Ives v The State of Western Australia
[2010] WASC 339
•1 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 339
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 1 DECEMBER 2010
FILE NO/S: CIV 2382 of 2009
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Defamation - Amendment of pleadings - Application to amend statement of claim
Legislation:
Defamation Act 2005 (WA), s 36
Police Act 1892 (WA), s 5, s 137
Rules of the Supreme Court 1971 (WA), O 20 r 8(1), r 20 r 13(1)
Result:
Plaintiff have leave to file and serve a statement of claim
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr S M Nunn
Solicitors:
Plaintiff: In person
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bataille v Newland [2002] EWHC 1692
DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
LE MIERE J: The plaintiff commenced this action on 31 July 2009. The plaintiff initially filed a statement of claim on 24 November 2009 which I subsequently ordered to be struck out. Since then the plaintiff has produced numerous drafts of a proposed amended statement of claim. On 21 July 2010 the plaintiff filed his most recent version which is dated 19 July 2010 and entitled 'Minutes of Proposed Changes to Plaintiff's Statement of Claim' (the Minute).
On 26 July 2010 the defendant caused to be issued a chamber summons seeking orders that leave for the plaintiff to amend the statement of claim in accordance with the Minute be denied and that the action against the defendant be dismissed.
On 1 June 2010 I directed that the plaintiff's application to amend his statement of claim in accordance with the Minute and the defendant's application that leave be refused and the plaintiff's action be dismissed would be decided on the papers. These are my reasons for determining those applications.
Plaintiff's case
The essence of the case the plaintiff wishes to prosecute may reasonably be discerned from the Minute. The plaintiff says that Ms Lim published words defamatory of the plaintiff on a web page or account entitled 'Youramazin' on a website hosted by LiveJournal which is a social media internet platform. The plaintiff says that the defendant is liable for the defamatory publication because police officers, for whom the defendant is vicariously liable, instructed or advised Ms Lim to publish the material complained of. The plaintiff says that the publication complained of gives rise to a number of imputations or meanings defamatory of the plaintiff and that as a result of the publication he has been injured in his reputation and suffered distress and hurt to his feelings. The plaintiff also claims aggravated damages and special damage.
The Minute discloses an arguable case
The publication complained of is pleaded in [6] of the Minute. In [7] the plaintiff pleads the imputations or defamatory meanings that he says arise from the publication complained of. The first is:
That the plaintiff was a threat to the security of Joyce Lim, who required the protection of a violence restraining order due to the character and conduct of the plaintiff.
The publication complained of is arguably reasonably capable of giving rise to an imputation substantially in the terms of the pleaded imputation. The posting commences with the words:
Upon legal advice, the following is being presented for reasons of both security and legality.
The posting goes on to say that an interim restraining order is in place against the plaintiff for the protection of 'the user of this page'. Ms Lim is not identified anywhere on the page as being the user of the page but the Minute says that the web page was linked to the Facebook page operated by Ms Lim which was open to the public. Accordingly, the words complained of arguably give rise to imputations that the plaintiff conducted himself in such a way that he was a threat to the security of the user of the page, Ms Lim, and that the plaintiff conducted himself in such a way that the user of the page, Ms Lim, required the protection of a violence restraining order against the plaintiff.
Paragraph 6 of the Minute, in effect, alleges that Ms Lim posted the words complained of on the website and members of the WA Police Force caused the words complained of to be published by advising Ms Lim to do so.
At common law liability extends to any person who participated in, secured or authorised the publication: Gatley on Libel and Slander (11th ed), [6.4]. There are various acts that can give rise to legal responsibility, including encouraging the primary author: Bataille v Newland [2002] EWHC 1692 [25]. In this case the plaintiff alleges that the police officers advised Ms Lim to publish the words complained of. That is arguably sufficient to make the police officers liable for the publication.
The Police Force consists of commissioned and non‑commissioned officers of police: see Police Act 1892 (WA), pt I and pt II. Section 137(5) of the Police Act provides that the Crown is liable for a tort that results from anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force. In [3] of the Minute the plaintiff says that the police officers were acting in the course of their employment by the defendant and/or on behalf of the defendant which is accordingly vicariously liable for their actions. In effect, the plaintiff says that the police officers were performing or purporting to perform the functions of a member of the Police Force and the defendant is liable for the damage resulting from their actions.
The Minute sufficiently makes out a reasonably arguable case for the plaintiff to be permitted to plead substantially in those terms. I will now consider the particular objections to the Minute made by the defendant.
Paragraph 1
The defendant says that [1] of the Minute is irrelevant. The first line:
The claimant is a part time student at Murdoch University in Western Australia
is arguably relevant but the rest of the paragraph is not. 'Claimant' should be changed to 'plaintiff'.
Paragraph 2
Paragraph 2 is:
The defendant is the Crown, the State of Western Australia which owns, operates and manages the WA Police Service, which are Crown agents.
The defendant says that an entity named 'WA Police Service' does not exist. It is apparent that the plaintiff intends to refer to the Western Australian Police Force. The Police Force is not a legal entity capable of suing or being sued. However, the Police Force nevertheless is a recognisable body consisting of commissioned and non‑commissioned officers of police. The Police Act expressly refers to the Police Force. Part I is entitled 'As to the appointment of officers and constables of the Police Force' and pt II is entitled 'As to the regulations, duties and discipline of the Police Force'. However, it is not correct to say that the State owns, operates and manages the Police Force. Section 5 of the Police Act charges the Commissioner of Police with the general control and management of the Police Force. Paragraph 2 of the Minute serves no useful purpose and should not be allowed.
Paragraph 3
Paragraph 3 is:
At all material times the Crown agents: WA Police officers were acting in the course of their employment by the defendant and/or on behalf of the defendant, which is accordingly vicariously liable for the actions and defaults pleaded herein.
The defendant says that the reference to 'WA Police officers' is vague and does not identify persons with reasonable particularity and that it is unclear what 'defaults' are pleaded in the Minute.
The Minute complains of the actions of the police officers in advising Ms Lim to publish the material complained of on the website. The Minute does not plead any failure to act, inaction or neglect by the police officers. However, that defect in the Minute may be cured by deleting the words 'and defaults' from [3].
The failure to specify the police officers referred to is a more serious matter. The essence of the plaintiff's case is that police officers, for whom the defendant is vicariously liable, instructed or advised Ms Lim to publish the material complained of on the website. The defendant is entitled to know the identity of the police officers who instructed or advised Ms Lim to publish the material complained of.
Order 20 r 8(1) of the Rules of the Supreme Court 1971 (WA) provides that subject to the provisions of the rules, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for its claim or defence. Order 20 r 13(1) provides that subject to exceptions not relevant every pleading must contain the necessary particulars of any claim or other matter pleaded. The primary purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet: Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566, 569 (Franklyn J). In Jingellic Franklyn J said:
Material facts are facts necessary for the purpose of formulating a complete cause of action. Their primary purpose is to define the issues and thereby inform the parties in advance of the case they have to meet: see The Supreme Court Practice 1991, par 18.7.1.
Particulars are part of the material facts. They are the detail necessarily to be given 'to tie the hands of the party so that he cannot without leave go into any matter not included ' (Brett LJ in Philipps v Philipps (1878) 4 QBD 127 at 133; Woolley v Broad [1892] 2 QB 317 (and see note 'all Material Facts', par 18.7.5); The Supreme Court Practice (supra), par 18.12.2). One of the ways in which the function of particulars is stated in The Supreme Court Practice 1991, at par 18.12.2 reads as follows:
'What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they will have to meet when the case comes on for trial.' (per Cotton LJ in Philipps v Philipps (supra))'
All the Master has said in effect is that the claims in pars 29 and 36 are deficient in that they do not provide all necessary material facts but that the same can be provided by way of particulars. He has, however, not left it at that but has additionally pointed to the fact that the plaintiff has claimed, and it would seem, without dispute, that at this stage it does not have the details sought by the defendant and that to order those details to be pleaded at this stage would deny the plaintiff the right to bring the claims. Implicit in that statement is the acceptance by the learned Master, having regard to the other matters pleaded and sought to be pleaded at the time of the application, that the facts necessary for the particulars to be provided, if they exist, are facts at this stage solely within the knowledge and control of the defendant which can be obtained by discovery and or interrogatories. There is authority for the proposition that when one party knows the facts and the other does not, an insufficiently particularised allegation may be made in a statement of claim and the plaintiff be permitted to obtain discovery of documents and answers to interrogatories before providing the necessary particulars: see Whyte v Ahrens (1884) 26 Ch D 717 at 720; Foamlite Australia Pty Ltd v Campbell (unreported, Full Court, Supreme Court, WA, Library No 7686, 31 May 1989); Seaman in Civil Procedure in WA, par 27.1.10.
At this stage of the proceedings the plaintiff is unable to identify the police officers. The identity of the police officers, if they exist, are facts at this stage solely within the knowledge and control of the defendant. The plaintiff might be able to obtain those facts from discovery or interrogatories. I will not at this stage refuse the plaintiff leave to plead substantially in terms of [3] of the Minute on the grounds that he has not identified the police officers.
Paragraph 4
The defendant submits that the whole of [4] is irrelevant except for the words:
The plaintiff's ex girlfriend Ms Joyce Lim obtained an ex parte violence restraining order against the plaintiff on 1 December 2008.
I agree.
Paragraph 5
The defendant submits in relation to [5]:
(i)the reference to 'WA Police Force' is vague and does not identify persons with reasonable particularity;
(ii)it contains irrelevant information;
(iii)it is ambiguous and not reasonably intelligible; and
(iv)it fails to state the case with reasonable particularity.
I accept that the reference to WA Police Force fails to identify persons with reasonable particularity but for the reasons stated in relation to [3] the plaintiff should not be refused leave to plead a statement of claim in terms of the Minute for that reason, at this stage at least. I accept that some of [5] contains irrelevant information. I would allow a pleading substantially in the form of the following parts of [5]:
Paragraph [3] is repeated. Following complaints made by Joyce Lim to the Crown agents: The WA Police force, the Crown agents: The WA Police force advised Joyce Lim to make a certain publication on her personal blog which is described herein: Joyce Lim maintained a public interactive blog created in 2003, on the World Wide Web system of the internet. The said website was entitled, 'youramazin' and was an account created using the service offered to the public free of charge, or on payment of a subscription from, 'LiveJournal' of Live Journal Incorporated, owned and managed by Sup Fabrik Incorporated in the Russian Federation, and its address was Lim employed the interactive blog on which she received and replied to thousands of comments by registered 'LiveJournal' account holders and anonymous comments.
At all material times the website was open to general access by any user of the World Wide Web. In the circumstances, it is to be inferred from the open access to the site and the large amount of registered viewers of the site automatically notified by email, and the automatic concurrent publication of the posts to many community groups on the 'LiveJournal' website, and the fact 'youramazin' was linked to the Facebook page operated by Joyce Lim which was also public, which during the majority of 2008 was linked to the Facebook page operated by the plaintiff by virtue of the published 'relationship status' in existence between the plaintiff and Joyce Lim, whereupon the plaintiff had in excess of 380 online 'friends', many of whom were close friends and immediate family members, and business associates, in addition the publication of the full name of the plaintiff that the words complained of in paragraph [6] were published to a substantial but unquantifiable number of readers.
That pleading is reasonably intelligible and states the plaintiff's case with reasonable particularity. The remainder of [5] will not be allowed.
Paragraph 6
Paragraph 6 refers to Crown agents, that is, members of the WA Police Force, causing the words complained of to be published by advising Joyce Lim to do so. The paragraph then sets out the words allegedly published on the website. The defendant says that the reference to WA Police Force is vague and does not identify persons with reasonable particularity and fails to particularise how the WA Police Force allegedly caused the word to be published.
Paragraph 6 starts by repeating [3]. It is apparent that the plaintiff's case is that the police officers referred to in [3] are responsible for the publication because they advised Ms Lim to make the publication. Paragraph 6 is a permissible pleading but should be in the form:
On 7 May 2009 the police officers caused to be published and Ms Lim published on Ms Lim's website the following words defamatory of the plaintiff:
[Set out words complained of]
Paragraph 7
In [7] the plaintiff pleads the natural and ordinary meaning of the words complained of. The defendant makes two objections. First, the defendant says that the paragraph fails to state the case with reasonable particularity in that it does not particularise which of the alleged words conveyed the defamatory meanings alleged in [7].
The plaintiff must set out the passages of which he complains and only the relevant passages. Where the subject matter of an action for defamation is a long article the plaintiff must specify the particular passages said to be defamatory of him: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21. It is a matter which must be guided by commonsense. The question is whether the plaintiff's claim is clear enough for the defendant to be able to plead to it. The words set out by the plaintiff in [6] are relatively short. All of the words refer to the plaintiff or provide the context of the words which specifically refer to the plaintiff. The Minute does not throw onto the defendant a long article without picking out the part said to be defamatory: DDSA, Lord Denning MR at (26).
The defendant complains that the words 'the text includes passive aggressive threatening' do not suggest a defamatory meaning. I agree. Those words should not be permitted.
Imputation 7.2 is not in appropriate form nor is it clear what is the intended gist of the imputation. An imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 687. Imputation 7.2 fails to do that. It should not be allowed.
Imputation 7.3 does not reasonably arise from the words complained of and will not be allowed.
Imputation 7.6 is embarrassing because it fails to state the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged. It should not be allowed. Imputation 7.7 is also embarrassing and should not be allowed.
Paragraph 8
The defendant says that [8] is irrelevant. I agree. That paragraph should not be allowed.
Paragraph 10
The defendant says that the paragraph is irrelevant. In its present form [10] is irrelevant.
Paragraph 11
The defendant says that [11.1] is irrelevant and not a particular of damages. The defendant says that [11.2] is not a particular of damages, is confusing, is vague and does not state the case with reasonable particularity and is logically inconsistent in that the plaintiff cannot know what an 'unknown quantity' of people thought or did. The defendant says that [11.3] does not state the case with reasonable particularity and raises a case in terms that are too general. The defendant says that [11.4] does not state the case with reasonable particularity and raises a case in terms that are too general.
Section 36 of the Defamation Act 2005 (WA) provides that in awarding damages for defamation the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. Paragraph 11 of the Minute does not set out an intelligible case for aggravated damages. The paragraph does not plead in an intelligible way facts that might give rise to aggravated damages. Paragraph 11 will not be allowed.
Paragraph 12
Paragraph 12 pleads, or purports to plead, special damage. The paragraph commences by pleading that the plaintiff has suffered an acute anxiety disorder and been unfit to return to work as a result of the publication. That is permissible. However, the words 'his ability to provide for his children has been removed by the actions of the Crown agents: WA Police' is not a proper plea of special damage.
Subparagraph 12.1 says that the plaintiff's reputation in business has also been destroyed. Paragraph 1 of the Minute pleads that the plaintiff is a part time student. It is not pleaded that the plaintiff was in business. A university student does not have a reputation in business. Subparagraph 12.1 will not be allowed.
Subparagraph 12.2 is not a proper plea of special damage. Subparagraphs 12.4 to 12.10 are not proper pleas of special damage and should not be allowed.
Leave to file a statement of claim
The plaintiff will not have leave to file a statement of claim in terms of the Minute. For the reasons I have stated, some of the paragraphs and parts of paragraphs in the Minute are not a proper pleading and will not be allowed. However, the remainder of the Minute pleads an arguable case and the plaintiff should have leave to file a statement of claim substantially in those terms. The plaintiff should have leave to file a statement of claim substantially in the following terms:
1.The plaintiff is a part‑time student at Murdoch University in Western Australia.
2.The plaintiff's exgirlfriend, Ms Joyce Lim, obtained an ex parte violence restraining order against the plaintiff on 1 December 2008.
3.At all material times Joyce Lim maintained a public interactive blog on the world wide web system of the internet. The website was entitled 'youramazin' and was an account created using the service offered to the public free of charge, or on payment of a subscription from 'Live Journal' of LiveJournal Incorporated owned and managed by Sup Fabrik Incorporated in the Russian Federation and its address was complaints made by Joyce Lim to certain police officers, the police officers advised Ms Lim to publish on her website words substantially in the form of the words set out in paragraph 5.
5.On 7 May 2009 Joyce Lim published and, by reason of the matters pleaded in paragraph 4, the police officers there referred to caused to be published on Ms Lim's website the following words defamatory of the plaintiff:
[set out the words complained of].
6.It is to be inferred from the following matters that the words complained of in paragraph 5 were published to a substantial but unquantifiable number of readers:
(a)At all material times the website was open to general access by any user of the world wide web.
(b)A large number of registered viewers of the site were automatically notified by email, and concurrent publication of the posts were automatically transmitted to many communities on the 'Live Journal' website;
(c)The 'youramazin' website was linked to the Facebook page operated by Joyce Lim which was also public, and during the majority of 2008 was linked to the Facebook page of the plaintiff by virtue of the published 'relationship status' in existence between the plaintiff and Joyce Lim;
(d) The plaintiff had in excess of 380 online 'friends', many of whom were close friends and immediate family members and business associates;
(e)The full name of the plaintiff was published on the website.
7.At all material times the police officers referred to were members of the WA Police Force, were acting in the course of their employment and were performing or purporting to perform the functions of a member of the Police Force and the defendant is accordingly liable for the actions of the police officers referred to in paragraph 4 and paragraph 5.
8.In their natural ordinary meaning the words set out in paragraph 5 meant and were understood to mean:
(1)The plaintiff had conducted himself in such a way that he was a threat to the security of Ms Lim;
(2)The plaintiff had conducted himself in such a way that Ms Lim required the protection of a violence restraining order against the plaintiff;
(3)The plaintiff was stalking and has stalked Ms Lim;
(4)The plaintiff was acting unlawfully.
9.By reason of the publication of the words complained of the plaintiff has been injured in his personal reputation and has been caused acute distress and hurt to his feelings.
10.As a result of the publication the plaintiff has suffered an acute anxiety disorder and been unfit to engage in remunerative work whereby the plaintiff has suffered damage.
And the plaintiff claims damages.
The plaintiff must satisfy himself that a statement of claim in those terms states the case the plaintiff wishes to present and that the facts stated in the statement of claim are correct.
Application to dismiss action
The defendant's application to dismiss the action will be dismissed. The plaintiff has an arguable case. He should be permitted to plead that case and prosecute that action.
Costs
The plaintiff has produced numerous drafts of a proposed amended statement of claim. The Minute was the latest proposed amended statement of claim. I have determined that the plaintiff should have leave to file an amended statement of claim substantially in the terms I have set out. However, I have refused to give leave to amend the statement of claim in accordance with the Minute because many of the paragraphs, or parts of the paragraphs, of the statement of claim are irrelevant or otherwise not in a form in which the plaintiff should be permitted to plead. The defendant's application was made necessary by the plaintiff seeking to plead a statement of claim in terms which I have held to be not in a proper form. In all the circumstances, the appropriate order for costs is that the plaintiff pay the defendant's costs of the plaintiff's application for leave to amend the statement of claim in accordance with the Minute and the defendant's application that the action against the defendant be dismissed.
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