Maietti v Riccardi

[2011] VSC 620

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4130 of 2011

MAURIZIO MAIETTI	Plaintiff
v
ATTILIO RICCARDI	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2011
DATE OF JUDGMENT:	2 December 2011
CASE MAY BE CITED AS:	Maietti v Riccardi
MEDIUM NEUTRAL CITATION:	[2011] VSC 620

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PRACTICE AND PROCEDURE – Adequacy of pleading – Statement of claim – Defamation – Foreign language defamation – Need to plead precise words used – Need to plead precise translation – Publications not adequately pleaded – Publications not adequately particularised.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.F. Gillies	Mick O’Brien Lawyers
For the Defendant	Mr S.A. Lowry	Agricola, Wunderlich & Associates

HIS HONOUR:

1. In this proceeding, the plaintiff claims damages for defamation from the defendant. The defendant has applied to strike out the statement of claim.  Central to the defendant’s application are complaints concerning paragraphs four and five of the statement of claim. These paragraphs purport to plead the publication complained of and/or the defamatory imputations in respect of which complaint is made.

1. In paragraph four of the statement of claim, the plaintiff pleads:

“On several occasions between August and October 2010, during the course of telephone conversations conducted in the Italian language which the defendant had with Paolo Sepe in the State of Victoria the defendant spoke the following defamatory words of and concerning the plaintiff, namely, words to the effect that the plaintiff:

(a) as treasurer of the Association [Laziali Nel Mondo Victoria Australia] had misappropriated its funds;

(b) as treasurer of the Association had stolen its funds;

(c) as treasurer of the Association, was responsible for the fact that funds were missing from the Association’s bank account;

(d) as treasurer of the Association had falsely claimed that he had spent $500 of the Association’s funds purchasing postage stamps on behalf of the Association.”

1. In paragraph five of the statement of claim, the plaintiff pleads:

“The meanings set out in paragraphs (a) to (d) in paragraph 4 above are and were, in their ordinary and natural meaning, defamatory on their face.”

1. I interpolate that immediately one can see in paragraphs 4 and 5 of the statement of claim the conflation of the issues of what was published and what were the meanings.  In paragraph 4, sub-paragraphs (a) to (d) are alleged to be the defamatory words published.  In paragraph 5, the same sub-paragraphs are said to be the meanings.

1. As paragraph 4 of the statement of claim discloses, the plaintiff’s claim concerns an unspecified number of telephone conversations that are alleged to have occurred over a three month period in 2010. Each conversation is alleged to have been conducted Italian, and involved the speaking of words defamatory of the plaintiff.

1. The defendant complains that the statement of claim does not disclose the dates of the conversations alleged; does not set out the precise words used in Italian; and does not set out an English translation of those words. Other complaints are made about an insufficiency in respect of the particulars of some allegations.

1. In a case such as the present, it is settled law, and pleading practice in this State has long required, that:

(a)first, each conversation sued upon be identified (and with appropriate specificity);

(b)secondly, the precise words used in the relevant foreign language in each conversation must be pleaded;  and

(c)thirdly, precise translations of each conversation into English must be provided.

1. Having pleaded the case in the way I have just identified, the pleader should, with respect to each conversation, then specify the meanings said to arise from the words spoken in such conversation. It may be that one conversation was more limited than another and would not of itself give rise to all the imputations pleaded. Further, it is only by pleading the claim in this way that the defendant can give proper attention to which (if any) defences might be available in respect of each publication.  

1. Although precise words must be alleged, it is, of course, not necessary at trial to prove that those exact words were in fact published.  It is sufficient if a plaintiff proves at trial words which are substantially to the same effect.  As has been said before, interrogation about such matters is often of assistance in this regard.  Nevertheless, neither of these matters obviates the need for compliance with what are, as I have said, well known and established principles of pleading in the area of defamation.

1. On their face, paragraphs four and five fail to comply with the principles to which I have just referred.  Paragraphs four and five must be struck out.

1. So far as the complaint about the statement of claim not giving the dates of the various conversations alleged is concerned, it is of course desirable that dates be given whenever this is possible. However, if that is not possible in respect of any particular conversation then other particulars of that conversation need to be given so that the conversation and occasion can be identified, and the plaintiff’s allegations properly pleaded to.

1. In this case, the defendant wants precise dates of each conversation because he contends that it is possible that one or more conversations in August 2010 occurred more than 12 months before the plaintiff commenced this proceeding (and is therefore statute barred). The plaintiff should, if able to, plead the relevant dates; alternatively in any amended statement of claim the plaintiff might make clear that he does not rely on any conversation that occurred more than 12 months before the writ was issued (it would then be a matter for evidence what, if any, cause of action the plaintiff might establish). In any event, any amended statement of claim must provide the best particulars of each conversation that the plaintiff is capable of providing.

1. The defendant’s complaints concerning the balance of the statement of claim are, at best, complaints about particulars.  I propose to give the plaintiff leave to re-plead the statement of claim.  In those circumstances, I do not propose to address questions of particulars which may ultimately be moot. However, if the allegations in the current paragraphs 7(c) and (d) are to be persisted with then proper particulars of the campaign and the misconduct alleged respectively in these paragraphs must be provided.

1. For these reasons, I will make orders:

(a)striking out paragraphs four and five of the plaintiff’s statement of claim;  and

(b)giving the plaintiff leave to file and serve an amended statement of claim.

1. I will hear the parties on the precise form or orders and any question of costs.