Johnston v Holland
[2017] VSC 448
•8 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2015 06004
| STUART JOHNSTON | Plaintiff |
| v | |
| NICOLA HOLLAND | Defendant |
---
JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June 2017 |
DATE OF JUDGMENT: | 8 August 2017 |
CASE MAY BE CITED AS: | Johnston v Holland |
MEDIUM NEUTRAL CITATION: | [2017] VSC 448 |
---
DEFAMATION – Limitation of action – Extension of time application – Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication – Limitation of Actions Act1958, ss 5(1AAA) and 23B – Noonan v MacLennan [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Wookey v Quigley (No 2)(2010) WASC 209; Casley v Australian Broadcasting Corporation [2013] VSC 251; Casleyv Australian Broadcasting Corporation [2013] VSCA 182 – Pleadings – Whether proposed pleading against defendant and proposed defendant sufficient.
--
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Anderson | Macpherson Kelley |
| For the First Defendant | Mr J Castelan | HWL Ebsworth |
| For the proposed Second Defendant | Mr J Kirkwood | Slater and Gordon Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Summary of conclusions................................................................................................................... 1
Background......................................................................................................................................... 2
Extending the limitation period...................................................................................................... 4
Applicable law.............................................................................................................................. 4
The Evidence................................................................................................................................. 9
The circumstances advanced by the plaintiff......................................................................... 10
Plaintiff’s submissions- the Email and the Tweets....................................................... 15
Murray’s submissions –the Email and the Tweets....................................................... 15
The defendant’s submissions – The Email.................................................................... 17
Consideration.............................................................................................................................. 18
The Email – The First Limb of s 23B of the LAA.......................................................... 18
Matters supporting satisfaction of the test.................................................................... 18
Matters against satisfaction of the test............................................................................ 21
The Email – The Second Limb of s 23B of the LAA...................................................... 25
The Tweets.......................................................................................................................... 28
The Pleading Points......................................................................................................................... 31
Costs in the discovery application................................................................................................ 41
Conclusion......................................................................................................................................... 43
HIS HONOUR:
Introduction
The plaintiff applies under s 23B of the Limitation of Actions Act1958 (‘the LAA’) to extend the applicable limitation period to add Wayne Murray (‘Murray’) as a defendant to this defamation proceeding. For that purpose, the plaintiff also seeks leave to file and serve a further amended statement of claim.[1] In the proposed further amended statement of claim (‘PFASOC’) the plaintiff proposes to allege that Murray defamed the plaintiff in an email he wrote and sent on 2 April 2015 (‘the Email’) and in various tweets (‘the Tweets’) he is alleged to have been involved in publishing between 9 February 2015 and 30 June 2015.[2]
[1]By summons filed 21 February 2017.
[2]The PFASOC is exhibit ZCS-1 to the affidavit of Zoe Claire Schwarz dated 21 February 2017.
Murray opposes the extension of the limitation period. If it is extended, he objects to the PFASOC as embarrassing. The defendant opposes the filing of the PFASOC on the basis that various paragraphs are embarrassing. The defendant and Murray contend that the plaintiff’s application should be dismissed with costs.
There is also an issue of costs concerning the defendants earlier application for further discovery against the plaintiff.
Summary of conclusions
In summary, my conclusions are that:
(a) the plaintiff has not established that it was not reasonable to bring proceedings against Murray in respect of the Email or the Tweets in the one year period following their various publication dates. Accordingly, there will be no extension of the limitation period;
(b) if, contrary to the conclusion in paragraph (a), the limitation period must be extended, it should not be extended beyond the time within which it remained unreasonable for the plaintiff to have commenced proceedings against Murray. That time was December 2016;
(c) the plaintiff has not sufficiently pleaded co-publication by the defendant of the Email and the amendments in the PFASOC as against the defendant should not be allowed in their current form; and
(d) the plaintiff is liable for the defendant’s costs of the earlier discovery application.
Background
The plaintiff is the principal of The Peninsula School in Mount Eliza, Victoria, and the defendant is a former director of marketing at the School and a parent of students or former students. The Amended Statement of Claim (‘ASOC’) makes claims against the defendant for damages for defamation arising from Tweets (to approximately 26 followers) and the Email entitled ‘some good news’ sent on 2 April 2015 by the defendant to the staff, parents and students of the School (to at least 30 recipients).
The plaintiff claims in the ASOC, and the defendant admits, that from about 13 January 2015 until about 30 June 2015, the defendant wrote and uploaded the Tweets using the pseudonym ‘Tan Twat’ and the handle ‘@Tanpersonsays’ on Twitter (‘the Twitter Account’). The Tweets alleged to be defamatory were published on 9 February, 1 April, 27 April, 29 April, 21 May and 29 May 2015. There are seven defamatory imputations alleged to arise from the publication of the Tweets.[3]
[3]Set out in the reasons of Dixon J in Johnston v Holland [2016] VSC 422 [2(a)-(g)].
The defendant does not admit that she published each of the Tweets,[4] denies that the Tweets that were published were of and concerning the plaintiff, denies each defamatory imputation, and pleads various defences; Hore-Lacy imputations,[5] honest opinion under s 31(1) of the Defamation Act 2005, qualified privilege at common law, and justification at common law and under s 25 of the Defamation Act and interstate equivalents.
[4]Despite the earlier admission that she wrote and uploaded them.
[5]Referring to David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; affirmed in Setka v Abbott (2014) 44 VR 352.
In the ASOC, the defendant is alleged to have published or caused to be published the Email, which the defendant denies. The email was sent from the mail account ‘[email protected]’ under the pseudonym ‘Tan Twat’ (‘the Email account’).
The plaintiff now wishes to allege that Murray wrote and sent the Email and was involved in publishing the Tweets.[6]
[6]Outline of Submissions of Plaintiff in support of its summons dated 21 February 2017 and filed 15 June 2017, 1 [1]-[2] (‘Plaintiff’s Submissions’).
The plaintiff contends that Murray authorised, assented to, encouraged, promoted and/or lent his assistance to the publication of the Tweets.[7] The limitation period for the Email expired on 2 April 2017. There is a dispute between the parties as to the limitation periods applicable to the Tweets and the plaintiff says that the limitation period of the Tweets is around 30 June 2016, one year from when they were taken off Twitter.[8]
[7]PFASOC, paragraph 3A and the Plaintiff’s Submissions, 8 [9] – [10].
[8]Plaintiff’s Submissions, 3 [9] and [10].
The plaintiff contends that it was not reasonable in the circumstances for the plaintiff to have commenced an action in defamation within one year from the date of the relevant publications because the plaintiff did not ascertain that Murray was the author until after 27 September 2016. In particular, the plaintiff was delayed in his ability to ascertain Murray’s authorship of the Email and involvement in publication of the Tweets due to the obfuscation of Murray and the defendant. Preliminary discovery applications were necessary against both Murray and the defendant to ascertain facts concerning the description of the publishers of the Email and the Tweets.
Extending the limitation period
Applicable law
Section 5(1AAA) of the LAA provides that ‘[a]n action for defamation must not be brought after the expiration of one year from the date of the publication of the matter complained of’. Section 23B of the Act provides for the extension of that period:
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
In Casley v Australian Broadcasting Corporation,[9] Beach J (as he then was) considered the interpretation and application of s 23B of the LAA. He referred to a number of interstate decisions, on the equivalent provision in those states[10] and in particular to Pingel,[11] a decision of the Queensland Court of Appeal, for two matters:
(a) the reiteration by Fraser JA that defamation claims should ordinarily be pursued promptly;[12] and
(b) the propositions concerning the extension of limitation periods under the Queensland equivalent of s 23B of the LAA stated by Applegarth J following his analysis of the judgments in Noonan. Although in dissent, Applegarth J formulated seven propositions applicable to such extensions of limitation periods.[13]
[9][2013] VSC 251 (‘Casley’), affirmed on appeal - Casleyv Australian Broadcasting Corporation [2013] VSCA 182.
[10]Noonan v MacLennan [2010] 2 Qd R 537 (‘Noonan’); Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (‘Pingel’); Jamieson v Chiropractic Board of Australia [2011] QCA 56 (‘Jamieson’); Mowen v Morning Bulletin APN & Ors [2012] QSC 194; Rayney v The State of Western Australia (No 3) [2010] WASC 83; Wookey v Quigley (No 2) (2010) WASC 209; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Lakaev v Denny [2010] NSWSC 1480; Barach v University of New South Wales [2011] NSWSC 1327; Ritson v Gay & Lesbian Community Publishing [2012] NSWSC 483; Carey v Australian Broadcasting Corporation (2012) 290 ALR 348; Houda v State of New South Wales [2012] NSWSC 1036. See further, Rametta v Deakin University [2010] FCA 1341.
[11]Pingel.
[12]Pingel [37].
[13]Which were referred to with approval by White JA (with whom Muir JA and Philippides J agreed) in Jamieson [22].
The seven propositions, modified to apply to s 23B of the LAA, are:
(a) the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication;
(b) the circumstances that might give rise to an extension are left at large;
(c) the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue;
(d) if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication;
(e) the section requires an applicant to show more than that it would have been reasonable not to commence a proceeding until after the one year period had expired - the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period;
(f) the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period ordinarily required for litigants to commence proceedings; and
(g) s 23B of the LAA proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate their legal rights in accordance with that time limit.[14]
[14]Casley [28].
Beach J, the Court of Appeal on appeal from him,[15] and the earlier authorities, have fleshed out these propositions as follows:
[15][2013] VSCA 182 [40]-[41], [44].
(a) while the section proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding, it is only in relatively unusual circumstances that a court will be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law;[16]
[16]Casley [25]; [2013] VSCA 182 [40], both referring to the observations of Keane JA in Noonan 541 [15].
(b) regarding the ‘offer to make amends’ procedures under the Defamation Act, the section encompasses a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate their rights. In such a case, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings;[17]
(c) it is not useful to have an exhaustive list of the kinds of cases which might fall within the section. Other cases that might fall within the section are those where the plaintiff was unaware of the publication or was unable to identify the publisher,[18] or is not able to establish the extent of the defamation or is without the evidence necessary to establish their case, during the year since publication. An action brought in such circumstances might be said to be speculative or irresponsible. In such cases, the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might be expected to be recoverable as to render the commencement of proceedings unreasonable;[19] and
(d) the test of reasonableness under s 23B is objective - the circumstances to which the section refers are those that the court is satisfied are objectively established and not those that the plaintiff believed (however reasonably) to exist. Further, a plaintiff will not discharge the statutory onus merely by asserting a subjective belief that it was not reasonable to bring the proceeding in the 12 month period following publication, or merely by demonstrating that their election to pursue another remedy was a reasonable or viable option to commencing a proceeding.[20]
[17]Casley [2013] VSCA 182, [41], referring to the observations of Keane JA in Noonan.
[18]Jamieson [21] and [22]; Pingel [56]; Rayney v Western Australia (No 3) [2010] WASC 83 [41]; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 [52]; Han [4]; McMahon v Watkinson [2014] VSC 123 [54].
[19]Casley [2013] VSCA 182 [41], referring to the observations of Keane JA in Noonan.
[20]Casley [29], referring to Noonan [47]; Pingel [87] (Proposition 4); and Jamieson [22].
If the Court is satisfied that it was not reasonable to have commenced this proceeding within one year, the Court is not bound to extend the limitation period until the date the proceeding was actually commenced.[21] The length of the extension is a matter for the exercise of discretion. It is not a proper exercise of that discretion to extend time beyond the period within which it remained ‘not reasonable’ to have sued.[22]
[21]Casley, [39]-[40].
[22]Noonan, [66]; Casley (2013) 39 VR 526 at 541 [71].
Some relevant matters that emerge from the circumstances of this application include, that:
(a) the statutory policy deliberately sets a short limitation period, which demands that parties and their advisors act timeously in respect of the narrow limitation window that is allowed;[23]
[23]Wookey v Quigley (No 2) [2010] WASC 209 at [82] (Kenneth Martin J); Clark v Ibrahim [2014] VSC 30 [74] (Zammit AsJ).
(b) there is a public interest in the speedy commencement and determination of defamation actions, which should not be undermined by too ready an acceptance of circumstances that are said to have made it unreasonable to sue within one year;[24]
[24]Noonan [67] (Chesterman JA).
(c) for an extension to be granted in relation to a particular publication, the test (that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter within one year from the date of the publication) must be satisfied in relation to that publication;[25]
[25]E.g. Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 (Mukhtar AsJ) (‘Han’), where an extension was granted in relation to one publication but not others.
(d) the test is not an easy one to satisfy[26] and has been described as unusually difficult for a plaintiff to satisfy,[27] and arising only in relatively unusual circumstances.[28] Unlike other fields in the law, it does not permit an extension if a court regards it as reasonable to do so according to defined circumstances;[29]
(e) an applicant’s evidence must, at least in broad terms, deal with the whole of the year and must demonstrate why there was no significant period in which it would have been reasonable to have commenced an action.[30] The evidence does not have to account for every day or week in the limitation year.[31] A would-be litigant who could reasonably commence an action postpones doing so at their peril;[32] and
(f) where the expiry of a limitation period looms, swift action by an applicant is called for, and there is no room for delay.[33] A desultory approach involving delay compresses the time available for pre-action steps.[34]
[26]Casley [31] (Beach J).
[27]Han [3]; Noonan [15] (Keane JA), [30] (Holmes JA), [47]-[48] (Chesterman JA); Rayney v State of Western Australia (No 3) [2010] WASC [41] (Martin CJ).
[28]Noonan [15]
[29]Han [3]; Clark v Ibrahim [2014] VSC 30 [74] (Zammit AsJ).
[30]Pingel [52] (Fryberg J).
[31]Noonan [2010] QCA 50 [49]; Pingel [52].
[32]Pingel [52] (Fryberg J).
[33]Wookey v Quigley (No 2) [2010] WASC 209 [52]-[55] (Martin J).
[34]Pingel [37] (Fraser JA).
The Evidence
The plaintiff’s applications are supported by the affidavits of the plaintiff’s solicitors, Zoe Claire Schwarz[35] and Corey David Jankie.[36] The main affidavit in support is the first affidavit of Ms Schwarz (‘Schwarz Affidavit’)[37] as amended and updated by her second affidavit and the affidavits of Mr Jankie. The evidence in opposition is the affidavit of Murray’s solicitor Jeremy Alexander Zimet.[38] The latter affidavit corrects several omissions arising out of the Schwarz Affidavit.
[35]Affirmed 21 February and 19 April 2017.
[36]Affirmed 15 June and 16 June 2017.
[37]Affirmed 21 February 2017.
[38]Affirmed 9 June 2017 (‘Zimet Affidavit’).
Murray objects to the tender of two exhibits to the Schwarz Affidavit[39] as being subject to without prejudice privilege under s 131 of the Evidence Act 2008 (Vic) (‘the Evidence Act’).[40] The plaintiff withdrew reliance on one of the exhibits.[41] The plaintiff disputed the claim to privilege in the other exhibit,[42] but only faintly, submitting that it is of no great moment as the substance of the exhibit relevant to the application was repeated in the next exhibited correspondence from Murray’s then solicitors.[43]
[39]Exhibits ZCS-8 and ZCS-20.
[40]Under s 131(1)(a) of the Evidence Act 2008 (Vic), evidence is not be adduced of, amongst other things, a communication that is made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.
[41]Exhibit ZCS-20; See the affidavit of Ms Schwarz of 19 April 2017.
[42]Exhibit ZCS-8 to the Schwarz Affidavit.
[43]Exhibit ZCS-10 to the Schwarz Affidavit; see Transcript 16 June 2017, p.16. He also referred me to the decision of John Dixon J in Smith v Gould [2012] VSC 210.
In these circumstances, it is sufficient to state my conclusion, having inspected the letter in the disputed exhibit, that it is appropriately labelled ‘without prejudice’ and does concern the terms upon which Murray was prepared to resolve an existing proceeding[44] and is thus the subject of without prejudice privilege under s 131 of the Evidence Act. In forming this conclusion, I have had regard to the submissions of Murray’s counsel as to the relevant legal principles as set out in Annexure 2 to his written submissions,[45] and to the plaintiff’s submissions and reference to the decision in Smith v Gould.[46] The exhibit should be removed from the file. The Schwarz Affidavit,[47] which repeats much of the content of the letter, also needs to be redacted and the affidavit re-sworn.
[44]Proceeding 2015 S CI 03551, being an application under r 32.03 of the Rules for discovery from Murray to identify a defendant.
[45]And the authorities there referred to, including: Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) (2005) 214 ALR 621; [2004] FCA 1570 [36]; Kong v Kang [2014] VSC 28 [57] (Derham AsJ); Galafassi v Kelly [2014] NSWCA 190 [116] (Gleeson JA; Ward JA agreeing).
[46][2012] VSC 210.
[47]At paragraph 25.
The circumstances advanced by the plaintiff
The relevant circumstances are recounted in the Schwarz Affidavit.[48] A summary is set out in the following paragraphs. I expand on some of the matters referred to in summary in my consideration of the circumstances and whether they establish objectively that the plaintiff has satisfied the test.
[48]Updated and amended by the other affidavits to which I have already referred.
The plaintiff became aware of the existence of the Tweets in March 2015 and then followed the Twitter Account on a daily basis. The plaintiff received a copy of the Email on or about 1 May 2015 and formed the view that Murray was aware of the identity of the author of the Tweets and the Email partly as a result of one of a bundle of emails given to him.[49] That email in question was an email from Murray to undisclosed recipients entitled “Twitter – Part 2” dated 6 February 2015. In that email, Murray wrote “…There was an excellent question regarding anonymity when replying to Twitter feeds. I have approached the Twitter instigator (Mr. T) and this is what he said…”.
[49]That bundle was originally exhibited to the affidavit of Vitoria Jayne Keller of 12 August 2015 (an affidavit made in support of the preliminary discovery application made against Murray). The bundle was exhibited to the Zimet Affidavit.
On 15 June 2015, the plaintiff instructed his solicitors to write to Murray and others asking them to identify the person or persons responsible for the Email and the Tweets. On 18 June 2015, Murray refused to cooperate in identifying the author of the Tweets and the Email stating:
I do not own either of the accounts that were mentioned in the email that is the end of the matter.
If you pursue this threatening and intimidatory line of contact, I will immediately contact my legal representative.[50]
[50]Schwarz Affidavit [16], exhibit ZCS-3.
In June 2015, the plaintiff’s solicitors wrote to representatives of Gmail and Twitter seeking their assistance in identifying the author of the Email and Tweets. No assistance was received. After further correspondence with Murray’s then solicitor during June 2015 (which produced no positive result[51]) the plaintiff issued an application for preliminary discovery against Murray by summons dated 10 July 2015.
[51]Indeed, notwithstanding direct questions to Murray’s solicitors as to the identity of Mr T, with emails that suggested the publisher of the Email and the Tweets were the same person, Murray’s solicitors responded with, amongst other things, arguments about whether sufficient enquiries had been made by the plaintiff to sustain an application under r 32.03 of the Rules: See Schwarz Affidavit [18]-[19] and exhibit ZCS-6.
By letter marked ‘without prejudice save as to costs’ from Murray’s solicitors dated 23 July 2015, Murray made certain statements in response to the plaintiff’s application for non-party discovery against him.[52] I have ruled that this letter is not admissible.
[52]Schwarz Affidavit [25], exhibit ZCS-8.
On 30 July 2015, after further correspondence from the plaintiff’s solicitor, Murray’s solicitors wrote and, amongst other things, said that Murray instructed that he ‘does not know the identity of Mr T’, being the author of the Email, and did not receive the Email. The letter does, however, identify two persons who Murray suspected could be Mr T, either the defendant or another person.[53]
[53]Schwarz Affidavit [27], exhibit ZCS-10.
On 3 August 2015, the plaintiff’s solicitors wrote directly to the defendant asking whether she was the author of the Tweets and the Email. On 5 August 2015, by email, the defendant said she was not Mr T nor did she know who was. She said she was ‘aware of the Twitter account’ as she followed it for a time.[54] On 4 August 2015, Murray’s solicitors wrote to the plaintiff’s solicitors confirming their instructions that Murray at no time sent an email to or received an email from the Email Account.[55]
[54]Schwarz Affidavit [29]-[30], exhibit ZCS-12 and 13.
[55]Schwarz Affidavit, exhibit ZCS-14.
On 14 August 2015, John Dixon J made orders for preliminary discovery against Murray and inspection of Murray’s computer. On 28 August 2015, inspection of Murray’s computer revealed he had received an email from the Email Account.
On 4 September 2015, Murray provided an affidavit of documents. The discovered documents included an email from the defendant dated 6 February 2015 in which she identified herself as Mr T. Excerpts from this email were cut and pasted into Murray’s email of 6 February 2015 (referred to above at paragraph 22). Another discovered document was an email from the defendant later on 6 February 2015 which stated ‘Well that worked – Mr T’s email inbox is full!!!’ Following discovery of these documents, the plaintiff had a proper basis to believe that the defendant was the author of the Email and the Tweets.[56] On this basis, on 24 November 2015, the plaintiff issued this proceeding against the defendant for publication of the Email and Tweets.
[56]A selection of the documents discovered by Murray are in exhibit 18 to the Schwarz’s affidavit.
On 15 December 2015, the defendant’s solicitors stated in a letter that the plaintiff did not publish the Email and does not admit publication of the tweets.
On 23 December 2015, the plaintiff’s solicitors sought discovery from the defendant of documents in her possession relating to the description of the publisher(s) of the Email. This letter went into some detail in identifying emails exchanged between the defendant and Murray where the defendant confirms her identity as ‘Mr T’, confirms she accessed emails sent to the Email Account and confirms she sent emails from the Email Account. It sought discovery of documents evidencing who else had access to the Email Account and documents relating to its establishment. The discovery was sought within 21 days failing which it was expected that instructions would be given to make application for discovery under r 32.03 or r 32.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). There was no response to this request.
On 2 February 2016, the defendant filed her defence, admitting that she wrote and uploaded the Tweets,[57] but denying publication of the Email and pleading substantive defences to the Email publication. It was not clear on what basis she denied publication of the Email.
[57]But not admitting publication of the individual Tweets alleged to be defamatory.
Having received no response to the 23 December 2015 letter, the plaintiff’s solicitors sent a further letter on 11 March 2016 following up the request for documents in her possession relating to the description of the publisher or publishers of the email, with any response due within 7 days. No response was received within that time. By letter from her solicitors dated 24 March 2016, the defendant effectively refused to provide the documents sought, and denied that the identity of the publisher of the Email is a critical issue in the proceeding, the only issue being whether the defendant published it. In relation to the threatened application for preliminary discovery, the defendant said it was a matter for the plaintiff.[58]
[58]Schwarz Affidavit [47], exhibit ZCS-24.
An amended defence was filed on 6 April 2016 which denied publication of the Email and abandoned the substantive defences pleaded to its publication. The defendant filed and served a further amended defence on 6 May 2016. On 31 May 2016, the plaintiff’s solicitors wrote to the defendant’s solicitors and foreshadowed a preliminary discovery application against the defendant for documents concerning the description of the publisher or publishers of the Email. The response from the defendant’s solicitors was, to say the least, unhelpful.
On 7 June 2016, the plaintiff issued the preliminary discovery application against the defendant. On 16 June 2016, T Forrest J handed down a ruling on the plaintiff’s discovery application against the defendant in which he proposed to order that the defendant make discovery of all documents relevant to the identity of the author of the Email and that the plaintiff be permitted to serve interrogatories relating to the authorship of the emails.[59] In his reasons, his Honour records that he was satisfied that the plaintiff was then unable to ascertain the description of the author of the Email sufficiently to commence proceedings against the person.[60] There was no order setting the time for the delivery of interrogatories and answers, this came later in the orders of John Dixon J made on 29 July 2016. Why that is so is not made clear.
[59]Johnston v Holland [2016] VSC 340.
[60]Ibid [5] and [10].
Initially, interrogatories were delivered on about 26 August 2016. They were objected to and revised interrogatories were delivered on 5 September 2016.[61] On 27 September 2016, the defendant’s solicitors filed and served her answers to interrogatory in accordance with John Dixon J’s orders. In her answers, the defendant swears:[62]
[61]Schwarz Affidavit, exhibit ZCS-25.
[62]Some of this information in the answers to interrogatories was foreshadowed in a letter sent by the defendant’s solicitors on 3 June 2016: see the Schwarz Affidavit [54].
(a) that she set up the Email Account in or around February 2015 and handed the login and password details to Murray on a piece of paper;[63]
(b) Murray told her that he wanted to email people in relation to issues at the School but did not want to do so from his personal or work email account;[64] and
(c) that she knows who published the Email[65] and that she believes (sic) that person to be Murray and that he asked her to set up the Email Account and that Murray is the only person to have the login and password.[66]
[63]Answer to interrogatory 2.
[64]Ibid.
[65]Answer to interrogatory 6.
[66]Answer to interrogatory 7.
About two and half months later, on 1 December 2016, the solicitors for the plaintiff wrote to the solicitors who had acted for Murray in the earlier preliminary discovery application notifying them that the plaintiff intended to join Murray as a defendant in this proceeding and seeking his consent to being added as a defendant and to an extension of the limitation period. This letter sets out in an attached table various representations made by and on behalf of Murray which are contradicted by subsequent evidence which emerged from the preliminary discovery applications against him and the defendant. No response was received from the former solicitors for Murray and the same correspondence was emailed to Murray personally on 21 December 2016. No response was received from Murray and the summons issuing this application was issued on 21 February 2017.
Plaintiff’s submissions- the Email and the Tweets
The plaintiff submits that it was not reasonable in the circumstances for him to commence proceedings against Murray within 12 months of publication as he was not aware Murray was the author until after 27 September 2016. The plaintiff was delayed significantly in his ability to ascertain the authorship of the Email and involvement in the publication of the Tweets due to the obfuscation of Murray and the defendant.[67] Counsel for the plaintiff emphasised that the material in evidence, referred to in summary above, showed that both the defendant and Murray had misled the plaintiff as to the identity of Mr T as the author/publisher of the Tweets and the Email. This made it ‘not reasonable’ in the circumstances for the plaintiff to commence proceedings against Murray within the one year limitation period.
[67]Plaintiff’s Submissions [7], [12].
Murray’s submissions –the Email and the Tweets
Murray submits[68] that the Court ought to find that it was not reasonable for the plaintiff to have failed to commence an action within one year of publication and accordingly the Court should not extend the limitation period. If the limitation period is extended beyond the one year period, it should not be extended beyond the time within which it remained unreasonable to have commenced proceedings.[69]
[68]Outline of Submissions for proposed second defendant on plaintiff’s summons dated 21 February 2017 (‘Murray’s Submissions’).
[69]Murray’s Submissions [9], 5 [14]-[16].
The plaintiff’s awareness of the Tweets and Email cannot have come later than April 2015, when the plaintiff apparently received a bundle of relevant emails from ‘an anonymous person or persons’.[70] These included emails referring to the Twitter Account and Email Account, including an email from Murray on 6 February 2015 at 10.56am, which would have enabled the plaintiff to make the type of allegation in relation to the Tweets by Murray that he now wants to make.[71] Indeed, the plaintiff’s own submissions to the Court in August 2015 referred to the 6 February 2015 email and ‘campaign’ by Murray.[72] The plaintiff’s solicitors received yet further relevant emails on 30 July and 4 September 2015.[73]
[70]Zimet Affidavit pages 38 [10], 50, 51, 52, 59.
[71]Email of 24 January 2015: Zimet Affidavit 50 (another copy is the first attached email at Schwarz Affidavit exhibit ZCS-9); email of 6 February 2015 at 07:45: Zimet Affidavit page 51; email of 6 February 2015 at 10:56: Zimet Affidavit page 52 (another copy is the first attached email at Schwarz Affidavit exhibit ZCS-5).
[72]Zimet Affidavit 34 [9]-[10].
[73]30 July 2015: see Schwarz Affidavit exhibit ZCS-10 and Zimet Affidavit 26; see Schwarz Affidavit exhibit ZCS-18.
Murray submits that despite being in possession of all this material, the plaintiff elected to commence an action against the defendant in relation to the Tweets and making no allegation that Murray also published the Tweets by way of ‘campaign and encouragement’ as he now wants to do.[74] He points to the fact that the plaintiff’s further enquiries of the defendant and her solicitors focused exclusively on the identity of the publisher of the Email, as did the interrogatories. Murray submits that it cannot be said that these enquiries made it ‘not reasonable’ to commence an action against Murray in relation to the Tweets.[75]
[74]Murray’s Submissions [20].
[75]Murray’s Submissions [21].
In any event, those enquiries can only be described as ‘desultory’, particularly given that the limitation periods in respect of the Tweets were expiring progressively between 18 January and 30 June 2016.[76] After writing to the defendant’s solicitors on 23 December 2015,[77] the plaintiff apparently then did nothing for nearly three months, until his solicitors followed up on 11 March 2016.[78] After receiving a response on 24 March 2016, the plaintiff apparently took no action for more than two months, until his solicitors responded on 31 May 2016.[79] Even after T Forrest J ruled on the applicant’s preliminary discovery application on 16 June 2016, interrogatories were not served until 5 September 2016, some two and a half months later.[80] By that time, the last limitation period in respect of the pleaded publication of the Tweets had long expired.
[76]Cf. Pingel [37] (Fraser JA); Wookey v Quigley (No 2) [2010] WASC 209 [52]-[55] (Martin J); Clark v Ibrahim [2014] VSC 30 [77] (Zammit AsJ); Lakaev v Denny [2010] NSWSC 1480 [55] (Fullerton J).
[77]Schwarz Affidavit exhibit ZCS-23.
[78]Schwarz Affidavit exhibit ZCS-24.
[79]Ibid.
[80]Schwarz Affidavit [56]-[58].
The plaintiff received the defendant’s answers to interrogatories in September 2016 and did not act promptly to commence the action, waiting until 1 December 2016 to contact Murray’s lawyers and then delaying until 21 February 2017 before filing the application.[81] Accordingly, Murray contends that the Court should not extend the limitation period for the duration of time sought by the plaintiff as it cannot be satisfied that it was not reasonable to commence an action until the present application was made[82] and that the plaintiff cannot satisfy the test in s23B(2) of the LAA.
[81]Murray’s Submissions [24].
[82]Murray’s Submissions [25].
Murray submits that the plaintiff’s application should be dismissed with costs. If the Court does grant the extension, Murray submits that the appropriate and usual order, that costs are reserved or the plaintiff’s costs be costs in the cause of the defamation proceeding, should be made.[83] If the plaintiff seeks costs orders against Murray on the basis of an allegation that he misled the plaintiff about the identity of the publisher of the Email or Tweets it is not appropriate to determine that allegation by way of a ‘mini-trial’ on this application. This is a matter that can only be determined at trial: it is, for example, a circumstance relied on by the plaintiff in support of his claim for aggravated damages.[84]
[83]Murray’s Submissions [34]-[36].
[84]PFASOC [22(f)]; Murray’s Submissions [36].
The defendant’s submissions – The Email
The defendant focused on the insufficiency of the pleading against the defendant in relation to the Email. I will address that below.
Consideration
The Email – The First Limb of s 23B of the LAA
In the circumstances related in the affidavits, particularly the Schwarz Affidavit, as set out above, the first issue is whether the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding against Murray in respect of the Email within one year from 2 April 2015, the agreed date of publication of the Email. If the Court is so satisfied, then it must extend the limitation period for a period of up to three years from the date of publication.
The facts reveal quite clearly that the plaintiff was not aware that there was a sufficient factual basis to allege that Murray was the publisher of the Email until the defendant provided answers to interrogatories on 27 September 2016. Further, at all times during the one year period from 2 April 2015 until the expiry of the limitation period on 3 April 2016, there was no proper basis to allege that Murray was the publisher of the Email. I am satisfied that the Email came to the attention of the plaintiff on about 1 May 2015.
The evidence advanced in support of the application shows that during that one year period, it would have been entirely speculative for the plaintiff to allege against Murray that he was the publisher of the Email. There are, however, also periods of inactivity by the plaintiff during that period within which the plaintiff may have taken pre-action steps, as were later taken, to obtain discovery relating to the identity of the author of the Email. Full weight must be given to the periods of apparent inactivity, or what Murray’s counsel described as ‘desultory’ enquiries.
Matters supporting satisfaction of the test
The following matters support the plaintiff’s submission that there was no proper basis to commence a proceeding for defamation against Murray in respect of the Email, and it was therefore not reasonable to commence such proceedings, during the one year limitation period.
The plaintiff’s initial view was that Murray was aware of the identity of the author of the Tweets and the Email and that led to the letter to Murray dated 15 June 2015.[85] Murray’s response (referred to above at paragraph 23) might have been strictly accurate, but if the plaintiff’s answers to interrogatories are correct, the response was dissembling, in the sense that it avoided a truthful answer.
[85]Schwarz Affidavit, exhibit ZCS-2.
By the letter dated 30 July 2015 in the lead up to the r 32.03 discovery application by the plaintiff, Murray’s then solicitors wrote to the plaintiff’s solicitors and said that they were instructed that Murray did not receive the Email and ‘does not now have, nor has he ever had, in his possession and electronic copy of that Email…The first time he saw the offending email was when a copy was sent to him by your firm’.[86] Either the defendant’s answers to the plaintiff’s interrogatories are seriously mistaken, or Murray had misinformed or misled his former solicitors.
[86]Schwarz Affidavit, exhibit ZCS-10.
In the same letter Murray instructed that he ‘does not know the identity of Mr T’, and did not receive the Email. Again, either the defendant’s answers to the plaintiff’s interrogatories are seriously mistaken, or Murray had misinformed or misled his former solicitors. Moreover, the email dated 6 February 2015 at 10.51am produced by the plaintiff and exhibited to his solicitors letter to the defendant of 23 December 2015 shows that Murray is likely to have been aware of Mr T’s identity by 6 February 2015 at the latest.[87]
[87]See the email dated 6 February 2015 at 10.51am in exhibit ZCS-23.
When on 3 August 2015 the plaintiff’s solicitors wrote asking the defendant directly whether she was Mr T, the author of the Tweets and the Email,[88] the defendant responded ‘I am not Mr T nor do I know who this person is’.[89] When later, the plaintiff is the subject of the writ, she admits publishing the Tweets and at least one of the Tweets refer to the publisher as ‘Mr T’. Further, and once again, the email dated 6 February 2015 at 10.51am attached to the plaintiff’s solicitors letter to the defendant of 23 December 2015 shows fairly clearly that the defendant claimed to be Mr T.
[88]Schwarz Affidavit, exhibit ZCS-12.
[89]Schwarz Affidavit, exhibit ZCS-13.
Murray’s solicitors wrote to the plaintiff’s solicitors on 4 August 2015 confirming their instructions that Murray at no time sent an email to or received an email from the Email Account.[90]
[90]Schwarz Affidavit, exhibit ZCS-14.
In submissions to the Court during the plaintiff’s discovery application against Murray, counsel for Murray submitted (no doubt on instructions) that he provided to the plaintiff’s solicitors all information and documents he had in relation to his knowledge of the identity of the persons against whom the plaintiff might seek to commence litigation.[91] On inspection of Murray’s computer in accordance with the orders of John Dixon J made on 14 August 2015,[92] an email from the Email Account to Elizabeth Morgan was found, apparently blind copied to Murray.[93]
[91]Schwarz Affidavit, exhibit ZCS-15.
[92]Schwarz Affidavit, exhibit ZCS-16.
[93]Schwarz Affidavit [35], Affidavit of Corey David Jankie, exhibit CDJ-3.
The discovery provided by Murray pursuant to the orders of John Dixon J not only provided the information referred to in paragraph 29 above (which lead the plaintiff to believe the defendant was the publisher of the Email), but also revealed an email dated 6 February 2015 at 10.51am from the defendant giving instructions to Murray on how to make comments without being traced by sending an email to the Email Account or using the private message facility on Twitter. At the conclusion of that email, the defendant says ‘..was going to send it from Mr T’s but don’t want to implicate you as Mr T’s chief correspondent’.[94] That email is also revealing because it provides the source of the content of the email of 6 February 2015 referred to in paragraph 22 above.[95] This material shows that it was reasonable to conclude, and there was a proper basis for the allegation, that the defendant was the publisher of the Tweets and the Email.
[94]Schwarz Affidavit, exhibit ZCS-18.
[95]Schwarz Affidavit, exhibit ZCS-5.
Justice John Dixon had ordered an oral examination of Murray as to the identity of Mr T. On the strength of this material, that examination was abandoned by the plaintiff and a letter of demand was sent to the defendant.[96] This elicited a response from the defendant’s solicitors which can be described as ‘stonewalling’.[97]
[96]Schwarz Affidavit, exhibit ZCS-19.
[97]Schwarz Affidavit, exhibit ZCS-21.
After commencement of the proceeding, and before delivering any defence, the defendant’s solicitors wrote on 15 December 2015 to make complaints about the statement of claim. At the end of the letter, it was noted that should there be application for summary judgment or striking out of the statement of claim, the defendant would swear an affidavit that she did not publish the Email.[98]
[98]Schwarz Affidavit, exhibit ZCS-22.
This elicited a detailed response from the plaintiff’s solicitors, by letter on 23 December 2015, who referred to the material that identified the defendant as ‘Mr T’ and sought discovery from the defendant of documents relevant to the identity of the publisher of the Email.[99] Reference was made to the overarching obligations to discover documents critical to the resolution of the dispute[100] and foreshadowed an application for discovery under r 32.03 or 32.04 of the Rules.
[99]Schwarz Affidavit, exhibit ZCS-23.
[100]CPA, s 26.
There was no response from the defendant’s solicitors over the Christmas break. The defendant’s defence was filed on 2 February 2016 denying publishing the Email, but also pleading substantive defences to it, including justification. At this point, the plaintiff was, quite reasonably, unsure of the basis of the defendant’s denial of publication of the Email and uncertain as to the authorship and publication of the Email, Murray having apparently denied publishing it. It would not have been appropriate for the plaintiff to commence an application to join Murray at this point because there was no proper basis for an allegation that he had been the author or publisher of the Email.
It is then important to pause in the chronology of events to reflect on the periods when the plaintiff’s inactivity might be said to affect the ‘not reasonable’ test.
Matters against satisfaction of the test
The plaintiff continued to pursue discovery from the defendant. Having received no reply to their 23 December 2015 letter, the plaintiff’s solicitors wrote again, nearly two and a half months later, on 11 March 2016 requesting discovery of documents relevant to the identity of the publisher of the Email.[101] There is no explanation for this delay nor for the gap between the delivery of the defence and sending the letter of 11 March 2016.
[101]Schwarz Affidavit, exhibit ZCS-24.
The plaintiff’s solicitors had obtained material earlier from Murray which pointed strongly to the defendant being the author and publisher of the Email, but now the defendant denies publishing it and failed to respond to requests for discovery of relevant documents. The continuing uncertainty facing the plaintiff as to the identity of the publisher of the Email should have spurred the plaintiff into action to launch the application for discovery that was later made. Much may have been done by the plaintiff, at least in the second half of January and early February 2016, to pursue the discovery application threatened in the letter of 23 December 2015;
On 24 March 2016, the defendant’s solicitor responded to the letter of 11 March 2016 refusing to give discovery.[102] Nothing relevant then happened before the expiry of the limitation period applicable to the Email on 3 April 2016. The defendant filed an amended defence on 6 April 2016, retaining the denial of publication of the Email but abandoning the substantive defences previously pleaded.
[102]Schwarz Affidavit, exhibit ZCS-24.
Throughout the limitation period, there was not a sufficient or proper basis to allege that Murray authored or published the Email, but there were periods of apparent inactivity that are unexplained and within which application might have been made for discovery against the defendant.[103] Even if that discovery had not been finally obtained until after the expiry of the limitation period, the initiation of that process at a much earlier stage would have made the continuing uncertainty as to the identity of the author of the email much more reasonable and supported the continuing unreasonableness of commencing proceedings.
[103]One of the periods of inactivity that remained unexplained was between receiving the emails on about 1 May 2015 and writing to Murray on 15 June 2105. Counsel for Murray relied on this as evidence of the desultory approach of the plaintiff to the pursuit of the proceeding. In light of the later delays, it is not significant.
Certainly, the plaintiff was unable positively to identify the publisher, and was without the evidence necessary to establish a proper basis to allege that Murray was the publisher during the year after the publication. As a consequence, it would have been speculative or irresponsible to commence proceedings against Murray in respect of the Email.[104]
[104]Noonan [17]; cited with approval in Casley, [2013] VSCA 182, [41]. It would have been a breach of the overarching obligations under the Civil Procedure Act 2010 (‘CPA’), for the plaintiff to commence proceedings against Murray in respect of the Email: see s 42 (1A) and (3) of the CPA.
The period of January to March 2016, when there was a paucity of activity by the plaintiff, was the appropriate time to bring the application later brought for discovery against the defendant. When the discovery application came to be made on 7 June 2016, it was heard on 10 June 2016 and judgment was given on 16 June 2016. The materials to support that application were available in late 2015.
In the course of the hearing of the discovery application before T Forrest J, counsel for the defendant submitted that his Honour should take into account in the exercise of the discretion under r 32.03 and r 32.04 of the Rules, that the limitation period applicable to the Email had already run out and that the plaintiff could not demonstrate that it was not reasonable in the circumstances to bring the action within time, so any application to join any person identified as a result of the discovery given would fail and granting the discovery ‘would be a futile exercise’.[105]
[105][2016] VSC 340, [8].
In making that submission, Counsel for the defendant took his Honour to Lakaev v Denny,[106] and Clarke v Ibrahim.[107] In Clarke, Zammit AsJ (as she then was) considered it critical that there had been an opportunity to discover the identity of anonymous internet posters within 12 months of publication, and that the plaintiff had not availed himself of preliminary discovery during that period. T Forrest J observed:
It is trite to say that each case turns on its own facts. I have set out a chronology of some of the efforts made by the plaintiff to establish the identity of the author of the email at paragraph [5] of these reasons. In my view, the plaintiff did not sit on his hands doing nothing in the 12 months following publication; his solicitors were proactive in endeavouring to ascertain the email’s author and, I consider, were ‘stonewalled’ by the defendant. It will be recalled that the defendant did not respond to the 23 December 2015 letter for three months, and then deflected the identity inquiry.[108]
[106][2010] NSWSC 1480.
[107][2014] VSC 30.
[108][2016] VSC 340, [10].
I am of course not bound by this observation, as it arises in a different application. But the material before me does show that for a significant period, the plaintiff did ‘sit on his hands’, despite the conduct of the defendant and Murray showing that they ‘stonewalled’ the plaintiff and may have misled the plaintiff.
Is that ‘stonewalling’ conduct by the defendant and Murray enough to overcome the considerable gaps in the plaintiff’s activity in pursuing the discovery application against the defendant? The various statements referred to above at paragraph 16 show, in my view, that the plaintiff has not met the standard of timeous action required. When in January and February 2016, the expiry of the limitation period in respect of the Email was approaching, swift action was called for. There was no room for delay.[109] The plaintiff adopted a desultory approach, involving delay in taking the pre-action steps that would have revealed the author of the Email.
[109]Wookey v Quigley (No 2) [2010] WASC 209 [52]-[55] (Kenneth Martin J).
In my view, the plaintiff has not discharged the burden of establishing to my satisfaction that from an objective perspective it was not reasonable for the plaintiff to have commenced a proceeding within one year of the publication of the Email.
If I am wrong in this conclusion, and the delay in making the application for discovery against the defendant is excusable because of the ‘stonewalling’ behaviour of the defendant and Murray, and I would be bound to extend the limitation period of one year to a period of up to 3 years from the date of publication, namely up to 3 April 2018. If, contrary to my view, the plaintiff has satisfied the test for an extension of the limitation period, what is the appropriate length of the extension?
The Email – The Second Limb of s 23B of the LAA
The Court is not bound to extend the limitation period until the date the proceeding was actually commenced,[110] and the length of the extension is a matter within the Court’s discretion. It would not be a proper exercise of the discretion to extend time beyond the period within which it was thought unreasonable to have sued.[111] Ordinarily, the discretion should be exercised to extend time to the point at which it ceased to be ‘not reasonable’ in the circumstances for the plaintiff to have commenced an action.[112]
[110]Casley [39]-[40].
[111]Casley (2013) VSCA 182, [71] (Hansen JA; Robson AJA agreeing), referring to Noonan 550, [66].
[112]Noonan 47,[66] (Chesterman JA); Ritson v Gay & Lesbian Community Publishing Ltd& ors [2012] NSWSC 483 (18 May 2012) [62]; McMahon v Watkinson [2014] VSC 123 [57] (Zammit AsJ).
I have referred to the events that followed the expiry of the limitation period. From the time the defendant filed an amended defence on 6 April 2016, (retaining the denial of publication of the Email but abandoning the substantive defences previously pleaded) to the time the answers to interrogatories were answered on 27 September 2016, there was no proper basis for the plaintiff to have commenced a proceeding against Murray in respect of the Email. There is, however, no explanation for the delay of more than two months from 24 March 2016, when the plaintiff received a negative response from the defendant to his request for discovery, to 31 May 2016, when the plaintiff’s solicitors wrote to the defendant’s solicitors and foreshadowed a preliminary discovery application against the defendant for documents concerning the description of the publisher or publishers of the Email. Even after T Forrest J ruled on the applicant’s preliminary discovery application on 16 June 2016, interrogatories were not served until some two and a half months later.[113]
[113]Schwarz Affidavit [56]-[58].
It is the defendant’s answers to interrogatories that mark the point when the plaintiff had a sufficient and proper basis to allege that he published the Email. There is then another period of inactivity of about 2 months until 1 December 2016, when the solicitors for the plaintiff sent to the solicitors who had previously acted for Murray notice of intention to join him as a defendant to this proceeding. This gap is unexplained in the evidence, but was said by counsel to have been occupied in conferences with solicitor and counsel, reviewing the documents provided by the defendant in discovery,[114] preparing draft amended pleadings and dealing with issues arising in the proceeding against the defendant.
[114]T Forrest J ordered discovery of document’s relevant to the identification of the author of the Email. That discovery was made by affidavit filed on 29 August 2016.
There was no response to the 1 December 2016 letter, and the plaintiff’s solicitor was told in a telephone conversation that new and unidentified solicitors would respond. They did not. A letter in the same terms was written directly to Murray on 21 December 2016. The letter put Murray on notice of the plaintiff’s intention to join him as a defendant to this proceeding and sought his consent to be added and for an extension of the limitation period. There was no response to this letter. The application was issued on 21 February 2017.
The time between receipt of the defendant’s refusal to give discovery as requested in the plaintiff’s letter of 24 March 2015 and the discovery application in June 2015, between the successful outcome in the discovery application and the delivery of interrogatories, and between the answers to interrogatories and the sending of the letter to Murray’s former solicitors on 1 December 2016, shows, once again, a desultory approach to the commencement of the proceeding against Murray. There is no adequate explanation for these delays. Given the history of the dealings between the plaintiff and Murray, there could not have been any real prospect that he would agree to be joined as a defendant and to extend the limitation period. No doubt the plaintiff had to get advice, including advice from counsel, at a busy time of the legal year, consider the documents discovered by the defendant and previously discovered by Murray, prepare the claim and consider the pleading of the claim against Murray, and deal with the interlocutory matters in the proceeding as against the defendant.
But in my opinion, the period between 27 September and 1 December 2016 was more than enough time within which to consider and formulate a claim against Murray. It was fair of the plaintiff to give notice to Murray of the plaintiff’s intention to commence proceedings against him and to seek his co-operation in that course, as was done by the letters of 1 and 21 December 2016. But that should have been done at the latest in October 2016. The lack of response from Murray can be seen, having regard to his previous conduct, as another attempt to ‘stonewall’ the plaintiff. The prior experience of this conduct should have been a forewarning to the plaintiff that there would be no co-operation of that kind from Murray.
Then there is the period between 21 December 2016 (the date of the letter to Murray personally) and 17 February 2017, when counsel for the plaintiff raised with John Dixon J the proposal to apply to join Murray as a defendant and apply to extend the limitation period. It seems to me that the plaintiff allowed too long for Murray to get advice and to respond to that letter. Admittedly, this period includes the Christmas and New Year holidays and, by the time the application was filed on 21 February 2017, the solicitor’s for the plaintiff, and very likely his counsel, had performed a considerable amount of work in preparing the Schwarz Affidavit and its exhibits.
In relation to these periods of apparent inactivity, counsel for the plaintiff relied on s 28 of the CPA, which provides that in exercising any power in relation to a civil proceeding, the Court may take into account any contravention of the overarching obligations. He referred to the obligation to act honestly at all times in relation to a civil proceeding, and the obligation not to engage in conduct that is misleading or deceptive or likely to be so in respect of a civil proceeding.[115] He pointed to breaches by Murray of his obligations as the respondent to the preliminary discovery application that was heard by John Dixon J in 2015.
[115]Sections 17 and 21 of the CPA.
The power in s 28 of the CPA is very wide. There is no reason why breaches of obligations arising under the CPA should not inform the exercise of the discretion under the second limb of s 23B of the LAA, providing it can be seen that there is a clear connection between the breach of the obligation and the failure to commence proceedings. In this case, the alleged breaches all preceded the revelation brought about by the defendant’s answers to interrogatories. There is no connection between the breaches constituted by Murray’s conduct and the delay between September and December 2016, or between December 2016 and February 2017.
In any event, I accept the submission made by Mr Kirkwood of counsel on behalf of Murray that it is not appropriate to conduct some kind of mini trial on allegations of misleading conduct on an application of this kind.
Having regard to the many statements to which I have referred about the importance of a prospective plaintiff acting timeously, of the public interest in the speedy commencement and determination of defamation actions, and the need for swift action, there being no room for delay, and so on, in relation to the Email I am not satisfied that the plaintiff has, in the period since the expiry of the limitation period, demonstrated that the time within which it remained unreasonable to have commenced proceedings extends to the date of the application. The period within which it would have been unreasonable to commence the application to join Murray expired, in my view, in December 2016.
The Tweets
Much of the factual material advanced as to whether the test under s 23B of the LAA is satisfied in relation to the Email are applicable to the issue of proceeding against Murray in respect of the Tweets. In particular, the 1 May emails, when read with the defendant’s answers to interrogatories, support the allegation that there was a campaign to remove the plaintiff as principal of the school, and that the defendant and Murray were in cahoots in pursuing that campaign.
The plaintiff’s case in relation to publication of the Tweets is that it can be inferred (and evidence can be called at trial to prove) that people downloaded the Tweets on the dates they were uploaded until they were removed on 30 June 2015. It is the time when the Tweets were downloaded and read that is the relevant time for publication.[116] That would have happened throughout that period to 30 June 2015, because on a Twitter feed, the earlier tweets are accessible when a later tweet is accessed. On the other hand, I was taken by Murray’s counsel to the cases on multiple publications[117] to establish the proposition that the publication of a defamatory matter constitutes a separate cause of action with its own limitation period. Murray contended that the downloading, or viewing, and reading of a tweet by different third parties gives rise to separate publications and therefore separate causes of action with their own limitation periods.[118]
[116]Dow Jones v Gutnick (2002) 210 CLR 575.
[117]Including Dods v McDonald (No 1) [2016] VSC 200 [14] (Bell J).
[118]Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 [57]-[76]; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 [26]-[27] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Regardless of whether the Tweets were published on the earlier dates or the later date when they were removed, it was not reasonable for the plaintiff to issue proceedings at that time when the Tweets were on the feed. The campaign was unfolding, information was emerging. The anonymity of the Tweets meant that the plaintiff could not take action at that time. It was when the emails emerged on about 1 May 2015 that there was a basis to allege that Murray could provide information as to the identity of Mr T, principally because in the email of 6 February 2015 he writes: ‘I've approached Mr T.’ The events that then followed are relayed above in relation to the Email.
There is considerable force in Murray’s submission that the plaintiff’s proposed pleading of his participation in the publication of the Tweets could have been alleged at the time he sued the defendant. The emails available to the plaintiff from 1 May 2015, together with further emails later obtained, show that the pleading proposed in paragraph 3A of the PFASOC (as to which see paragraph 93 below) might have been advanced at the commencement of the proceeding.[119] There would have been objection to the form of the pleading, as there is now, and arguments about whether the facts support his control over, or assent to, the relevant words uploaded to the Twitter Account to warrant the plea of publication. Notwithstanding this possibility, it is enough for present purposes to focus on the material that is relevant to the Email, as the considerations relevant to the conclusion I reach in relation to the application of the test to that publication also apply to publication of the Tweets.
[119]Appendix 2 to Murray’s Outline of Submissions (headed ‘Extracts from Emails’) sets out the substance of the material available.
That is so because the answers to interrogatories provided the connection between Murray’s alleged involvement in publishing the Email, and in his access to the Email Account, and the Tweets. In particular, the last interrogatory concerned a document discovered by the defendant entitled ‘Microsoft word document containing copies of the text of various emails sent to [email protected].’[120] The interrogatory was:[121]
22. Please provide the usual particulars of any publication of item 43.
[120]Item 43 in the defendant’s affidavit of documents sworn 18 July 2016.
[121]Schwarz Affidavit, exhibit ZCS-25.
The answer given was:
I copied and pasted various emails sent to the Email Account into a Microsoft Word document and then used the text contained in the Microsoft Word document to form the basis of various tweets which were tweeted by me using the twitter handle @TanPersonSays.[122]
[122]Schwarz Affidavit, exhibit ZCS-26.
In the result, I consider that the circumstances relevant to the extension of the limitation period in respect of the Tweets should follow the extension of that period in relation to the Email, and the result is that the application to extend the limitation period to add the allegation that Murray was involved in publishing the Tweets should be refused.
If I am wrong in this conclusion, it is necessary to consider the argument that the pleading of the involvement of Murray in the publication of the Tweets is embarrassing and should not be allowed, at least in its current form. A similar question arises in relation to the allegation proposed against the defendant in relation to the publication of the Email. Because these issues were fully argued, it is appropriate to deal with them.
The Pleading Points
The pleading of the allegation that Murray was a co-publisher of the Tweets with the defendant is in paragraph 3A, and that the defendant was a co-publisher of the Email with Murray is in paragraph 18A, of the PFASOC.
Paragraph 3A is as follows:
3A. The second defendant:
(a) authorised; and/or
(b) assented to; and/or
(c) encouraged; and/or
(d) promoted; and/or
(e) lent his assistance to;
publication of the Tweets and thereby published the Tweets.
Particulars
(i) From at least 13 January 2015 and until at least 30 June 2015 the second defendant and first defendant conducted a campaign with others to remove the plaintiff as Principal of the School (the Campaign).
(ii) As part of the Campaign the second defendant encouraged disaffected former staff of The School, including the first defendant, to post tweets on Twitter using the Twitter handle @TanPersonSays (the Twitter Account).
(iii) Further, the second defendant encouraged disaffected former staff of The School to send to the second defendant emails about the plaintiff which he or the first defendant would republish in part as tweets using the Twitter Account.
Paragraph 18A is as follows:
18A. The first defendant:
(a) authorized; and/or;
(b) assented to; and/or
(c) enabled; and/or
(d) lent her assistance to;
publication of the Email and thereby published the Email.Particulars
(i)The first defendant set up the Email Account in or around February 2015;
(ii)The first defendant provided the login and password details to the second defendant with the knowledge and intention that the second defendant would use the Email Account for the purpose of writing and sending an email or emails about the plaintiff as part of the Campaign.
Further particulars may be provided after discovery and interrogatories.
If the limitation period is extended, Murray opposes the plaintiff’s application to file and serve the PFASOC. Murray submits that the form of the proposed pleading in relation to the Tweets is embarrassing and should not be allowed.[123] He submits:
(a) first, that it is internally inconsistent. On the one hand, it alleges that Murray encouraged disaffected former staff to send him emails about the plaintiff which ‘he or [Ms Holland] would republish in part as tweets using the Twitter account’.[124] On the other hand, it alleges that Ms Holland wrote and uploaded the Tweets sued upon.[125] These allegations are internally inconsistent and render the pleading embarrassing;[126] and
(b) second, it does not plead the necessary matters to establish liability on the part of Murray as a publisher of the Tweets. The authorities make clear that for a person to be liable as an original publisher, it is necessary for a plaintiff to establish either control by that person over the publishing process or assent by that person to the final form of the publication.[127] The proposed form of pleading is incapable of establishing these matters in relation to Murray.
[123]Outline of Defendant’s Submissions dated 13 June 2017 (‘First Defendant’s Submissions’).
[124]PFASOC [3A], particular (iii).
[125]PFASOC [3].
[126]Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85 [75]-[78] (Jessup and Dodds-Streeton JJ); Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 [19]-[20] (Collier J).
[127]Dank v Whittaker (No 1) [2013] NSWSC 1062 [20]-[33] (McCallum J) (‘Dank’) (leave to appeal refused: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [144] (Ward JA; Emmett and Gleeson JJA agreeing [156], [158]) addressing the principles identified by Isaacs J in Webb v Bloch (1928) 41 CLR 331, 363-365.
The defendant submits that the plaintiff should not be allowed to plead paragraph 18A of the PFASOC. The substantive allegation, read with the particulars, is incapable of establishing that the defendant is a publisher of the Email, and the particulars are incapable of sustaining an allegation of control over or assent to the publication or any degree of awareness or control of the relevant words that were published. It supports that submission by reference to the following principles and propositions:
(a) liability as an original publisher is premised on establishing either control over the publishing process or some form of assent or approval given to the final form of the relevant publication;[128]
[128]Dank [22]-[26].
(b) without particulars capable of establishing some measure of control or assent, a claim that a person is an original publisher of material (of which they were not the author) will be liable to be struck out;[129]
[129]Dank [33]; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 [3]-[37].
(c) in the law of defamation, to determine responsibility for a publication, it is necessary to focus on what the person did, or failed to do, in the chain of communication;[130]
(d) to be a publisher of an allegedly defamatory article, it is essential that the person has a degree of awareness or at least an assumption of general responsibility;[131] and
(e) there must be knowing involvement in the process of publication of the relevant words. It is not enough that the person merely plays a passive instrumental role in the process.[132]
[130]Bunt v Tilley [2007] 1 WLR 1243; Kenyon v Sabatino [2013] WASC 76 [16]-[18].
[131]Bunt [18].
[132]Emmens v Pottle (1885) 16 QBD 354, 357 (per Lord Esher MR [21]-[23]).
The plaintiff submits that paragraphs 3A and 18A of the PFASOC sufficiently plead publication within the principles set out in Webb v Bloch,[133] as explained by Beach J in Trkulja,[134] where his Honour said:
In essence, subject to the defence of innocent dissemination available to distributors, all those who might be described as in ‘any degree accessory’ to the publication are liable in defamation. This includes all participants in, and enablers of, the dissemination of defamatory matter.
[133](1928) 41 CLR 331, 364.
[134]Trkulja v Google Inc & Anor [2010] VSC 490 [23].
The plaintiff points to the facts in the particulars to establish the defendant’s publication of the Email and contends that the pleading is not scandalous, frivolous or vexatious, nor can it be said to prejudice, embarrass or delay the fair trial of the proceeding nor is it otherwise an abuse of process.[135] The plaintiff submits that further particulars are not required to enable the defendant to plead, define questions for trial or avoid a surprise at trial.[136]
[135]Plaintiff’s Submissions, 8 [13]-[16].
[136]Plaintiff’s Submissions, 9 [17].
In each case, the plaintiff relies on the authority of Webb v Bloch to make the allegations of publication against Murray and the defendant, respectively. Webb v Bloch concerned a circular to grain growers written by a solicitor, Norman, for a Victorian Wheat Compensation Committee that defamed the chairman (Webb) of the South Australian Wheat Compensation Committee. The secretary of the Victorian Committee, Bloch, instructed Norman to publish the circular to grain growers in South Australia and the Committee later confirmed that decision, without having seen the circular. The defendants Crocker and Pratt saw the circular after confirming the decision. The evidence did not establish that the defendant Murphy ever saw the circular.
In relation to the meaning of publication, Isaacs J said:
The meaning of ‘publication’ is well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: ‘The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.’
…
In Parkes v. Prescott (1) Giffard Q.C. quotes from the second edition of Starkie; ‘All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.’
…
In The Queen v. Cooper (4) Lord Denman C.J. said: ‘If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.’
These observations in Webb v Bloch have been relied on countless times in determining whether a person is a publisher of defamatory material. Recent instances in Victoria are Trkulja v Google (No. 2),[137] Google Inc v Trkulja[138] and Defteros v Google Inc & Anor.[139] In Google v Trkulja the Court of Appeal, after reviewing decisions concerned with questions of publication by Google of defamatory material, said:
In our view, for reasons which we have attempted to explain, no analogy is entirely apt, and no one internet decision logically leads to another. We consider that the sound approach is to approach the matter by reference to first principles, as expounded in Webb.
[137][2010] VSC 490 (‘Trkulja v Google’).
[138][2016] VSCA 333 (’Google v Trkulja’).
[139][2017] VSC 158 (‘Defteros’).
On the other hand, as the Full Court of the Supreme Court of Queensland pointed out in Thiess v TCN Channel Nine Pty Ltd (No 5), it is necessary to use care in applying general statements of this kind. They were directed to identifiable defamatory statements, to the publication of which in the completed form, the defendants in question were held to have given their authority or approval.[140]
[140][1994] 1 Qd R 156, 194 - 195.
The plaintiffs submissions proceed on the basis that in relation to publication of both the Tweets and the Email, the PFASOC alleges that Murray and the defendant are liable as joint tortfeasors. John Dixon J considered the liability of joint tortfeasors for publication of defamatory material in Defteros. He referred to the requirement for liability as a joint tortfeasor, by reference to the High Court decision in Thompson v Australian Capital Television Pty Ltd:[141]
The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The ‘Koursk’, for there to be joint tortfeasors, ‘there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage …’ [T]o constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint and defamation is no exception.
[141](1996) 186 CLR 574 (‘Thompson’).
After quoting this passage, John Dixon J continued:[142]
A tort may be imputed to several persons or entities as joint tortfeasors where there is evidence of concerted action, that is, ‘concerted action to a common end’,[143] and not mere parallel activity or ‘a coincidence of separate acts by which their conjoined effect cause[d] damage’.[144] The critical element is that those participating in the commission of the tort acted in furtherance of a common design. Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, although it is not necessary that they should realise they are committing a tort.[145] All persons acting in pursuance of a common end, being so identified with each other, are responsible for the entire consequences of their concerted action.
[142]Defteros [48].
[143]The Koursk [1924] P 140, 152 (Bankes LJ), 156 (Scrutton LJ).
[144]Ibid, 159-160.
[145]Thompson v ACTV (1996) 186 CLR 574.
John Dixon J then returned to the observations of Isaacs J in Webb v Bloch, with particular reference to the passage referring to the situation where the defendant has been instrumental to the publication; ‘since, if he has intentionally lent his assistance to its existence for the purpose of it being published, his instrumentality is evidence to show a publication by him.’
The plaintiff also relied on the United Kingdom case of Dar Al Arkan Real Estate Development,[146] where a public relations firm was found to be joint tortfeasor in the publication of material which was calculated to harm the plaintiff - based on findings that the firm had participated in an orchestrated campaign for that purpose, including via the creation of a website. The plaintiff in this case submitted that was analogous to the circumstances in this case. In Dar al Arkan,[147] Andrew Smith J did not accept that it was fatal to making the public relations firm liable that it was not alleged that it knew of the precise words complained of before they were published, perhaps contrary to the reasoning of Eady J in Blunt v Tilley.[148]
[146]Dar Al Arkan Real Estate DevelopmentCompany & Anor v Majid Al-Sayed Bader Hashim Al Refai, & Ors [2013] EWHC 1630 (Comm) (‘Dar Al Arkan’).
[147]Dar Al Arkan [34].
[148][2006] EWHC (QB) 407; [2007] 1 WLR 1243 at [23]. Where Eady J said for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words.
Adopting the analysis of John Dixon J in Defteros,[149] the plaintiff submitted that she must establish three things:
[149]Defteros [56]-[57].
(a) first, a publisher must participate in the act of publication, that is, participate in any degree as an accessory to the publication or by any means whatever lead or contribute (conduce) in the chain of communication by which the defamatory material is passed from its originator to a third party who receives or perceives it. In this case, there is participation by Murray by conducting a campaign with the defendant to remove the plaintiff as Principal of the School, of receiving the Email Account login and the password, using it as part of a campaign to publish the very sorts of things that were published, encouraging disaffected former staff of the School, (including the defendant) to post the Tweets using the Twitter Account, encouraging disaffected former staff of the School to send to the him emails about the plaintiff which he or the defendant would republish in part as tweets using the Twitter Account;
(b) second, a publisher must intend to publish the material to third parties or be reckless as to whether his or her conduct will cause that to occur. In this regard, it is not necessary to intend the particular words. Here, there is a campaign in which Murray is knowingly involved and he knew the sort of things that were likely to be written as a part of that campaign. He had access to the Email Account and it was from the emails sent to that Account that the Tweets were sourced, according to the answers to interrogatories; and
(c) third, there is a well-established distinction between primary and secondary (or subordinate) publishers, the latter intending to publish material but being potentially unwitting as to its content. That is not relevant here.
The plaintiff contended that the decision of McCallum J in Dank v Whitaker (No.1)[150] should be distinguished on the basis that the statement of the law in that case needs to be seen in the light of the facts in the case, which were entirely different.
[150]Dank.
The decision in Dank concerned two of a number of proceedings commenced by Dr Dank arising out of the publication of a series of newspaper articles concerning the suspected administration of performance-enhancing substances to footballers at the Cronulla Sharks Football Club. The judgment concerns the striking out of pleadings of publication against medical practitioners who were quoted in the articles. The proceedings were commenced against the editor of the newspaper, the journalist under whose by-line the article appeared, the medial doctor who was quoted and others. It was alleged ‘in globo’ that all the defendants published, or caused to be published, of and concerning the plaintiff, the defamatory material. Particulars later given allege the doctor quoted in the article became a co-publisher when he made the statements to journalists knowing he would be republished. Webb v Bloch was relied upon, on the basis that as a participant in the defamatory publication, he is responsible for the whole of the damage suffered, because:
All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication are to be considered as principals in the art of publication ...[151]
[151]Webb v Bloch, Supra, 364.
Justice McCallum held that merely quoting the doctors in the articles was insufficient to found joint liability as an original publisher. She said:
The notion of control is comprehended within the role of a person such as the proprietor of a newspaper, an editor who determines what is published and, ordinarily, the author of the defamatory matter …Absent participation in a publication at that level of control, a person who merely contributes part of what is published will not be jointly liable as an original publisher of the whole unless he or she assents to its final form.
In the course of considering the strike out application, her Honour considered the decision in Webb v Bloch. She noted that the statements from Dank need to be approached with an understanding of the context in which they were made, and reviewed the case and the comments of the Full Court of the Supreme Court of Queensland in Thiess and other authorities, and concluded:
In my view, the authorities relied upon by Mr Richardson establish that, where a person merely contributes material to an article but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form.[152]
[152]Dank [26].
The application of the various statements in the authorities require a consideration of the context in which they were made. In the end, the question of whether or not Murray was a publisher or a co-publisher of the Tweets with the defendant is a matter of mixed fact and law.[153] The pleading is one matter, the underlying basis for the pleading is another. It seems to me that the pleading of proposed in paragraph 3A of the PFASOC is insufficient to sustain an allegation that Murray was a primary publisher with the defendant of the Tweets.
[153]Trkulja v Google (No 5), [2012] VSC 533, [18]; Kenyon v Sabatino [2013] WASC 76 [13].
The so-called particulars are, in truth, material allegations of fact that would need to be pleaded to set up the basis for joint publication, and those allegations themselves would need to be properly particularised by reference to the facts from the 1 May emails, other discovered documents and the answers to interrogatories. Take particular (i) to paragraph 3A as an example. It provides:
From at least 13 January 2015 and until at least 30 June 2015 the second defendant and first defendant conducted a campaign with others to remove the plaintiff as Principal of the School (the Campaign).
That is the statement of a conclusion from facts which are not identified. It is not a particular at all, and if pleaded as a material fact, would not be a proper pleading,[154] at least absent quite extensive particulars. In practice, it is often difficult to distinguish between a ‘material fact’ and a ‘particular’. Antecedent to that distinction however, is the definition of the level of generality at which the material facts should be pleaded. It is an ancient and established rule of pleading that the question of generality of pleading must depend upon the general subject-matter.[155]Whatever level of generality is adopted in a statement of claim it must be consistent with the purpose of pleadings, namely to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it. The sufficiency of the pleading may be judged first, by reference to the necessary condition that it disclose a reasonable cause of action and secondly, by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet.[156] The pleading in paragraph 3A of the PFASOC does not achieve the latter and may not achieve the former because of the difficulty of attributing to Murray sufficient facts to constitute him a primary publisher of the Tweets.
[154]Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109, 114-115 (Fisher J); H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242, 246-247; Trade Practices Commission v David Jones (Australia) Pty Ltd, (1985) 7 FCR 109, 114-115; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413, 417; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 [7]; Vo v Nguyen and ors [2013] VSC 304, [40]; Hoh and ors v Frosthollow Pty Ltd and ors [2014] VSC 77, [14]-[19].
[155]Ratcliffe v Evans [1892) 2 QB 524, 532; Op. Cit. Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413, 417; Hoh and ors v Frosthollow Pty Ltd and ors [2014] VSC 77, [16].
[156]Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413, 417 (French J, as he then was).
As the pleading presently stands, it cannot be allowed. But the ultimate issue would be, if the limitation period were extended, whether there was no basis to make an allegation of the kind advanced so that no leave could be granted to the plaintiff to make an allegation of that kind if it were properly pleaded and particularised. Whether it may be possible to plead publication of the Tweets by Murray if the limitation period were extended need not be determined at present. Suffice it to say that the form currently adopted does not sufficiently do that. The pleading does not descend from the entirely general allegations to particular matters that connect Murray to the acts necessary to fasten him with liability as a publisher. There is no particular that suggests any form of control over the process or something even approaching control through, for example, the conduct of the alleged campaign. There is nothing to suggest he later assented to or confirmed the publication of the Tweets by the defendant or that his conduct should in some manner be considered confirming of the defendant publishing the Tweets. There is nothing but general (unspecific) encouragement. I mention below some of the statements of principle from Webb v Bloch that, when they are applied to the pleading in paragraph 18A of the PFASOC, are still insufficient to sustain a plea of primary publication. The same sentiments apply to paragraph 3A of the PFASOC.
The defendant’s alleged publication of the Email is similarly deficient as a pleading. There is no extension of the limitation period involved in regard to that pleading. The only facts advanced to support the allegations of authorisation, assent, enabling or assistance are that the defendant set up the Email Account and provided the login and password details to Murray ‘with the knowledge and intention that [Murray] would use the Email Account for the purpose of writing and sending an email or emails about the plaintiff as a part of the Campaign’. That may arm Murray with the ability to send the Email, but it goes no further than that. Taking the statements or principle identified in Webb v Bloch at their highest, there is still insufficient in the particulars to link Murray to the particular Email sued on. The particulars do not enable the conclusion that the defendant intentionally lent her assistance to the ‘existence’ of the Email for the purpose of being published. The arming of Murray with ability to send the Email from the Account cannot in my view extend to making the defendant liable for its content. Similarly, adapting some of the language from Webb v Bloch, merely arming Murray:
(a) does not make the defendant ‘in any degree accessory’ to its publication because that notion depends on knowledge of the content of the Email before it is sent, or later confirmation of it - as happened in Webb v Bloch;
(b) nor does it mean the defendant has ‘by any means whatever’ conduced to the publication, because that has to do with the actual writing or sending of the Email;
(c) does not involve the defendant suggesting defamatory matter in order that Murray may write or print it, or publish it; and
(d) does not amount to a request to Murray generally to write a libel.
Costs in the discovery application
The defendant’s application for further and better discovery is resolved save for the issue of costs. The defendant applies for the plaintiff to pay the costs of and incidental to her application for further discovery made by summons filed 3 March 2017, supported by two affidavits.[157]
[157]Affidavits of Jason Anton Frydman, dated 3 March 2017 (‘First Frydman Affidavit’) and 9 June 2017 (‘Second Frydman Affidavit’).
The defendant maintains that she is entitled to an order for costs of and incidental to the application because:
(a) she wrote to the plaintiff to seek further discovery on 14 November 2016,[158] that is before issuing the summons. There were two follow up letters;[159]
[158]First Frydman Affidavit, exhibit JF-1.
[159]First Frydman Affidavit, exhibits JF-2 and JF-3.
(b) her solicitors received a response on 22 December 2016 stating that enquiries have been made and to the extent plaintiff is in possession of any relevant documents, they will be included in a further affidavit of documents in the new year;[160]
[160]First Frydman Affidavit, exhibit JF-4.
(c) there was a further follow up by letter dated 21 February 2017.[161] This letter significantly expanded the number of documents sought to be discovered compared with the initial letter of 14 November 2016. There was no response prior to the issue of the summons on 3 March 2017;[162]
[161]First Frydman Affidavit, exhibit JF-5.
[162]First Frydman Affidavit [8].
(d) the plaintiff provided a supplementary affidavit of documents on 17 March 2017. The inspection of the documents discovered by this affidavit revealed that none of the documents fell within the categories of documents sought to be discovered, according to Mr Frydman, the defendant’s solicitor;[163]
(e) Mr Frydman wrote on 30 March 2017 reminding the plaintiff’s solicitor of the fact that the existence of the categories of documents sought to be discovered had not been confirmed or denied despite references to such documents in other documents discovered by the plaintiff and the numerous requests in the earlier letters. The letter asked that the plaintiff to state categorically whether certain documents were in his possession custody or power;[164] and
(f) by letter dated 19 April 2017, the plaintiff’s solicitor responded confirming his instructions that there were no further documents as requested.[165] The defendant’s solicitor immediately replied restating in fuller terms what the plaintiff’s solicitor had confirmed and, after referring to the long drawn out process leading up to the confirmation from the plaintiff’s solicitor, proposing that the defendant withdraw or dismiss the summons on condition that the plaintiff pay the costs thrown away by the defendant by reason of the filing of the summons.[166] The plaintiff’s solicitor did not respond.[167]
[163]Second Frydman Affidavit, [7].
[164]Second Frydman Affidavit, exhibit JF-6.
[165]Second Frydman Affidavit, exhibit JF-7.
[166]Second Frydman Affidavit, exhibit JF-8.
[167]Second Frydman Affidavit [11].
There was no considered submission from the plaintiff in answer to these submissions and I am persuaded that this is a case where the plaintiff should pay the costs of and incidental to the defendant’s application for further discovery made by summons filed 3 March 2017.
Conclusion
In summary, my conclusions are as follows:
(a) the plaintiff has not established that it was not reasonable to bring proceedings against Murray in respect of the Email or the Tweets in the one year period following their various publication dates. Accordingly, there will be no extension of the limitation period;
(b) if, contrary to the conclusion in paragraph (a), the limitation period must be extended, it should not be extended beyond the time within which it remained unreasonable for the plaintiff to have commenced proceedings against Murray. That time was December 2016;
(c) the plaintiff has not sufficiently pleaded co-publication by the defendant of the Email and the amendments in the PFASOC as against the defendant should not be allowed in their current form; and
(d) the plaintiff is liable for the defendant’s costs of the earlier discovery application.
There is no reason presently apparent as to why the costs of the plaintiff’s application should not follow the event. Unless there is some other matter relevant to the costs that is raised, I propose to make orders that the plaintiff’s summons filed 21 February 2017 be dismissed with costs.
5
23
0