Ives v Lim
[2010] WASC 122
•1 JUNE 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- LIM [2010] WASC 122
CORAM: LE MIERE J
HEARD: 31 MARCH 2010
DELIVERED : 1 JUNE 2010
FILE NO/S: CIV 2383 of 2009
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
JOYCE LIM
Defendant
Catchwords:
Practice and procedure - Defamation - Oral application to strike out the statement of claim - Court's discretion to waive irregularities of the application - Whether the statement of claim discloses no reasonable cause of action - Whether the statement of claim may prejudice, embarrass or delay the fair trial of the action - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 2, O 20, O 59
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: In person
Solicitors:
Plaintiff: In person
Defendant: In person
Case(s) referred to in judgment(s):
Godfrey v Demon Internet Ltd [2001] QB 201
LE MIERE J: These are my reasons for deciding the defendant's application that the plaintiff's statement of claim filed 23 February 2010 be struck out. Before considering the statement of claim it is necessary to put the strike out motion in context by considering the progress of the action leading up to the motion to strike out the statement of claim.
The action to date
The plaintiff caused the writ of summons to be issued on 24 July 2009. It was endorsed with an indorsement of claim.
On 11 August 2009 the defendant filed a memorandum of appearance.
On 13 August 2009 the defendant filed a summons for summary judgment. That summons came on for hearing on 25 November 2009. The defendant appeared in person assisted by Mr Widerstrom. The plaintiff did not appear. After hearing the defendant I made the following orders.
1.The plaintiff's claims raised by or referred to by the following parts of the indorsement of claim:
(a)'slander was also committed, whilst applying for an interim violence restraining order on 1/12/08: case no PE2670/08, and during examination in chief and under cross‑examination during the hearings at the Magistrates Court of Western Australia in Perth on 16/6/09 and 17/6/09;' and
(b)'in a sworn affidavit submitted to the Magistrates Court of Western Australia on 5/6/09 the defendant alleges blackmail has been committed by the plaintiff which is also libel'
are summarily dismissed.
2.The plaintiff file and serve a statement of claim on or before 16 December 2009.
3.Adjourned to 21 December 2009.
The matter next came before me on 21 December 2009. The plaintiff did not appear. The defendant appeared in person. The defendant submitted that the action should be struck out on the grounds that the plaintiff had produced no evidence, his endorsement of claim is too vague to answer and his non‑appearance on two occasions made it obvious that he was not serious about pursuing the matter. I ordered that the orders made on 25 November 2009 be varied by extending the time for the plaintiff to file and serve a statement of claim to 13 January 2010. I adjourned the matter for further directions to 20 January 2010.
On 14 January 2010 the plaintiff filed a statement of claim.
On 18 January 2010 the plaintiff filed a document entitled 'No 77 Summons (General Form)' dated 16 January 2010. The summons applied for the following orders:
1.The defendant be required to identify who the following identities are which partook in the cyber‑bullying/defamation of the plaintiff on the 'Live Journal' website of the defendant, 'youramazin': [a list of 10 website names or descriptions follows]
2.The following people be added as defendants to the damages claim of the plaintiff for defamation: [a list of 17 names follows]
3.Live Journal Corporation, 576 Folsom Street, Third Floor, San Francisco, CA 94105 USA be added as a defendant.
4.The defendant to be responsible for supplying email and postal addresses for service of the individuals mentioned in points [1] and [2] on or before 12th March 2010:
(a)failure to comply with this point resulting in contempt of court;
(b)if the defendant claims individuals in point [1] [h] and [1] [i] are unknown, an order for a subpoena for identifying information be made for service outside of the jurisdiction accordingly under the Hague Convention to Live Journal Incorporated Folsom Road California USA.
5.Non‑personal service by email acceptable for originating process to individuals mentioned in points [1] and [2].
6.Upon addition of the abovementioned individuals to the damages claim, the plaintiff to be at leave to resubmit the statement of claim.
The plaintiff's applications were supported by an affidavit sworn by the plaintiff on 18 January 2010.
The matter next came before me on 20 January 2010. The plaintiff appeared in person. The defendant appeared in person assisted by Mr Widerstrom. I went through the plaintiff's statement of claim and indicated to him that it appeared in a number of ways not to comply with the rules. I made the following orders:
1.The statement of claim filed 14 January 2010 be struck out.
2.The plaintiff have leave to file a further statement of claim on or before 22 February 2010.
3.The plaintiff file and serve an outline of submissions in support of his applications by summons of 16 January 2010 on or before 29 January 2010.
The matter next came before me on 4 February 2010. The plaintiff appeared in person. The defendant appeared in person assisted by Mr Widerstrom. The purpose of the hearing was to hear the plaintiff's applications made in his summons of 16 January 2010. At the outset the plaintiff amended his application by deleting subparagraphs l ‑ q of [2] and by deleting [3]. I adjourned the plaintiff's remaining applications to enable him to produce a minute of the orders that he sought and to consider and identify the power of the court to make each of the orders that he sought and the grounds on which each order should be made. I adjourned the matter to 31 March 2010.
On 23 February 2010 the plaintiff filed a document entitled 'The Statement of Claim of Benjamin William Ives'.
On 17 March 2010 the plaintiff issued a subpoena to the defendant to produce documents identifying all previous friends of Live Journal Account 'youramazin' to the specific details' there enumerated.
Hearing on 31 March 2010
The matter came on for further hearing on 31 March 2010. The plaintiff appeared by CCTV link. The defendant appeared in person assisted by Mr Widerstrom. I asked each party to identify the applications that were before the court. The plaintiff stated that he wanted the following matters dealt with:
1.The return of the plaintiff's subpoena to the defendant;
2.An application for leave to have a judicial discovery order served on a third party in Russia;
3.An order requiring the defendant to file and serve her defence;
4.The plaintiff's applications in his chamber summons filed on 18 January 2010.
The defendant by Mr Widerstrom indicated that she wished to make the following applications:
1.Leave to make an application under the Vexatious Proceedings Restriction Act 2002 (WA) (Vexatious Proceedings Act);
2.The plaintiff's pleading discloses no case to answer (see ts 81).
In the course of discussion with Mr Widerstrom it became apparent that the defendant claimed that the statement of claim should be struck out on the grounds that the plaintiff does not identify himself as the person to whom the words complained of refer and that the words complained of are not capable of being defamatory of the plaintiff (see ts 81 - 85).
I dealt with each of the matters raised by the parties. In relation to the defendant's request to seek leave to make an application under the Vexatious Proceedings Act I informed the defendant that no such application was properly before me and I did not intend to deal with the application. I informed the defendant that if she wished to make such an application it would have to be brought by way of separate proceedings commenced in the court. I dismissed the plaintiff's application to serve a subpoena within the Russian Federation and the applications in the plaintiff's chamber summons of 18 January 2010.
I treated the defendant's application that the plaintiff's statement of claim disclosed no case to answer as an oral application to strike out the statement of claim filed 23 February 2010 on the grounds that it discloses no reasonable cause of action or it may prejudice, embarrass or delay the fair trial of the action because the publications complained of do not identify the plaintiff as the subject of the words complained of and are not capable of giving rise to any meaning defamatory of the plaintiff.
In the course of the plaintiff's submissions in relation to his statement of claim the plaintiff sought to rely on matters that were not pleaded. After I informed the plaintiff of those matters the plaintiff said that he would like to have leave to amend his statement of claim. I then made the following orders:
1.Plaintiff have leave to file and serve a minute of proposed amended statement of claim together with any written submissions in support of his application to amend the statement of claim in accordance with the minute by 21 April 2010;
2.Defendant have leave to file and serve any written submissions in response to the plaintiff's application by 5 May 2010;
3.The plaintiff's application to amend his statement of claim be decided on the papers;
4.If the plaintiff's application to amend his statement of claim is not granted the defendant's oral application to strike out the statement of claim filed 23 February 2010 be decided on the papers.
The plaintiff did not file a minute of proposed amended statement of claim by 21 April 2010. These are my reasons for decision on the defendant's oral application to strike out the statement of claim filed 23 February 2010.
No chamber summons
If the absence of a chamber summons applying to strike out the statement of claim and stating the grounds of the application is an irregularity then the irregularity may be cured by an order under O 2 r 1(2). Such an order should be made to do justice where the irregularity does not cause any prejudice. In this case there is no prejudice to the plaintiff. In the course of the hearing the plaintiff was made aware of all of the defects in the statement of claim alleged by the defendant. He did not seek any further opportunity to make submissions in opposition. To the contrary, the plaintiff requested leave to file an amended statement of claim and I granted the plaintiff leave to file and serve a minute of proposed amended statement of claim. In any event, the statement of claim is plainly defective and any adjournment to deal with the matter again at a further hearing would merely have caused delay and added to the inconvenience to all of the parties. I will waive any irregularity arising from the failure of the defendant to file a chamber summons applying to strike out the statement of claim and stating the grounds of the application.
Time for application
Order 20 r 19(3) requires an application for an order to strike out a pleading under r 19(1) to be made within 21 days of the service of the pleading. The statement of claim was filed on 23 February 2010. There is no evidence before me of when it was served but I assume for the purposes of this application that it was served on 23 February 2010. The defendant made her oral application to strike out the statement of claim on 31 March 2010, that is, more than 21 days after service of the pleading.
The court has a discretion to extend the time for an application to strike out a pleading to be made. I will extend the time for bringing the application for the following reasons. First, the application was only out of time by about 15 days. Secondly, the defendant is not legally represented. Thirdly, the defendant made the application at the first occasion that the matter came before the court after the statement of claim had been served. Fourthly, the statement of claim is defective and it is unclear which of the words complained of are alleged to refer to the plaintiff, the defamatory meaning said to arise from each publication complained of and if the plaintiff relies on extrinsic facts to establish that the words complained of refer to him then what are those extrinsic facts and were they known to the persons to whom the words complained of were published.
Conferral
Order 59 r 9 provides that no order shall be made on an application in chambers unless the application was filed with a memorandum stating that the parties have conferred to try to resolve the matters giving rise to the application and the matters that remain in issue between the parties. Order 59 r 9(2) provides that the court may waive the operation of r 9(1) in a case of urgency or for other good reason. I will waive the operation of O 59 r 9(1). The good reasons for doing so are as follows. First, conferral between the parties is impractical because of their relationship. The defendant obtained an interim violence restraining order against the defendant. The defendant objected and there have been proceedings in the Perth Magistrates Court in relation to that interim violence restraining order. On 24 March 2010 the plaintiff sent an email to my Associate in which he requested that he appear at the directions hearing to be held on 31 March by CCTV link. The plaintiff stated:
I am severely upset by being in [the defendant's] presence and a factor which contributed to my previous withdrawal of these actions, or rather the straw that broke the camel's back was I accidental saw her in Northbridge the Saturday or Friday previous to the Monday when I issued emails to yourself and to the Court of Appeal withdrawing from an appeal in relation to a VRO she has been awarded against myself.
Her presence causes me a severe emotional trauma and I would ask that I be permitted to being excluded from the court during her presence in there.
The defendant has also expressed difficulty at being in the presence of the plaintiff. On each occasion on which the defendant has appeared before the court she has been accompanied by Mr Widerstrom and she has requested that Mr Widerstrom speak for her. The defendant initially requested that Mr Widerstrom speak for her in an email to my Associate of 18 September 2009 in which the defendant stated that she could not speak for herself at the summary judgment hearing because she could barely deal with being in the same room as the plaintiff.
Secondly, neither party is legally represented. Thirdly, there is no reasonable likelihood that any conferral between the parties would resolve or narrow the issue between the parties. Fourthly, to require the parties to confer in relation to the matter would further delay this action which is not in the interests of either party or in the public interest.
The statement of claim
Paragraph 2 pleads the plaintiff's occupation at the time of the alleged defamation, the defendant's occupation and the relationship between the plaintiff and the defendant at the time of the alleged defamation.
Paragraph 3 pleads that the publications complained of were published on the interactive blog site 'youramazin' operated by the defendant using the website 'Live Journal' operated by Live Journal Inc owned by SUP Fabrik in the Russian Federation. The plaintiff does not expressly plead that each of the matters complained of were published by the defendant. The plaintiff pleads that the matters complained of were published on an interactive blog site operated by the defendant. Any person who participated in the publication may be liable for it. Any person who creates a website is liable for the information he or she posts to that website. An internet service provider is a publisher of material which it hosts: Godfrey v Demon Internet Ltd [2001] QB 201. In principle, a person who creates a website that hosts an interactive blog may be liable for defamatory material posted by third parties.
Paragraph 4 is said to be a guideline to the rest of the statement of claim and which is referenced back to the publications which appear from [6] onwards. Paragraph 4 pleads what are said to be the 'main points of complaint which the … publications reveal'. The points of complaint which follow appear to be a mixture of the alleged defamatory meanings of the publications complained of and arguments concerning why those meanings arise or why the meanings are false. The paragraph also appears to summarise the content and effect of the publications on the plaintiff. There is also reference to the defendant publishing advertisements with express malice and references to malicious falsehood. The paragraph is embarrassing and may prejudice or delay the fair trial of the action. It is not possible to discern from [4] and the remainder of the statement of claim what defamatory meaning is said to arise from each of the publications pleaded at [6] and following. The inclusion in [4] of argumentative material about the meaning of the publications, the motives and intentions of the defendant and the effect of some or all of the publications on the plaintiff is embarrassing.
Paragraph 5 pleads that all situations and events described in [4] are portrayed in the publications pleaded from [6] onwards. It also pleads that the defendant's website 'youramazin' contained a running commentary on the life of the defendant and commented on events and on the plaintiff which reporting was false and malicious. This is embarrassing. Once again, the plaintiff does not identify which of the matters set out in [4] relate to each of the publications in [6] and following.
Paragraph 6 refers to a publication entitled 'wow, saturday night totally topped the night i had 3 bottles of wine' published on 14 April 2008 on the defendant's web page 'youramazin'. It is pleaded that the publication included the words:
wow, Saturday night totally topped the night I had 3 bottles of wine it started off with me harassing charlie who is my favourite blind tabby cat (he has socks!)
a lot of vodka, one bus and a toilet later, dj who flirts with me and plays apologise just for me gave my friend 3 tickets to exposed. bahahaha. a silly faggot tries to start a fight with us because he is insane. i went into a psychotic rage for 5 minutes because I am insane. then we left and my other friend digs through the bushes ‑ voila! bottle of vodka! at a new club, i somehow met this guy. i think i was leaving the toilets and ran into him (wouldn't be surprised if I actually RAN into him). left with him, denied entry into another club. tried again, denied again, nearly got into a fight with the fucktard bouncer. go to another club. barmaid refuses to serve me, ahah. guy gives me his drinks later we leave and for some reason I thought to GET to the city, you had to walk AWAY from the city. i remember crossing the freeway and jumping a fence. then we gave up and got a taxi. he was cutely asking if he could come to mine and that he'd be really quiet and hide under the bed. i was like 'haha, that's cute, but no'
i got home, made fettucine, watched house and went to sleep.
THE END
It is an essential part of the plaintiff's case to show that he is the person referred to by the defamatory words. Accordingly, where it is not clear on the face of the words that they refer to the plaintiff, the plaintiff should make clear in his statement of claim the basis on which he claims to have been identified as the subject of the words complained of. He should set out the connecting facts which establish the link between himself and the words used and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts. These matters are material facts which must be pleaded. If the plaintiff does not plead such facts sufficiently, his claim will be struck out: Gatley on Libel and Slander (11th ed) [28.25].
The publication complained of does not identify the plaintiff by name. The statement of claim does not plead the basis on which he claims to have been identified as the subject of the words complained of.
Neither [6] nor any other paragraph of the statement of claim makes it clear what, if any, defamatory imputation is alleged to arise from the words complained of. The meaning defamatory of the plaintiff, if any, arising from the words complained of is not obvious. The paragraph in its present form fails to disclose a reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action.
Paragraph 7 refers to a publication on the same web page on 20 May 2008 entitled 'hahahahaha'. The words of the publication that are pleaded consist of a dialogue between 'Me' and 'Ben'. I assume that the plaintiff claims he is the person referred to as 'Ben'. However, the statement of claim does not plead that the plaintiff is the 'Ben' referred to either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published. Furthermore, the statement of claim does not make it clear what defamatory imputation or imputations are said to arise from the publication. It seems likely the plaintiff claims the words complained of give rise to one or more of the defamatory meanings referred to in [4] but it is not clear which of those meanings. The paragraph in its present form discloses no reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action.
Paragraph 8 refers to a further publication on the same website on 17 June 2008 entitled 'I'm not even going to try and write this in some kind of coherent manner'. The words said to have been published include references to 'Ben'. However, the statement of claim does not plead that the plaintiff was identified as the person referred to by the persons to whom the words were published, or any of them, either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published. Furthermore, the statement of claim does not make it clear what, if any, defamatory imputation is said to arise from the publication.
Paragraph 9 refers to a publication on the 'youramazin' website operated by the defendant on 12 May 2008. The words allegedly published include reference to 'Ben' but again there is no pleading that the plaintiff is identified as the person being referred to either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published. Paragraph 9 goes on to refer to the natural and ordinary meaning and to say:
The publication mocks the plaintiff and suggest he is foolish and an ignorant insincere uncouth person.
The paragraph contains much more in the nature of argument and further meanings said to arise from the publication. The pleading is argumentative, verbose and embarrassing.
Paragraph 10 pleads words published on a 'Youramazin' website operated by the defendant on 22 June 2008. The words include a reference to 'Ben' but once again there is no pleading that the words complained refer to the plaintiff either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published. The paragraph then goes on to refer to the meaning of the words published in an argumentative and embarrassing manner. The paragraph also sets out further publications and further observations about their meaning, the falsity of the meaning and observations about the relationship between the plaintiff and the defendant.
Paragraph 11 contains references to various publications on the 'youramazin' website operated by the defendant. None of them name the plaintiff. There is no pleading that the words complained of refer to the plaintiff by reason of material contained within the publications or as a result of special knowledge held by the persons to whom it was published. The paragraph also contains observations and argument about the meaning of the various publications, their truthfulness and the effect of them.
Paragraph 12 refers to another publication on the 'youramazin' website operated by the defendant which does not name the plaintiff. There is no pleading that the words complained of refer to the plaintiff either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published.
Paragraph 13 pleads another publication on the 'youramazin' website operated by the defendant. The words complained of do not refer to the plaintiff by name. There is no pleading that the words complained of refer to the plaintiff either by virtue of material contained within the publication or as a result of special knowledge held by the persons to whom it was published. There is no plea of the defamatory meaning alleged to arise from the publication other than a reference back to [4] of the statement of claim.
Paragraph 14 refers to a further publication on the defendant's 'youramazin' website. The words published are not set out. The very words complained of are the material facts in a defamation action and must be set out in the statement of claim. The paragraph says that the publication contained a large photo of a pet rabbit purchased by the plaintiff by the defendant (sic) and is said to highlight the deception the plaintiff was allowed to live under by the defendant and the complete disregard for the plaintiff's feelings. The pleading fails to set out the words complained of, that the words refer to the plaintiff or the defamatory meaning which is said to arise from them.
Paragraph 15 pleads a further publication on the defendant's 'youramazin' website. The words set out do not refer to the plaintiff by name. There is no pleading that the words complained of refer to the plaintiff by reason of material contained within the publication or as a result of special knowledge held by the person to whom it was published. The defamatory imputation said to arise is indicated by a reference back to [4], the entirety of which is said to be applicable to the publication complained of. That fails to disclose precisely the imputation or imputations said to arise from the publication. Paragraph 4 contains argument about the meaning of publications, summaries of publications, arguments about the motives and intentions of the defendant and the effect of some of the publications on the plaintiff. Paragraph 15 read together with [4] does not make it clear what meaning or meanings defamatory of the plaintiff are clamed to arise from the words complained of in [15].
Paragraph 16 claims aggravated damages by reason of the conduct of the defendant 'currently and throughout the proceedings'. The conduct should be, but is not identified.
Paragraph 17 refers to an interim violence restraining order against the plaintiff obtained by the defendant from the Perth Magistrates Court. The paragraph says that the effects of the restraining order and consequent trial in the Magistrates Court have rendered the plaintiff incapacitated from work. That is embarrassing. The plaintiff's action is an action in defamation. It is not made clear how the effect on the plaintiff of the interim violence restraining order issued by the Perth Magistrates Court is relevant to the plaintiff's claim in this action.
Paragraph 18 pleads that the following publication and comments were made by the defendant and a group of her friends in act of malicious falsehood and express malice on the Facebook site of the defendant, and published to the world at large on 6 and 7 November 2008. The first post is:
6/11/08
Joyce Unfriend + Block ben ives. Keep orig copy of past msgs however no further evidence is required to release a restraining order. 5.12pm - 15 Comments
There then is a series of what appear to be comments by various people. Some of the comments are arguably on the face of it defamatory of the plaintiff. However, the pleading is embarrassing. The pleading is that the publications were made by the defendant and a group of her friends. It is not pleaded that each of the publications complained of were published by the defendant. If it is claimed that the defendant is responsible for the comments of the others then the pleading fails to state the facts which make the defendant responsible for the publications of the others. The paragraph does not plead what defamatory imputations the plaintiff says arises from each publication.
Paragraph 19 pleads further publications on a Facebook account. The paragraph sets out three comments, one of which is attributed to the plaintiff. The paragraph does not plead the facts which render the defendant responsible for the publication of the comments made by the other two persons. The paragraph does not plead the defamatory imputations said to arise from each publication or the publications as a whole.
Statement of claim should be struck out
For the reasons stated, the statement of claim fails to disclose a reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action. The statement of claim should, but fails to, state clearly all the material facts necessary for the purpose of formulating a complete cause of action including:
1.each of the publications complained of;
2.that the publications were published by the defendant;
3.the words published;
4.that the publications were published of, or referred to, the plaintiff;
5.the facts relied on as causing the words complained of to be understood as referring to the plaintiff;
6.knowledge of those facts by those to whom the words were published;
7.the defamatory meaning alleged to arise from each publication; and
8.where necessary, the facts relied on as causing the words complained of to be understood in those defamatory meanings.
The statement of claim is seriously unclear and confusing and if allowed to stand would add unnecessarily to the cost and complexity of the proceedings. The statement of claim is so confused and cluttered with irrelevancies that it is impossible clearly to make out the case being advanced in relation to each publication complained of. The current scheme of the statement of claim is to set out in [4] a range of defamatory meanings and then to plead that the publications which are then pleaded give rise to those defamatory meanings. That pleading if allowed to stand would prejudice, embarrass and delay the fair trial of the action. The plaintiff must plead each publication complained of and in relation to each publication the defamatory meaning which is said to arise from that particular publication. The plaintiff cannot do that in the rolled up fashion which is attempted in [4] of the statement of claim.
The statement of claim will be struck out.
Leave to re‑plead
The plaintiff may have an actionable case but he has failed to plead it in a way that makes clear the case he wishes to advance. The plaintiff will have leave to file a minute of proposed amendment statement of claim. I will hear from the parties how long the plaintiff should have to do that.
Orders
I will make orders to the following effect:
1.any irregularity resulting from a failure to comply with O 20 r 19(3) is waived;
2.the time within which the defendant is required or authorised to apply to strike out the statement of claim is extended to 31 March 2010;
3.compliance with O 59 r 9(1) is waived in relation to the defendant's application to strike out the statement of claim;
4.the statement of claim is struck out;
5.the plaintiff has leave to file a minute of proposed amended statement of claim on or before a date to be fixed.
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