Gupta and Anor v Singh and Anor (Ruling)
[2022] VCC 566
•4 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-21-03860
| YOGESH GUPTA | First Plaintiff |
| and | |
| TAXPLANNERS PTY LTD (ACN 124 732 805) | Second Plaintiff |
| v | |
| PAL SINGH | First Defendant |
| and | |
| AMEX AUSTRALIA PTY LTD (ACN 118 166 000) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2022 | |
DATE OF RULING: | 4 May 2022 | |
CASE MAY BE CITED AS: | Gupta & Anor v Singh & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 566 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application to strike out defence in whole or in part
Legislation Cited: County Court Civil Procedure Rules 2018, r13, r23; Civil Procedure Act 2010 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Levine | Matrix Legal |
| For the Defendants | The first defendant appeared in person | - |
HER HONOUR:
1This is an application by the plaintiffs that the Defence of the first defendant be struck out in whole or in part.
2By way of brief background, the first plaintiff and the first defendant are, respectively, tax accountants and the second plaintiff and the second defendant are, respectively, the companies they run. The second defendant has not filed a defence to date. The first defendant filed a notice of appearance purporting to appear for the second defendant, without having leave of the Court to do so. On 21 April 2022, I struck out that notice of appearance so far as it purported to pertain to the second defendant and made Orders extending the time by which the second defendant must file a notice of appearance and defence.
3It appears from various submissions made in court by the first defendant that there has been a history of litigation between the parties, including a previous defamation claim or claims brought by the plaintiffs against the defendants which was ultimately resolved by consent.
4Whilst the first defendant has on numerous occasions in his Defence and in court made reference to these earlier proceedings and has stated that those proceedings involved the same facts as the current proceeding, I note that the previous claims were, according to the first defendant, filed in 2014 and 2015. This proceeding relates to publications in 2020.
5It appears that the earlier proceedings resolved without adjudication as they settled by consent. The first defendant seeks to rely on the resolution of the earlier proceedings as proof that the various allegations he makes in his Defence are true.
6Plainly the settlement of earlier proceedings without adjudication does not establish the truth or otherwise of any of the allegations made in those proceedings.
7Accordingly, it is not clear that the earlier proceedings have any relevance to this proceeding and certainly, in the absence of judicial determination on the evidence, cannot be relied on as evidence of the truth of the defendants’ allegations.
8Further, reference in this pleading to evidence relied on in earlier proceedings is unhelpful. This defence must respond to the Statement of Claim filed in this matter. The Court must not be required to trawl through pleadings in another case to determine a party’s position in the present case.
9The plaintiffs submit that the pleading, and in particular certain paragraphs of the pleading, do not comply with the requirements of Order 23 of the County Court Civil Procedure Rules 2018 (“the Rules”).
10In particular, the plaintiffs submit that paragraphs 7(a)(i)(3) 7(a)(i)(8), 7(a)(i)(12), 8(a), 8(c)(xix), 8(d)(vii) and 8(d)(x) of the Defence are scandalous, frivolous or vexatious.
11Further, the plaintiffs submit that paragraph 8(b), and parts of paragraph 7(a)(i)(10) are irrelevant or may prejudice, embarrass or delay the fair trial of the proceeding.
12Alternatively, the plaintiffs submit that, to the extent that any paragraphs are not struck out, the first defendant ought be required to provide proper particulars.
13The first defendant has not retained lawyers and I am mindful that the Court must provide appropriate assistance to a self-represented litigant.
14However, in a defamation case, it is important that the allegations made and the defences raised are clear prior to trial so that all parties and the Court knows what is in dispute.
15I also have obligations pursuant to the Civil Procedure Act to effect the just, timely, efficient and cost effective disposition of the real issues in dispute. Therefore, I have taken a more interventionist approach than might be taken where both parties are legally represented. In relation to the Defence, rather than striking out paragraphs or the entire pleading and giving the first defendant a right to replead, I have, where appropriate, struck out those sections of the pleading that fail to comply with the Rules whilst attempting to preserve the balance of the paragraph. This means that on occasion individual words are struck out.
16Further, sections B and C of the plaintiffs’ Statement of Claim are defective and are dealt with in detail below. Whilst there has been no application by the first defendant in relation to the Statement of Claim, the Court has a discretion to strike out a pleading as appropriate and an obligation to ensure that the issues in dispute are defined prior to trial. I have exercised this discretion in dealing with the pleading at section B and C of the Statement of Claim.
The Defence
17Below, I have set out a table that shows the paragraph number of the Defence, the portion struck out, and the reason that the words are struck out.
Paragraph Struck out Reason 7
“delirious”
R 23.02(b)
Does not make sense
7(a)
“delirious”
R 23.02(b)
Does not make sense
7(a)(i)(1)
Entire paragraph
R 23.02(b)
Scandalous commentary
7(a)(i)(3)
“First plaintiff … tax regime”
Substitute the words “He now claims” with “The first plaintiff claims”
R 23.02(b)
Scandalous commentary
7(a)(i)(8)
Entire paragraph
R 23.02(c):
Irrelevant
7(a)(i)(9)
Entire paragraph
R 23.02(a):
Irrelevant
7(a)(i)(10)
“To harass first defendant Pal Singh” removed and replaced with the word “The”
R 23.02(b):
Scandalous commentary
7(a)(i)(10)
“as Tax Practitioner’s Board is well aware … harass and bully first defendant Pal Singh”
R 23.02(a), 23.02(b), 23.03(c):
This section is irrelevant, does not disclose a defence, contains scandalous commentary and may delay or prejudice the fair trial of the proceeding by taking up unnecessary court time with irrelevant matters.
7(a)(i)(11)
Entire paragraph
R 23.02(a):
This is not a proper pleading as it discloses no defence.
7(a)(i)(12)
Entire paragraph
R 23.02(b):
The first sentence is not particularised. If this allegation is to be repleaded it must be properly particularised.
The second sentence is not relevant.
8a
“In case number … forgoing all cost orders”
R 23.02(b):
Not relevant.
8b
Entire paragraph
R 23.02(b):
Not relevant.
8c
Replace the words “In case number … of the second plaintiff Tax Planners Pty Ltd”
with
“The first plaintiff transferred $3.9 million from the trust account of Taxplanners Pty Ltd”
R 23.02(b):
As currently pleaded it refers to events in a different proceeding which are irrelevant to this pleading.
8c(xix)
Entire paragraph
R 13.02(2)(b):
Inappropriately pleads a legal conclusion without pleading the material supporting facts supporting the conclusion.
8d(vii)
Entire paragraph
R 13.02(2)(b): Inappropriately pleads a legal conclusion without pleading the material supporting facts supporting the conclusion.
8d(ix)
Entire paragraph
R 23.02(b):
Not relevant
8d(x)
Entire paragraph
R 2313.02(2)(b): Inappropriately pleads a legal conclusion without pleading the material supporting facts supporting the conclusion.
15
“The second plaintiff sued … is unsubstantial”
R 23.02(b):
Not relevant
16
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
17
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
18
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
19
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
20
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
21
“unsubstantial and delirious”
R 23.02(b):
Frivolous or vexatious.
The Statement of Claim
Misleading and deceptive conduct claim
18As noted above, there are problems with the plaintiffs’ Statement of Claim.
19At paragraph 11, the plaintiffs plead that the first defendant engaged in misleading and deceptive conduct. This claim is insufficiently particularised and simply refers to emails, without setting out how they are said to establish the cause of action pleaded.
20It is not possible for the first defendant to know how this claim is put, what material facts are relied on, whether the claim is brought under any Act and, if so, what provisions are relied on, and what loss and damage is claimed.
21Accordingly, paragraphs 11 and 12 are struck out with a right to replead.
Breach of confidence claim
22At paragraphs 13 to 21, the plaintiffs plead a claim arising from what they say is a breach of an agreement between the second plaintiff and the defendants in relation to client data.
23It is not clear whether the second plaintiff alleges the existence of a contract or alleges a breach of contract or relies on some other unspecified cause of action.
24The second plaintiff pleads that it entered into an agreement with the second defendant and pleads a breach of confidence arising from that agreement. As a result of what it says is the breach of confidence, the second plaintiff alleges it has suffered:
(a) vituperative professional attention and humiliation;
(b) mental anguish;
(c) trouble, inconvenience, anxiety and expense; and
(d) loss and damages.
25The second plaintiff is a corporation. It is not clear how it could suffer “humiliation”, “mental anguish”, or “anxiety”. It is not clear what is meant by “trouble” or “inconvenience” and whether that is claimed as a category of compensable damage. There are no particulars provided of the alleged “expense”, “loss” and “damages” (sic).
26At paragraph 21, the second plaintiff claims that “by reason of the publication of the Email and by making Further Contact” it has been “severely injured in his (sic) reputation and standing and has therefore suffered loss and damage and is entitled to an injunction”.
27As already noted, the second plaintiff is a corporation. I am not aware of the number of employees of the second plaintiff but generally a claim in defamation will not be available to a corporation unless it has fewer than ten employees. It is not clear whether the second plaintiff is making a claim in defamation, injurious falsehood or some other cause of action.
28Order 13 of the Rules sets out the formal requirements of a pleading and r13.10 requires that the pleading must contain the necessary particulars to enable to opposite party to plead, define the questions for trial and avoid surprise. Paragraphs 13 to 21 do not comply with Order 13 and will be struck out with a right to replead.
Orders
(1)The first defendant’s Defence is struck out in part, in accordance with the table in paragraph 17 of this ruling.
(2)Paragraphs 13 – 21 of the plaintiffs’ Statement of Claim are struck out with a right to replead.
(3)The plaintiffs are to file an amended pleading reflecting these Orders by 24 May 2022.
(4)The first defendant is to file an amended defence, reflecting these Orders and pleading to the Amended Statement of Claim by 21 June 2022.
(5)Paragraph 2 of the Orders of 21 April 2022 is varied as follows:
– By 19 May 2022, the second defendant is to file a notice of appearance and by 21 June 2022, the second defendant is to file a defence to the Amended Statement of Claim.
(6)The costs of the plaintiffs’ application are reserved.
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