Hoser v Harrison (No 2)
[2024] FedCFamC2G 786
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Harrison (No 2) [2024] FedCFamC2G 786
File number(s): MLG 440 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 August 2024 Catchwords: PRACTICE AND PROCEDURE – DEFAMATION –where by orders made on 16 May 2024 pleaded imputations were struck out but the applicant was granted liberty to file a document in the form set out as a schedule to reasons for judgment on the basis of which the orders were made in which he could replead the struck out imputations – where by further orders made on 16 May 2024 the applicant was given leave to provide particulars in support of claim that second respondent contravened s 18 of the Australian Consumer Law (ACL) on the basis of wilful inaction or as a person involved in another person’s contravention of s 18(1) – whether the applicant repleaded struck out imputations in a manner that cured their deficiency – whether the applicant provided sufficient particulars to disclose a case against the second respondent based on contraventions of s 18(1) of the ACL by means of wilful inaction or as an accessory in another person’s contravention – applicant failed to cure deficiencies in struck out imputations – the applicant failed to provide particulars – order made staying proceeding to the extent the applicant makes claims based on the second respondent’s contravening s 18(1) ACL by wilful inaction or by being an accessory in another person’s contravention of s 18(1) of the ACL – leave granted to file a further amended statement of claim in which the struck out imputations are identified. Legislation: Competition and Consumer Act 2010 (Cth) Sch 2, s18(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)
Uniform Civil Procedure Rules 2005 (NSW) r 15.19(e)
Cases cited: Hoser v Harrison [2024] FedCFamC2G 436 Division: General Number of paragraphs: 16 Date of hearing: 27 June 2024 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the First Respondent: Ms L Davis, by telephone Solicitor for the First Respondent: Yip Legal Counsel for the Second Respondent: Ms G Schoff KC, by telephone Solicitor for the Second Respondent: Banki Haddock Fiora ORDERS
MLG 440 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
Applicant
AND: ANTHONY (TONY) HARRISON
First Respondent
META PLATFORMS INC
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.In addition to the proceeding being stayed against the second respondent to the extent of the claims identified in order 1 of the orders made on 16 May 2024, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding be stayed against the second respondent to the extent the applicant claims relief against the second respondent on the basis that the second respondent:
(a)engaged in conduct within the meaning of 18(1) Schedule 2 (ACL) to the Competition and Consumer Act 2010 (Cth) by wilfully refraining from doing an act; and
(b)is liable as an accessory in conduct it is alleged the first respondent, Mr Harrison, engaged in in contravention of s 18(1) of the ACL.
2.The applicant have leave to file a further amended statement of claim that retains the imputations referred to in order 2 of the orders made on 16 May 2024, but through each of which there is drawn a line to signify that on 16 May 2024 those imputations were ordered to be struck out.
3.By 5 September 2024
3the applicant file and serve the further amended statement of claim.4.The costs of the second respondent’s application in a proceeding filed on 15 June 2023 are reserved.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 16 May 2024 I published reasons for judgment (earlier reasons) on the basis of which I made orders staying the proceeding against the second respondent (Meta) to the extent the applicant, Mr Hoser, claimed relief on the basis that Meta had engaged in the “conduct” I identified in the orders, and orders striking out the imputations purportedly pleaded in the paragraphs of the amended statement of claim I also identified in the orders.[1] I additionally made the following orders:
3.The applicant have liberty to file and serve by 13 June 2024 a document headed “Repleading of Deficiently Pleaded Imputations” in the form of Schedule 3 to the reasons for judgment on the basis of which these orders are pronounced.
4.By 13 June 2024 the applicant file and serve a document headed “Particulars of Claim of Wilfully Refraining to do an Act and Secondary Liability Claims” in the form of Schedule 4 to the reasons for judgment on the basis of which these orders are pronounced.
5. The matter be listed for a directions hearing at 9.30 am on 27 June 2024 or at such other time as is convenient to the parties and to the Court.
[1] Hoser v Harrison [2024] FedCFamC2G 436
Pursuant to these orders, on 13 June 2024 Mr Hoser sent to my Associate’s inbox a document headed “Repleading of Deficiently Pleaded Imputations” (Repleading document), and Mr Hoser filed a document headed “Particulars of Wilfully Refraining to do an Act and Secondary Liability” (Particulars document).
At the directions hearings on 27 June 2024 I heard submissions in relation to the Repleading and Particulars documents. Relying on its written submissions dated 26 June 2024, Meta submitted that the Repleading and Particulars documents do not address the issues which, in the earlier reasons, my granting Mr Hoser leave to file and serve these documents was intended to address (relevant issues); and, for that reason, I should make orders on the basis that Mr Hoser has not addressed those issues.
In these reasons for judgment, which assume familiarity with the earlier reasons, I consider whether the Repleading and Particulars documents address the relevant issues.
THE REPLEADING AND PARTICULARS DOCUMENTS
The Repleading document
In Schedule 2 to the earlier reasons I set out each of the imputations Mr Hoser pleaded in the amended statement of claim; and I identified the pleaded imputations I ordered be struck out. In relation to each of the imputations I ordered be struck out, I granted Mr Hoser leave to replead the imputation by identifying each of the asserted acts or conditions Mr Hoser alleges constitute the imputation, and, as required by r 15.19(e) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the part or parts of each of the matters complained of on which Mr Hoser relies to support the imputation.
In Schedule 3 to the earlier reasons, I listed each of the imputations I ruled should be struck out, and in relation to which I granted Mr Hoser leave to replead; and I specified the material Mr Hoser ought to provide if he were to overcome the deficiencies I identified in relation to the pleaded imputations I ordered should be struck out. The material I identified Mr Hoser ought to provide in relation to each of the imputations consisted of either or both of the following:
(a)each of the asserted acts or conditions Mr Hoser alleges constitute the imputation; and
(b)as required by r 15.19(1)(e) of the UCPR, the part or parts of the matters complained of in which Mr Hoser relies to support the imputation.
The Repleading document, therefore, purports to be a document in which Mr Hoser provided the material I identified in Schedule 3 to the earlier reasons. It would be sufficient for the purposes of these reasons for judgment that I refer to one of the purportedly repleaded imputations, which is as follows:
Para no. 122(xix)
Pleaded imputation
Mr Hoser is a liar.
Act/s or condition/s
Paragraph 74-75 of the ASOC which quotes:
“74. “Drew P Ball 75. Who could ever forget hosers fake tiger snake on the petrol pump stunt.” and paragraph 90 of the ASOC which quotes:
“And “Renee Cox James Peberdy yeah he removed my comments with the actual truth now I’m being bullied for his lies !!”
and paragraph 82 of the ASOC which quotes:
“82. “Renee Cox Sorry his saying you guys made me harass him. Lots of defamation and assumptions in his posts. here’s the proof he called me can’t post it on his page he doesn’t let the truth get out.”
The Particulars document
The Particulars document is directed to a different subject. As I noted in my earlier reasons,[2] the amended statement of claim alleges that Mr Hoser notified Meta that Mr Harrison had posted on his Facebook page and on Instagram material that was misleading or deceptive, or which was likely to mislead or deceive, but Meta took no steps to have the material removed; and that these allegations could potentially give rise to causes of action under s 18(1) of the Australian Consumer Law (ACL), either on the basis that Meta engaged in conduct by deliberate inaction, or that it was knowingly involved in another person’s contravention of s18(1).[3] As I also noted, however, the amended statement of claim does not particularise the notification Mr Hoser alleges he made. In Schedule 4 to the earlier reasons I identified the particulars Mr Hoser ought to provide, these being particulars that identify the communications between Mr Hoser and Meta in which Mr Hoser complains and makes requests about offending material contained on Mr Harrison’s Facebook and Instagram pages, and in which Meta refuses to address Mr Hoser’s complaint or request.
[2] Hoser v Harrison [2024] FedCFamC2G 436, at [168], [169]
[3] Being Schedule 2 to the Competition and Consumer Act 2010 (Cth)
The Particulars document is the document by which Mr Hoser purported to provide the particulars I identified in Schedule 4 to the earlier reasons. It will be sufficient if I refer to the following part of the Particulars document:
Paragraph 271 of the ASOC stated:
“271. Facebook had been sent numerous removal requests and likewise had not done so.”
These are in Annexure B of the Raymond Hoser Affidavit dated 15 Aug 2023, pages 67 to 248 which includes dozens of emails and replies from Hoser to Facebook and all their “canned” replies.
See also pages 394-395 and 421-426 of ASOC.
POSTS CORRESPONDENCE RELATED TO
Paragraph 267 of the ASOC stated:
“This is copied in Appendix 5 (being the "fifth matter complained of”).”
EFFECTS OF CORRESPONDENCE
Facebook REFUSED to remove the unlawful material being the accounts and posts of Tony Harrison (the first respondent) as seen in the letters and replies of Annexure B of the Raymond Hoser Affidavit dated 15 Aug 2023, pages 67 to 248 which includes dozens of emails and replies from Hoser to Facebook and all their “canned” replies.
MOC6
CORRESPONDENCE TO AND FROM META
Paragraph 290 of the ASOC stated:
“Facebook had been sent numerous removal requests and likewise had not done so.”
These are in Annexure B of the Raymond Hoser Affidavit dated 15 Aug 2023, pages 67 to 248 which includes dozens of emails and replies from Hoser to Facebook and all their “canned” replies.
See also pages 394-395 and 421-426 of ASOC.
PARTIES’ SUBMISSIONS
Meta submits that the Pleadings document does not identify the acts or condition on which Mr Hoser relies in relation to the imputations that were pleaded in the following paragraphs of the amended statement of claim, namely: paragraphs 122(1) (disgusting), 122(vi) (foolish), 122(xiii) (lunatic), 122(xvii) (contemptible), 122(xxiii) (mad), 209(xiii) (narcissist), 209(xv) (idiot), 209(xviii) (obnoxious jerk), 251(I) (jerk), 251(II) (idiot), 251(V) (extortionist), 251(VI) (scammer), 251(X) (fool), and 251(XVIII) (cheat). Meta also submitted that the Pleadings document does not provide any information in relation to paragraphs 209(xvii) and 251(XX). As for the Particulars document, Meta submits that it does not cure the absence of particularity I identified in the earlier reasons. Meta submits that, rather than providing particulars, the Particulars document simply refers in a general way to the documents that are Annexure B to Mr Hoser’s affidavit of 15 August 2023.
Mr Hoser, in his written submissions dated 27 June 2024, submits he has repleaded the imputations “wholly in accordance with the Judge’s directions and in the form he sought”, adding there “was no need to waste time with [Meta’s] interlocutory application”. As for the Particulars document, Mr Hoser accepts that he has not provided the particulars, but he submits:
The fact is that the applicant has quite properly cited the EXACT letters sent by him to META and their EXACT responses.
The sheer volume of this material is entirely META’s own doing and essential to the legal claim as put by his honour, as this is the EXACT PARTICULARS OF the “Claim of Wilfully Refraining to do an Act and Secondary Liability Claims” against META.
Quite properly and in response to his Honour’s question, the EXACT outcome of each of these separate letters and replies is given and for each and every one of them that was a REFUSAL by META to remove the illegal material posted by the first respondent and/or his account.
DETERMINATION
I am satisfied that Mr Hoser’s attempted repleading of each of paragraphs 122(1) (disgusting), 122(vi) (foolish), 122(xiii) (lunatic), 122(xvii) (contemptible), 122(xxiii) (mad), 209(xiii) (narcissist), 209(xv) (idiot), 209(xviii) (obnoxious jerk), 251(I) (jerk), 251(II) (idiot), 251(V) (extortionist), 251(VI) (scammer), 251(X) (fool), and 251(XVIII) (cheat) of the amended statement of claim goes no further than identifying the parts of the matters complained on which Mr Hoser relies to support the imputations. Mr Hoser does not attempt to identify the acts or conditions he alleges constitutes each of the imputations that he is disgusting, foolish, a lunatic, contemptible, mad, a narcissist, an idiot, an obnoxious jerk, a jerk, an idiot, an extortionist, a scammer, a fool, and a cheat. For that reason, I will not grant Mr Hoser leave to amend the statement of claim to include any of these imputations.
I am also satisfied that Mr Hoser has not attempted to provide the particulars Schedule 4 to the earlier reasons identified. Mr Hoser does not identify any particular communication between him and Meta which constitutes a complaint by him or a refusal by Meta in relation to a misleading or deceptive post that is alleged to have been made to Mr Harrison’s Facebook page or Instagram. In the absence of any such particulars, it is not possible to discern whether Mr Hoser has any arguable case against Meta that it either engaged in conduct through advertent omission, or that it otherwise was a person involved in any misleading or deceptive conduct engaged in by Mr Harrison or by any other person.
It is open to infer, and I find, that Mr Hoser has not provided these particulars because he does not have information on the basis of which he could provide them and, therefore, he is unlikely to be in a position to provide any such particulars. In those circumstances I am satisfied that Mr Hoser does not have reasonable prospects of successfully prosecuting any cause of action against Meta on the basis that it engaged in misleading or deceptive conduct contrary to s 18(1) of the ACL, or on the basis that it was involved in any other person’s engaging in misleading or deceptive conduct, contrary to s 18(1) of the ACL.
DISPOSITION
I propose to make the following orders:
(a)In addition to the claims that have been stayed by order 1 of the orders made on 16 May 2024, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding be stayed against Meta to the extent Mr Hoser claims relief against Meta on the basis that Meta:
(i)engaged in conduct within the meaning of 18(1) of the ACL by its wilfully refraining from doing an act; and
(ii)is liable as an accessory to conduct it is alleged Mr Harrison engaged in in contravention of s 18(1) of the ACL.
(b)Mr Hoser have leave to file a further amended statement of claim that retains the imputations referred to in order 2 of the orders made on 16 May 2024, but that they have a line drawn through each of them to signify that on 16 May 2024 those imputations were ordered to be struck out.
(c)By 5 September 2024 Mr Hoser file and serve the further amended statement of claim.
Meta also seeks an order for costs. I propose to reserve the question of costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 August 2024