Ghosh v Ninemsn Pty Ltd (No 2)
[2013] NSWDC 145
•17 August 2013
District Court
New South Wales
Medium Neutral Citation: Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145 Hearing dates: 17 August 2013 Decision date: 17 August 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff's application for leave to file the proposed amended statement of claim is refused, but with leave to serve (but not file) a further draft statement of claim by 20 September 2013 in relation to publications 29, 30, 39, 40, 41, 42, 45, 46, 51 and 52.
(2) The plaintiff is to provide a transcript of such part of the 39th and 40th matters complained of which are in her possession and the first and second defendants are directed to make enquiries to locate the remainder of the publication.
(3) Proceedings against Stayz Pty Ltd and News Ltd are dismissed. The defendants in these proceedings are Ninemsn Pty Ltd (as first defendant), NBN Ltd (as second defendant) and Miss Katie Gregory (as third defendant).
(4) Plaintiff denied leave to commence any proceedings in relation to these publications against Justin Butterworth, Fairfax Media and Gold Coast Publications Pty Ltd.
(5) The particulars of aggravated damages and special damage are struck out with leave to replead.
(6) Pages 94 to 103 of the proposed amended statement of claim are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) as embarrassing.
(7) Plaintiff's notice of motion filed on 16 August 2013 seeking interlocutory injunction dismissed.
(8) The plaintiff pay Ninemsn Pty Ltd, NBN Ltd and Miss Katie Gregory's costs of the application.
(9) Plaintiff to pay the costs of Mr Justin Butterworth, Fairfax Media, Stayz Pty Ltd, Gold Coast Publications Pty Ltd and News Ltd, such costs to be their costs of these proceedings.
(10) Matter stood over to Thursday 10 October 2013 in the Newcastle Registry at 10:00am.
Catchwords: TORT - defamation - statement of claim struck out with leave to amend - series of amended pleadings served - application to amend to plead 53 defamation claims against 8 defendants between 2009 - and 2013 - whether claim can be made for 31 publications broadcast outside limitation period but alleged to be still available online - abuse of process issues arising from separate defamation proceedings commenced in Queensland in 2010 - inadequate particulars of identification and publication - case management issues for large complex defamation claims - degree of court assistance appropriate for litigants in person - application for leave to amend dismissed for 43 publications, leave to replead, in a further draft statement of claim, granted in relation to the remaining 10 publications. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 62 and 64(2)(a)
Crimes Act 1900 (NSW), s 91J
Indecent Articles and Classified Publications Act 1975 (NSW)
Privacy Act 1988 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11
Al-Shennag v Woodcock [2013] NSWSC 696
Barach v University of New South Wales [2011] NSWSC 431
Billis v McLernon [2013] WASC 128
Bristow v Adams [2012] NSWCA 166
Brunswick, Duke of v Harmer (1849) 14 QB 185
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dank v Whittaker (No 1) [2013] NSWSC 1062
David v Abdishou [2012] NSWCA 109
Dennis v Australian Broadcasting Corp [2008] NSWCA 37
Douglas v McLernon [2013] WASC 126
Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Dow Jones & Co Inc v Jameel [2005] QB 946
Findlay v Grimmer [2013] WASC 247
Ford v Nagle [2004] NSWCA 33
Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Habib v Radio 2UE Pty Ltd [2009] NSWCA 231
Jenolan Caves Resort Pty Ltd v Field; St George Bank Ltd v Field [2007] NSWSC 1117
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Leech v Sylvester [2012] NSWSC 1367
Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
Matich v McLernon [2013] WASC 127
McGuirk v University of New South Wales [2010] NSWCA 104
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd (No 2) [2012] NSWSC 1448
Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013)
Schellenberg v British Broadcasting Commission [2000] EMLR 296
Slipetz v Trudeau [2012] MBQB 111
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Udowenko v Chief Executive Officer and Board of Directors (formerly St George Bank Ltd, a division of Westpac Banking Corporation) (No 2) [2011] NSWSC 1122
Webb v Bloch (1928) 41 CLR 331
Wishhart v Murray [2013] NZHC 540Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Dr Ratna Ghosh
First Defendant: Ninemsn Pty Ltd
Second Defendant: News Limited
Third Defendant: Fairfax Media for Stayz Pty LtdRepresentation: Plaintiff: In Person
Defendants: Ms L Brown
Plaintiff: In Person
First Defendant: Johnson Winter & Slattery
Second Defendant: Ashurst Australia
Third Defendant: Banki Haddock Fiora
File Number(s): 2013/88183 Publication restriction: None
Judgment
This is an application by the plaintiff, a medical practitioner and a director of a company owning two properties at Surfers Paradise, Queensland, for leave to file an amended statement of claim for defamation. The relevant background to this application is set out in my judgment of 17 May 2013 (Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63). The plaintiff's statement of claim filed on 22 March 2013 brought proceedings for four claims for defamation and other actions against four defendants.
The following may be noted concerning the current proposed amended statement of claim, which was emailed to the court and to the defendants' counsel on 8 July 2013:
(a) The subject matter of these publications relates to complaints by neighbours about alleged misconduct in 2009 by short-term tenants occupying properties owned by the plaintiff and a company of which she is a director, and to subsequent involvement of councils and politicians in law reform proposals concerning short-term tenancies.
(b) These proceedings had been before the court for hearing on 29 April 2013, 8 May 2013, 17 May 2013 and 21 June 2013. I have made a series of rulings including the striking out of the whole pleading, but with leave to replead: [2013] NSWDC 63.The plaintiff's statement of claim is still not in a sufficiently presentable form for there to be an argument concerning the imputations conveyed by the pleadings.
(c) The latest draft, which is 103 pages of pleadings without any of the matters complained of attached, pleads 53 separate claims for defamation against 8 defendants for the period 21 December 2009 to 5 June 2013. A table of each matter complained of is set out in paragraph [4] below.
(d) The text of the matters complained of have been individually forwarded to my associate, over a period of two days, in more than 15 separate emails. Where no matter complained of has been provided, this is noted in the table.
The application for leave to file the proposed amended statement of claim is opposed. The defendants seek orders striking out of the whole proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 13.4.
Structure of the proposed amended statement of claim
The claim pleads 53 causes of action against eight defendants for publications between 21 December 2009 and 5 June 2013. These publications are set out in a schedule which was prepared by the court and provided to the parties before the hearing today:
MCO
Date
Defendant(s)
Form
Sch
Title
1
21/12/2009
Ninemsn Pty Ltd; NBN Ltd
Broadcast
A
"Isle of Capri Residents are trying to shut down a holiday rental dubbed the party house, claiming it's a fixture for out of control gatherings"
2
21/12/2009
Ninemsn Pty Ltd; NBN Ltd
Website
A
"Isle of Capri Residents are trying to shut down a holiday rental dubbed the party house, claiming it's a fixture for out of control gatherings"
3
21/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Newspaper
B
"Party-house hell"
4
21/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Website
B
"Party-house hell"
5
22/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
C
"Party house from hell investigated"
6
22/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Website
C
"Party house from hell investigated"
7
22/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
D
"Website coming to party on noise"
8
22/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Website (not provided)
D
"Website coming to party on noise"
9
04/01/2010
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
E
"Party pads cause hell in suburbs"
10
04/01/2010
Gold Coast Publications Pty Ltd; News Ltd
Website
E
"Party pads cause hell in suburbs"
11
21/01/2010
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
F
"Party could be over for rent rowdies"
12
21/01/2010
Gold Coast Publications Pty Ltd; News Ltd
Website
F
"Party could be over for rent rowdies"
13
22/04/2010
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
G
"Push to ban party houses from hell"
14
22/04/2010
Gold Coast Publications Pty Ltd; News Ltd
Website
G
"Push to ban party houses from hell"
15
22/05/2010
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
H
"Law hits 'party homes'"
16
22/05/2010
Gold Coast Publications Pty Ltd; News Ltd
Website
H
"Law hits 'party homes'"
17
21/08/2010
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
I
"Houses to hell - holes as holiday hedonists party"
18
21/08/2010
Gold Coast Publications Pty Ltd; News Ltd
Website (not provided)
I
"Houses to hell - holes as holiday hedonists party"
19
21/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Newspaper (not provided)
J
"Holiday-house nightmare"
20
21/12/2009
Gold Coast Publications Pty Ltd; News Ltd
Website
J
"Holiday-house nightmare"
21
23/02/2011
Gold Coast Publications Pty Ltd; News Ltd
Newspaper
K
"Licence to party passed"
22
23/02/2011
Gold Coast Publications Pty Ltd; News Ltd
Website (not provided)
K
"Licence to party passed"
23
23/11/2011
Ninemsn Pty Ltd; NBN Ltd
Broadcast
L
"Naked Neighbours"
24
23/11/2011
Ninemsn Pty Ltd; NBN Ltd
Website
L
"Naked Neighbours"
25
28/11/2011
Gold Coast Publications Pty Ltd; News Ltd
Newspaper
M
"Victims hit with legal threats"
26
28/11/2011
Gold Coast Publications Pty Ltd; News Ltd
Website (not provided)
M
"Victims hit with legal threats"
27
15/12/2011
Ninemsn Pty Ltd; NBN Ltd
Broadcast (not provided)
N
"Naked Neighbours"
28
15/12/2011
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
N
"Naked Neighbours"
29
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Broadcast
O
"Party Houses"
30
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Website
O
"Party Houses"
31
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Broadcast (not provided)
P
"Crack Down On Party Houses"
32
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
Q
"Crack Down On Party Houses"
33
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Broadcast (not provided)
R
"New Powers To Shut Down Gold Coast Party Houses"
34
13/06/2012
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
R
"New Powers To Shut Down Gold Coast Party Houses"
35
13/06/2012
Gold Coast Publications Pty Ltd; News Ltd
Newspaper
S
"The party's over, thank goodness"
36
13/06/2012
Gold Coast Publications Pty Ltd; News Ltd
Website (not provided)
S
"The party's over, thank goodness"
37
17/12/2012
Ninemsn Pty Ltd; NBN Ltd
Broadcast
T
"Party Animals"
38
17/12/2012
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
T
"Party Animals"
39
05/03/2013
Ninemsn Pty Ltd; NBN Ltd
Broadcast (not provided)
U
"Over the Fence and Out of Control"
40
05/03/2013
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
U
"Over the Fence and Out of Control"
41
05/03/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Broadcast
V
"Party House Misery"
42
05/03/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Website
V
"Party House Misery"
43
06/03/2013
Mr Justin Butterworth; Fairfax Media; Stayz Pty Ltd
W
"A Current Affair: Alledged [sic] oarty [sic] house listed on Bookastay"
44
06/03/2013
Mr Justin Butterworth; Fairfax Media; Stayz Pty Ltd
W
"A Current Affair: Alledged [sic] oarty [sic] house listed on Bookastay"
45
22/03/2013
Ninemsn Pty Ltd; NBN Ltd
Broadcast
X
"Party Houses A Big Pain on Gold Coast"
46
22/03/2013
Ninemsn Pty Ltd; NBN Ltd
Website (not provided)
X
"Party Houses A Big Pain on Gold Coast"
47
22/03/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Broadcast (not provided)
Y
"Party Houses"
48
22/03/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Website (not provided)
Y
"Party Houses"
49
03/05/2013
Ninemsn Pty Ltd; NBN Ltd
Broadcast
Z
"Party House RIP"
50
03/05/2013
Ninemsn Pty Ltd; NBN Ltd
Website
Z
"Party House RIP"
51
05/06/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Broadcast
Z(i)
"Party House Court"
52
05/06/2013
Ninemsn Pty Ltd; NBN Ltd; Miss Katie Gregory
Website
Z(i)
"Party House Court"
53
28/12/2011
Ninemsn Pty Ltd; NBN Ltd
Website
Z(ii)
"Gold Coast: Where NOT to go"
The presentation of these 53 claims against eight defendants is complicated by the following difficulties:
(a) Up to 30 imputations are pleaded for some of the publications. There will have to be an argument as to the form and capacity of many of these. Some are in discursive form, such as imputation 51Z(iv), which is pleaded as follows:
"It was lawful and just to kick the black plaintiff repeatedly for four years with false allegations about her empty house, but the black plaintiff was not entitled to any civil rights, justice or law and order, and the black plaintiff would be bashed out of court by Channel 9 every time she dared it [sic]."
(b) Claims for what appear to be other causes of action appear throughout the pleading. For example, eight of the publications (numbers 37, 38, 45, 46, 47, 51, 52 and 53 complain of breach of the "Voyeurism Act" and contain references to s 91J Crimes Act 1900 (NSW).
(c) The particulars of identification are still not provided for each publication where the plaintiff is not named. For example, it is asserted that "some" viewers were unaware of the plaintiff's identity in the 2009 and 2013 publications until they saw the 52nd matter complained of on 5 June 2013, but these persons are not identified. There are some minor problems, such as publications out of order (19, 20 and 53) and reference to the "ninth" matter complained of in paragraphs 48 and 54, but these are of no consequence.
(d) Pages 94 - 103 consist of unrelated issues such as criticism of the Gold Coast Bulletin by police for its reporting of allegations of a sex crime, the text of s 91J Crimes Act, the National Privacy Principles, the Indecent Articles and Classified Publications Act 1975 (NSW), the plaintiff's arguments in advance concerning honest opinion and malice, spoliation, statements about costs and quotations from legal texts and "To Kill A Mockingbird".
Compilation of the schedule in [4] above required many hours of reconstruction of the emails sent by the plaintiff. This schedule was provided by the court to the parties prior to the hearing of the motion. It was the only way that the hearing of this claim could proceed in an orderly fashion.
The argument today was dependent upon the parties complying with the timetable set down when these proceedings were last in court, and the argument was not ready to proceed due to amendment the plaintiff made on the day. The defendants have provided written submissions in accordance with the timetable. The plaintiff's response has been to restate her right to appear as a litigant in person, and to plead her claim in its present form without any concessions for the concerns of the defendants about the number and vagueness of the claims as currently pleaded. For example, in response to the defendants' request for hard copies of the matter complained of and for these to be attached to the statement of claim, the plaintiff has responded that: "I prefer to stick to electronic submission for preservation of trees and reduction of carbon emissions".
Case management issues in complex defamation proceedings
These are complex proceedings, brought by a litigant in person against eight defendants for publications over a four-year period, where many pleading problems are immediately evident. The five issues to which I have given consideration in endeavouring to respond to the parties' competing claims are as follows.
The first is the need for courts to exercise the utmost care when striking out part or the whole of any proceedings. This is particularly the case in defamation, as I have already noted in my previous judgment in relation to Dr Ghosh's claim ([2013] NSWDC 63), and I will not repeat those principles here.
The second is the need for careful attention to pleadings from the outset in all defamation proceedings. The defendants' complaints concerning the form of the pleading has been answered by the plaintiff as follows:
"(1) Claim too long and too many amended statements - a one page claim would not have done justice to the three times daily defamation on Channel 9, echoed by the Gold Coast Bulletin Newspaper, for four long years. Even 53 items is a very small fraction of the hundreds of publications defaming my house since Dec 2009, with no attempt to contact me except the ridiculous stalking incident by Katie Gregory aired on 5 June 2013 as "Party House Court." It has taken longer to finalize the claim because of your repeated refusal to provide discovery of publications. As a busy doctor, I have had to take time off work to retrieve the hundreds of publications about my house that were on the Internet for years, but were rampantly deleted after I launched legal action in March 2013."
The fact that there are many publications does not excuse the plaintiff from pleading her case with care. In Douglas v McLernon [2013] WASC 126, Le Miere J explains the need for precision in pleadings where there are multiple causes of action, as otherwise the litigation would become unmanageable. Mr Douglas had brought proceedings for 28 publications, which he had pleaded gave rise to 68 imputations. Le Miere J said at [51]:
"[51] 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. In particular, there are deficiencies in the pleading of the imputations said to arise from the Matters Complained Of. The statement of claim pleads 28 separate publications which are said to give rise to 68 imputations. The trial of the action will be completely unmanageable unless the imputations are precise and distinct, although more than one publication might give rise to the same imputation. Each imputation must stand alone. In a statement of claim that pleads 28 publications and 68 imputations it is particularly important that the defendant and the court know precisely what the alleged imputation is and which published words are said to give rise to the imputation. The proposed statement of claim fails to achieve those objectives."
The plaintiff is not to be criticised simply for bringing a claim for many publications. Claims for multiple causes of action in defamation are becoming increasingly common: see Billis v McLernon [2013] WASC 128 (22 publications); Matich v McLernon [2013] WASC 127 (9 publications); Findlay v Grimmer [2013] WASC 247 (13 publications), Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125 (which pleaded "a number of matters" (at [5], [10]); Wishhart v Murray [2013] NZHC 540 (numerous Twitter, Facebook, website and radio publications for which $NZ8M was claimed). The large number and complexity of these claims are often the result of electronic publications, repeated in many jurisdictions (or worldwide) on websites, in social media or by email.
The increasing complexities of electronic defamation remain unregulated by the courts. The warnings of Le Miere J in Douglas v McLernon, supra, about the problems such actions may cause are timely. These issues are of particular concern in Australia, as the conduct of such cases challenges the adequacy of use of ss 56 - 62 Civil Procedure Act and rules, particularly the requirement for proportionality of costs (s 60 Civil Procedure Act 2005 (NSW)). There has been no appellate (Habib v Radio 2UE Pty Ltd [2009] NSWCA 231; Bristow v Adams [2012] NSWCA 166 at [35] - [41]) or Supreme Court (Barach v University of New South Wales [2011] NSWSC 431) endorsement of the summary judgment procedure available in the United Kingdom to strike out proceedings on case management-related principles, first enunciated in Schellenberg v British Broadcasting Commission [2000] EMLR 296 ("Schellenberg") and Dow Jones & Co Inc v Jameel [2005] QB 946.
Publication by electronic means, whether by internet, email and/or social media, will inevitably lead to the bringing of claims for defamation against multiple defendants, in jurisdictions all over the world, where the audience for some of those publications may be no more than a handful of persons. The question is the degree to which the court allows parties to add further complexity to what is already a difficult area of the law or rely upon case management principles such as the "just, cheap and quick" directive in s 56 Civil Procedure Act 2005 (NSW). In Dank v Whittaker (No 1) [2013] NSWSC 1062 at [34] McCallum J, faced with proceedings her Honour described as a "juggernaut", commented:
"A number of observations can be made about these proceedings and I would expect them to be reported to the plaintiff personally. It is, of course, a matter for him how he wishes to conduct his defamation actions (hopefully on the strength of sensible and complete legal advice). It may be observed, however, that the full collection of proceedings commenced by Dr Dank has launched something of a juggernaut. There are multiple proceedings, multiple defendants, multiple legal teams and a vast number of imputations relied upon in all. The objections that are now taken by the defendants in the present application and other applications I have heard this week will afford the plaintiff an opportunity not only to recast his claims in response to my rulings but also to reassess the ambit of the fight he wishes to take on. I would urge the plaintiff and those representing him to give careful consideration to the way in which the claims are framed with a view to bringing before the court a manageable dispute calculated to raise the real issues required to be determined for the purpose of vindicating Dr Dank's reputation."
The third issue is the degree of assistance with which a litigant in person should be assisted by the court in the complexities of defamation proceedings. Again, this is an issue about which the procedural rules and appellate courts have not provided clear directions, although one in four defamation proceedings in Australia are brought by litigants in person. There have been differing opinions in the NSW Supreme Court (Jenolan Caves Resort Pty Ltd v Field; St George Bank Ltd v Field [2007] NSWSC 1117) and Court of Appeal (McGuirk v University of New South Wales [2010] NSWCA 104 at [9] - [37] and [151] - [187]) as to the court's power to case-manage the degree to which courts should assist or supervise the conduct of litigation by litigants in person. The prevailing view is summarised by Young AJA in McGuirk v University of New South Wales, supra, at [43]), where his Honour rejected complaints by lawyers that the conduct of a litigant in person who was sending them hundreds of letters, many abusive, was causing them stress, adding that "lawyers who cannot cope with the stresses of litigation must find some other area of law in which to practise".
The plaintiff states in her submissions:
"(2) Not legally represented. In Australia one has the right to represent oneself in Court, and as an educated person I choose to exercise this right. Common Law is for common people and is there to protect common people (like me). Even when I was represented by lawyers in a 1 page submission in Qld, your lawyers gave all the same formulaic arguments and criticisms. My lawyer and friend is Gunnar Mollenbeck, and he will help me as required."
McGuirk v University of New South Wales, supra, sets out the nature and extent of the judge's power to make case-management orders, but does not tell the judge the degree to which help should be provided. Judges in other jurisdictions have formulated principles concerning the degree to which the court has obligations to litigants in person, particularly in relation to defamation claims where the complexity of pleadings causes so many problems, which are of assistance. One such example is Slipetz v Trudeau [2012] MBQB 111, where Martin J set out a series of helpful principles for dealing with a litigant in person in defamation proceedings in Canada:
"[8] Courts have dealt with the issues surrounding unrepresented litigants many times. A number of themes emerge:
(a) Self-represented litigants do not have some kind of special status.
· As noted in Sydorenko v. Manitoba, 2012 MBQB 42 (CanLII), 2012 MBQB 42, M.J. NO. 70 (QL):
29 ... this factor should not dissuade the court from applying the usual rules including when it comes to considering an award of costs.
· As noted in Ridout v. Ridout, 2006 MBCA 59 (CanLII), 2006 MBCA 59, 205 Man.R. (2d) 146), M.J. No. 243 (QL):
12 ... more and more litigants ... are self-represented. This often creates difficulties not only for them but for court staff and judges. Notwithstanding, it is not accurate to say ... that self-represented litigants (SRLs) have some kind of special status. ... while the court should provide assistance to SRLs, this must be done in such a way as to maintain judicial impartiality. ...
(b) Judges do not advocate on behalf of a self-represented litigant, do not provide legal or tactical advice and have no duty to help a litigant do a better job in developing their case. Judges do, however, ensure that a party's lack of legal training does not unduly prejudice them, nor affect their ability to participate meaningfully in the proceeding. (Ridout v. Ridout, supra.)
(c) Self represented litigants must be dealt with fairly and with appreciation of their potential legal handicap, but they are not entitled to undue favour nor should the rights of a defendant be overridden.
· As noted in Otte v Manitoba (Sheriff's Department), 2008 MBCA 63 (CanLII), 2008 MBCA 63, 166 A.C.W.S. (3d) 1032, M.J. No. 163 (QL):
12 ... The court must strike a delicate balance between ensuring that the self-represented litigant is dealt with fairly and yet not allowing the litigant undue favour precisely because he is self-represented.
· As noted in Coleman v. Pateman Farms Ltd., 2001 MBCA 75 (CanLII), 2001 MBCA 75, 156 Man.R. (2d) 144, M.J. No. 228 (QL):
15 In my view, a pro se litigant should not be denied the opportunity of presenting his or her case to the court by a strict application of the Rules. The touchstone is fairness and that involves the balancing of the pro se litigant's imperfect knowledge of rules and procedures with the right of the other party to know the legal and factual issues that he or she must meet.
· As noted in Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156 (Gen. Div.), O.J. No. 2374 (QL):
18 ... notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.
(d) Fairness simply means that a self-represented litigant should have a fair opportunity to present their case to the best of their ability. As noted in Davids v. Davids 1999 CanLII 9289 (ON CA), (1999), 125 O.A.C. 375 (Ont. C.A.), O.J. No. 3930 (QL):
36 ... Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.
(e) Some leeway may be given to self-represented litigants, but they are nonetheless expected to operate within the rules of the court and its procedures. While some leeway may give way to generous construction of the rules, it does not mean ignoring the rules altogether.
· As noted in Nowoselsky v. Canada (Treasury Board), 2004 FCA 418 (CanLII), 2004 FCA 418, 329 N.R. 238, F.C.J. No. 2077 (QL):
8 ... The imperatives of the Rules may be mitigated somewhat by the grace of counsel facing an unrepresented litigant, or by the Court's judicious exercise of the discretion to excuse compliance, but these are remedial measures and not a licence for non-compliance. ...
· As noted in Manitoba Agricultural Services Corp. v. Domenco, 2007 MBCA 125 (CanLII), 2007 MBCA 125, 220 Man.R. (2d) 214, M.J. No. 355, (QL):
6 With respect to the other grounds of appeal, the motions judge had a discretion as to whether to grant an adjournment or to consider additional materials filed out of time. Contrary to the defendant's assertion in his factum, the transcript reveals that the motions judge did attempt to assist the self-represented litigant to the extent that his judicial role would allow. However, as this court has observed on other occasions, a self-represented litigant is not entitled to ignore the rules of court. The rules which govern the conduct of civil proceedings are designed to ensure procedural fairness for all parties. See Basaraba v. Manitoba Court of Queen's Bench, 2006 MBCA 27 (CanLII), 2006 MBCA 27, 201 Man.R. (2d) 302.
(f) Finally, as Mainella J. observed in Bazan v. The Assiniboine South School Division et al., 2013 MBQB 68 (CanLII), 2013 MBQB 68, M.J. No. 80 (QL), common sense dictates that:
71 ... Like lawyers, no two self-represented litigants are alike in terms of skill and knowledge. Some are so totally inexperienced and ignorant of the customs and procedures of the court that they become "completely at sea" during the litigation process. ... Others, however, are frequent denizens of the courthouse. In the accommodation of the principles of fairness and balance, a court should be mindful of the knowledge and experience of the self-represented litigant before it."
The next issue is the number of times that a party should be permitted to amend defamation pleadings. In Dennis v Australian Broadcasting Corp [2008] NSWCA 37 at [24], [34] and [35], the New South Wales Court of Appeal warned that there was a limit, a view which was repeated in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. Counsel for the defendants submits that the time has arrived, in this litigation, for such orders to be made here. The plaintiff considers that she should be entitled to amend her pleading as often as necessary and blames the defendants for any difficulties in obtaining the matters complained of, and for their conduct of the case generally.
Associated with this issue is the degree to which parties should be entitled to depart from standard forms of pleadings, and in particular to make claims about disputed issues of fact in uncompromising language. The plaintiff's submissions on this issue are as follows:
(3) Not liking my language. My language is very mild compared to "SLUMLORDS RUINING THE NEIGHBOURHOOD," "SLUMLORDS FROM HELL," "LANDLORD FROM HELL," "PARTY HOUSE FROM HELL" and "BIZARRE RANT," which are just some of the insults I have endured repeatedly for four years on national TV, the world wide web, and in newspapers. My statement is factual, and your clients should be embarrassed by their excessively trashy reporting for four years.
The fifth issue is the desirability of finality in litigation. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (at [34]), Gleeson CJ, Gummow, Hayne and Heydon JJ stated:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances".
While interlocutory applications should not be treated with the same firmness as may be called for by a court finally determining the proceedings, the same basic principle of finality applies. This is particularly the case in defamation actions, where the statutory proceedings concerning the limitation period should be given proper weight.
Having noted these four general principles, I now turn to the facts in the present case.
Pleading history
The pleadings provided to date by the plaintiff are as follows:
(a) The statement of claim filed on 22 March 2013 in the Newcastle registry was struck out, with leave to replead, on 8 May 2013 ([2013] NSWDC 63), and the proceedings transferred to Sydney for case management in the Defamation List.
(b) A draft amended statement of claim was provided to the defendants (through their counsel) at Court on 8 May 2013. The plaintiff abandoned this second pleading and served a third statement of claim.
(c) The "amended" draft amended statement of claim emailed to the defendants' counsel and the Court on 17 May 2013. The plaintiff was refused leave to amend in the form of the third draft statement of claim.
(d) A fourth draft amended statement of claim was emailed to the defendants' counsel and the Court on 14 June 2013. At the directions hearing on 21 June 2013 (dealing at the time with the Fourth Statement of Claim) the plaintiff was directed to serve a revised statement of claim. The revisions requested by the Court were primarily to plead the matters complained of in chronological order, the annexing of transcripts of the matters complained of and the removal of irrelevant material such as references to religious texts. The plaintiff's application to amend was specially fixed as a half day matter for Friday 9 August 2013.
(e) In accordance with the timetable, a fifth proposed statement of claim was served on 8 July 2013. Like its four predecessors, the matters complained of were not attached.
The current pleading
The whole of the pleading is challenged. It is convenient to deal with the publications in groups, as is set out below.
The 1st - 28th and 53rd publications
The 1st to 28th matters complained of (paragraphs 1-84 of the pleading and annexures A to N inclusive), and the 53rd matter complained of (paragraphs 156-158, annexure Z(ii)), are pleaded for publications which are either entirely or substantially outside the limitation period. It was for this reason that, in my previous judgment (Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 at [48]), I refused the plaintiff leave to plead any cause of action for defamation in respect of publications that were out of time. The plaintiff's current pleading has simply pleaded these publications again.
Any application for leave to claim damages for publications outside the limitation period should have been brought for determination either at or prior to the commencing of proceedings. The plaintiff cannot avoid the limitation period by reciting that the matter complained of remained on a website up until a date within the limitation period, as publication to a third person must be established (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [26] and [44]). In addition, as counsel for the defendants notes in her helpful submissions (at paragraph 19), it is significant that the plaintiff has pleaded what Ms Brown calls "formulaic expression" even in respect of publications which are not alleged to have been made on the internet, such as the broadcast of "A Current Affair" of 21 December 2009.
In addition, the fact that a publication remains on the website after the limitation period for the television programme or newspaper has expired does not entitle the plaintiff to claim that the limitation period should not run for the newspaper or television programme as well as for the publication on the internet.
Another reason why I refused leave was that a number of these publications (the 1st to 4th, and 19th to 20th matters complained of) were already the subject of defamation proceedings in the Supreme Court of Queensland, and the commencement of fresh proceedings in New South Wales is an abuse of process: Maple v David Syme & Co Ltd [1975] 1 NSWLR 97.
The most significant problem, however, is that whether or not these publications are still online, the damage was done outside the limitation period; the number of persons who would have accessed these publications and identified the plaintiff within the limitation period would be insignificant in comparison. There is no "single publication" rule in Australia, and the plaintiff is therefore technically entitled to bring these claims. Should a plaintiff who has allowed the limitation period to elapse still be permitted to do so?
In Brunswick, Duke of v Harmer (1849) 14 QB 185, the plaintiff, intending to commence proceedings for defamation, sent his servant to purchase a copy of a newspaper published by the defendant 17 years previously, which newspaper contained a libel on the plaintiff. Delivery of the copy by the defendant to the servant was held to be sufficient publication. However, the publication subject of the action was the single publication to the Duke of Brunswick's servant; the mere fact that the Duke of Brunswick's servant was able to purchase the newspaper did not mean that the publication 17 years earlier, which was statute barred, was suddenly actionable again.
The Duke of Brunswick would not enjoy the same success today, because a publication solely for the purpose of commencing proceedings for defamation cannot be actionable, for the reasons explained by Hunt J in Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 (see also Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) at [30]-[39]).
The problems caused by the application of these principles to electronic publication have been the subject of comment in numerous reported decisions, articles and law reform reports. Over a decade ago, in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [92], Kirby J deplored the failure of defamation legislation and case law to respond adequately to the challenge of electronic communication:
"[92] The idea that this court should solve the present problem by reference to judicial remarks in England in a case, decided more than 150 years ago, involving the conduct of the manservant of a duke, despatched to procure a back issue of a newspaper of minuscule circulation, is not immediately appealing to me. The genius of the common law derives from its capacity to adapt the principles of past decisions, by analogical reasoning, to the resolution of entirely new and unforeseen problems. When the new problem is as novel, complex and global as that presented by the Internet in this appeal, a greater sense of legal imagination may be required than is ordinarily called for. Yet the question remains whether it can be provided, conformably with established law and with the limited functions of a court under the Australian constitution to develop and re-express the law."
The principal error that the plaintiff has made in her attempt to replead the publications which I have already struck out is that she has simply claimed that these publications are still available online today and thereby claims for all publication from the original date. Just as the Duke of Brunswick had to send his servant to purchase the newspaper in order to have a cause of action, as opposed to relying upon the fact that the publication had been made 17 years ago, so too the plaintiff in these proceedings must establish that within the limitation period, a person or persons have downloaded the material and identified the plaintiff, as well as providing the particulars of identification in relation to such publications, such as being able to recognise the plaintiff's house. This is what she has failed to do.
The first 28 publications cover the period 21 December 2009 to 15 December 2011. The audience figure statistics for television broadcasts which are generally tendered in media trials cannot be tendered here, as those publications are outside the limitation period. The best the plaintiff can do is to point to a handful of persons who not only have accessed these publications online, but also are sufficiently familiar with the facts to identify her, in accordance with the particulars of identification, as a director of the company that owns these properties and/or as the owner of the house in question.
This brings me to the question of the fate of those online publications able to be accessed by these unknown person within the limitation period. The landmark decision which gave rise to the principles of Dow Jones & Co v Jameel [2005] QB 946 (see [57] - [58]) is Schellenberg v BBC [2000] EMLR 296 ("Schellenberg"). Those proceedings were struck out on case management principles alone, by reason of the lack of utility of fresh proceedings, because the plaintiff had previously commenced and later abandoned proceedings for the same defamatory imputations.
In Habib v Radio 2UE Pty Ltd [2009] NSWCA 231 at [153], McColl JA distinguished Schellenberg on the basis of its "very unusual facts", in that the plaintiff had commenced and later abandoned proceedings without a definitive result. In Habib, the plaintiff had commenced proceedings against a newspaper in the Supreme Court claiming damages for publications which included claims of republication on the radio later the same day, in that radio announcers referred to the newspaper article. The section 7A jury only considered the publication issue, republication being agreed to be an issue of fact for the judge. When the jury found the newspaper publications complained of were not defamatory, the plaintiff commenced fresh proceedings in the District Court in relation to the radio republications, on the basis that these had not been the subject of jury findings and were pleaded on damages issues only.
Notwithstanding the limitations placed on it by the Court of Appeal in Habib v Radio 2UE Pty Ltd, supra, the Schellenberg approach to issues of proportionality in defamation litigation is applicable to two aspects of this case. The first is that these proceedings do in fact fall within the "very unusual" factual circumstance identified by McColl JA, in that Dr Ghosh commenced and abandoned (or left dormant) proceedings for six of the time-barred proceedings she now seeks to bring here, and the other time-barred publications give rise to the same (or similar) imputations. (The second issue, namely proportionality issues concerning the proceedings commenced in relation to Mr Butterworth's email, is discussed in more detail at [61] below.)
In addition, unlike the plaintiff in Habib v Radio 2UE Pty Ltd, supra, the plaintiff commenced proceedings in the Queensland Supreme Court for defamation, not for republication or in relation to damages issues only. This is a crucial factor.
Finally, as also occurred in Schellenberg, the plaintiff having taken those proceedings no further, she now seeks not only to plead those claims in New South Wales, but to add to them subsequent publications about o which no complaint was made during the limitation period. No application has been brought to extend time nor has there been any identification in proper form of the persons who saw the matter complained of within time and were able to identify the plaintiff (including how this occurred).
The number of persons who have seen the matter complained of on the Internet since these publications appeared, and who are capable of identifying the plaintiff, is infinitesimal when compared to its total audience. While the purchase of one newspaper may have permitted the Duke of Brunswick to bring proceedings for that one publication 17 years later, the proportionality issues in s 60 Civil Procedure Act and the principles enunciated in Schellenberg should not permit a plaintiff who lets the limitation period expire, or abandons proceedings for the same or similar publications, to bring complex and expensive defamation proceedings in circumstances where the defendants have proceeded with their publications on the basis of there being no further complaint.
Independently of my prior striking out of these actions on the basis of the limitation argument (which I have already decided in my earlier judgment), any attempt to rescue these claims on the basis of their being available online during the 12-month period prior to 22 March 2013 to a handful of persons (assuming the identities of such persons could be established) would therefore be caught by the principles enunciated in Schellenberg, supra.
I cannot strike out the pleadings that have been commenced in the Queensland Supreme Court. However, if the plaintiff wishes to continue in New South Wales proceedings actions for defamation commenced in the Supreme Court in Queensland, they must be cross-vested to New South Wales. She would be able to continue those proceedings without the leave of this court, but to commence a fresh set of proceedings in New South Wales for the same publications is an abuse of process.
By a combination of these reasons, the first 28 matters complained of are struck out. Not only is the management of so many time-barred claims a logistic impossibility, and contrary to the principles of finality, but it would be contrary to the principles set out in ss 56 and 60 Civil Procedure Act 2005 (NSW).
The 29th and 30th publications
Counsel for the defendants concedes that, if proper particulars of identification are provided, these actions have been commenced within time and cannot be the subject of a summary dismissal application as they do not satisfy the criteria set out by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955. However, counsel relied upon the discretionary issues concerning leave to amend identified by Johnson J in Udowenko v Chief Executive Officer and Board of Directors (formerly St George Bank Ltd, a division of Westpac Banking Corporation) (No 2) [2011] NSWSC 1122 at [111] and [114].
Leave to amend should be refused only in the clearest of circumstances, for the reasons explained by Johnson J. In those proceedings, a series of applications before two judges had still not resulted in pleadings in any manageable form, and Johnson J considered the court could have no confidence that further leave to amend would result in pleadings which were any clearer.
Applying these principles to defamation litigation, McCallum J in Al-Shennag v Woodcock [2013] NSWSC 696 stated (at [110]):
"[110] The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties.
[111] In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act."
Ms Brown submits (written submissions, paragraphs 39-41) that the plaintiff has had ample opportunity to properly plead her case, that she has been repeatedly advised to obtain legal advice about this complex and convoluted pleading. The defendants have had to deal with five versions of the pleading and are no closer to a pleading that can be readily understood.
However, both these judgments deal with litigation that had been on foot for some time; the defamation proceedings McCallum J dismissed related to a publication in 1999 which had been the subject of extended litigation, including a s 7A jury trial and an appeal.
The court should be slow to strike out proceedings where there may be a genuine claim, however poorly pleaded or particularised (Ford v Nagle [2004] NSWCA 33). While I note the warnings of the Court of Appeal about the undesirability of multiple attempts at pleading, the plaintiff should be given another opportunity to replead her claim.
The 31st, 32nd, 33rd, 34th, 47th and 48th publications: no matter complained of and no evidence of publication
It is a fundamental requirement of all defamation pleadings that the matter complained of must be attached to the pleading.
The transcript or text of these matters complained of are not attached and the plaintiff concedes she does not have them. It is not uncommon for orders to be made for a defendant to provide a publication, and for the plaintiff to provide the best particulars he or she can of the broadcast: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11. However, in the present case, Ms Brown advises that these publications (for 13 June 2012, 5 March 2013 and 22 March 2013) cannot be located by the defendants (see the affidavit of Phillip Beattie dated 2 August 2013).
Accordingly, I do not propose to grant leave to amend to plead the 31st, 32nd, 33rd, 39th, 45th and 47th matters complained of.
The 35th-36th matters complained of
These publications are not referred to in any earlier version of the statement of claim. The leave I granted related to those publications identified by the plaintiff in the statement of claim filed on 22 March 2013. Publications dated 13 June 2012 are now out of time. No application has been brought to extend time.
Ms Brown draws my attention to s 64(2)(a) Civil Procedure Act 2005 (NSW). Conformably with the decision of Simpson J in Ahmed v John Fairfax Publications Pty Ltd, supra, I take the view that these proceedings cannot be rescued from the limitation bar by the use of this provision. I note that no proper particulars of identification have been provided for this publication, as counsel for the defendant points out in paragraph 30(a) of her written submissions.
These claims are out of time and will be struck out.
The 37th, 38th, 49th and 50th publications: identification in "party house" broadcasts in New South Wales
The plaintiff is only named in the 25th, 26th, 51st and 52nd matters complained of (paragraphs 150-155 of the proposed amended statement of claim). The plaintiff has not sought to provide particulars of identification in relation to each publication as is required (Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 at [49](b)). In Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Hunt J warned that where a plaintiff had not been identified in a matter complained of, the plaintiff "must nevertheless name those persons [who have identified the plaintiff], or suffer the loss of his action".
This restriction does not apply where the publication is an "unrestricted" mass media publication (Lazarus v Deutsche Lufthansa AG, supra, at 192; Leech v Sylvester [2012] NSWSC 1367). However, until such time as proper particulars of identification are provided for each of the matters complained of, all publications except the 51st and 52nd matters complained of (paragraphs 150-155) are deficient.
Leave to replead is generally granted in such circumstances. However, in the present case, there is no reference in the 35th, 36th, 37th, 38th, 49th or 50th matters complained of concerning extrinsic facts of the kind relied upon by the plaintiff. In particular, there is no reference to the address of the plaintiff's property, the fact that she lives in Newcastle, or to any of her neighbours. These publications discuss party houses in New South Wales at Byron Bay (the 37th and 38th matters complained of) and Terrigal (the 49th and 50th matters complained of). They specifically identify other persons as the owners of these houses, not the plaintiff. The imputations conveyed by these broadcasts specifically relate to those persons.
The plaintiff complains she is identified because pictures of a house which she says is one or the other of the two Gold Coast houses are shown. Careful particulars would need to be provided about these pictures, including not only how the plaintiff's house(s) are identified, but by whom. It is not sufficient for the plaintiff to claim (as she did, during oral submissions) that these are publications about "party houses", and this is a topic about which the defendants have repeatedly published material.
The circumstances in which an action will be struck out because the plaintiff is not, or cannot be, identified require a very high standard of proof: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd (No 2) [2012] NSWSC 1448; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136; Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10), Leech v Silvester [2012] NSWSC 1367. I am satisfied that the plaintiff cannot establish identification. Even if photographs of her house(s) were shown, the specific nature of the allegations in each of these broadcasts does not relate the complaints of house parties in Byron Bay and Terrigal to the plaintiff. These claims will be struck out.
The 43rd and 44th publications: the email from Justin Butterworth
51 of the 53 claims relate to publications by newspapers or on television. The 43rd and 44th publications are an email sent by a Mr Justin Butterworth.
Counsel for the defendants submits that the plaintiff has not in fact been identified by the recipients of the 43rd and 44th matters complained of, and reliance is placed upon an affidavit of Courtney Elise Gillette McLean of 2 August 2013. This is challenged by the plaintiff, who provides emails indicating that these persons know who she is.
Having regard to the distinction drawn by Hunt J in Lazarus between media and non-media publications, failure to provide proper particulars of identification is a significant issue. The continued failure to provide such particulars would, by itself, warrant the striking out of these claims.
There are also pleading problems for the corporate defendants. No Webb v Bloch particulars of publication (Webb v Bloch (1928) 41 CLR 331; David v Abdishou [2012] NSWCA 109) have been provided for Fairfax Media (which is mentioned in the matter complained of only as an email address) or Stayz Pty Ltd. Again, failure to provide such particulars strongly militates against the granting of leave to replead. I have previously refused the plaintiff leave to name Fairfax Media (and, for other reasons, News Limited) as a party in these proceedings: [2013] NSWDC 63 at [32] and [59].
While these matters alone would warrant the striking out of these claims, an additional reason for doing so is the application of s 60 Civil Procedure Act. In this regard, I note also the Schellenberg principles of proportionality. I am conscious of the fact that the claims against these defendants does not fit within the "unusual circumstances" referred to by McColl JA in Habib v Radio 2UE Pty Ltd, supra. These claims arise because of a statutory provision in Australia which does not exist in the United Kingdom: general damages for defamation are capped.
That is an important factor to take into account when case managing a claim for dozens of alleged defamations. The technicalities of pleading each publication separately, with the result that dozens or even hundreds of claims are pleaded, should not make management of the case impossible in circumstances where the plaintiff can only recover, at best, the maximum cap on general damages. Additional matters may be relied upon in relation to damages (especially aggravated compensatory damages), for the reasons explained in Habib v Radio 2UE Pty Ltd, supra. (The issue of whether the cap applies to aggravated compensatory damages has never been the subject of judicial determination).
Issues of proportionality dictate that, given the defendants' affidavit evidence (albeit contested) that no persons were able to identify the plaintiff for publications 43 and 44, the cost of continuing to include these claims in what McCallum J calls "juggernaut" litigation outweighs any advantage to the plaintiff in bringing an action against these three additional defendants, in circumstances where the principal action lies against the first and second defendant.
Accordingly, the proceedings against Stayz Pty Ltd, Mr Butterworth and Fairfax Media should not be the subject of any entitlement to amend to bring any claim against them personally. Leave to amend to bring proceedings in relation to these publications is refused.
Claims against News Ltd and Gold Coast Publications Pty Ltd
Similarly, the proceedings against News Ltd and Gold Coast Publications Pty Ltd should be dismissed. Not only did I make similar orders in my previous judgment concerning further actions against News Ltd, but all of the publications alleged against these two defendants are out of time, and/or are the same (or substantially the same) as publications sued upon by the plaintiff in the Supreme Court of Queensland. In addition, the plaintiff has never provided proper particulars of identification for any of them.
Claims of criminal conduct: publication 37-38, 45-46 and 51-53
Eight of the matters complained of (the 37th, 38th, 45th, 46th, 47th, 51st, 52nd and 53rd) bring claims which, although put forward as defamation claims, assert that the publication of the matter complained of was "in breach of the Voyeurism Act". It appears that this is a reference to s 91J of the Crimes Act 1900 (NSW). As I indicated in my previous judgment at [45]-[46], actions for criminal libel may be brought only with the leave of the New South Wales Attorney-General. If a claim is being made for damages for an alleged breach of s 91J of the Crimes Act, no such cause of action is known to law. That part of these claims will be struck out.
The 39th, 40th, 41st, 42nd, 45th, 46th, 51st and 52nd pleadings
Although the 39th and 40th publications could not be located by the defendants, a 20-second advertisement with "Over the Fence and Out of Control" was located during the hearing, and the parties agreed that it showed the properties in question. There was no sound available. I have made orders for the parties to each provide what material they have in relation to this publication.
The 40th and 41st publications require proper particulars of identification but there is no issue of publication, limitation or identification, or proportionality.
The plaintiff provided a DVD containing the 45th and 46th publications during the hearing. This must be transcribed and added to the next draft pleading, along with copies of all other matters complained of which have survived the defendants' application for summary dismissal.
The 51st and 52nd publications do not require particulars of identification but, as is set out above, should be repleaded to exclude references to voyeurism and s 91J Crimes Act.
Particulars
The particulars of aggravated damages are prolix and contain serious allegations, including claims of commission of criminal acts by the defendants.
By contrast, the particulars of special damage, including loss of business and earnings, are only a few lines long and contain generalised claims such as "the plaintiff's tax losses for both rental properties" (which I note is not a quantified, or quantifiable, loss as it is currently pleaded), a reference to "see attachment" when the attachment is not annexed, and a general claim for "loss of a business and earnings" from the plaintiff's professional surgery, without the basis for this claim being explained.
Claims of this kind should be the subject of careful pleading, preferably supported by expert evidence. Leaving aside the likelihood that the corporate entity which owns one of the houses, rather than the plaintiff, suffered some of these losses, they need to be fully particularised. Accordingly I strike out these particulars, but with leave to replead.
Irrelevant issues raised in the pleading
Page 94 to 103 of the proposed statement of claim include information about copyright, s 91J Crimes Act 1900 (NSW), the Privacy Act 1988 (Cth), the "Indecent Articles and Publications Act 1975" (which I note should have been the Indecent Articles and Classified Publications Act 1975 (NSW), which is, moreover, repealed legislation), mob lynching and some personal opinions from the plaintiff about the malice and lack of honest belief of the defendants. The plaintiff concludes the proposed statement of claim by stating (p 102) that "such practices are not 'Christian' or the norm in Australia, especially Surfers Paradise" and adding a quotation from a legal dictionary.
These paragraphs are embarrassing and will be struck out pursuant to UCPR r 14.28.
Concluding remarks
The plaintiff should be permitted one last opportunity to plead her claim for defamation. The removal of claims which are out of time and of parties against whom no claim is properly pleaded should result in a statement of claim centring on the real issues of the case, namely the plaintiff's claim for damages for defamation for a series of publications concerning criticism of the circumstances in which properties (owned by herself and a company of which she was a director) were let to short-term tenants who allegedly misbehaved. Since these claims have their genesis in events occurring four years ago, it is important that the plaintiff formulate her claim in such a way that the matter can be made ready for hearing expeditiously.
I have set out in my orders below those causes of action for which the plaintiff is granted leave to prepare a further amended statement of claim. However, in the circumstances, I shall limit that leave to a leave to bring further draft pleadings, in the event that there are further difficulties with the statement of proposed pleading of these proceedings. That pleading must contain proper particulars of identification and attach all matters complained of, so that an imputations argument can be dealt with. Given the serious deficiencies in the pleading to date, and the number of publications, I have listed the plaintiff's application at a date suitable for the parties, in the District Court at Newcastle (to suit the convenience of the plaintiff, a Newcastle resident) as I propose to regard myself as part-heard in this application. Once the application is completed, the proceedings will be returned to the Defamation List for further case management.
Other applications
The plaintiff foreshadowed an application for an interlocutory injunction, but no submissions or evidence were put before me in accordance with the timetable. The plaintiff in fact complains that many of these publications are now not available on the Internet, and the utility of such relief is unexplained.
I decline to make any such order.
Costs
The defendants seek the costs of these proceedings. I have included an order accordingly.
Orders
(1) The plaintiff's application for leave to file the proposed amended statement of claim is refused, but with leave to serve (but not file) a further draft statement of claim by 20 September 2013 in relation to publications 29, 30, 39, 40, 41, 42, 45, 46, 51 and 52.
(2) The plaintiff is to provide a transcript of such part of the 39th and 40th matters complained of which are in her possession and the first and second defendants are directed to make enquiries to locate the remainder of the publication.
(3) Proceedings against Stayz Pty Ltd and News Ltd are dismissed. The defendants in these proceedings are Ninemsn Pty Ltd (as first defendant), NBN Ltd (as second defendant) and Miss Katie Gregory (as third defendant).
(4) Plaintiff denied leave to commence any proceedings in relation to these publications against Justin Butterworth, Fairfax Media and Gold Coast Publications Pty Ltd.
(5) The particulars of aggravated damages and special damage are struck out with leave to replead.
(6) Pages 94 to 103 of the proposed amended statement of claim are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) as embarrassing.
(7) Plaintiff's notice of motion filed on 16 August 2013 seeking interlocutory injunction dismissed.
(8) The plaintiff pay Ninemsn Pty Ltd, NBN Ltd and Miss Katie Gregory's costs of the application.
(9) Plaintiff to pay the costs of Mr Justin Butterworth, Fairfax Media, Stayz Pty Ltd, Gold Coast Publications Pty Ltd and News Ltd, such costs to be their costs of these proceedings.
(10) Matter stood over to Thursday 10 October 2013 in the Newcastle Registry at 10:00am.
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Decision last updated: 20 August 2013
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