Gluszak v Yeap

Case [2020] WASC 360

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

  1. 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.

  2. 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…

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Details
AGLC
Gluszak v Yeap [2020] WASC 360
Case
[2020] WASC 360
Decision Date

CaseChat Overview and Summary

In the case of Gluszak v Yeap, the plaintiff, Mr. Gluszak, sought to establish a defamation claim against the defendant, Mr. Yeap. The dispute primarily revolved around the adequacy of the plaintiff's pleadings, particularly in relation to the specificity required for alleging defamatory statements made through various online publications. The case was heard in the Supreme Court of New South Wales, where the court was required to determine whether the plaintiff's pleadings were sufficiently detailed to withstand a strike-out application from the defendant.

The legal issues before the court included whether the plaintiff's pleadings met the necessary standard of particularity required under defamation law, especially concerning the context and content of online publications that changed over time. The court had to assess if the plaintiff had adequately identified the persons who possessed the necessary knowledge to understand the defamatory meaning of the publications and whether the plaintiff's pleadings could prejudice, embarrass, or delay the fair trial of the action by including irrelevant material.

In ruling on these issues, the court found that the plaintiff's pleadings were deficient in several respects. The plaintiff failed to identify with reasonable certainty the persons who had the necessary knowledge to understand the defamatory meanings of the publications. Additionally, the plaintiff did not sufficiently address the requirement to treat separately publications that changed over time as distinct publications. The court concluded that the plaintiff's failure to disclose a reasonable cause of action and the potential for prejudice to the defendant warranted the striking out of certain parts of the amended statement of claim. Ultimately, the court allowed some imputations to stand, considering the context of the publications, but determined that the broader issues required a trial.

The final orders of the court included the striking out of certain paragraphs of the amended statement of claim on the grounds that they were inadequate and potentially prejudicial, while allowing specific imputations to proceed to trial pending further particulars being provided by the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff then gives the following particulars:Particulars of extrinsic facts31.4The 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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; and45.7was motivated to discredit the defendant by reason of a malicious vendetta against the defendant personally.