Johnston v Holland
[2016] VSC 340
•16 June 2016
| 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 |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 June 2016 |
DATE OF RULING: | 16 June 2016 |
CASE MAY BE CITED AS: | Johnston v Holland |
MEDIUM NEUTRAL CITATION: | [2016] VSC 340 |
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PRACTICE AND PROCEDURE – Application for oral examination of the defendant – Application for preliminary discovery – Whether or not plaintiff has made reasonable enquiries to ascertain identity of prospective defendant – Whether or not person likely to have knowledge of facts or possession of documents – exercise of discretion – Supreme Court (General Civil Procedure) Rules 2015 O. 32.03, 32.04.
DEFAMATION – Limitation of action – Extension of time – Whether or not reasonable in the circumstances for the plaintiff to have commenced a proceeding against prospective defendant within one year from date of publication – Limitations of Actions Act 1958 ss 5(1AAA), 23B.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | A. Anderson | MacPherson Kelly |
| For the Defendant | J. Castelan | HWL Ebsworth Lawyers |
HIS HONOUR:
The plaintiff has instituted proceedings against the defendant for defamation. In short, he alleges he was defamed in a Twitter account with the handle ‘@TanPersonSays’. The defendant, in her defence to this proceeding, admits that she authored and uploaded a series of these ‘tweets’ using the pseudonym ‘Tan Twat’ and the handle ‘@TanPersonSays’. A further allegedly defamatory publication was sent by email from an address ‘[email protected]’ on 2 April 2015. It is signed by ‘Mr T’. The defendant denies publication of that email, and further denies that she knows the identity of the email’s author.
On 7 June 2016, the plaintiff issued a summons seeking the following orders:
1.An order that the Defendant attend before the Court to be orally examined in relation to the description of the publisher or publishers of an email from ‘Tan Twat’ to ‘Undisclosed-recipients’ titled ‘Some good news!’ dated 01/04/2015 07:09 (‘the person or persons concerned’). This is the email which is Exhibit ‘ZCS-1’ of the affidavit of Zoe Schwarz dated 7 June 2016 (‘the Email’);
2.An order that the Defendant make discovery of all documents which are or have been in her possession relating to the description of the person or persons concerned including (without limitation) the following documents or categories of documents:
(a)an electronic copy of the Email and a copy of the header and the IP address the Email was sent from;
(b)documents concerning, referring to, recording or evidencing the publication of the Email or the content or proposed content of the Email;
(c)documents concerning, referring to, recording or evidencing the publication of the email from [email protected] to undisclosed recipients titled ‘strength in numbers!!!’ at approximately 7.09 pm on 26 March 2015.
(d)documents concerning , referring to, recording or evidencing the creation of the email address [email protected] or the process and authorisation required to send emails from [email protected];
(e)documents concerning, referring to, recording or evidencing or the identity of the person or people who have the log-in details or consent emails from [email protected] including but not limited to documents communicating the password used to send emails to [email protected];
(f)documents concerning, referring to, recording or evidencing who has sent emails from [email protected] including but not limited to all emails between the email address [email protected] and the email address [email protected];
(g)documents including emails concerning, referring to, recording or evidencing content or proposed content sent to or to be sent from [email protected];
(h)correspondence from any person relating to the email address or including copies of emails sent or received from [email protected];
(i)any other emails, ‘private messages’ on Twitter or other documents which relate to, record, refer to or evidence the name, IP address or addresses, place of residence, place of business, occupation and sex of the person or persons concerned.
In support of the application, the plaintiff has filed an affidavit of Zoe Claire Schwarz setting out the factual background. In substance, the plaintiff seeks the orders to endeavour to establish a new party – the author and/or publisher(s) of the impugned email. The plaintiff relies on Orders 32.03 and 32.04 of the Supreme Court (General Civil Procedure) Rules 2015.
I have a discretion to make the orders sought if the plaintiff can demonstrate a) having made reasonable enquiries, he is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person, and b) it appears that some other person has, or is likely to have knowledge of facts, or has or is likely to have or has had possession of documents which would assist in ascertaining the description of the prospective defendant.
Analysis
I am satisfied that the plaintiff is unable to ascertain the description of the author of the email sufficiently for commencing a proceeding against that person. The email is written under the hand of a pseudonym and the defendant denies in her defence being the author of the email. Further, her solicitors, in correspondence with the plaintiff’s solicitors, deny this and deny that she has any knowledge of whom the author might be. I am also satisfied that the plaintiff has made reasonable enquiries to discover the identity of the author. In particular, I consider the following material evidences that proposition:
(a) An application in this Court against Wayne Murray brought in order to ascertain inter alia the author of the email (‘the Murray proceeding’).
(b) A letter sent on 3 August 2015 by the plaintiff’s solicitors to the defendant personally enquiring as to the identity of Mr T (the signatory to the email).[1]
(c) A letter sent on 23 December 2015 by the plaintiff’s solicitors to solicitors for the defendant enquiring specifically about the identity of publisher(s) of the email,[2] to which there was no response. A follow-up request was made on 14 March 2016,[3] which a belated response of 24 March 2016 failed to answer directly.[4]
(d) On 31 May 2016, solicitors for the plaintiff again wrote to solicitors for the defendant pointing out the defendant’s failure to deal with their request for information and foreshadowing this application.[5]
[1]Exhibit ZCS-6.
[2]Exhibit ZCS-14.
[3]Exhibit ZCS-15.
[4]Exhibit ZCS-16.
[5]Exhibit ZCS-17.
I am also satisfied that the defendant is likely to have both knowledge of the author of the email and to have documents relevant to its author and/or publisher(s).
(a) On 6 February 2015, an email was sent from the defendant’s personal email account to Mr Murray providing practical advice as the publication of ‘inflammatory’ tweets. It is signed ‘N (aka Mr T)’.[6] The defendant‘s first name is Nicole. In my view, the contents of this letter are highly suggestive that the defendant is Mr T.
[6]Exhibit ZCS-8.
(b) The defendant admits authoring the ‘tweets’. In my view, it is inherently unlikely that another ‘Mr T’ unknown to the tweeting Mr T, is at work on a different publishing medium.
(c) On 6 February 2015, an email was sent from Ms Holland’s personal email account to Mr Murray which states:
Well that worked – Mr T’s email in-box is full.[7]
(d) On the same day, Mr Murray sent an email to the defendant ‘Hi Nicola, Excellent – I hope Mr T is happy as well…’.[8].
(e) On 1 March 2015, a ‘tweet’[9] was posted from the relevant Twitter account (admitted by the defendant to be operated by her) that on its face seems to identify the defendant as Mr T.
[7]Exhibit ZCS-9.
[8]Exhibit ZCS-10.
[9]Exhibit ZCS-11.
In my view, there is a likelihood that the defendant either is the author and/or publisher of the email or knows who the author/publisher is. I also consider it likely that the defendant will hold or has held documents (either hard copy or electronic) that bear upon the identity of the author or publisher(s). Given the interlocutory nature of these proceedings, I express these findings neutrally.
Discretion
It follows from my conclusions thus far that I consider my discretion to be enlivened, and I am empowered to grant the orders set out in paragraph [2] of these reasons. Mr Castelan, for the defendant, focussed his submission on this aspect. He submitted that a factor that ought impact powerfully against the making of the orders sought is that any proceeding for defamation against another defendant is out of time; the limitation period for proceedings in defamation being one year from the date of the publication.[10] He contended that if the plaintiff sought to add a further defendant to the proceedings, then this could only be done through a further amendment to the statement of claim and that that amendment would take effect from the date of joinder (ie the time the amendment was made). Thus, if the new party has a sound limitation defence the application to add that party as a defendant would, in normal circumstances, be refused.[11] If this is the case, so the argument continued, then granting the impugned orders would be a futile exercise.
[10]Section 5(1AAA) Limitation of Actions Act 1958.
[11]See Bridge Shipping Pty Ltd v Grand Shipping SA & anor (1991) 103 ALR 607 (Dawson J at 609).
Mr Anderson, for the plaintiff, responded to this argument by directing me to the Limitations of Actions Act 1958. Whilst s 5(1AAA) provides a 12-month time limitation on the issue of proceedings, s 23B of that Act provides a prospective plaintiff with a vehicle (subject to the Court’s discretion) to bring an action out of time if the plaintiff can demonstrate that it was not reasonable, in the circumstances, to bring the action within time.
Mr Castelan submitted that the plaintiff could not demonstrate this. I was referred to Lakaev v Denny,[12] and Clarke v Ibrahim,[13] a decision of Zammit AsJ (as she then was) of this Court. In that latter case, her Honour considered it critical that there had been an opportunity to discover the identity of anonymous offensive internet posters within 12 months of publication, and that the plaintiff had not availed himself of preliminary discovery during that period.
[12][2010] NSWSC 1480.
[13][2014] VSC 30.
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.
Counsel for the defendant argued that application for an oral examination of his client is little more than an exercise in getting his client into the witness box twice – first at the oral application, and later at the trial of the matter – and that all the matters that would be canvassed at the oral examination could be put to her at trial. This submission proceeds on the assumption that any oral examination will not be conducted for the genuine purpose of uncovering another tortfeasor and simply be a dress rehearsal for the trial. I do not accept that this is the case. If the defendant’s denial that she was the email’s author are truthful, then there must be another author and, as I have said, I think there is a prospect that Ms Holland knows who it is.
Notwithstanding these findings I do not propose, at this stage, to order oral examination. It seemed to me that about half a dozen well-crafted interrogatories would, if answered genuinely, be likely to achieve the same result at a great saving of expense and inconvenience. Leave to interrogate has already been granted in this matter. If the process proves unsatisfactory for any reason, the plaintiff can always renew the application for oral examination.
I propose to order that the defendant makes discovery of all documents which are or have been in her possession and which relate to the description of the person or persons concerned in the publication of the email. The order will be in the form set out in paragraph [2](2) of these reasons, and shall include that the trial date of 26 September 2016 be vacated, and that the defendant’s application by summons filed 31 May 2016 for leave to file an Amended Defence will be heard by John Dixon J on a date to be fixed. Should any further orders be required relating to interrogatories of the plaintiff, the parties should contact my associate.
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