Knell v Harris [No 3] - [2015] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KNELL -v- HARRIS [No 3] [2015] WADC 38

CORAM: HERRON DCJ

HEARD: 24 MARCH 2015

DELIVERED : 24 MARCH 2015

PUBLISHED : 2 APRIL 2015

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:

Defamation - Amendment to indorsement of claim - Application to disallow amendment - Whether a new cause of action - Whether barred by s 15 Limitation Act 2005 - Order 21 r 5 Rules of the Supreme Court 1971 - Order 6 r 2 Rules of the Supreme Court 1971

Legislation:

Limitation Act 2005 s 15
Rules of the Supreme Court 1971 O 6 r 2, O 21, r 5

Result:

Appeal allowed and consequential orders made

Representation:

Counsel:

First plaintiff                  :     Mr J D MacLaurin
Second plaintiff             :     Mr J D MacLaurin
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):

Carrie v Tolkien [2009] EWHC 29 (QB)
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Morgan v Banning (1999) 20 WAR 474
Rayney v Western Australia [No 3] [2010] WASC 83
Rossen v Airey [2012] WASCA 26
TWM Landal Ltd v Time Inc [2003] EWCA Civ 06

HERRON DCJ: [This judgment was delivered orally on 24 March 2015 and has been edited from the transcript.]

Background

On 23 October 2012, the second defendant, Warren Lance, sent an email to Eleanor Logrudice. It is not in issue the email was sent at 9.10 am on 23 October 2012. Neither is it in issue the email was sent on behalf of the first and third defendants. The email referred to the first plaintiff, Mr Knell. It referred to and attached a decision concerning Mr Knell from an adjudicator in Queensland.
By writ of summons dated 18 October 2013, the plaintiffs commenced an action in damages for defamation. Paragraph (a) of the indorsement of claim claims:
Damages for defamation including aggravated and exemplary damages arising out of the words published by the Second Defendant and for and on behalf of the First and Third Defendants as appears in the email dated 23 October 2012 entitled 'Subject: Ascot Village – COO Meeting 25 Oct '12' published at 9.10am on 23rd October 2012.
By an amended writ of summons dated 9 September 2014, the plaintiffs sought to amend the indorsement of claim in par (a) by deleting the wording, 'at 9.10 am'.
The plaintiffs filed a statement of claim on 10 April 2014, in which, at par 1, the full content of the email relied upon as giving rise to the action in defamation was pleaded.
On 2 May 2014, the defendants filed an application to strike out the statement of claim on the basis it disclosed no reasonable cause of action or that it may prejudice, embarrass or delay the fair trial of the action.
On 9 September 2014, at the same time as the amended writ of summons with the amended indorsement was filed, the plaintiffs filed an amended statement of claim which, inter alia, reflected the amendment in the amended indorsement of claim.
By a chamber summons dated 18 September 2014, the defendants applied for the amendment to the writ of summons to be disallowed and for various paragraphs of the amended statement of claim to be struck out as disclosing no reasonable cause of action.
That application was heard by Deputy Registrar Harman on 5 November 2014, who published reasons for decision on 1 December 2014 granting the application; that is, ordering that the amendment to the indorsement of claim on the writ of summons be disallowed.

The appeal

Before me today is an appeal by the plaintiffs against Deputy Registrar Harman's decision. The appeal is a hearing de novo and is to be dealt with as though the issue has not previously been determined.
The defendants oppose the amendment, or submit the amendment be disallowed, on the basis that if the amendment is allowed, it gives rise to a fresh cause of action which is now statute‑barred by s 15 of the Limitation Act 2005 which provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the time of publication. If the amendment is allowed it will have the effect, it is submitted, of introducing a new cause of action which is time barred.

The law

The answer to the issue depends upon what must be proved to prove the tort of defamation. The defendants refer me to and rely upon the following passages in Rossen v Airey [2012] WASCA 26 [16] – [17]:
The essence of a cause of action in defamation is publication to a third party of the matter alleged to convey the defamatory imputations: Webb v Bloch (1928) 41 CLR 331, 363. It is the publication to a third party, not the composition of the libel, which is the actionable wrong: Lee v Wilson (1934) 51 CLR 276, 287. As the plurality pointed out in Dow Jones & Co Inc v Gutnick [2002] HCA 56:
'The tort of defamation, at least as understood in Australia, focuses upon publication causing damage to reputation … Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.
The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action [25] – [26].'
The essential element of publication is reflected in O 6 r 2 of the Supreme Court Rules, which provides that in an action for libel the indorsement 'must state sufficient particulars to enable the publications in respect of which the action is brought to be identified'.
(see Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 [25] – [27]):
As I have noted, the passages cited by Newnes J in Rossen v Airey are from [25] to [27] of the High Court decision in Dow Jones & Co v Gutnick. The following passage of the plurality in that case at [44] is also relevant:
In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to 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.
The defendants submit the tort of defamation, with its focus on the bilateral nature of publication as explained in Dow Jones & Co v Gutnick, is reflected in O 6 r 2 of the Rules of the Supreme Court 1971 (RSC) and O 6 r 2 reads as follows:
Order 6 – Indorsement of claim: other indorsements
…
2.Action for libel
In actions for libel the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified.

The issue for determination

In summary, the defendants submit that the indorsement of claim as originally pleaded, by use of the word 'published', refers to a specific communication of defamatory material which was read and comprehended by a reader at 9.10 am on 23 October 2012, identified a cause of action which arose at that precise time, and if the amendment is allowed, by deleting the reference to the specific time, it will result in a separate cause of action or separate causes of action arising from further or additional publications on 23 October 2012 when the email was read or comprehended by the reader or readers on other occasions, that cause or those causes of actions being, by virtue of s 15 of the Limitation Act, statute‑barred.
It is the plaintiffs' submission that the amendment does not introduce a further cause or further causes of action. If the amendment is allowed the same cause of action is maintained based upon the same email having been sent to the same recipient. The amendment does not seek to introduce a fresh or further cause of action by referring to a different or further publication at another time to different third parties. The amendment does not seek to plead or introduce a new or separate cause of action which is statute‑barred.
Further, the plaintiffs submit that if the amendment does introduce a new cause of action, which they deny, the action arises out of the same facts or substantially the same facts as the cause of action in respect of which relief has already been claimed in the original indorsement and should therefore be allowed pursuant to O 21 r 5(5) of the RSC, notwithstanding the expiration of the one‑year limitation period, relying upon Morgan v Banning (1999) 20 WAR 474; Rayney v Western Australia [No 3] [2010] WASC 83. In the plaintiffs' submission the amendment, if it does constitute a new cause of action, arises out of the same facts or substantially the same facts as the original cause of action because it arises in respect to the same email with the same content sent to the same person on the same day and downloaded and read by the same person.
However, the defendants submit that because the way in which the indorsement is pleaded, by not identifying the person to whom the email was sent or published, the plaintiffs are now caught by the way in which they have pleaded the indorsement of claim. The word 'published' in the second last line of par (a) of the indorsement means the email was comprehended by an unidentified person at 9.10 am on 23 October 2012. Therefore to remove the words 'at 9.10 am' will give rise to a new cause of action because it refers to a separate publication in the sense of being comprehended by someone, at a different time. It might refer to being comprehended by a different unidentified person.
The defendants submit the unamended indorsement is non‑compliant with O 6 r 2 as it does not enable the bilateral publication in respect of which the action is based to be identified, and the amendment to delete the time does not cure that deficiency but to the contrary exacerbates it. Alternatively, publication is identified by the time of the publication complained of and the proposed amendment to delete the time renders the indorsement non‑compliant with O 6 r 2.
The plaintiffs submit the word 'published' in the second last line of par (a) of the indorsement, and by reference to the time, means when the email was sent. It was sent at 9.10 am and published on 23 October 2012. The reference to the time in the original indorsement, despite the use of the word 'published immediately preceding it, does not plead the bilateral publication actually occurred at 9.10 am. It must be understood in the broader sense as sent at 9.10 am to the recipient but the bilateral publication, in the sense when the email was communicated to the recipient by being downloaded or read, occurred on 23 October 2012. Because an issue as to the adequacy of the pleading has been raised by the defendants the plaintiffs seek to amend the indorsement to confirm the relevant bilateral publication giving rise to the cause of action occurred on 23 October 201, not at precisely 9.10 am on the day. The amended indorsement defines a class of recipients by defining and describing the email. By describing the email, the content of it and the day on which it was sent complies with O 6 r 2, it is submitted, because it sufficiently defines the bilateral publication which in turn identifies the cause of action being relied upon. By defining the email the indorsement defines the class of recipients. If the defined class of recipients or recipient is not the person who opened and read the email, that is not a publication within the indorsement. The indorsement defines the vehicle of conveyance for the purposes of O 6 r 2. There is one publication of one email during one day. The indorsement refers to a limited class of people to whom the email was published on 23 October 2012.
I was referred to the English Supreme Court Practice (1999 ed) which refers to the English O 82, which gives a short explanation of the background and history to the rule. Order 82 is in similar terms to our O 6 r 2. Under the heading 'Sufficient particulars of the publications', the commentary reads:
The word 'publications' is used here in the sense of the 'published documents' complained of. The former O 3 r 9 amended the then prescribed former, indorsement on writ, 'The plaintiffs' claim is for damages for libel by requiring it to identify the document complained of.
The defendants also referred me to extracts from Gatley on Libel and Slander (12th ed). Paragraph 26.5, under the heading 'Publication', with a subheading 'Details of Publication: libel', reads:
The general principle demands only that the defendant be given due notice of the case he has to meet and there is no fixed rule as to what amounts to a sufficient averment of publication. However, unless there are good grounds for variance, the particulars of claim should allege, in respect of each publication relied on as a cause of action, that the words were published by the defendant on a specific occasion to a named person or persons other than the claimant. Where the publication complained of is in a newspaper, book or other publication 'to the world at large', the claimant is not expected to plead particular acts of publication, the court accepting that publication in such cases is to be inferred. Where the publication complained of is on the Internet, the claimant must identify the individual readers or plead a platform or facts from which an inference of publication can be drawn.
Then at [32.9], under the heading, 'Internet Publication':
It has been decided that where defamatory material is posted on a website by an Internet service provider, there is publication of that material to any person who accesses that site and reads that material. The place of publication is a place or places where the material is downloaded. The same reasoning must apply to email, which is published to the persons to whom it is transmitted at the place where it is received. Production of a printout of the offending material is likely to be regarded as sufficient evidence of publication to the addressees of email.
The defendants highlight that in Rossen v Airey it was only one document, the letter, which contained the alleged defamation which was known and understood by the defendant, which is the same in the present case where there is the one document, being the email.
However, the amendment in Rossen v Airey by referring to the publication of the letter to a different newspaper was held to be a different cause of action to the original claim that the letter was published in another newspaper, even though the defendant knew what letter was being referred to.
In this case, in reliance upon Rossen v Airey, the defendants submit that the amendment, by deleting the reference to the time of publication, is a new cause of action because it refers to a different publication, that is, that the email was accessed and read by someone other than at 9.10 am.
The plaintiffs also rely upon the English Court of Appeal case TWM Landal Ltd v Time Inc [2003] EWCA Civ 06. In that case the indorsement of claim referred to a libel contained in an article in Fortune magazine published between 12 and 19 June 2000. The indorsement identified specific page numbers in a volume of Fortune magazine. The basis of the cause of action was that the plaintiff had been defamed by the European edition of Fortune magazine. However, the indorsement mistakenly identified the page numbers which were the page numbers in the American edition of Fortune magazine, not the page numbers in the European edition. The plaintiff sought to amend the indorsement by deleting reference to the page numbers. The defendants contended that the action was originally brought on the basis that the American edition of Fortune magazine contained the libel and the amendment sought to proceed on the basis of the European edition so that a new cause of action was being substituted by the amendment.
At [12] Keene LJ identified the issue as follows:
A claim for libel in respect of publication to the readers of the American edition is a different claim from one arising from publication of the libel to a different group of people, such as those in England and Wales. It is just as different a claim as would be one in respect of a wholly different magazine such as, Punch or Country Life. But the argument depends critically on whether the original claim form is to be construed as referring to the American edition of Fortune magazine.
At [16] the court found the page numbers in the indorsement were an unnecessary feature of the claim and were patently a mistake and that the indorsement was not to be construed as identifying the American edition of a magazine, rather it identified the European edition. It was also held that a reference to the page numbers must have been recognised by all as an obvious mistake. At [16] Keene LJ said:
It is established that, in considering whether an amendment involves a new cause of action, the court is entitled to look beyond the bare words of the claim form or writ. In a case such as the present, that seems to be inevitable for the reasons which I have set out. But once one does that, the original claim form can in my judgment be seen to be referring to the European edition of the magazine, despite the inclusion of the wrong page numbers. Those numbers were, as is conceded, an unnecessary feature of the claim at that stage and were patently a mistake, as the defendants must have appreciated. (case reference omitted)
He goes on later to say:
I conclude therefore, that the claim form of 14 June 2000 was not to be construed as identifying the American edition of the magazine and in those circumstances the amendment made in the reissued form did not involve the making of a new claim.
Similarly, the plaintiffs submit in this case the indorsement complies with O 6 r 2 by identifying the publication, that is, the email sent on 23 October 2012, even though it does not identify the person to whom the email was sent. As in TWM Landal Ltd the reference to the time, which is a reference to when the email was sent, is an unnecessary feature of the claim in identifying the publication in the sense of when the email was communicated, that is, when it was accessed and read on 23 October 2012. The amendment does not, it is submitted, create a new cause of action, that is, a different bilateral publication when a third party has the email available for his or her comprehension. The amended indorsement refers to the same bilateral publication as the original indorsement, unlike the amendment in Rossen v Airey which referred to a different publication because it referred to a different third party. It is submitted in this case the amendment refers to the same bilateral publication, that is, the same third party who had the email available for his or her comprehension, being the recipient of the email.

Reference was also made to an English High Court decision in Carrie v Tolkien [2009] EWHC 29 (QB). A summary of that case is set out by Newnes JA in Rossen v Airey at [34]. It is submitted Carrie v Tolkien is to be distinguished from the present case because even though the amendment in Carrie v Tolkien referred to the same material it was in respect of a separate publication on a different website, and was therefore a separate cause of action. That is to be contrasted with the present case which concerns the same email sent to the same class of recipient. It is therefore the same publication and the same cause of action. The amendment does not, it is submitted, refer to different third parties or material published on a different website, unlike in Carrie v Tolkien.

Conclusion

While this has not been an easy issue to resolve, ultimately I am persuaded by the plaintiffs' submissions that the amendment does not give rise to a new cause of action. The amendment maintains the same cause of action as in the original indorsement. It describes the same bilateral nature of publication as originally pleaded by describing the same third parties who have comprehended, read or accessed the communication being the recipient or the recipients of the email. By defining or describing the email the indorsement defines or describes a class of recipients and thereby defines the publication. It matters not that the recipient of the email has not been specifically identified. It is the same cause of action whether the recipient of the email accessed and read the email at 9.10 am or at any time on 23 October 2012. It is the same bilateral publication at whatever time the email was accessed and read on 23 October 2012. By reference to [32.9] of Gatley, to which I have already referred, both versions of the indorsement refer to the same email which was published to the person or persons to whom it was transmitted at the place where it was received. By the description of the email and its content the plaintiffs have, in my view, identified the readers, or pleaded a platform of facts, from which an inference of publication can be drawn ([26.5] of Gatley), namely to the recipient or recipients of the email.
In my view, the description and identification of the email has complied with O 6 r 2 by sufficiently pleading the nature of the bilateral publication referred to Dow Jones & Co v Gutnick by reference to a limited class of people to whom the email was communicated or comprehended, the recipient or recipients of the email. The inclusion of the time in the indorsement, meaning when the email was sent, is an unnecessary detail to enable the defendants to know what publication is being relied on to found the plaintiffs' cause of action. Its deletion does not, in my view, plead another or separate cause of action.
Therefore I allow the amendment and dismiss the defendants' application seeking an order the amendment be disallowed.
Given my decision it is unnecessary for me to consider the further or alternative basis of the plaintiffs' claim to allow the amendment pursuant to O 21 r 5 even if the amendment does give rise to a new cause of action. However, in case I am wrong in my conclusion, I propose very briefly to deal with the alternative basis of the plaintiffs' application and give some very brief reasons.
In my view if, contrary to my determination, the amendment does give rise to a new cause of action the proposed amendment does more than particularise, clarify or expand a cause of action already instituted and ought not be allowed under O 21 r 5: Rossen v Airey [30], [31], [35]; also Morgan v Banning.
This is not a case where, by applying a value judgment as explained in Rayney v The State of Western Australia [No 3], the amendment ought be allowed by O 21 r 5 if the amendment does, contrary to my finding, give rise to a new cause of action because it refers to a different publication, that cause of action is now statute‑barred by reason of s 15 of the Limitation Act, and on that basis, as I understand the authorities, I would not have allowed the amendment.
I will hear counsel as to what orders flow from my reasons.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION: KNELL -v- HARRIS [No 3] [2015] WADC 38 (S)
CORAM:   STAUDE DCJ
HEARD:   12 JULY 2018
DELIVERED          :   13 JULY 2018
PUBLISHED           :   20 JULY 2018
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:

Costs - Appeal from deputy registrar's decision on application for further and better discovery - Each side partially successful - Whether the usual costs order should be made

Legislation:

Nil

Result:

Each side to bear its own costs

Representation:

Counsel:

First plaintiff	:	Mr A M Freund
Second plaintiff	:	Mr A M Freund
First defendant	:	Mr C P K Russell
Second defendant	:	Mr C P K Russell
Third defendant	:	Mr C P K Russell

Solicitors:

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

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

Nil

STAUDE DCJ:

Introduction

On 12 July 2018 I delivered my decision in the defendants' appeal from the decision of the deputy registrar on 3 May 2018 with respect to the defendants' application for further and better discovery.
I allowed the appeal, set aside the orders made on 3 May 2018, extended the time to bring the application, and ordered that the plaintiffs file and serve a list of discovered documents verified by affidavit in respect of the following documents:
(i)Employment contracts between QAV and its staff that were on foot between 1 January 2012 and 31 December 2012;
(ii)Payslips issued to QAV's employees in the period 1 January 2012 and 31 December 2012;
(iii)QAV's PAYG payment summary statement for the year ended 30 June 2013;
(iv)Emails from Eleanor Logiudice on or after 23 October 2012 forwarding an email from Mr Lance to Ms Logiudice sent by Mr Lance to Ms Logiudice at 9.09 pm on 23 October 2012;
(v)Communications from Eleanor Logiudice regarding the email sent by Mr Lance to Ms Logiudice at 9.09 pm on 23 October 2012;
(vi)All notices, agendas and minutes of meetings of the owners of Ascot Village Strata Plan 46542 (body corporate), including for all annual general meetings and council of owner meetings held between 1 January 2010 and 31 December 2012; and
(vii)Further, that electronic copies of the documents be provided to the defendants by 4.00 pm on 18 June 2018.
The decision as to the costs of the appeal was reserved. The court also reserved its decision with respect to the defendants' motion for discovery of documents described in par 2(b)(vi) – (viii) of the defendants' minute of proposed orders dated 12 July 2018.
This morning the court was advised that a motion for discovery of those documents would not be pursued.

Costs

As to costs, the defendants were largely unsuccessful, but did succeed in obtaining an order for further and better discovery of a somewhat broader ambit than that obtained at first instance, so they were successful to that extent.
The plaintiffs, though largely successful in resisting the application on appeal, made no concessions at all. The plaintiffs did not concede the discovery of the category A documents that were previously ordered to be discovered or the additional categories found to be discoverable on appeal. Furthermore, the plaintiffs opposed the extension of time granted by the deputy registrar.
The decision was a mixed result. I am not satisfied that the usual order should be made given the extent to which the defendants were unsuccessful, but neither am I satisfied that a partial costs order should be made in favour of either party. There should be no order for costs.

Orders

1.The defendants' motion for discovery of the documents described in par 2(b)(vi) – (viii) of the defendants' minute of proposed orders dated 12 July 2018 be dismissed.
2.The parties bear their own costs of the application and the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
ASSOCIATE TO JUDGE STAUDE
20 JULY 2018