain as is.
The main complaint by the defendant is in relation to paragraph 4, which relates to separate publications referred to as the Website Posts and indeed is a separate cause. Identification is a necessary element of a claim for defamation: Steel v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371. Where the words do not specifically name the plaintiff, the principal to be applied is set out by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238 –
“The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; … if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.”
I agree that if one reads all of the Statement of Claim as a whole, including the content of the Group Chats, and then the complete content of the Website Posts as set out in the Affidavit of Satomi Hamon (not just the edited version in Schedule 3 to the Statement of Claim), it may be possible to infer that the words complained of in the Website Posts in fact referred to the plaintiff, although not identifying her by name. However a plaintiff cannot be identified in a pleading of a cause of action merely by inference from reading it together with other parts of the Statement of Claim that relate to a distinct cause of action. As Connolly J stated at in Bonighton v Nationwide News Pty Ltd and Anor [2006] ACTSC 7 at paragraph 18: “It seems to me that the plaintiff should be required to plead expressly how it is said that the material complained of has been identified as being of and concerning him.”
Further, the ACT Court of Appeal in Brisciani v Piscioneri (No 4) [2016] ACTCA 32 at paragraph 95 quoted the decision of Burns J (the primary judge) with approval, where His Honour held:
“1. The identification of Ms Piscioneri is an essential element of her cause of action in defamation; it may be established in two ways – either by explicit identification or by demonstrating that recipients of the communication had knowledge of particular extrinsic facts enabling Ms Piscioneri to be identified in circumstances where an ordinary and reasonable reader with knowledge of those facts would understand the imputation as referring to the plaintiff.
“2. To establish identification in the second way, Ms Piscioneri had to prove the extrinsic facts and publication to at least one person who had knowledge of those extrinsic facts.”Accordingly I am of the opinion that where paragraph 4 pleads a separate cause of action, for the plaintiff to be said to be identified in the words complained of in that paragraph, the extrinsic facts that connect her to those words should be pleaded. That has not occurred and as it stands the paragraph does not plead how the plaintiff is capable of identification.
Further the Statement of Claim does not allege a composite publication and I am of the view that the Group Chats and the Website Posts cannot be alleged to be one. Here the publications are on separate dates, in separate sources of social media, and conceivably could be the subject of separate actions and separate trials. They are not part of a composite publication and therefore the defendant must be separately identified in relation to each cause of action.
Finding
Accordingly, I find that the plaintiff is not capable of being identified in paragraph 4 as it stands and the paragraph is defective in that regard. However, it is something that clearly may be remedied by a simple amendment, and on that basis rather than strike it out, I will grant leave for the plaintiff to file and serve an Amended Statement of Claim. That should occur on or before close of business on 14 November 2018. Of course then the Defendant will be required to file and serve a Defence to that Amended Statement of Claim within the 28 days following service. The orders of the Deputy Registrar are set aside.
Ordinarily costs should follow the event unless the parties wish to be heard in relation to that issue.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Fryar. Associate: Emma Bayliss Date: 17 October 2018 |
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