Knell v Harris - [2014] WADC 163

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KNELL -v- HARRIS [2014] WADC 163

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 5 NOVEMBER 2014

DELIVERED : 1 DECEMBER 2014

FILE NO/S: CIV 3385 of 2013

BETWEEN: SIDNEY CHARLES KNELL
First plaintiff
QAV PTY LTD
Second plaintiff
AND
KATHRYN ISABEL HARRIS
First defendant
WARREN MATHESON LANCE
Second defendant
NETLINE PTY LTD
Third defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Action for defamation - Application to disallow amendment of indorsement and to strikeout parts of the statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

First plaintiff                :     Mr S C England
Second plaintiff            :     Mr S C England
First defendant             :     Mr M C Goldblatt
Second defendant         :     Mr M C Goldblatt
Third defendant            :     Mr M C Goldblatt

Solicitors:

First plaintiff                :     Lawton Gillon
Second plaintiff            :     Lawton Gillon
First defendant             :     Lavan Legal
Second defendant         :     Lavan Legal
Third defendant            :     Lavan Legal

Case(s) referred to in judgment(s):

Dow Jones & Co Inc v Gutnick [2010] CLR 575

DEPUTY REGISTRAR HARMAN: On 18 October 2013 the plaintiffs issued an indorsed writ by which they claimed:
Damages for defamation … arising out of the words published by the second defendant … as appears in the email dated 23 October 2012 entitled 'Subject: Ascot Village – COO Meeting 25 Oct 12' published at 9.10am on 23 October 2012.
On 2 May 2014 the defendants applied to strike out the statement of claim. The application has not been determined however on 9 September 2014 the plaintiffs amended both the indorsement and statement of claim.
By the application presently before the court, the defendants first seek disallowance of the amendment of the indorsement by which the words 'at 9.10am' have been deleted.
Order 6 r 2 of the Rules of the Supreme Court is as follows:
In actions for libel the indorsement must state sufficient particulars to enable the publication in respect of which the action is brought to be identified.
In Dow Jones & Co Inc v Gutnick [2010] CLR 575 the High Court was considering the issue of forum in circumstances where material had been made available on the World Wide Web. At par 44 it concluded as follows:
In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.
For present purposes, it is significant that at par 27 the court recorded that each communication of defamatory matter would found a separate cause of action.
The defendants submitted that by amendment the plaintiff had substituted new causes of action for which the relevant period of limitation had expired.
The plaintiffs' response was along the lines that amendment had been precipitated by the prior application and that they maintain the same causes of action. As there is no evidence on the file that response is no more than an unfounded submission.
The plaintiffs submitted that any deficiency in the indorsement could be cured by recourse to the terms of the amended statement of claim.
It is not necessary to canvass the rationale for the rule, it is enough to recognise that the amended indorsement is non-compliant. The fact that recourse could be had to the pleading is of no moment. In any event the fact that the plaintiffs now allege publication of the defamatory material before a specified person on 23 October 2012 does not assist in the process of determining the question raised by the defendants.
Although the onus of persuasion is on the defendants, for present purposes the significant consideration is that the application provided the opportunity for the plaintiff to bring evidence that the process of amendment had been undertaken within the scope provided by O 21. The necessity for evidence emerges because the indorsement is now non‑compliant.
It follows that the amendment will be disallowed.
The defendants also seek to strike out parts of the amended statement of claim.
The finding that I have made in relation to the indorsement has a direct impact on the allegations of publication in each of pars 1, 3 and 5 and it follows that each allegation ought to be struck out.
As to the balance of par 1, the plaintiffs submitted that the particular reference to 'Knell' is no more than a matter of style; similarly so at par 2 the references to 'Pye' and 'CAV'. In that event those allegations add nothing to the allegation that the email was published of and concerning the plaintiffs.
At pars 8, 9 and 10 the plaintiffs plead imputations upon which the causes of action depend. In the case of those put by the first plaintiff the defendants contend that each is so broadly expressed that it fails in its purpose of specifying a case. They also propose that the words published could not convey the imputations.
In each of the three instances that the plaintiff asserts imputations the particular imputations are common: that at par 8.1(i) is identical to those pleaded at pars 9.1 and 10.1; that at par 8.1(ii) is identical with those at pars 9.1(ii) and 10.1(ii); and that that at par 8.1(iii) is identical with those at pars 9.1(iii) and 10.1(v) (first stated); finally that that at par 8.1(iv) is identical with those at pars 9.1(iv) and 10.1(v) (second stated). The only imputations that are not common are put by at pars 10.1(iii) and 10.1(iv).
Because par 10 contains all of the imputations I will focus on that paragraph. Broadly described all but the last of them convey transgression of a standard. The last is that the plaintiff is not a fit and proper person.
As for the last, in my opinion it is insufficient as it is put as an unspecified relative term. No datum is available from anywhere in the pleading.
Each of the balance is so broadly expressed that I am satisfied that the court could not usefully have recourse to it for the purpose of establishing judgment in favour of that plaintiff. Regardless that view, in each instance the words that are pleaded as having engendered each imputation state nothing more than that specified requests had been put to particular authorities in circumstances where there had been a lack of action by each authority in relation to unspecified prior complaints. In each case the words do not sustain the imputations of actual guilt pleaded as having been conveyed.
In the case bought by the second plaintiff the imputations at par 8.2 are identical with those at pars 9.2 and 10.2. Having pleaded relevant features of its commercial undertakings, there is nothing in the words specified as libellous that connects those undertakings with the imputations. On a broader analysis, there is no express reference in the alleged defamatory words to the second plaintiff at all.
Each imputation pleaded ought to be struck out.