Gluszak v Yeap
[2020] WASC 360
•21 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GLUSZAK -v- YEAP [2020] WASC 360
CORAM: LE MIERE J
HEARD: 21 AUGUST 2020
DELIVERED : 21 OCTOBER 2020
FILE NO/S: CIV 1492 of 2020
BETWEEN: EDWARD ANTONY GLUSZAK
Plaintiff
AND
TRALVEX REX YEAP
Defendant
Catchwords:
Practice and procedure - Pleadings - Strike out application - Application to strike out paragraphs of amended statement of claim - Grounds not raised by the defendant - Exercise of case management powers
Defamation - Particularity of pleadings - Contextual material affecting meaning of words complained of - Irrelevant material must be omitted - Indiscriminate inclusion of material may prejudice, embarrass or delay the fair trial of the action
Defamation - Adequacy of pleadings - Meaning innuendo - Identity of persons who have knowledge of facts which cause words complained of the convey pleaded imputations is a material fact - Identification inadequate - Failure to disclose reasonable cause of action - Pleading may prejudice, embarrass or delay the fair trial of the action
Defamation - Adequacy of pleadings - Internet publications - May not plead as a single publication where content changes over time - Must plead as separate publications
Defamation - Adequacy of pleadings - Material facts must be set out verbatim - Pleadings must contain words complained of with reasonable certainty - Failure to disclose reasonable cause of action
Legislation:
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| Defendant | : | In person |
Solicitors:
| Plaintiff | : | Bennett + Co |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Bailey v Bottrill (No 2) [2019] ACTSC 167
Baturina v Times Newspapers Ltd [2011] 1 WLR 1526
Collins v Jones [1955] 1 QB 564
Cripps v Vakras [2014] VSC 110
DDSA Pharmaceuticals Ltd v Times Newspaper Ltd [1973] QB 21
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Google Inc v Duffy [2017] 129 SASR 304
Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Harris v 718932 Pty Ltd (2003) 56 NSWLR 276
Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764
LE MIERE J:
Summary
The plaintiff is a qualified research physicist and the person in control of an account with the username 'Blackbriar' on the messaging application Telegram. The defendant is an academic in the field of computer studies and maintains and controls a number of websites. The plaintiff's claims relate to 11 publications allegedly published by the defendant which the plaintiff says are defamatory of him.
The publications relate to the Invacio Group which, until March 2020, carried on the business of the development and creation of artificial intelligence and technology based solutions. The publications consist of five messages on Telegram, four posts on the Bitcointalk Forum, and two posts on the defendant's personal blog, one of which embedded a link to a website entitled Invacio class action.
By letter of 7 July 2020 the defendant has applied to strike out paragraphs of the amended statement of claim filed 11 June 2020 (ASOC).
For the reasons which follow ASOC [12] - [15], [16] ‑ [19], [20] - [24], [25] ‑ [28], [29] ‑ [32], [33] - [36], [41] - [46] and [47] - [48] should be struck out with leave to re-plead.
The strike out application
By his letter of 7 July 2020 the defendant applied to strike out paragraphs of the ASOC on limited grounds.
Under its case management powers, the court has the power to strike out the whole or part of a statement of claim. The power to strike out may be exercised by the court either on the application of one of the parties or on its own initiative. Where, as here, a strike out application is brought by the defendant, the court is not confined to considering the grounds relied upon by the defendant. In a proper case, the court may exercise its power to strike out the whole or part of a statement of claim on grounds not raised by the defendant.
I have decided to strike out parts of the statement of claim on grounds not raised by the defendant. Pleadings are of fundamental importance. Pleadings determine the issues and the evidence to be led at trial as well as the scope of discovery. Statements of claim in a defamation action are particularly important. Gatley says that due in part to the ambiguity of words and their capacity for inference and implication, pleadings, particularly in relation to the issues of meaning and reference to the plaintiff, can on occasion become tortious and complex.[1]
[1] Mullis and Parkes Gatley on Libel and Slander (12th ed, 2013) [26.1] (Gatley).
The intention and expectation of O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) is that the court use its case management powers to facilitate the objects of eliminating delay; disposing efficiently of the business of the court; and ensuring the procedure applicable and the costs of the procedure to the parties are proportionate to the value, importance and complexity of the subject matter in dispute. To that end the court must on occasion exercise its case management powers to consider striking out pleadings on its own initiative. This is such a case.
Some parts of the statement of claim have the potential to cause confusion and make the action unruly both at the interlocutory and trial phases. Accordingly, I have considered parts of the statement of claim which disclose no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action, notwithstanding that they were not raised by the defendant in his written or oral submissions.
First Telegram Message
The First Telegram Message (T1) is a message in the Telegram chat group entitled 'Scammed, Doxxed and Harassed by William West Invacio' (SDH Group). T1 reads:
While Blackbriar (aka Dr Edward A Gluszak) background is neither computer science nor AI, his faith in Invacio fake AI technology is quite unbelievable/unreal ‑ probably a case of crypto Stockholm syndrome or simply someone who has too much vested interest in Invacio itself.
ASOC [6] pleads that T1 gives rise to the imputation that 'the plaintiff misrepresents the business of Invacio to advance his own interests'.
Striking out an imputation on the ground that the matter complained of is not capable of carrying the imputation is a step to be taken with great caution. Determining whether a publication has the capacity to carry an imputation is an exercise in generosity not parsimony. The question is not what the matter complained of in fact conveys, but what a jury could reasonably think it conveys to the ordinary reasonable person, which is often a matter of first impression. It is a high threshold of exclusion.
The title of the chat group conveys that its subject matter is, amongst other things, a scam by Invacio. Counsel for the plaintiff, Mr Bennett, submits that the statement in T1, that the plaintiff's faith in Invacio fake AI technology is quite unbelievable/unreal, is capable of conveying that the plaintiff's faith in the Invacio technology is insincere or cynical. Further, taken with the reference to 'too much vested interest in Invacio', the plaintiff submits it is capable of conveying that the plaintiff feigns faith in 'Invacio fake AI technology' to advance his own interests.
The gist of the imputation is that the plaintiff 'misrepresents' the business of Invacio. To misrepresent is to give a false or misleading representation, usually with an intent to deceive or to be unfair. T1 refers to the plaintiff's faith in Invacio technology rather than any claims or representations he has made about the technology. However, having regard to the title of the chat group, the reference to the plaintiff's faith in the technology being quite unbelievable/unreal and 'too much vested interested in Invacio', I am not satisfied that the imputation is so clearly incapable of arising that it should be struck out summarily. Whether or not T1 does give rise to the pleaded imputation is a matter for trial.
Second Telegram Message
The Second Telegram Message (T2) is also pleaded to have been published to the SDH Group. The text of T2 is:
Zero Multi‑agent system product[s] released to date mainly because the team mistaken MAS for Web crawlers (first highlighted in my ICOBench July 2018 review on Invacio highly fraudulent white paper and Billy). I still find it puzzling that my academic friend Edward Gluszak would openly support a fraudulent tech + biz from the start till now ‑ does his academic reputation really meant [sic] so little to him or perhaps he thought that being 'anonymous' using an alias is foolproof.
At ASOC [10] the plaintiff says that T2 gives rise to the imputations that the plaintiff:
10.1openly supports a business which he knows to be fraudulent;
10.2lacks professional integrity in his profession as an academic; and
10.3deliberately sought to conceal his involvement in a fraudulent business to advance his own interests;
10.4is a scam artist.
I am not satisfied that the imputations pleaded by the plaintiff are so clearly incapable of giving rise to the pleaded meanings that they should be struck out summarily. Whether or not T2 does give rise to the pleaded imputations is a matter for trial.
Third Telegram Message
The Third Telegram Message (T3) is complex. T3 includes linked messages and content available at URL addresses, the content of which is set out in Schedules A and B. The plaintiff pleads at ASOC [13] that T3 reads verbatim as follows:
We know you are most probably either William or Dr Edward Gluszak (Blackbriar) from Invacio. Why? See below regarding ICOBench reviews on Invacio.
[Linked Telegram message] Rex Yeap / Invacio: One of the m …
My review on Invacio: content:] archive.fo
Invacio ratings and reviews / ICObench
Arrived 29 Jul 2018 05.05.42 UTC
My review on Tagz: align="center">Particulars
13.1The Linked Telegram message referred to above read verbatim as follows:
Invacio: One of the more non‑obvious and yet obvious scammy ICO project that I've ever reviewed: content:] archive.fo
Invacio ratings and reviews / ICO bench
Arrived 29 Jul 2018 05.05.42 UTC
13.2The content accessible at URL is set out verbatim in Schedule A to this document.
13.3The content of the URL accessible at URL is set out verbatim in Schedule B to this document.
Schedules A and B consist of what appear to be screen shots extending over five and three pages respectively and containing many posts.
The plaintiff pleads in [14] that T3 gives rise to the imputations:
14.1The plaintiff is involved in perpetrating a scam against investors in Invacio; and
14.2The plaintiff deliberately concealed his involvement with a fraudulent company.
An issue may arise whether a defendant is a publisher within the meaning of the tort of defamation in causing a link and accompanying text to be posted on a Telegram chat group page.[2] There are cases in which an issue has arisen whether a plaintiff is entitled to rely upon a composite publication. However, those issues were not raised by the defendant and are in any event not suitable for determination summarily.
[2] See eg Google Inc v Duffy [2017] 129 SASR 304; Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764; Bailey v Bottrill (No 2) [2019] ACTSC 167; Cripps v Vakras [2014] VSC 110.
The plaintiff should identify and set out the particular passages complained of. Where the plaintiff contends that the meaning of the words complained of is affected by the context in which they were written he may include this contextual material in the pleading. However, surrounding material which is irrelevant to the plaintiff's complaint should be omitted. Except in the exceptional circumstances where the sting of the matter can properly be said to derive from the publication read as a whole, it is not appropriate to set out the article or internet post in its entirety. The indiscriminate inclusion of every word and image of a lengthy publication is embarrassing.
The pleading of T3 may prejudice, embarrass or delay the fair trial of the action. ASOC [12] - [15] should be struck out.
Fourth Telegram Message
In ASOC [16] the plaintiff pleads that the Fourth Telegram Message (T4) was published on the Telegram chat group entitled IOC group page. The plaintiff pleads that T4 reads as follows:
You are not going to hear from the real Bryan because the real identity of this ghost writer is most probably (98% confidence) from Invacio, specifically either William West or Dr Edward Gluzak (aka blackbriar) who has a beef with not just me, but also Clover … see the other articles by this ghost writer named 'Markus Humphreys', understand why William/Edward are upset about Clover, check the many other evidence that are archived in this group: >
The plaintiff pleads at [18] that T4 gives rise to the imputations:
18.1the plaintiff is involved in perpetrating a scam against investors in Invacio;
18.2the plaintiff supports a fraudulent business; and
18.3the plaintiff deliberately concealed his involvement with a fraudulent company.
The pleaded imputations are not capable of arising from the pleaded text. Mr Bennett accepts that the plaintiff must either plead the T4 text together with the material in the links referred to as a composite publication, or alternatively, as extrinsic material giving rise to the pleaded imputations as true innuendos. Paragraphs 16 to 19 must be struck out.
Fifth Telegram Message
The Fifth Telegram Message (T5) is alleged to have been published in the IOC group page of Telegram. The plaintiff pleads that T5 reads verbatim as follows:
A Formal Response to a False Accusation in Youtube titled 'Dr Rex Yeap (BANSEA Vice Chairman) / Fabricating relationship with Nanyang University. Singapore.': >
The plaintiff then pleads:
The link embedded in, and thereby both included in and republished by, the Fifth Telegram Message is otherwise pleaded at paragraphs 41 to 46 below.
The plaintiff pleads T5 as a republication of the publication pleaded at [41] to [46] which is described as W1. I refer to W1 later in these reasons. W1 is a long and complex publication.
The plaintiff pleads that T5 conveys the imputations that the plaintiff:
23.1is involved in defrauding investors in Invacio;
23.2deliberately misled investors in Invacio;
23.3is mentally unstable;
23.4is a scam artist;
23.5is corrupt;
23.6published a review of Invacio which he knew to be false for personal financial gain; and
23.7was motivated to discredit the defendant by reason of a malicious vendetta against the defendant personally.
I consider W1 later in these reasons. The pleading in relation to W1 should be struck out. It follows that the pleading in relation to T5 should be struck out. ASOC [20] - [24] should be struck out.
First Bitcoin Forum post
The plaintiff pleads that the defendant published this post on the internet forum 'Bitcointalk' (B1).
The plaintiff pleads the B1 text verbatim in ASOC [26]. B1 does not refer to the plaintiff by name.
The plaintiff says that he is sufficiently identified in B1 by reference to 'Blackbriar' and 'an academic in Australia in nano physics'. However, Mr Bennett accepts that it is necessary for the plaintiff to plead the extraneous facts known to readers of B1, by reason of which reasonable readers would understand the words complained of to refer to the plaintiff. Paragraphs 25 to 28 must be struck out.
Second Bitcoin Forum Post
The Second Bitcoin Forum Post (B2) is a post on the Bitcoin Forum. The plaintiff pleads that B2 is verbatim as follows:
Current Invacio team (2019 March):
1.William James Dalrymple West (CEO and Founder)
2.Roger Baker (CMO)
3.Dr Edward A Gluszak (aka Blackbriar in Telegram, background role)
4.Linleeye West (background role)
The plaintiff then pleads that by way of innuendo, B2 gives rise to imputations defamatory of the plaintiff:
31.By way of innuendo, the Second Bitcoin Forum Post was defamatory of the plaintiff to the class of persons with extrinsic knowledge of the defendant's contempt for Invacio and those associated with it, which includes readers of the Bitcointalk Forum in which the Second Bitcoin Forum Post was published, and to that class of person meant and was understood to mean that the plaintiff:
31.1is involved in defrauding investors in Invacio;
31.2deliberately misled investors in Invacio; and
31.3is part of a scam perpetrated against the investors in Invacio.
The plaintiff then gives the following particulars:
Particulars of extrinsic facts
31.4The Second Bitcoin Forum Post appeared as part of a thread in the Bitcointalk Forum created by the defendant entitled 'Invacio: Shady ICO project'.
31.5The Second Bitcoin Forum Post appeared as part of a thread of other posts authored by the defendant which were highly critical of Invacio and its employees and associates.
31.6The defendant's views about Invacio and its associates, and specifically, his view that Invacio is a 'scam' and has mislead its investors, is apparent to any person reading the thread.
31.7The Second Bitcoin Forum Post was published by the defendant after the First Bitcoin Forum post which remained accessible online at the time of publication of the Second Bitcoin Forum Post.
31.8At the time of publishing the Second Bitcoin Forum Post the defendant had published other statements online expressing his views about Invacio as described in paragraph 31.6 above, further particulars of which will be provided after discovery and interrogatories.
31.9Following publication of the Second Bitcoin Forum Post the defendant continued to publish statements online expressing his views about Invacio as described in paragraph 31.6 above, further particulars of which will be provided after discovery and interrogatories.
The particulars of extrinsic facts at ASOC [31] refer to publications by the defendant which the plaintiff relies upon to establish that the publication complained of, B2, conveys the pleaded imputations. The plaintiff's case is not that B2 and the publications referred to in the particulars of extrinsic facts (the additional publications) form a single publication which gives rise to the imputations pleaded. Nor is the plaintiff's case a case of reference innuendo, where the words of B2 are defamatory on their face but knowledge of the additional publications is required to link them to the plaintiff. The plaintiff's case is one of meaning innuendo, that the words of B2 only convey the pleaded meanings to persons with knowledge of the additional publications.
Where a plaintiff pleads a meaning innuendo, he or she must plead the persons who have knowledge of the extrinsic facts which cause the words complained of to convey to those persons the pleaded imputations. The identity of those persons is a material fact and must be identified so as to inform the defendant of the case he has to meet and so that he may decide whether to defend or settle, whether to pay into court and, if so, how much. Where a legal innuendo is relied upon, the plaintiff must specify the persons with the particular knowledge, though in a proper case the plaintiff may rely on an inference that some readers must have known the special facts. For example, there might be an exception where the only reasonable inference is that some of the readers of a national newspaper must have the particular knowledge.[3]
[3] Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822; Baturina v Times Newspapers Ltd [2011] 1 WLR 1526.
The class of persons identified by the plaintiff to have the particular knowledge is 'persons with extrinsic knowledge of the defendant's contempt for Invacio and those associated with it'. The pleading goes on to say that the class 'includes readers of a Bitcointalk Forum in which [B2] was published' but does not confine the class to those persons. The identification of the persons with special knowledge is wholly inadequate. It fails to inform the defendant of the case he has to meet.
The defect is not cured by the particulars of extrinsic facts. The particulars do not, in the conventional way, identify the extraneous facts and the persons with knowledge of those facts. Particulars 31.4 ‑ 31.7 refer to, without identifying with any precision, other publications by the defendant but do not identify who had knowledge of them when B2 was published. The matter is made worse by particular 38.8 which refers to 'other statements' by the defendant which the plaintiff cannot identify. Particular 31.9 impermissibly relies upon unidentified publications after the publication complained of.
There is a further fundamental problem with the pleading. On their face, the words of B2 do not remotely suggest the imputations pleaded at [27.1] ‑ [27.4]. The plaintiff says they convey the pleaded imputations because of other (extrinsic) facts known to some of the persons to whom B2 was published. Those extrinsic facts are:
(a)other words previously published by the defendant which are part of a thread of which B2 is also a part ([31.4] ‑ [31.6]);
(b)B1 which was published before B2 ([31.7]);
(c)other (unidentified) previous publications by the defendant ([31.8]); and
(d)other (unidentified) subsequent publications by the defendant ([31.9]).
A meaning innuendo arises where a word or words may bear a hidden meaning for a section of the wider audience whose members possess some special knowledge of extraneous facts that informs only their interpretation of the phrase in question.[4] Those extraneous facts or matters will generally incorporate either a special definition of words known only to a limited class of persons, or facts extrinsic to the publication complained about which, if known about, affect the way the words complained of are understood.[5] For example, a publication that a person is a member of the Bandidos will convey a defamatory meaning to readers of the publication who know that the Bandidos are an outlaw motorcycle gang.
[4] Gatley [11.15].
[5] Gatley [26.23].
However, that is not the way the plaintiff has pleaded his case. He does not plead that Invacio is involved in defrauding investors, deliberately misleading investors, or is part of a scam perpetrated against investors in Invacio, and that those facts are known to some of the readers of B2.
The plaintiff's complaint is about what is said by the defendant in the additional publications. There is nothing in B2 which gives rise to the pleaded imputations. The words of B2 may identify the plaintiff as the person or a person referred to in the additional publications, but B2 does not convey the pleaded imputations to the persons with knowledge of the additional publications.
For those reasons the plaintiff's pleaded case in relation to B2 discloses no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action. Paragraphs 29 to 32 should be struck out.
Third Bitcoin Forum Post
The plaintiff pleads that the defendant published a post on the Bitcointalk Forum (B3). The plaintiff pleads that B3 reads verbatim:
Lucid is an interesting special effects (Clover calls it After Effects, which is also apt) system with zero deception detection capabilities ‑ the current team has unwittingly leaked evidence that allows me to scientifically prove that Lucid deception detection capabilities is fake and I'm more than pleased to be somebody's expert witness when you sue Invacio for defamation/fraud/deception/etc and I will produce my proof (with journal publications) showing that Lucid deception detection system is fake. Perhaps Invacio will engage their own expert witness (Dr Edward A Gluszak aka blackbriar in Telegram) and let's see Science and truth will be on who's side.
In summary, more fraud from the current Invacio team.
The plaintiff pleads that B3 gives rise to the imputation that the plaintiff is involved in defrauding investors in Invacio.
The imputation should be struck out on the ground that it fails to state precisely the act or condition asserted of or attributed to the plaintiff or with which he is charged.
B3 includes the words 'more fraud from the current Invacio team'. The reference to the plaintiff comes after the words of B3 which say that the Lucid deception detection system is fake. B3 then says that perhaps Invacio engaged their own expert witness ‑ the plaintiff ‑ and 'let's see Science and truth will be on who's side'. The role assigned to the plaintiff is Invacio's expert witness. It is not clear what role in defrauding investors is asserted of the plaintiff by the imputation that he is involved in defrauding investors. His involvement might be as a principal party to defrauding the investors or in assisting Invacio after it has perpetrated the fraud or some other role.
ASOC [33] - [36] should be struck out.
Fourth Bitcoin Forum Post
The plaintiff pleads that the defendant published a post on the Bitcoin forum (B4). The plaintiff pleads that the B4 post reads verbatim as follows:
Behind every scam there are multiple people who play key parts in enabling the scam. After the wide‑ranging coverage of the scam carried out by William James Dalrymple West ('Billy') through the Invacio initial coin offering, there are others who played key role in this scam. Some of these are stupid fools who deserve to be taken to the cleaners after refusing to accept the irrefutable scam right in front of their faces, some are only enabling in the pipedream that they will be able to recuperate their investments and some are desperate cult members.
Invacio Employees and Associates
…
5. Edward Gluszak ‑ Known on telegram as Blackbriar. A top of the class hypocrite who likes to remain anonymous while actively disclosing investors [sic] names on Telegram channels. Eggs people on and tries to manipulate them to target individuals. Always has an argument, mostly flawed. If someone doesn't like Invacio and doesn't agree with Ed's position then that person is apparently supporting another token. Hasn't written a research paper in over 10 years, spends most of his time on Telegram manipulating facts, got paid to write Invacio review and doesn't like being told that he is wrong. There is a strong possibility that the Telegram account is fake and pretending to be Ed Gluszak. If not, then Ed should do some review of the various Invacio products and post them on Youtube bittube Invacio website. It will take technology geeks less than one hour to establish all of the products are built on copied and pasted code or stolen products, just ask the guy from Lavaboom.
At ASOC [39], the plaintiff pleads that B4 gives rise to the imputations that the plaintiff:
39.1is involved in defrauding investors in Invacio;
39.2is part of a scam perpetrated against the investors in Invacio; and
39.3is a lazy and unaccomplished academic;
39.4published a review of Invacio which had no merit or foundation for personal financial gain.
The question is whether the imputation [39.1] is sufficiently precise. That raises the issue referred to by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation.[6] The Chief Justice said at 137:
The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.
and at 138:
As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 where his Honour said:
'… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.'
[6] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
The meaning of the imputation must be seen in the context of the publication.[7] Having regard to the publication complained of and its context I will allow imputation 31.9 to stand. The issue is one for trial. It should not be determined summarily.
[7] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165.
Personal blog posts
The plaintiff pleads that the defendant published the Personal Blog Post (W1) on his personal blog website.
The plaintiff pleads that from in or about 31 May 2019 until 2 January 2020, W1 contained the text which is reproduced at Schedule D to the statement of claim. Schedule D contains text, pictures and screenshots which extend over 13 A4 pages.
The plaintiff pleads that from in or about 2 January 2020 until a date unknown, W1 contained the text which is reproduced at Schedule E to the statement of claim. Schedule E contains text, a table and screenshots extending over 14 A4 pages.
The plaintiff pleads that from a date unknown after 2 January 2020, W1 has contained the text which is reproduced at Schedule F to the statement of claim. Schedule F contains text extending over three A4 pages.
The plaintiff pleads at ASOC [45] that W1 gives rise to imputations defamatory of the plaintiff:
45The Personal Blog Post is defamatory of the plaintiff in its natural and ordinary meaning and meant and was understood to mean the plaintiff:
45.1is involved in defrauding investors in Invacio;
45.2deliberately misled investors in Invacio;
45.3is part of a scam perpetrated against the investors in Invacio;
45.4is mentally unstable;
45.5is corrupt;
45.6published a review of Invacio which he knew to be false for personal financial gain; and
45.7was motivated to discredit the defendant by reason of a malicious vendetta against the defendant personally.
Publication over the internet occurs when the matter is downloaded from the website in comprehensible form.[8] There is a cause of action in relation to each download comprehended by a reader. The effect of the multiple causes of action rule has been mitigated, if not ignored, to avoid inconvenient results. For example, a plaintiff may plead a single count in their claim for the publication of the whole addition of a daily newspaper and recover damages on that basis.[9] This principle also applies where publication occurs over an extended period, as with publication over the internet, unless time becomes critical because of a defence under the Limitation Act 2005 (WA) or for some other reason.
[8] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.
[9] Harris v 718932 Pty Ltd (2003) 56 NSWLR 276 [20].
However, where the content of a page on a website changes over time, the plaintiff may not plead successive texts as if they were a single publication. The situation is analogous to separate editions of a daily newspaper where the content varies from one addition to the next.
In this case the plaintiff has pleaded three bodies of work with different contents as a single publication. That is contrary to the principles of pleading. Furthermore, such an approach makes the pleadings and the conduct of the trial difficult and inconvenient, if not completely impractical.
It is difficult to traverse and digest all of the material in each of Schedules D, E and F. The pleading presents an intellectual challenge which requires great effort and determination to wade through each schedule, let alone to try and deal with the three of them together.
The plaintiff should plead each internet publication with a different content as a separate publication. The defendant may wish to plead different defences in relation to each publication with a different content.
The plaintiff should identify and set out the particular passages complained of. Where the plaintiff intends to allege that the meaning of words is affected by the context in which they were published, he should include this contextual material in the particulars of claim. However, surrounding material which is generally irrelevant to the plaintiff's complaint should be omitted. This is particularly important where the plaintiff is suing in respect of publication on the internet of material extending over many pages and including screenshots or graphics which are very difficult to read, if not illegible. Where the subject matter of the action is a long article or piece of work, the plaintiff should specify the particular parts said to give rise to each of the imputations said to be conveyed. To 'throw the whole article' at the defendant and the court is embarrassing.[10] Unless the plaintiff says that the whole of the material in, for example, Schedule D conveys each of the pleaded imputations, then the plaintiff should identify the parts of the material in each schedule said to give rise to each imputation.
[10] DDSA Pharmaceuticals Ltd v Times Newspaper Ltd [1973] QB 21.
In its present form the pleading of the separate publications referred to in ASOC [43] as a single publication may prejudice, embarrass or delay the fair trial of the action. Paragraphs 41 to 46 should be struck out.
Class Action Website
The plaintiff pleads that from about 30 May 2019 until in or about November 2019, the defendant embedded a link to a website (Class Action Website) in the Personal Blog Website thereby republishing the content of the Class Action Website (W2).
At ASOC [48] the plaintiff pleads that the Class Action Website contained false and defamatory statements of and concerning the plaintiff: which were of the same meaning and effect as the defendant's publications pleaded in the ASOC; and that were defamatory of the plaintiff in their natural and ordinary meaning and meant and were understood to mean that the plaintiff is a paedophile.
The plaintiff pleads that the Class Action Website is no longer accessible online. The plaintiff pleads that a copy of the Class Action Website is likely to be in the possession of the defendant and ought to be produced for inspection by the plaintiff forthwith. At ASOC [48.6], the plaintiff pleads that he will amend his statement of claim to plead the specific imputations arising from the Class Action Statements upon the defendant giving discovery of the Class Action Website and all documents associated with, alternatively following the issue of subpoenas.
The words complained of are material facts and must be set out verbatim in the statement of claim. It is not enough to describe their substance, purport or effect. The plaintiff must set out in his pleading the words complained of with reasonable certainty.[11] Gatley says that if a plaintiff is unable to set out the very words of the libel, the best course is to insert in the particulars of claim the closest approximation which they can make of the actual words used.[12] Whether or not such a plea is adequate will depend on all the circumstances.
[11] Collins v Jones [1955] 1 QB 564, 571.
[12] Gatley [26.16].
The plaintiff has not given any approximation of the words allegedly contained in the publication complained of. The plaintiff did not apply for pre‑action discovery. The plaintiff has commenced action and foreshadows seeking discovery of the contents of an internet publication without having given even an approximation of its contents. In my view, that is not a permissible course. The plaintiff's pleading in relation to the Class Action Website discloses no reasonable cause of action.
ASOC [47] and [48] should be struck out.
Conclusion
For the reasons stated the paragraphs of the statement of claim which plead the Third Telegram Message, the Fourth Telegram Message, the Fifth Telegram Message, the First Bitcoin Forum Post, the Second Bitcoin Forum Post, the Third Bitcoin Forum Post, the personal log posts, and the Class Action Website should be struck out on the grounds that they do not conform with the rules of pleading. The plaintiff should have leave to re-plead. It may be necessary for the plaintiff to amend his pleading at ASOC [49.3] as a consequence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere22 OCTOBER 2020
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