Gluszak v Yeap [No 2]
[2021] WASC 283
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 alleged publications:
1.The message in the Telegram chat group entitled 'ARB Unofficial Blacklist' (ARB Group) using the account with the pseudonym 'Blackbriar' on Telegram from on or about 20 April 2019 to on or about 10 November 2019 (Gluszak Third Telegram Message or GT3).
2.The message in the ARB Group using the account with the pseudonym 'Blackbriar' on Telegram from on or about 20 April 2019 to on or about 10 November 2019 (Gluszak Fourth Telegram Message or GT4).
3.A message in the ARB Group using the account with the pseudonym 'Blackbriar' on Telegram from on or about 20 April 2019 to on or about 10 November 2019 (Gluszak Fifth Telegram Message or GT5).
Section 15 of the Limitation Act provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. However, a plaintiff may apply to the court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication. Section 40(2) of the Limitation Act provides that a court, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, must extend the time in which the action can be commenced. Section 40(3) of the Limitation Act provides a drop-dead date for commencing proceedings - an action cannot be commenced if three years have elapsed since the publication.
Where defamatory material is posted on internet websites and messaging applications, for the purpose of the law of defamation, publication occurs where and when the material is downloaded and read.
The defendant seeks an extension of time within which to commence action in relation to the three publications on the ARB Group to which I have referred (GT3, GT4 and GT5).
The defendant says that it was not reasonable for him to have commenced an action in relation to those publications within one year from their publication because he was unaware of the publications.
The defendant relies upon an affidavit he swore on 2 June 2021 in which he swears:
I was not aware of the three defamatory messages posted by the defendant by counterclaim in the 'ARB Unofficial Blacklist' until December 2020.
The plaintiff submits that, on the balance of probabilities, it is more likely than not that the defendant did become aware of the relevant publications at an earlier time. In his affidavit sworn on 30 June 2021, the plaintiff identifies two other chat groups in which the defendant was active from around April 2019. The plaintiff says there are numerous references to both Invacio and the ARB Group on these chat groups, and the references to the ARB Group are in a context which make it probable that the defendant was aware of the existence of the group. The plaintiff says these matters give rise to an inference that the defendant was aware of the existence of the ARB Group. The plaintiff then says it is probable that the defendant sought to access the ARB Group in around April or May 2019 and, I assume, that the defendant did so and became aware of the messages.
The plaintiff's argument is a process of reasoning through which he draws an inference from an inference and takes three substantial steps at the same time. It is not sufficient to overcome the defendant's sworn evidence that he was not aware of the messages.
Further, the plaintiff says that the evidence given by the defendant is extremely limited in nature. The defendant provides no evidence of how he came to learn of the publications, nor does he specify the day in December 2020 in which he asserts he learnt of them.
In his oral (unsworn) submissions, the defendant said that he became aware of the messages after undertaking a process of informal discovery. Counsel for the plaintiff drew attention to messages and Google forms attributed to the defendant which are reproduced in schedules to the Reamended Substituted Statement of Claim (RASSOC). The inference from those messages and forms is that the defendant sought information for a 'countersuit'. That is consistent with the defendant's unsworn explanation of how he became aware of the messages.
I find that the defendant was not aware of the messages before November 2020. This is not a case of wilful blindness. There is no evidence from which I may draw an inference that the defendant intentionally kept himself unaware of statements about him posted by the plaintiff from the ARB Group website. Further, it has not been established that the defendant would have knowledge of the messages if he had made the enquiries that would be made by an honest and prudent person with his knowledge of the matters referred to in the plaintiff's affidavit. Even a dedicated internet surfer with an interest in Invacio cannot be expected to search for messages on every website that refers to Invacio.
I am satisfied that it was not reasonable in the circumstances for the defendant to have commenced an action in relation to the three publications in question within one year from their publication. I will extend the time in which the defendant may commence action in relation to those publications.
Plaintiff's application to strike out defence and counterclaim
Rules for pleading a defence
Order 20 r 8(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provides that, subject to exceptions not presently relevant, a defence must contain, and contain only, a statement in summary form of the material facts on which the defendant relies for his defence, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits. A statement of defence must be concise. It must plead only material facts, meaning those facts necessary for the purpose of formulating the defence and not background facts or evidence. A defence must not contain reasons, submissions or arguments.
The scheme of the defence and counterclaim
The defence and counterclaim is divided into three sections and 15 schedules. The document is prolix. It contains material which is not a statement in summary form of material facts and is burdensome for the court and the plaintiff to read and analyse.
Section A: 'Overview'
The first section is entitled 'Overview'. The first paragraph of the overview states that its purpose is to assist the court to understand the plaintiff's amended statement of claim filed on 11 June 2020 and the reamended statement of claim filed on 19 November 2020.
The overview is unnecessary. It is not a function of a defence to help the court understand the plaintiff's statement of claim. Furthermore, the plaintiff's amended statement of claim filed on 11 June 2020 has been superseded by the plaintiff's reamended substituted statement of claim filed on 19 November 2020. It is the plaintiff's reamended substituted statement of claim on 19 November 2020 to which the defendant must respond.
The overview is embarrassing because it is irrelevant and raises false issues which would add to the expense of the trial and interlocutory steps towards it.
Section B: 'Defence'
The second section of the defence and counterclaim is entitled 'Defence'. The plaintiff objects to the Defence as a whole and to particular parts.
Defence [8] - [10]: characteristics of plaintiff and defendant
At RASSOC [2.2] - [2.5], the plaintiff pleads that the defendant maintains and controls certain websites or accounts on messaging applications or internet forums. At Defence [9.2], the defendant admits that allegation but adds further facts including the plea at [9.4] that he is an ICOBench Expert with over 100 inventions and patents as set out at Schedule Dd (with Schedule Gd summarising ICO projects reviewed within the ICOBench platform).
That plea is unnecessary and embarrassing. It is sufficient, if it be relevant, for the defendant to plead that he is an ICOBench Expert and inventor and holder of patents in relation to technology products and that he has conducted many ICOBench reviews. Schedules Dd and Gd and their contents are unnecessary particulars and evidence which renders the defence prolix. Those schedules, and the references to them in Defence [9.4], should be struck out pursuant to RSC O 20 r 19(1) on the ground that they may prejudice, embarrass or delay the fair trial of the action.
Defence [11] - [17]: First Telegraph Message - imputations and justification
These paragraphs plead to RASSOC [4] - [7] where the plaintiff pleads that the defendant published the First Telegram Message (which the defendant describes as T1b) and the imputations conveyed by that message. At Defence [11], the defendant admits publishing T1b but denies the allegations and pleads that he will put forward a different version or interpretation.
The plaintiff complains that, if the defendant alleges that a different imputation is conveyed by the publication, he must set out that alternative imputation. The defendant says that he has done so at Defence [14] - [16]. In Defence [14], the defendant sets out the text of the publication divided into sections with a plain English meaning (being a natural and ordinary meaning) attributed to each part by reference to a glossary of terms at Schedule Ad which are from the Oxford English Dictionary. Defence [15] says, amongst other things, that facts demonstrating that the Invacio ICO project is fraudulent are set out in Schedule Ed and additional evidence will be provided during the trial. Defence [16] says that the imputation pleaded by the plaintiff is vexatious and scandalous and advances three arguments in support of that contention.
Defence [12], [14], [15] and [16] are unnecessary and embarrassing. If the defendant contends that the First Telegram Message does not give rise to the imputation pleaded by the plaintiff, he should plead that he denies that the First Telegram Message gives rise to the imputation pleaded by the plaintiff. If the defendant contends, and it is relevant, that the First Telegram Message conveys a different imputation, then the defendant should plead that imputation. An imputation must state the act with which the plaintiff is charged or the condition attributed to the plaintiff by the publication. A defence must not set out arguments in support of those contentions or materials supporting them, such as dictionary definitions.
Defence [13] is unnecessary. The defendant should plead that he admits that the First Telegram Message contains the words pleaded by the plaintiff at RASSOC [5].
Defence [18]: First Telegram Message - qualified privilege
Defence [18] pleads that the First Telegram Message was published on an occasion of qualified privilege at common law.
The second sentence of Defence [18] correctly recognises that it is the occasion of the communication of the message which gives rise to the qualified privilege, not the meaning of the message. The opening sentence which says that the words were understood to bear the meaning set out in Defence [14] is irrelevant and confusing. It should be struck out.
The plaintiff says that the particulars of qualified privilege pleaded by the defendant are not capable of giving rise to qualified privilege at common law. In Bashford v Information Australia (Newsletters) Pty Ltd,[1] the majority of the High Court held that the subscribers of a newsletter concerning occupational, health and safety matters had an interest in receiving information from the publisher of the newsletter concerning such matters, such that an otherwise defamatory publication attracted the defence of qualified privilege. The court held that the necessary reciprocity of duty and interest was established because only those persons responsible for occupational, health and safety matters subscribed to the newsletter, and dealt only with occupational, health and safety matters. That is, the scope and the audience of the publication was quite limited.
[1] Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366.
In contrast, in Gutnick v Dow Jones & Co Inc (No 4),[2] where the publication concerned was a newsletter/magazine targeted at those working in the broking, finance and investment and mining industries, Bongiorno J held that even though the publications were only made to subscribers, there was no restriction on the class of persons able to enter into subscription contracts, and thus the necessary reciprocity of duty and interest did not arise.
[2] Gutnick v Dow Jones & Co Inc (No 4) [2004] VSC 138; (2004) 9 VR 369.
A defence of qualified privilege may be available where the scope and the audience of the publication are limited. The particulars in support of the plea of qualified privilege must set out facts to establish those matters and that there is a reciprocity of duty and interest.
Defence [18] does not set out facts to establish the necessary reciprocity of duty and interest.
There are further problems with Defence [18]. Particular [18.6] sets out an extract from a textbook. A defence is to set out only material facts, not extracts from textbooks.
Particular [18.9] refers to publication in the public interest and refers to Hogan v Hinch.[3] A defence should plead facts, and only facts. A defence is not to set out arguments or legal authorities. Furthermore, the discussion of the public interest in Hogan v Hinch was in the context of the public interest to make a suppression order under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic). There is currently no public interest defence at common law or under the Defamation Act 2005 (WA).[4]
[3] Hogan v Hinch [2011] HCA 4; 243 CLR 506.
[4] The Attorneys General have approved an amendment to the Uniform Defamation Laws that would insert a provision establishing a defence to the publication of defamatory matter if the defendant proves that the matter concerns an issue of public interest and the defendant reasonably believed that the publication of the matter was in the public interest, but the defence has not been inserted in the Defamation Act 2005 (WA).
Defence [18] will be struck out on the grounds that it discloses no reasonable defence and that it may prejudice, embarrass or delay the fair trial of the action.
Defence [19] - [20]: First Telegram Message - fair comment
At common law, it is a defence to a defamatory publication when:
(a)the publication is a comment as opposed to a statement of fact;
(b)the comment is based on facts truly stated; or sufficiently identified;
(c)the comment relates to a matter of public interest; and
(d)the comment is fair in the sense that it is the honest expression of the commentator's real view.
The publication complained of by the plaintiff, the First Telegram Message or T1b, consists of a single sentence of 44 words with a single subject matter - the plaintiff's faith in Invacio Technology. The defendant may not, as he has attempted to do in Defence [19] and [20], divide the sentence into two parts and defend each part separately by the defence of fair comment. It is the publication that must be defended as fair comment not particular words or phrases in the publication.
There may be publications of a length or nature such that discreet parts may be seen as separate publications and be the subject of a defence of fair comment. That is not possible where the publication consists of a single sentence of 44 words with a single subject matter.
A comment is an expression or statement of opinion about, or a deduction, inference or conclusion concerning facts. The publication must be comment and recognisable as such, rather than a statement of fact. In determining whether a publication is a comment, the circumstances and context in which the statement was made must be considered. Whether a publication is a fact or a comment is to be determined by considering whether an ordinary reasonable reader would have understood the statement as having been intended by its author to be an expression of opinion upon sufficiently indicated material.[5] This question is to be determined by reference only to the form in which the statement has been expressed and the circumstances surrounding the publication.[6] Where comment and statements of fact are so intertwined as to be indistinguishable, the defence will fail as the recipient of the publication must be able to distinguish the facts from the comment.[7]
[5] Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279, 302 (Evett J); Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 466 (Clarke JA).
[6] O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166, 177 (Barwick CJ, McTiernan, Menzies, Windeyer & Owen JJ); Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 467 (Clarke JA).
[7] Smith's Newspapers Ltd v Becker (1932) 47 CLR 279, 303 (Evett J).
The form in which the First Telegram Message (T1b) has been expressed is not capable of being understood by the ordinary reasonable reader as comment. The statement that the plaintiff's faith in Invacio Technology is quite unbelievable/unreal stands alone; there is no material from which a reader might understand that statement to be an opinion, deduction, inference or conclusion.
Insofar as the particulars assert that Invacio is fraudulent or that the plaintiff has faith in Invacio, those are matters which might in a different context be relevant to a plea of justification but they are not relevant to the plea of fair comment. There is nothing in the particulars which provide circumstances surrounding the publication which would cause an ordinary reasonable reader to understand the publication as a comment.
The First Telegram Message (T1b) does not state or identify the facts on which the comment is based.
To the extent that T1b contains any comment, it is intertwined with statements of fact so as to be indistinguishable from the statements of fact.
Defence [19] - [20] will be struck out on the grounds that they disclose no reasonable defence and they may prejudice, embarrass or delay the fair trial of the action.
Defence [21]: First Telegram Message - honest opinion
Section 31(1) of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a)the matter was an expression of opinion of the defendant rather than a statement of fact;
(b)the opinion related to a matter of public interest; and
(c)the opinion is based on proper material.
In this case, Defence [21] fails because the matter complained of, T1b, is not an expression of opinion but rather a statement of fact for the reasons I have set out above in relation to the defence of fair comment.
Further, the requirement that the opinion is based on 'proper material' requires that the publication complained of indicates, whether in general or specific terms, the basis of the opinion. That is, the facts upon which the opinion is based must be stated or indicated in the publication complained of, unless they are widely known. The plea of honest opinion in Defence [21] does not meet this requirement.
Defence [21] discloses no reasonable defence and may prejudice, embarrass or delay the fair trial of the action.
Defence [22] - [28]: Second Telegram Message - meaning and qualified privilege
These paragraphs of the Defence plead to the publication and imputations conveyed by the Second Telegram Message (which the defendant describes as T2b) and plead the defence of qualified privilege in relation to that publication.
These paragraphs fail to comply with the rules, fail to disclose a reasonable defence and may prejudice delay or embarrass the fair trial of the action for the same or similar reasons as those I have stated in relation to the defendant's pleading in relation to T1b.
Defence [29] - [31]: Second Telegram Message - justification
Defence [29] refers to parts of RASSOC [10] which the defendant admits and parts of RASSOC [10] which he denies. That is embarrassing. The defendant must set out in that paragraph which parts of RASSOC [10] he admits and which parts he denies.
Defence [29.2] pleads that the defendant will put forward a different version or interpretation than RASSOC [8]. That is embarrassing. If the defendant wishes to put forward an alternative interpretation, and it is relevant, he must set it out, not say that he will do so somewhere else or at some other time.
The particulars of justification pleaded at Defence [31] are not adequate or sufficient. Particulars of justification must satisfy at least three requirements. First, they must be relevant to proving the defamatory meaning pleaded by the plaintiff. Secondly, they must be pleaded with such particularity that the plaintiff knows not merely the general case he has to meet but also the acts, omissions or things attributed to him which it is alleged justify the imputation so that the plaintiff knows the case against him. Thirdly, the particulars must be sufficient, that is capable of proving the truth of the defamatory meaning sought to be justified. The particulars of justification subjoined to Defence [31] do not meet these requirements.
Some of the matters pleaded in the particulars of justification are irrelevant and embarrassing. Particulars [31.4] - [31.7] challenge the meaning of the Second Telegram Message asserted by the plaintiff. That is irrelevant to a plea of justification. A plea of justification is that the meaning asserted by the plaintiff is true. Alternatively, the defendant may plead a permissible variant of the meaning pleaded by the plaintiff and that that meaning is true. However, that is not what the defendant has done.
Particular [31.8] is that the publication of T2b is of public interest and/or public benefit. That is irrelevant to a plea of justification. The defence is made out if the defendant proves that the defamatory imputations complained of by the plaintiff are substantially true. If they are substantially true it is not necessary that the publication be in the public interest or for the public benefit. If they are not proved to be substantially true, it is no defence that the publication is of public interest or in the public benefit.
Defence [32] - [47]: Third Telegram Message
These paragraphs plead in relation to the Third Telegram Message and plead defences of qualified privilege and justification in relation to that publication.
The paragraphs do not comply with the rules, do not disclose a reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons to those I have set out in relation to the First Telegram Message and the Second Telegram Message.
Defence [43]: Third Telegram Message - qualified privilege, reply to an attack
Defamatory statements made by a defendant in reply to an attack made by the plaintiff may be entitled to the defence of qualified privilege. The reply must be relevant to and commensurate with the attack.
At Defence [43.5], the defendant pleads that the attack was made by an anonymous Telegram username '@BMSeiler' who the defendant describes as 'Imposter'. At Defence [43.7], the defendant pleads that the Imposter is either 'William' or 'Dr Edward Gluszak ('Blackbriar')'. That does not found a reply to attack privilege. It is not sufficient that the defendant believes the attack to have been published by the plaintiff or William, or even that the defendant believed the attack to have been published by the plaintiff. The defence can only apply if the attack was published by the plaintiff. The defendant has not pleaded that the attack was published by the plaintiff.
It appears that the attack and the reply were published on different websites. Generally, a reply will be commensurate if it is published to the same or similar audience as the attack was published to. The defendant has not pleaded any facts to the effect that the reply was published to the same, or similar, audience as the attack.
Defence [48] - [65]: Fourth Telegram Message
These paragraphs plead to the Fourth Telegram Message. They do not comply with the rules, do not disclose a reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons to those I have stated in relation to the First Telegram Message and the Second Telegram Message.
Defence [66] - [80]: Fifth Telegram Message
These paragraphs plead to the Fifth Telegram Message, notwithstanding that the subheading preceding [66] refers to the Fourth Telegram Message.
These paragraphs fail to comply with the rules, do not disclose a reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons to those I have stated in relation to the First Telegram Message and the Second Telegram Message.
Defence [81] - [95]: First Bitcoin Forum Post
These paragraphs plead to the plaintiff's pleading in relation to the First Bitcoin Forum Post publication (which the defendant refer to as B1b). They fail to comply with the rules, do not disclose a reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons as the defendant's pleading in relation to the other publications of the plaintiff to which I have referred.
Defence [96] - [98]: Second Bitcoin Forum Post
These paragraphs plead to the plaintiff's pleading in relation to the Second Bitcoin Forum Post publication (which the defendant describes as B2b). The plaintiff does not plead the Second Bitcoin Forum Post as an actionable defamatory publication. The plaintiff pleads the Second Bitcoin Forum Post for the purposes of establishing that the First Bitcoin Forum Post refers to the plaintiff. The defences which the defendant pleads at Defence [99] - [101] are not relevant because there is no alleged actionable defamatory publication to which they are pleading.
Insofar as Defence [96.1] pleads that the defendant will explain and put forward a different version of interpretation for RASSOC [29], it is deficient for reasons I have stated earlier. Defence [98] is deficient. It is responding to the plaintiff's amended statement of claim which has been replaced by the plaintiff's RASSOC.
Defence [109] - [123]: Third Bitcoin Forum Post
These paragraphs plead to the plaintiff's pleading in relation to the Third Bitcoin Forum Post publication (which the defendant describes as B3b). They do not comply with the rules, disclose no reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons as I have set out in relation to the defendant's pleading in relation to the other publications pleaded by the plaintiff.
Defence [126] - [128]: Fourth Bitcoin Forum Post
These paragraphs plead to the plaintiff's pleading in relation to the Fourth Bitcoin Forum Post publication (which the defendant describes as B4b). They do not comply with the rules, disclose no reasonable defence and may prejudice, embarrass or delay the fair trial of the action for the same or similar reasons as I have set out in relation to the defendant's pleading in relation to the other publications pleaded by the plaintiff.
Defence [136]: Personal Blog Posts - previous judgment
Defence [136] sets out extracts from my judgment in Gluszak v Yeap [2020] WASC 360 (Gluszak). They are not facts material to a matter in issue. They are embarrassing.
Defence [137] - [138]: Personal Blog Posts - errors
These paragraphs plead that the plaintiff's pleading is complex and contains multiple errors and that it is impossible to submit a proper reply to the plaintiff's pleading because of the errors. That is not the function of a defence.
Defence [139] - [145]: Personal Blog Posts - qualified privilege, justification
These paragraphs plead defences of qualified privilege and justification to the Personal Blog Posts publication (which the defendant describes as W1b). They do not comply with the rules, disclose no reasonable defence and prejudice, embarrass or delay the fair trial of the action for the same or similar reasons as I have stated in relation to the defendant's pleading in relation to the other publications complained of by the plaintiff.
Defence [150] - [157]: reply to 'aggravating conduct'
At Defence [150.1], the defendant says that he will put forward a different version of interpretation. Again, if it is relevant he should plead it, not say that he will.
At Defence [151.1,] the defendant pleads that to complain, as the plaintiff has pleaded, that 'the defendant made each of the publications without providing the plaintiff an opportunity to comment on their content' is at best unreasonable, and at worst, a false and misleading statement. The defendant should deny the plaintiff's pleading if he sees fit, but it is irrelevant and introduces a false issue and is therefore embarrassing to say that a statement in the pleading is a false and misleading statement. Other parts of the defendant's pleading are irrelevant.
Defence [160]: reply to alleged economic loss
At Defence [160], the defendant pleads that by virtue of 17 matters identified by alphanumeric descriptors, paragraphs of the RASSOC are denied. If the defendant merely wishes to deny the pleading, he should say so. If the plaintiff wishes to plead additional facts, he should plead them. The present form is embarrassing.
Defence [163] - [165]: conclusion to defence
At Defence [163.1], the defendant pleads that the plaintiff has borne a general bad reputation as a person who was actively involved in a fraudulent business by way of his acting role as an Invacio Telegram administrator.
Evidence of general bad reputation is admissible in mitigation of damages. However, evidence of particular acts of misconduct tending to show the plaintiff's character and disposition is not admissible.[8] Evidence of general bad reputation in the sector of the plaintiff's character relevant to the defamation is admissible.[9] It is difficult to define exactly the borderline between evidence of general bad reputation in a sector of a plaintiff's character and specific conduct which has led to it.
[8] Scott v Sampson (1882) 8 QBD 491.
[9] Plato Films Ltd v Speidel [1961] AC 1090.
I would not strike out Defence [163.1] but any evidence to be led pursuant to that plea will be confined to evidence of general bad reputation and not extend to specific conduct.
Defence [163.2]: fabrication
This paragraph pleads that the plaintiff intentionally fabricated evidence to support his own case in this case. That is a pleading of an instance of specific conduct. It is impermissible.
Defence [163.3]: defamation, injurious falsehood
This paragraph pleads the defendant's acts of, amongst other things, defamation and injurious falsehood onto the defendant. That is a pleading of specific conduct. It is impermissible as a defence.
Defence [163.5] and [163.6]: support
These paragraphs plead in aid of Defence [163.3]. They must fall with [163.2] and [163.3].
Section C: 'Counterclaim'
The third part of the defendant's defence and counterclaim is Section C - Counterclaim. The plaintiff objects to the whole of it and to specific paragraphs.
Counterclaim: Gluszak First Telegram Message
At [171.2] of the defendant's counterclaim (counterclaim [171.2]), the defendant pleads that messages posted to the ICO Check Group (described as GT1) were available for download, for viewing and were capable of being understood by any reasonable person using the Telegram application, including persons within the jurisdiction of Western Australia and all of Australia.
Material on an internet website is published when it is downloaded onto the device of a person who is able to read and understand the material. That is, publication occurs when the material is downloaded, not when it is uploaded. The defendant has to prove that the material has been downloaded and viewed by third parties. The defendant may do that by identifying people who have viewed the material. Alternatively, the defendant may plead facts from which it may be inferred that at least some person or persons have downloaded and viewed the material.
The pleas at counterclaim [171.6] and [171.7] appear to be irrelevant to the plea of publication.
At counterclaim [173], the defendant pleads the imputations conveyed by GT1. Where the defamatory meaning only arises because of extrinsic facts which are known to the persons to whom the material was published there is said to be an innuendo. This has two principal consequences. First, the defendant must not only identify in his claim the defamatory meaning which he contends the words convey but also identify the relevant extrinsic facts and prove that those facts were known to at least one of the persons to whom the words were published.[10]
[10] Gatley on Libel and Slander (12th ed, 2017) [3.20].
At counterclaim [173], the defendant pleads the natural ordinary meaning of the words complained of. However, he then gives particulars which set out extrinsic facts to substantiate that meaning. The defendant may, if he wishes, plead that in their natural ordinary meaning, the words complained of bore the meanings pleaded at counterclaim [173.1] and [173.2]; and then plead in the alternative that, by way of innuendo, the words meant and were understood to mean the meanings pleaded at counterclaim [173.1] and [173.2]. The defendant then may plead the extrinsic facts which give rise to those meanings and the persons to whom the words were published who know those facts.
Counterclaim [178] - [179]: Gluszak Second Telegram Message - publication
These paragraphs have the same defects as the paragraphs pleaded in relation to the publication of GT1.
Counterclaim [180] - [181]: Gluszak Second Telegram Message - imputations
At counterclaim [180.2], the defendant pleads that publication of the Second Telegram Message (which the defendant describes as GT2) conveys the meaning that the defendant is a criminal. The words in their natural and ordinary meaning are not capable of conveying that meaning.
Counterclaim [185] - [186]: Gluszak Third Telegram Message - publication
The particulars of publication have the same problem that I have referred to in relation to the particulars of publication of GT1.
Counterclaim [187] - [188]: Gluszak Third Telegram Message - imputations
At counterclaim [187.2], the defendant pleads that the Third Telegram Message (which the defendant describes as GT3) gives rise to the meaning that the defendant is an immoral person. GT3 is not capable of conveying that meaning. The publication is concerned with knowledge, expertise and ethics. Ethics and morals are related concepts. Many consider the terms interchangeable. Where people distinguish between them, many think of morality as something that is personal and normative whereas ethics is the standards of good and bad distinguished by a certain community or social setting.
If morals and ethics mean the same thing, then the imputation at counterclaim [187.2] that the plaintiff is an immoral person is not sufficiently distinct from the imputation at counterclaim [187.1] that the plaintiff is an unethical professional and should be struck out for that reason. Alternatively, if they bear different meanings, then the publication is concerned with ethics not morals and the imputation at counterclaim [187.2] should be struck out on the grounds that it is not capable of arising from the words complained of.
Counterclaim [192] - [193]: Gluszak Fourth Telegram Message - publication
The pleading of publication is deficient, as set out earlier, insofar as it pleads only that the material was available for download rather than that it was downloaded and read by someone other than the defendant. The plea at counterclaim [192.3] that messages posted to the ARB Group appear as part of a thread of messages, each of which appear and are accessible from the Telegram group itself, adds nothing to proving publication.
Counterclaim [194] - [195]: Gluszak Fourth Telegram Message - imputations
The defendant subjoins to counterclaim [194] 'particulars of words giving rise to imputations'. It is not apparent what function those particulars perform. Counterclaim [194.4] says that the Fourth Telegram Message (which the defendant describes as GT4) is to be read with six preceding Telegram messages which are then identified. It appears that the defendant relies upon those Telegram messages to establish that the publication complained of, GT4, conveys the pleaded imputations. The defendant has not pleaded that GT4 and the preceding Telegram messages form a single publication which gives rise to the imputations pleaded. The plaintiff's case appears to be one of meaning innuendo, that the words of GT4 only convey the pleaded meanings to persons with knowledge of the preceding Telegram messages.
Where a plaintiff pleads a meaning innuendo, he must plead the persons who have knowledge of the extrinsic facts which cause the words complained of to convey to those persons that pleaded imputation.
Counterclaim [199] - [200]: Gluszak Fifth Telegram Message - publication
The defendant's plea of publication has the same problem as his other pleas of publication in that he pleads only that the messages were available for download and not that they were downloaded.
Counterclaim [201] - [202]: Gluszak Fifth Telegram Message - imputations
At counterclaim [201], the defendant pleads that the Fifth Telegram Message (which the defendant described as GT5) conveyed the meaning that the defendant was motivated to discredit the plaintiff by reason of a malicious vendetta against the plaintiff personally. The pleading is bad in form because it fails to distil the specific act with which the defendant is charged or the condition attributed to the plaintiff by the matter complained of by reason of which his reputation has been damaged.
Counterclaim [206] - [221]: Gluszak Web Article
Schedule H(d) to the defendant's defence and counterclaim reproduces at section A an article posted by 'Markus Humphreys' and entitled 'Dr Rex Yeap ICO Bench a fabricator'. The article consists of seven paragraphs covering one and a half A4 pages. The defendant has pleaded the first, third, fourth and fifth paragraphs of the article as separate publications GW1, GW4, GW2 and GW3 respectively.
The defendant referred to the judgment of Simpson J in Phelps v Nationwide News Pty Ltd[11] where her Honour observed:
Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field [22].
[11] Phelps v Nationwide News Pty Ltd [2001] NSWSC 130.
In this case, pleading the full web article as four separate publications is impermissible because the paragraphs of the article are so interlinked that permitting them to be pleaded separately is embarrassing. The manner in which the article is presented is such that the ordinary reader would have read it as one publication. The paragraphs are inseparably linked. Each qualifies the other. The defendant must include within his pleading every passage which materially affects or qualifies the complexion of the imputations of which he complains. It is essential in order to discharge that obligation that the defendant plead the whole article as one publication.
There are other problems with the pleading of GW1 - G14 which are the same or similar to those which I have identified in relation to the pleading of the other publications of which the defendant complains. For example, the defendant pleads publication in that the article was available for download rather than that it was downloaded.
The particulars of publication refer to evidence or arguments to establish that Markus Humphreys is a pseudonym under which the plaintiff published the article. Those are not material facts or particulars. The material fact is that the plaintiff published the article. The other matters which the defendant includes in his particulars are at best evidence and at worst arguments based upon conjecture.
Counterclaim [222]: aggravating conduct
At counterclaim [222], the defendant pleads conduct by the plaintiff aggravating the hurt, damage and distress he suffered by reason of the publications complained of. The references in the particulars to my reasons for decision in Gluszak are irrelevant and embarrassing.
Counterclaim [223]: economic loss
At counterclaim [223], the defendant pleads that he suffered economic loss in the loss of an academic contract with Nanyang Technological University in Singapore. None of the publications on which the defendant sues (GT1 - GT5 and GW1 - GW4) allege publication to any person associated with Nanyang Technological University or publication in Singapore. The defendant's particulars fail to plead facts which establish that this loss of his contract with the University was caused by any of the publications complained of.
The defendant says that there is material in schedule H(d) to his defence and counterclaim which provides the causal link. It is not sufficient to include such material in a schedule. If the plaintiff alleges that the defamatory material was published or republished to the University, that must be expressly pleaded.
The defendant pleads that he relies on the grapevine effect of the full web article. The matters pleaded in the counterclaim do not permit an inference to be drawn of a transnational grapevine effect causing the defendant to lose an employment contract in Singapore.[12]
Counterclaim [230] - [233]: counterclaim for injurious falsehood
[12] See Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674 [545].
The defendant pleads that the article which made a false statement about the defendant was published from about 19 May 2019 to on or around 16 January 2021. The statement complained of is that the defendant 'has no role, either directly or indirectly with Nanyang Technological University, and to state otherwise is as we see it, a false representation that is utilising Nanyang's prestigious name to support his positions or endeavours, whilst at the same time damaging the Technical University standing.' The particulars of falsity are that the defendant was engaged by the University as an adjunct academic from 30 June 2014 until 2018. That does not falsify the statement that from May 2019 to January 2021 the defendant had no role with the University.
Amongst the particulars of malice are statements that the plaintiff contacted the University. However, it is not that publication or those publications which are alleged to found the cause of action. It is the publication in counterclaim [230] which is pleaded to found the cause of action.
The pleading does not plead that the publication of the full web article actually caused the defendant any damage. The plea at counterclaim [233] goes to the motive or purpose of the plaintiff. It is not a plea that the defendant suffered loss.
Counterclaim [234] - [235]: aggravating conduct
The reference at counterclaim [234.3] to my reasons for decision in Gluszak is irrelevant, unnecessary and embarrassing.
The schedules
I will not go through the schedules individually. Insofar as they are referred to in the paragraphs of the defence and counterclaim which I have said are defective, then the schedules fall with the relevant paragraphs of the defence and counterclaim. To the extent that the schedules contain material which is not so referred to, they contain material which is at best evidence, submission or argument and at worse conjecture or material that is irrelevant.
Conclusion
The whole of the defendant's defence and counterclaim will be struck out.
In his written submissions, the defendant includes the following:
The plaintiff by counterclaim is mindful that he is merely a litigant in person.
Consequently, there are room for improvements in his defence and counterclaim pleading.
It is a fact that this is the plaintiff in counterclaim's first statement of defence and counterclaim, while the defendant by counterclaim is represented by a first‑tier law firm in Western Australia and was given three attempts for his statement of claim. Therefore, if there is any part of his pleading that is struck out, the plaintiff by counterclaim prays to the Honourable Court that he will be given an opportunity to reflect, review and amend his statement of defence and counterclaim accordingly.
It is appropriate that the defendant have leave to replead his defence and counterclaim. However, he should be mindful that his first attempt has fallen well short of the mark. I have gone to some trouble in this judgment to try and point out in some detail the failings in the defendant's defence and counterclaim notwithstanding that it may have been struck out on the ground that it is prolix and contains many irrelevant allegations and schedules which, as I have said, contain much material which is at best evidence and at worst irrelevant argument or conjecture. The defendant should be careful to adhere to the rules of pleading in his next attempt. He should not assume that he will be given multiple attempts at pleading.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BR
Associate to the Honourable Justice Le Miere
19 AUGUST 2021
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