Gupta v Singh (Ruling No 3)
[2022] VCC 2024
| 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 | |
| Tax Planners 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: | Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2022 | |
DATE OF RULING: | 25 November 2022 | |
CASE MAY BE CITED AS: | Gupta & Anor v Singh & Anor (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2024 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defamation – Strike out application – Self-represented defendant –– Unclear whether defence denies imputations – Basis for defence of truth not pleaded – Parts of defence embarrassing and scandalous – Deficiencies in defence caused in part by deficiencies in pleading of parties bringing application – Element of publication not adequately pleaded.
Legislation Cited:
Cases Cited:Gupta & Anor v Singh & Anor (Ruling) [2022] VCC 566.
Ruling: Plaintiffs’ application allowed in part.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Levine | Matrix Legal |
| For the Defendants | The first defendant, in person |
HER HONOUR:
1This is an application by the plaintiffs to strike out the amended defence in whole or in part. The summons did not specify whether it referred to the amended defence of the first defendant, the second defendant or both. However all the submissions were directed to the defence of the first defendant and no issues were raised in relation to the second defendant so I have proceeded on the basis that the application relates only to the amended defence of the first defendant.
2The summons also sought, in the alternative, summary dismissal of the proceeding. I assume this was sought in error and the plaintiffs do not want their claims dismissed. In any event, this application was not pursued at the hearing.
3This is the second ruling in relation to the first defendant’s defence. The background to the proceeding is briefly set out in my earlier ruling of Gupta & Anor v Singh & Anor (Ruling) [2022] VCC 566.
4It is not the role of the Court to perfect the pleading of either party. Usually pleading deficiencies will be drawn to the Court’s attention by the opposing party. The plaintiffs have brought the deficiencies of the first defendant’s defence to the Court’s attention. However, as occurred in the previous application, the complaints the plaintiffs make about the amended defence expose the deficiency of their own pleading. In at least one instance, discussed further below, the plaintiffs seek to strike out the first defendant’s pleading which results from confusion as to the way the statement of claim has been drafted.
Problems with the further amended statement of claim
Publication
5The further amended statement of claim pleads at paragraph 7 as follows:
7. From on or about late September 2020 the First Defendant published malicious emails which are attached in its entirety and marked as Schedule A (Matter).
Particulars
(a) It is to be inferred from the following facts that the emails were malicious:
(i) The emails were not made in a bona fide manner;
(ii) The First Defendant threatened the First Plaintiff by way of email on 7 September 2020 that he had access to over 20,000 customer contacts of the First Plaintiff and/or the Second Plaintiff and would not hesitate to email their customers.
(iii) Further and better particulars will be provided after full and proper discovery and prior to trial.
(b) It is to be inferred from the following facts that the Matter has been published in Victoria.
(i) The First Defendant and First Plaintiff resided in Victoria at all material times
(ii) The Second Plaintiff carried on its business within Victoria at all material times
(iii) Further and better particulars will be provided after full and proper discovery and prior to trial.
6The emails that comprise the ‘Matter’ are provided in a bundle of emails marked Annexure A. The first email in this bundle is an email from the first defendant to the first plaintiff. It is in slightly different terms to the emails in the rest of the bundle. The emails in the rest of the bundle appear to be emails to a number of people, though the heading on the top of each email is that of the first plaintiff.
7Some of the emails appear to be emails forwarded by third parties to the first plaintiff. For example, an email appears to have been sent to the first plaintiff from ‘abhishek mishra’ which says, ‘Sir forwarding you the emails which I have received’. Some of the emails are from one third party to another third party, such as an email from Jayshree Bagley to Karen Shen on 27 September 2020.
8Paragraph 9 states that the recipients of the matter were aware of various extrinsic facts. However, nowhere do the plaintiffs plead who those recipients were.
9It is not at all clear to me what the plaintiffs say about publication. The particulars shed no light. There is nothing in the pleading to establish that anyone other than the first plaintiff received the email. Allegations as to whom publication occurred and the scope and extent of publication must be clearly set out.
10In his amended defence, the first defendant does not plead to publication. This is understandable given the rolled up nature of the pleading which includes allegations of defamation and malice in one sentence.
Imputations
11The plaintiffs plead at paragraph 10 the following imputations are conveyed by the publication complained of:
(a) the first plaintiff has committed tax fraud against the first defendant;
(b) the first plaintiff is not fit to be a chartered accountant by having acted unethically by having committed tax fraud;
(c) the first plaintiff has stolen client funds and is therefore a thief;
(d) the first plaintiff has committed fraud against his clients.
12It is for a plaintiff to establish what imputations are conveyed and establish that those imputations are defamatory. Paragraph 8 of the further amended statement of claim causes confusion by pleading various statements are defamatory, without first pleading what imputations arise. This has resulted in the first defendant pleading at paragraph 8(b) of his amended defence what appears to be a ‘truth’ defence to paragraph 8 (b) of the further amended statement of claim. Paragraph 8(b) of the further amended statement of claim needs to be amended so the first defendant can plead to the content of the statements which presumably will not be in issue.
13The plaintiffs need to amend the pleading to properly plead publication and to separate out allegations of publication, defamation and malice. Paragraph 8 needs to be amended so the defendants can properly plead to it. The content of the emails may not be the subject of dispute but their defamatory nature may be.
14I further note there are two paragraphs numbered 13 in the further amended statement of claim.
Problems with the amended defence
15At paragraph 7 of his amended defence, the first defendant denies the imputations and pleads that the content of the email is substantially true. It is important that both the plaintiffs and the Court understand whether the imputations as pleaded are in issue between the parties. If the first defendant wants to contend that the imputations are not capable of being conveyed, he must clearly plead that.
16If he wants to rely on a defence of truth, he must plead that defence to the pleaded imputations. It does not assist the Court if the defendant establishes the truth of other imputations which are not pleaded.
17It is certainly open to a defendant to deny an imputation is conveyed but nevertheless rely on a defence of truth.
18It is not clear to me whether this is what the first defendant intends to do, or whether he in fact takes no issue with the imputations as pleaded.
19From submissions in court, it appears that the first defendant does not contest the imputations and says they are all true. If this is his position, it needs to be clearly set out in his pleading so the plaintiffs and the Court know what is in issue and what is not.
20If it is the defendants’ position that the first plaintiff:
(a) has committed tax fraud against the first defendant;
(b) is not fit to be a chartered accountant by having acted unethically in committing tax fraud;
(c) has stolen client funds and is therefore a thief;
(d) has committed fraud against his clients;
he must clearly set out the facts upon which he relies to establish each of those matters.
21The first defendant must then set out how he makes out his defence of truth. The current state of the pleading requires both the Court and the plaintiffs to draw inferences as to how the first defendant says the facts pleaded demonstrate the truth of the allegations the first defendant makes against the first plaintiff.
22The first defendant’s current pleading attaches a document entitled, ‘Schedule A’. In this document the first defendant makes a number of allegations about conduct by the first plaintiff in relation to the first plaintiff and others. It is unclear what the first defendant is alleging in relation to the various matters he cites. Presumably he is alleging some sort of fraudulent, illegal or unethical conduct in relation to the preparation of tax returns.
23The first plaintiff says these matters are historical, not relevant to the issue in dispute and ought to be struck out. Because it is not clear to me exactly what the first defendant is trying to allege, it is not clear to me that they are relevant. If these are allegations of fraud, tax fraud, or allegations that the first plaintiff is a thief, they will be relevant to the first defendant’s truth defence. The first plaintiff must clearly plead his allegations pursuant to r 13.10(3) of the County Court Civil Procedure Rules 2018.
24Paragraph 13 of the amended defence is excessively long and confusing. It contains embarrassing and scandalous material. The first defendant is reminded of my earlier ruling as it pertains to previous defamation proceedings which settled without adjudication. The first defendant is also reminded that speculation as to the motives of the plaintiffs (for example, to harass, bully and harm the first defendant) is unlikely to be relevant to a pleading and does not assist the Court. If the first defendant wishes to bring his own application in relation to the proceedings, he can do so in the usual way by filing a summons with an affidavit in support.
Ruling
25As the pleadings currently stand I do not know, in relation to the plaintiffs’ claims:
(a) to whom the plaintiffs say publication occurred;
(b) the extent and scope of the publication;
(c) whether the plaintiffs contend that the statements in the publications contained in paragraph 8 of the further amended statement of claim are defamatory or convey imputations that differ from the imputations pleaded at paragraph 10;
(d) how the particulars at paragraph 10 relate to the pleading at paragraph 10.
26The plaintiffs are given leave to amend the further amended statement of claim to remedy these defects, however I reiterate that it is not the role of the Court to parse through the pleading to discern inadequacies. These problems have come to light as a result of the difficulty the first defendant has had in pleading to the claim. Other deficiencies may exist and the plaintiffs are encouraged to reconsider the format of their pleading and to consider pleading it in a more traditional, logical format which may assist the first defendant to properly plead a defence.
27In relation to the first defendant’s defence I do not know:
(a) whether he disputes publication;
(b) whether he disputes the scope and extent of publication;
(c) whether he disputes the imputations said to be conveyed;
(d) how he pleads his defence of truth;
(e) how paragraphs 8(c) and 8(d) of the amended defence have any and what relevance;
(f) what the first defendant intends to convey by paragraph 13.
28Paragraph 7(a)(i)(10) is struck out from the words, ‘First plaintiff (who is director and 100% shareholder of the second plaintiff) is vindictive…’ to the end of that paragraph because it contains scandalous material and does not disclose matters relevant to the issues in dispute.
29Paragraphs 8(c) and (d) are struck out because they do not respond to any issue in dispute and do not disclose a defence. The first defendant has leave to replead those paragraphs. He must set out clearly what allegation he is making, how those allegations relate to his defence, the material facts he relies on (but not the evidence) and how those facts establish his defence.
30Paragraph 13 is struck out because it is embarrassing and scandalous.
31The plaintiffs made an application for their costs of the summons. Given the deficiencies in both pleadings and the ruling I have made, the appropriate order is for each party to bear their own costs.
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