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Gluszak v Yeap [No 2]

Gluszak v Yeap [No 2]

Case [2021] WASC 283 19 August 2021

Defamation Act 2005 (WA)

Limitation Act 2005 (WA)

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GLUSZAK -v- YEAP [No 2] [2021] WASC 283
CORAM:   LE MIERE J
HEARD:   8 JULY 2021
DELIVERED          :   19 AUGUST 2021
PUBLISHED           :   19 AUGUST 2021
FILE NO/S:   CIV 1492 of 2020
BETWEEN:   EDWARD ANTONY GLUSZAK
Plaintiff

AND

TRALVEX REX YEAP
Defendant

Catchwords:

Practice and procedure - Pleadings - Strike out - Defence and counterclaim

Defamation - Limitation Act 2005 (WA) - Extension of time - Whether not reasonable in the circumstances to have commenced action within one year of publication

Legislation:

Defamation Act 2005 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Serious Sex Offenders Monitoring Act 2005 (Vic)

Result:

Extension of time granted
Defence and counterclaim struck out
Leave to replead granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
Defendant	:	In person

Solicitors:

Plaintiff	:	Bennett + Co
Defendant	:	In person

Cases referred to in decision:

Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674
Gluszak v Yeap [2020] WASC 360
Gutnick v Dow Jones & Co Inc (No 4) [2004] VSC 138; (2004) 9 VR 369
Hogan v Hinch [2011] HCA 4; 243 CLR 506
O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Plato Films Ltd v Speidel [1961] AC 1090
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Scott v Samson (1882) 8 QBD 491
Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279

LE MIERE J:

Summary

The plaintiff is a research physicist and the person in control of an account with the username 'Blackbriar' on the messaging application 'Telegram'. The defendant is a computer studies academic and maintains and controls a number of websites.
The plaintiff claims he has been defamed by 10 publications by the defendant which are defamatory of him. The defendant has filed a defence and counterclaim. In his counterclaim the defendant claims he has been defamed by several of the plaintiff's publications and also claims damages and other relief for injurious falsehood.
Some of the publications in respect of which the defendant counterclaims are barred by s 15 of the Limitation Act 2005 (WA). The defendant applies for an extension of time within which to commence proceedings by counterclaim against the plaintiff. The plaintiff applies for an order that the defendant's defence and counterclaim be struck out.
For the reasons which follow, the defendant will have leave to commence claims relating to the publication of the alleged defamatory matters notwithstanding that one year has elapsed since their publication. The defendant's defence and counterclaim will be struck out with leave to replead.

Extension of time to commence counterclaim

The defendant filed his defence and counterclaim on 17 January 2021. He claims relief in respect of, amongst others, the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gluszak v Yeap [No 2]

Details

AGLC: Gluszak v Yeap [No 2] [2021] WASC 283
Case: [2021] WASC 283
Decision Date

CaseChat Overview and Summary

The case of Gluszak v Yeap [No 2] involved a defamation claim brought by the plaintiff, Edward Antony Gluszak, against the defendant, Trave Rex Yeap. The plaintiff claimed that he had been defamed by ten publications made by the defendant. The defendant filed a defence and counterclaim, in which he claimed that he had been defamed by several of the plaintiff's publications and sought damages and other relief for injurious falsehood. The court had to decide whether the defendant's defence and counterclaim were valid and whether the defendant was entitled to an extension of time to commence proceedings by counterclaim against the plaintiff. The court also had to consider whether the plaintiff's application to strike out the defence and counterclaim should be granted.

The court found that the defendant was not aware of the publications in respect of which he counterclaimed until December 2020, and that it was not reasonable for him to have commenced an action in relation to those publications within one year from their publication. Therefore, the court granted the defendant leave to commence claims relating to the publication of the alleged defamatory matters notwithstanding that one year had elapsed since their publication. However, the court found that the defendant's defence and counterclaim were deficient in several respects. The defence and counterclaim were prolix and contained material which was not a statement in summary form of material facts and was burdensome for the court and the plaintiff to read and analyse. The court struck out the whole of the defendant's defence and counterclaim and granted the defendant leave to replead.

The court emphasised the importance of adhering to the rules of pleading and avoiding irrelevant allegations and schedules which contain material which is at best evidence and at worst irrelevant argument or conjecture. The court also pointed out that the defendant should not assume that he will be given multiple attempts at pleading. The court's decision highlights the need for litigants in person to take legal advice and to carefully follow the rules of pleading in order to avoid their pleadings being struck out.

Orders