Massarani v Kriz

[2020] NSWDC 26

District Court

New South Wales

Medium Neutral Citation:	Massarani v Kriz [2020] NSWDC 26
Hearing dates:	21 November, 5 December 2019; 13 February 2020
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the “Further Amended Statement of Claim” filed on 13 August 2019 are struck out and dismissed, with leave to replead refused. (2) Summons filed on 19 January 2019 struck out and dismissed. (3) Costs reserved. (4) Liberty to apply on seven days’ notice. (5) Exhibits retained until further order.
Catchwords:	TORT – defamation – application for summary dismissal – proceedings for defamation for publication in a July 2015 student newspaper and a 2018 conversation with one person conveying imputations that he seriously sexually harassed women – first and sixth defendants bring applications for summary dismissal pursuant to rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis of a history of successive hopeless pleadings – first and sixth defendants additionally seek summary dismissal pursuant to UCPR r 12.7 and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), as an abuse of process, on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – plaintiff seeks further leave to replead – leave to replead refused – applications for dismissal granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60, 61 and 67 Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 12.7, 13.4, 14.28 and 28.2
Cases Cited:	Armstrong v McIntosh [No 2] [2019] WASC 379 Bleyer v Google Inc (2014) 88 NSWLR 670 Boland v Dillon; Cush v Dillon [2015] NSWCA 183 Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB) Cranbrook School v Stanley [2002] NSWCA 290 Cronau v Nelson [2018] NSWSC 1769 Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dillon v Cush; Dillon v Boland [2010] NSWCA 165 El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990 Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268 Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB) Ford v Nagle [2004] NSWCA 33 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Jones v Sutton [2004] NSWCA 439 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192 Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 Marble v Chapin (1882) 132 Mass 225 Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) Sims v Jooste (No 2) [2016] WASCA 83 Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 Trantum v McDowell [2007] NSWCA 138 Umeyor v Ibe [2016] EWHC 862 (QB) Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253 Wollongong City Council v Papadopoulos [2019] NSWCA 178
Category:	Procedural and other rulings
Parties:	Plaintiff: Patrick Heydar Massarani First Defendant: Georgia Kriz Sixth Defendant: Ilya Klauzner
Representation:	Counsel: Plaintiff: Mr R Glasson First Defendant: Ms L Saunders (Direct access brief) Sixth Defendant: Mr T Senior   Solicitors: Plaintiff: Carroll & O'Dea Sixth Defendant: SRC Legal Service Pty Ltd
File Number(s):	2019/25823
Publication restriction:	None

Judgment

The application before the court

1. The plaintiff, by statement of claim filed on 3 April 2019, brings a series of claims for defamation against a total of six defendants, of whom only the first and sixth defendants remain. The matters complained of (which have varied in number from 2 to 4) essentially consist of an article published in print in a university student newspaper (hereafter, “Honi Soit”) on 30 July 2015 (and thereafter, in amended form, online) and a conversation the first defendant had with a Ms Grace Franki (hereafter “the former fourth defendant”) some time between October and December 2018.

2. The first and sixth defendants bring an application for summary dismissal of the claims brought against them, as set out in paragraphs 7 and 9 (the first matter complained of) and 10, 12 and 13 (the second matter complained of) of the current pleading. This application is brought on the following bases:

1. Pursuant to rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), on the basis that the pleadings fail hopelessly in the identification of the elements of the cause of action in so many respects that the action should be struck out without leave to replead or, alternatively, on the basis that this is “a weak case”.

2. Pursuant to UCPR r 12.7 and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), as an abuse of process, on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake.

3. The plaintiff acknowledges there are pleading difficulties but resists the applications and seeks leave to replead.

4. As the principal basis for the remaining two defendants’ summary dismissal application is that these pleadings have never risen above the level of hopelessness, it is necessary to set out the pleading and procedural history in some detail.

The background to the claim

5. By way of a short overview, an article which did not name the plaintiff was published in print form in Honi Soit on 30 July 2015. This article asserted that an unnamed former member of the university Senate had sexually harassed six young women.

6. The plaintiff immediately complained and sought a rewording and/or retraction. A portion of the article containing an additional identifying feature (namely that the unnamed Senator was also a member of another university body) was removed the following day. The online version at all relevant times from then on omitted this asserted identifying factor.

7. More than three years later, in October 2018, another young woman (the former fourth defendant in these proceedings), who considered she had been sexually harassed by the plaintiff, contacted the author of the article (the first defendant) to ask if the unnamed person in the article was the plaintiff. This was confirmed by the first defendant at a meeting between these two persons. The former fourth defendant later repeated the first defendant’s words to her boyfriend by spoken word and email (the two claims for defamation against her for these publications have been discontinued).

The procedural history of the plaintiff’s defamation claim

8. The plaintiff brought a Summons for preliminary discovery, suppression orders and other relief against Georgia Kriz and Ashley Forsyth (described as the first and second defendants respectively). The Summons filed in the Parramatta registry on 24 January 2019 was transferred to the Defamation List in the Sydney registry and (in relation to Ms Forsyth) dismissed on 4 April 2019, on terms which were later the subject of a deed.

9. A statement of claim seeking damages for defamation, filed on 3 April 2019, named the Students’ Representative Council of the University of Sydney (hereafter “the SRC”) as the first defendant. This is the first statement of claim identifying a claim of defamation, so this date is relevant because of limitation issues. Confusingly, Ms Kriz accordingly became the second defendant and Ms Grace Franki (described elsewhere in this judgment as “the former fourth defendant”) was named as the third defendant.

10. The publications the subject of this statement of claim were:

1. An article authored by Ms Kriz (the first defendant) in “Honi Soit”, “first published” (i.e. the printed copy) on 30 July 2015 “and republished online in amended form” (paragraph 3 of the statement of claim). Ms Kriz and the SRC are asserted to be publishers of these. Ms Kriz is also pleaded to have republished the online version on her Facebook page “shortly after” 30 July 2015. As the plaintiff is not named in these publications, particulars of identification as well as of downloading by those persons within the 12 months prior to 3 April 2019 must be provided for each of these publications (which should not be rolled up in this fashion).

2. The second matter complained of was a conversation “in or about December 2018” between Ms Kriz (the author of the Honi Soit article) and Ms Franki.

3. The third matter complained of was an email Ms Franki sent to her boyfriend, a Mr Treeves, on 1 January 2019. (This is the one of the two claims that were later discontinued.

4. The fourth matter complained of was a conversation between Ms Franki and Mr Treeves. (This is the other claim that was later discontinued).

11. An amended statement of claim, filed on 10 April 2019, reversed the order of the first two defendants (each of whom will be referred to hereafter as “the first defendant” and “the former fourth defendant” respectively), but the essential pleadings otherwise remained the same.

12. The SRC is an unincorporated association and the claim pleaded against it was defective. The plaintiff’s solicitors filed a Notice of Discontinuance against the SRC on 9 July 2019.

13. A further amended statement of claim was served on 31 July 2019 and eventually filed on 13 August 2019. This pleading joined the fifth and sixth defendants, namely the two Directors of Student Publications for the SRC asserted to have been responsible for the online publication and the original publication. Only the sixth defendant, who was responsible for the original publication, had been served at the time of this application.

14. There were further amendments following the discontinuance against the fourth defendant filed on 2 September 2019. Her name has been struck out as a party and she has been identified in the text of the pleading as “Grace Franki” in place of “the fourth defendant”. This version of the statement of claim is the most recent version. JusticeLink confirms that no further amended pleading has been filed. It is referred to as “the current pleading” hereafter.

The current pleading still requires amendment

15. Both before and in the course of argument on 21 November 2019, Mr Glasson foreshadowed leave for further amendments to the current pleading. I particularly note:

1. In written submissions served prior to the argument on 21 November 2019, Mr Glasson made a number of concessions about the absence of particulars for the Facebook publication and publication generally. He foreshadowed that the plaintiff proposed “to amend FASOC [5] and [6] by inserting “First Defendant” into both publications, so that a direct allegation would be made that the first defendant was not only a publisher of the first matter complained but also of the Original Article, of which the first matter complained of was also a republication, by reason of having been the named author in both publications (written submissions, paragraph 30). He also foreshadowed an amendment to include a new paragraph 6A that expressly pleaded a republication of the Original Article by the sixth defendant even though he had not participated in the redraft of the article in any way (written submissions, paragraph 23).

2. In the course of argument, Mr Glasson made a number of concessions about the need to replead, particularly as to identification, as is set out in the transcript. It is clear that any ruling on the document in its present form will certainly not be the last word on these issues.

3. The fifth defendant (who is not yet served) is not referred to in the plaintiff’s written submissions but was referred to in the course of argument. It is unclear whether the plaintiff proposes any amendments against him.

16. To summarise the position at the time that I first reserved judgment on 21 November 2019:

1. The actions against the second, third and fourth defendants (namely Ms Forysth, the SRC and Ms Franki respectively) have all been resolved or discontinued.

2. The fifth defendant has never been served. The statement of claim is stale (UCPR r 6.2) and any application to serve him as a party for publications up to the end of the first year of the limitation period would need to be made within one year after the filing of the statement of claim on 3 April 2019. The parties inform me the fifth defendant resides overseas. Any application for leave to serve the plaintiff overseas cannot be made to this court: Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268.

17. There has been a further development. On 3 December 2019, after I heard the application on 21 November 2019 and reserved judgment, the plaintiff sent a further redrafted statement of claim to my associate, headed “Second Further Amended Statement of Claim”. The solicitor for the plaintiff stated, in the covering email, that this document was sent without the consent of the represented defendants. As the proposed amendments appeared to go well beyond those foreshadowed in written and oral submissions and the provision of this document to me was done without consent or leave (Wollongong City Council v Papadopoulos [2019] NSWCA 178), I relisted the application on 5 December 2019 to inquire as to the position of the parties in relation to the new material.

18. The parties were unable to agree to any course and, as Mr Glasson (for the plaintiff) was unavailable, no submissions could be dealt with. The applications were stood over to 13 February 2020 to enable the parties to consider their respective positions.

19. On 10 February 2020 the plaintiff advised the court by email that the proposed further pleadings and submissions were withdrawn. On 13 February 2020, I made the following orders:

1. The court notes that the plaintiff’s application to reopen its case in respect of the first and sixth defendants’ interlocutory application is withdrawn by the plaintiff.

2. The submissions and proposed second further amended statement of claim contained in the email sent to the court by the plaintiff, without leave of the court or consent of the other parties, on 3 December 2019 are to be removed from the court file.

3. Costs of the plaintiff’s application to reopen its case are reserved.

4. Judgment reserved in the first and sixth defendant’s interlocutory applications.

20. Any question of delay and/or inconvenience caused by the plaintiff’s further service of material after I first reserved judgment on 21 November 2019 (and again on 13 February 2020) will be determined separately. As noted in the orders at the end of this judgment, I have reserved all issues of costs.

The Honi Soit article

21. The plaintiff was elected as a Fellow of the Senate of the University of Sydney on 1 December 2012 and performed his duties as a Senator between 1 December 2012 and approximately October 2014. He also held a position on the Student Disciplinary Appeals Board.

22. On or about 30 July 2015, an article entitled “Make Her Life Hell: Georgia Kriz struggles with student teacher intimacy” was published on pages 16 and 17 of Honi Soit. On either that day or the day after publication, the plaintiff contacted the editors of Honi Soit to request the deletion of the whole of the publication, or at least the portion of the matter complained of identifying him as a member of the Student Disciplinary Appeals Board. As is set out in the affidavit of the plaintiff dated 17 January 2019 (at paragraph 32), those with conduct of Honi Soit “agreed that the reference to the Student Disciplinary Appeals Board would be deleted”.

23. This omission meant, from that time onwards, that the relevant portion of the online issue of Honi Soit read as follows:

“This worry rears its head most acutely after I speak to one student who was recently severely sexually harassed and assaulted by a member of the Senate, the University’s ultimate governing body. She tells me how she knew he could ‘make her life hell’ if she reported him. She recalls how afraid she was because she felt like any complaint she made wouldn’t have been taken seriously or would have been tied up in more bureaucracy to save face for the University. She’s adamant that I anonymise her as much as possible, because she is still terrified of his reach, and of his power.”

24. Articles published by Honi Soit remain online for an unspecified period of time and thereafter they are archived. There were two sites for this publication and, although the link to the archive was removed in January 2019, the link to the second site was not removed until approximately May 2019. There was also at least one publication on social media, in that, on 31 July 2015, the first defendant posted a link to the online article on her personal Facebook page (Schedule C of the Further Amended Statement of Claim). The plaintiff was her Facebook “friend” and made no objection to that publication until these proceedings were commenced in 2019.

25. There the situation remained until 18 October 2018, when Ms Franki (the former fourth defendant) contacted the Ms Kriz (the first defendant) to ask to discuss the plaintiff and “some of the things that happened when [she] was in first year” in 2014 (affidavit of Ms Kriz, 21 October 2019, annexure GK 6). She sets out that they met on 25 October 2018 and had a conversation, in the course of which Ms Franki asked if the plaintiff was the Senate Fellow in the article. So far as I am able to ascertain from the unsatisfactory description of the second matter complained of in the pleadings, the first defendant said that he was. Ms Franki said that she had suspected he was, and described what she termed as his sexual misconduct towards her in 2014. There was also discussion by the first defendant of the information referred to in the Honi Soit article, namely the allegations made by other young women about the plaintiff.

26. Following this, Ms Franki sent an email to her boyfriend, a Mr Treeves, on or about 1 January 2019. He told the plaintiff what was said.

27. It was following these more recent events that the plaintiff commenced proceedings in the District Court by way of Summons on 17 January 2019 and then, on 3 April 2019, filed a statement of claim for defamation (although that claim referred to four publications and the current pleading identifies only two).

The first matter complained of

28. I will not set out the whole of the article; the portion relevant to this application is set out above.

29. The imputations pleaded to arise from the first matter complained of, in its natural and ordinary meaning, are as follows:

1. The plaintiff severely sexually harassed a student of the University of Sydney;

2. The plaintiff severely sexually assaulted a student of the University of Sydney;

3. The plaintiff would abuse his power as a member of the Senate to make the student’s life hell if she reported him to the University of Sydney.

30. The particulars of publication in relation to the first matter complained of are that the first defendant wrote this article and it was approved for publication by each of the fifth and sixth defendants as follows:

“2. At all material times, the Fifth and Sixth Defendants were:

a. the publishers of a newspaper and official journal of the University of Sydney known as “Honi Soit” which is published throughout the State of New South Wales and republished online in each of the States and Territories of the Commonwealth of Australia; and

b. the two elected Directors of Student Publications of The Students’ Representative Council of the University of Sydney who were on the Honi Soit Roster at the time of publication of an article first published in Honi Soit on 30 July 2015 and republished online in amended form.”

31. In addition to these particulars of publication, the statement of claim recites that after the fifth and sixth defendants authorised publication of the article on 30 July 2015, the words “and how he boasted that he sat on the Student Disciplinary Committee” were removed from the online edition, in which state the publication remained online up until it was taken down shortly before and after the commencement of proceedings on 19 January (the summons) and 3 April 2019 (the statement of claim).

32. The plaintiff then provides the following particulars of identification:

“Particulars of identification

i. the Plaintiff was a Fellow of the Senate and a member of the Student Disciplinary Committee between 1 December 2012 and about October 2014.

ii. between 18 March 2013 and about October 2014, the Plaintiff was the only male person who was a Fellow of the Senate of the University of Sydney and a member of the Student Disciplinary Committee;

iii. Conversation between the First Defendant and Grace Franki in or about December 2018; and

iv. Email dated 1 January 2019 from Grace Franki to Shane Treeves.”

33. These particulars are deficient in that:

1. the matter complained of in fact omits the identifying words in particular (ii).

2. Particulars (iii) and (iv) impermissibly elide the first and second matters complained of.

3. Particulars of the persons who both downloaded the electronic publication and knew all (or indeed any) of these extrinsic facts are not provided, apart from Ms Franki. Given her independent reasons for simply suspecting the plaintiff, where the class is as wide as “Fellows of the Senate”, the knowledge asserted to have been available to anyone else is difficult to imagine, other than that they too had actually been told by the first defendant. For the reasons set out earlier, being told this by the plaintiff would be unlikely to be actionable.

4. What the plaintiff has set out is the basis upon which he claims he can be identified, not particulars setting out how he was in fact identified by those downloading the publication.

5. A rolled-up claim is brought by reason of publication of the article by the first defendant on her Facebook page on or about 30 June 2015. The only particular given for this publication is “Facebook page of the First Defendant”. Mr Glasson acknowledged that he was unable to give any particulars of downloading by any person in relation to this publication.

34. Mr Glasson acknowledged some of these problems during argument. He refers, in his written submissions, to two other persons being potential downloaders. It is unclear when and how these downloads were made and whether these persons did so at the direction of the plaintiff. Any sharing of this post by the plaintiff for the purposes of this litigation would not amount to publication to a third party for the reasons explained by Hunt J in Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 (see also Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) at [30]-[39]; cf Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253 at [3] – [7]).

35. In light of Mr Glasson’s concession during argument that there were no downloads of the July 2015 Facebook post during the 12 months prior to the bringing of this claim, I propose to strike out the Facebook portion of the claim on the basis of absence of evidence of publication to any third party.

The second matter complained of

36. This is a conversation between the first defendant and the former fourth defendant. The text of the slander is not set out beyond being described as follows:

“10. In or about December 2018, during a conversation between the First Defendant and the Fourth Defendant Grace Franki, the First Defendant informed the Fourth Defendant Ms Franki that:

a. the Plaintiff was the member of Senate referred to in the original article and the first matter complained of;

b. the First Defendant had been informed by the anonymous source of the original article and the first matter complained of the names of six other persons who had experienced similar harassment by the Plaintiff; and

c. the anonymous source of the original article and the first matter complained of was terrified of the Plaintiff who had threatened the source multiple times.

(the “second matter complained of”)

Particulars

i. Conversation between the First Defendant and the Fourth Defendant Grace Franki in or about December 2018; and

ii. Email dated 1 January 2019 from the Fourth Defendant Grace Franki to Shane Treeves.”

37. The imputations pleaded to arise from the second matter complained of, in its natural and ordinary meaning, are as follows:

1. The plaintiff had severely sexually (i) harassed; and (ii) assaulted, a student of the University of Sydney;

2. The plaintiff had sexually harassed six other women;

3. The plaintiff had threatened the anonymous source of the original article multiple times so as to cause her to be terrified of him.

38. The email referred to is the email which was previously the third matter complained of.

The true innuendo plea

39. The plaintiff also pleads, in relation to the second matter complained of, that by way of true innuendo, the following imputation arise:

1. The plaintiff had severely sexually (i) harassed; and (ii) assaulted, a student of the University of Sydney.

40. The “true innuendo” is asserted to have arisen from the following:

“Particulars of true innuendo

i. The original article and the first matter complained of;

ii. The Plaintiff was a member of the Senate between 1 December 2012 and about October 2014;

iii. between 18 March 2013 and about October 2014, the Plaintiff was the only male person who was a Fellow of the Senate of the University of Sydney and a member of the Student Disciplinary Committee;

iv. conversation between the First Defendant and Grace Franki in or about December 2018; and

v. email dated 1 January 2019 from Grace Franki to Shane Treeves.”

41. For the same reasons as those set out in relation to the first matter complained of, the pleader has misconceived the nature of identification evidence and of a true innuendo plea.

42. The only other person present at this conversation was the former fourth defendant, who wrote the email referred to. While a publication between two defendants may still constitute a libel (Trantum v McDowell [2007] NSWCA 138), the first defendant can still only be liable for what she actually said.

43. I understand proceedings between the former fourth defendant and the plaintiff have settled. As I was not addressed on the issue of merger, I do not propose to do more than note the settlement. The fact that the plaintiff has settled his claim against Ms Franki may be relevant to damages and thus to the issue of proportionality.

Summary dismissal

44. The application for summary dismissal is brought on the following bases:

1. No (or no satisfactory) evidence of publication of the first matter complained of: There is no evidence of publication to a third party and/or downloading the online publications beyond the reference to Ms Kriz, whose suspicions were aroused by reason of her own knowledge of the plaintiff. Mr Glasson acknowledges he has no evidence of downloading of the Facebook publication, but relies upon the names of four identified persons (two of whom are the former fourth defendant and her boyfriend and two of whom are insufficiently identifiable) in relation to the Honi Soit article (apparently the online version).

2. Inadequacies in the pleadings: The first and sixth defendants complain that the plaintiff’s case is hopelessly pleaded, despite multiple attempts and multiple former defendants. Mr Glasson acknowledges there is inadequate particularisation of publication, identification, extrinsic facts (and the persons knowing those facts) and the “republication” Facebook claim and essentially asks for another opportunity. However, the first and sixth defendants submit that the inadequacies of pleading to date warrant the dismissal on the grounds identified in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 at [44] per Macfarlan JA.

3. A “weak case”: Pursuant to UCPR r 13.4, the defendants submit that the weight of evidence is such that the claim should be summarily dismissed.

4. Proportionality: The first and sixth defendants rely upon the principles of proportionality and submit that the costs of proceedings concerning an archived 2015 article and a 2018 conversation to one person are disproportionate to the asserted damage to the plaintiff’s reputation: Bleyer v Google Inc (2014) 88 NSWLR 670.

The plaintiff’s submissions on legal issues

45. Mr Glasson notes generally that this is not an application for a separate trial on the issue of identification and/or publication pursuant to UCPR r 28.2. While a party may assert that his opponent has a “weak” case and seek summary dismissal on that basis (Cranbrook School v Stanley [2002] NSWCA 290), the facts would need to be exceptional.

46. Mr Glasson points out that the defendants face the following difficulties with the material filed in support of their applications:

1. Disputed facts may not be led: I agree with Mr Glasson’s submission that evidence which may be led in a separate trial pursuant to UCPR r 28.2 and tested by cross-examination may not be dealt with in the same fashion in a summary dismissal application, where the evidence supporting the party opposing the application should be taken at its highest.

2. Challenge to the right to replead: The first and sixth defendants’ complaints arise principally from the admitted inadequacy of particularisation of publication and extrinsic facts. Applications for summary dismissal on the basis of absence of proper particularisation of a case will only be granted where the claim is manifestly groundless or so obviously untenable that it cannot possibly succeed (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). In particular, where there is an absence of particulars (such as particulars of downloading or of publication), the proceedings will not be struck out and dismissed; almost invariably, the pleader will be granted an opportunity to replead, even where the pleading is hopeless in its current form: El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990 (failure to particularise “worldwide” publication”).

3. Proportionality is a controversial claim: Summary dismissal of proceedings for the reasons of proportionality remains a controversial remedy. It has yet to be approved at appellate level, apart from the obiter remarks of Basten JA in Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 at [5]. Even in the United Kingdom, the striking out of proceedings as an abuse of process for proportionality has been described as an “exceptional” remedy: Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB).

The first two claims: no evidence of publication and hopeless pleadings

47. This is the first time the pleading has come before the court, but this was not for want of challenge. For example, when the plaintiff previously sought leave to amend his claim as against the former fourth defendant, Mr Kay of Kay & Hughes Art & Entertainment Lawyers raised these issues in correspondence, in the context of s 60 of the Civil Procedure Act 2005 (NSW). The following significant defects were identified by him:

“The First Matter Complained Of

6 With respect to the first matter complained of, the FASOC fails to:

a. particularise whether the first matter complained of is the publication dated 30 July 2015 detailed at Paragraph 5, the subsequent publication detailed atParagraph 6 or the Facebook post detailed at Paragraph 7;

b. particularise the publication on which the Plaintiff relies in accordance with r 15.19 (1) (a) of the Uniform Civil Procedure Rules 2005;

c. particularise whether the first matter complained of was accessed by one or more persons and the identity of such persons or class of persons;

d. particularise the publication, circulation or distribution on which the Plaintiff relies on the question of damages in accordance with r 15.19 (1) (b) of the Uniform Civil Procedure Rules 2005;

e. particularise the identities of those persons who accessed the first matter complained of and to whom the particulars of the identification of the Plaintiff under Paragraph 6 were known in accordance with r 15.19 (1) (d) of the Uniform Civil Procedure Rules 2005; and

f. particularise the parts of the first matter complained of that are relied on by the Plaintiff in support of each pleaded imputation under Paragraph 9 in accordance with r 15.19 (1) (e) of the Uniform Civil Procedure Rules 2005.

7. In its proposed form the first matter complained of is therefore confusing and does not permit the Fourth Defendant to understand the case she is to meet.

The Second Matter Complained Of

8   With respect to the second matter complained of the FASOC fails to:

a. particularise the publication, circulation or distribution on which the Plaintiff relies on the question of damages in accordance with r 15.19 (1) (b) of the Uniform Civil Procedure Rules 2005;

b. particularise whether the second matter complained was accessed by one or more persons;

c. particularise the identities of the persons or a class of persons to whom the facts and matters that are relied on to establish the true innuendo under Paragraph 13 (a) (iii) were known in accordance with r 15.19 (c) of the Uniform Civil Procedure Rules 2005; or

d. particularise the parts of the second matter complained of that are relied on by the Plaintiff in support of each pleaded imputation detailed at Paragraphs 12 and 13 in accordance with r 15.19 (1) (e) of the Uniform Civil Procedure Rules 2005.

9 In its proposed form the second matter complained of is therefore confusing and does not permit the Fourth Defendant to understand the case she is to meet.

Third Matter Complained Of

10 With respect to the third matter complained of the FASOC fails to:

a. particularise the publication, circulation or distribution on which the Plaintiff relies on the question of damages in accordance with r 15.19 (1) (b) of the Uniform Civil Procedure Rules 2005;

b. particularise the parts of the third matter complained of that are relied on by the Plaintiff in support of each pleaded imputation detailed at Paragraph 15 and Paragraph 16 in accordance with r 15.19 (1) (e) of the Uniform Civil Procedure Rules 2005.

11 In its proposed form the third matter complained of is therefore confusing and does not permit the Fourth Defendant to understand the case she is to meet.

Fourth Matter Complained Of

12 With respect to the fourth matter complained of the FASOC fails to:

a. particularise the publication, circulation or distribution on which the Plaintiff relies on the question of damages in accordance with r 15.19 (1) (b) of the Uniform Civil Procedure Rules 2005;

b. particularise the parts of the fourth matter complained of that are relied on by the Plaintiff in support of each pleaded imputation detailed at Paragraph 18 in accordance with r 15.19 (1) (e) of the Uniform Civil Procedure Rules 2005.

Further Defects

13 The pleadings under Paragraphs 12 (a), 13 (a), 16 (a) and 18 (a) are defective on the basis of being ambiguous, imprecise and containing compound attributes. Allegations of "harassment" and "assault" convey different stings, and should be pleaded as separate imputations.

14 As to loss and damage:

a. Paragraph 19 (ii) is defective in that the further amended statement of claim fails to particularise which part of the first matter complained of constitutes "extravagant and sensational language”;

b. Paragraph 19 (iv) is defective in that the further amended statement of claim fails to particularise which part of the matters complained of constitute "irrelevant and gratuitous personal attacks";

c. Paragraph 19 (v) is defective in that the extent and mode of the publication, circulation or distribution has not been particularised in relation to the first, second, third or fourth matters complained of;

d. Paragraph 19 (vi) is defective in that the further amended statement of claim fails to particularise the basis on which the Plaintiff alleges that the matters complained of were actuated by malice and/or an improper motive or purpose, deliberately designed and intended to injure the Plaintiff;

e. Paragraph 19 (vii) is defective in that the Fourth Defendant did correspond with the Plaintiff about the matters the subject of the third and fourth matters complained of, and the Plaintiff offered his an "unconditional apology”;

15 The typescript annexed as Schedule D1 to the further amended statement of claim does not comply with r 15.19 (2) (b) (i) of the Uniform Civil Procedure Rules 2005, in that it is not a full and accurate representation of the text of the Email because the typescript does not reflect the text of the two text messages embedded in the Email.”

48. These submissions were relied upon by the first defendant, whose representation has been on a pro bono basis throughout. As is clear from Mr Kay’s letter, the same deficiencies are relevant to the claim against the sixth defendant as well.

49. This multiple amendments to date are unfortunate, not only in number but also in the length of time taken. The most significant problem is that I must take into account that the current pleading remains defective and that further interlocutory argument will be necessary. During these arguments, it will be necessary for the two remaining defendants to address individually each of their pleading and particularisation complaints, most of which are acknowledged to be justified, and may in fact require the plaintiff to replead the whole of the claim.

50. The question is whether those errors are so extreme, and the time taken to correct them so long, as to warrant summary dismissal on that basis. The first and sixth defendants rely upon Macfarlan JA’s observations in Ghosh v NineMSN Pty Ltd at [44]:

“In my view, her Honour’s conclusion is supportable by reference to the first source of power on which she relied, namely UCPR r 12.7. It is therefore unnecessary to review her Honour’s consideration of the authorities concerning the dismissal of proceedings for want of the proportionality identified in s 60 of the Civil Procedure Act. It is sufficient to say that the dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further factors favouring that result, is likely to be justified only rarely. The primary judge did not act on this basis, even in considering her alternative ground. Rather, in concluding that there was a lack of proportionality, her Honour had regard to the same considerations that were relevant to the first ground of lack of “due despatch”, including “gross pleading errors [by Dr Ghosh], repeated listings and long directions hearings” (Judgment [120] and see [36] above). Furthermore, what her Honour perceived as a lack of proportionality was properly taken into account in her decision to dismiss the proceedings under UCPR r 12.7.”

51. The facts in that case were exceptional, in terms of the number of applications brought before the court, the number of attempts to replead and the plaintiff’s failure to respond to these repeated complaints. Nevertheless, there are some similarities between the two cases:

1. First, both involved “residual” claims, in that the publications Dr Ghosh complained of repeated material published some years earlier. In both cases, some of the claims faced challenges of a limitation nature, which repeated attempts at pleading were unlikely to overcome.

2. Second, in Dr Ghosh’s case, only images of her investment property’s backyard were shown and identification was a significant issue. The same is the case with the first matter complained of.

3. Third, the “muddle” factor is a feature in both claims. The pleadings are constantly changing and it is hard to keep track of which amendment is relied upon and which is withdrawn.

4. Fourth, the “time” factor is the same, in that, like Dr Ghosh, the plaintiff is still at the statement of claim stage despite attempts made over a year (although Dr Ghosh took two years), and looks like remaining at this stage for some time.

52. Mere inability to plead a case, however egregious, is not enough. Leave to replead would be appropriate, although there must come a time when repleading becomes onerous: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. It must be remembered that, in those proceedings, the defect complained of was a repeated repleading of imputations. The defects in this case are far more serious, particularly in relation to the first matter complained of, in that they are defects of the kind identified in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192. Does that warrant striking out such a claim in the manner foreshadowed by Hunt J?

53. There are, however, two other grounds upon which summary judgment is sought. The combination of these grounds is relied upon. I will set the parties’ arguments out in relation to these issues.

A “weak case”?

54. The second basis for summary dismissal is that the plaintiff’s claims against the first and sixth defendants are asserted to be weak.

55. The circumstances in which the weakness of an opponent’s case may warrant its dismissal are discussed in Cranbrook School v Stanley at [74]-[77]. As is the case here, there were significant deficiencies in the case as pleaded, suggesting to the members of the court that the plaintiff’s claim for damages against his school for breach of duty of care following his being sexually assaulted in a dormitory was a case where there were “little prospects of success” (at [79]). This included a consideration of the case as being “a small claim”, as Heydon JA noted at [82]:

“82 Fourthly, the opponent’s own counsel, who is extremely experienced in all types of personal injury litigation, conceded that though his client’s claim was “real” and “serious”, “not by any stretch a hopeless case”, it was “not big” – “it’s a small claim.” In short, even if the claim succeeded, which is highly questionable in view of the contradictory nature of the evidence and the gaps in the way it is formulated, it would not result in damages of any significance. That is supported by the fact that despite the complaints he makes, the opponent has had quite a successful life. He told Dr Morse that he ran “his own legal investigation business”. He achieved an ambition which thousands of young men have but which relatively few achieve, namely playing first grade rugby union football. Though injury has curtailed his career, he is active in coaching. These facts negate the allegations in the particulars that he “has been restricted in a wide range of work, sports, social and hobbying activities” and that he “has been restricted in his ability to earn on the open labour market and claims in respect of a diminution of earning capacity”.”

56. The facts in Cranbrook School v Stanley were as follows. The plaintiff, a boarder at Cranbrook School in Year 8, awoke in the dormitory at 4:00am to find someone grabbing him in the genital area. He began screaming and the assailant left as other students in charge of the dormitory ran in. He was interviewed by the Housemaster and Principal but nothing more was done and according to the plaintiff he was “told by school authorities not to talk about it” (at [29]) even though he continued to be distressed at night for some time. The plaintiff accepted statements by school staff that another schoolboy (who had left the school) was responsible for this attack. Some years later, he found out that one of the teachers in the school had been convicted of similar offences. The plaintiff suffered tremendous feelings of guilt, in that he may have got another student into trouble without cause, and told a psychiatrist he had been brooding about this ever since. He said his feelings of guilt destroyed his sense of confidence, and that he was upset that the Housemaster and Principal of the school “did nothing” (at [29]) about his attack, either in terms of finding the culprit or providing counselling.

57. Heydon JA stated that the pleadings failed to identify the standards a non-negligent school in the claimant’s position would reasonably have adopted and that, without evidence of those standards (adding “and it is far from self-evident what they might have been” (at [76])), there was no evidence of breach of duty. In addition, assuming that the plaintiff had been treated as he ought to have been, there could be no evidence of causation or damage. The claim was accordingly struck out.

58. These statements were made in the context of the exercise of a discretion to extend time under the Limitation Act 1969 (NSW). No such discretion applies here, but similar concerns would apply. Viewing Heydon JA’s observations as to a “weak” case generally, the striking out of proceedings on the basis that the cause of action appears to be weak is one which should be taken only in the clearest of cases. It may be that, with the benefit of greater understanding of the impact of sexual assault upon teenagers which is now more readily available, a court might not come to the same conclusion today as that reached in 2002 by the New South Wales Court of Appeal in Cranbrook School v Stanley. I note the reluctance of the same court (otherwise constituted) in Ford v Nagle [2004] NSWCA 33.

59. All of these concerns indicate the dangers of acceding to applications that actions should be struck out on the basis of being “a weak case”. I decline to do so on this basis.

Proportionality

60. The relevant principles of law, set out in the landmark decision of Bleyer v Google Inc and, more recently, by the New South Wales Court of Appeal in Ghosh v NineMSN Pty Ltd, do not require repetition. A comprehensive list of all the relevant decisions is set out in Armstrong v McIntosh [No 2] [2019] WASC 379, as are the relevant principles. In Armstrong v McIntosh [No 2], these principles were considered separately in relation to each of the matters complained of and only one, a conversation with a priest, was struck out.

61. The doctrine is, however, a controversial one, and great caution should be exercised when applying principles of proportionality and, in particular, in relation to the principles as applied in decisions of the courts of the United Kingdom.

62. The principles enunciated in Bleyer v Google Inc are particularly of relevance to the sixth defendant, in relation to the publications by Honi Soit on 30 and 31 July 2015. This is for two reasons:

1. The limitation period expired on 30 or 31 July 2016, depending upon which version the plaintiff complains about. This means that downloading must be established within the 12-month period prior to commencement of proceedings for defamation on 3 April 2019. That publication must be to a person able to identify the plaintiff by reason of extrinsic facts, given that the plaintiff is not named. While Mr Glasson argues that the size of the audience as yet unspecified, on the information he has put before me, it is likely to be as small as or smaller than the audience in Bleyer v Google Inc.

2. Publications on an archive kept by newspapers or other information providers have been acknowledged to give rise to different proportionality principles to those applicable to other forms of publication, in that these have been described as “residual” claims (Budu v The British Broadcasting Corporation at [93]; see also [88]-[119]).

3. The matter complained of, in the form agreed to by the plaintiff, remained on the Honi Soit website between approximately 30 or 31 July 2015 and approximately May 2019, when a second link to the matter complained of was discovered and deleted. Whatever links may still have been active in 2019, the publication formed part of an archive of past issues of this weekly student newspaper which appear to go back a number of decades. No search for the plaintiff’s name would have been possible, unlikely Bleyer v Google Inc.

Residual claims

63. Honi Soit is a weekly student newspaper and the first matter complained of was archived some years ago. The purpose of archives is to store information, not to attract an audience of readers; they are designed to be searched by persons seeking specific information, generally as a result of information from another source. The applicability of the principles of proportionality to newspaper and journal archives has been considered in a number of decisions in the United Kingdom which cast light on this specific form of journal or newspaper.

64. In Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805, the Court of Appeal considered the availability of the matters complained of in archives maintained by one of the United Kingdom’s oldest and most respected newspapers in its capacity as an information provider as part of its “watchdog” functions was insufficient to outweigh the damage to personal reputation. The Court also noted (at [74]) that archives could be maintained in such ways as to ensure that a person was not defamed, such as by appropriate notice.

65. In Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), Tugendhat J took this a step further:

“233. Whether or not the scale of a website publication, and any resulting damage, is likely to be modest compared with that of the original publication, will depend on the facts of each case. But the judgment in Loutchansky was delivered eight years ago, in 2001. Since then the use of the internet, and in particular of internet search engines has increased. What has also increased is the amount of material on the internet. In 2001 there were relatively few years of back numbers of newspapers available on the internet. Since then each year's publications have been added. In most cases, as time passes, the original print publication will become increasingly difficult to access, and would be forgotten. But the website publication will remain, and in some cases (where the fame of a person has increased) it may even be viewed with increasing frequency. So a person's reputation may be “damaged forever” in the words of Lord Nicholls in Reynolds at p201 cited in para 207 above. As I remarked in another case, quoting from an article by a well-known media lawyer, what is to be found on the internet may become like a tattoo (Clarke (t/a Elumina Iberica UK) v Bain & Anor TRAN_ para 55). Some actual and prospective employers, and teachers, make checks on people by carrying out internet searches. An old defamatory publication may permanently blight a person's prospects. This may be so, even in those cases where the allegation has been authoritatively refuted, but the refutation is either not on the internet, or, where it is on the internet, its authority is not apparent, or is not credited, on the footing that there is no smoke without fire.” [emphasis added]

66. Three factors concerning archive publications are relevant here:

1. The archive may be electronically searched for names, so the absence of a name in a publication is significant.

2. The archive has the flexibility to add a notation to negate the defamatory sting and the use of this may be relevant.

3. The lapse in time may additionally render the damage less harmful, as most harm occurs at or soon after the time of publication.

67. These were considered to be vital factors in Budu v The British Broadcasting Corporation at [88]-[119]. This was because, relevantly for the purposes of these proceedings, there were two additional factors. First, Mr Budu had made a complaint about website articles and a note was placed containing the additional information he sought to be added (at [91]). Second, after that note was added, there was then no further communication for a number of years, or in fact prior to the statement of claim being served (at [91]).

68. In Budu v The British Broadcasting Corporation, Sharp J captured the limited nature of the damage by describing the plaintiff’s cause of action as “a residual claim” (at [93]), in that the only claim which could be made would be for a portion of the time during which the matter complained of remained online. While noting the problems caused by potential continuing liability in respect of internet news archives as considered in Loutchansky v The Times Newspapers Ltd, her Honour distinguished that decision as follows:

“[114] Loutchansky on its facts (like Flood) was not a case which concerned internet publications alone; nor was it one in which the actions in respect of the internet publications were brought years after the material complained of had been archived. The balance to be struck between the respective rights of the parties in circumstances where such a delay has occurred, was however expressly considered by the EctHR in Times Newspapers Ltd v United Kingdom, [2009] EMLR 14. The EctHR concluded the finding by Court of Appeal in Loutchansky that the applicant had libelled the claimant by the continued publication on the internet of the two articles was a justified and proportionate restriction on the applicant's right to freedom of expression, but it is important in my view to note why it came to that conclusion on the facts.”

69. Central to the issue of proportionality was the finding of fact (at [116]) that that the BBC had taken reasonable steps by attaching a notice to the articles.

70. In these proceedings, not only was a similar step immediately taken by the organisation to which the sixth defendant reported, but it went well beyond merely attaching a note, in that it altered the text of the matter complained of in accordance with the plaintiff’s request. The plaintiff may have sought more (and I am prepared to assume that he did), but the practical effect was that identifying him was made much harder.

71. Secondly, her Honour placed a greater emphasis on the period of delay than had been done in Loutchansky v The Times Newspapers Ltd:

“[118] Generally, it is a disproportionate interference with a party's article 10 rights to bring a claim for libel after a significant period of time has elapsed. In my judgment, the potential prejudice to a defendant in advancing a defence is a relevant factor to be weighed against permitting a claim in respect of archived internet material to proceed, many years after the date of the original publication. It is by protecting defendants from being vexed by such actions where appropriate, that the Court acts compatibly with the European Convention on Human Rights, and strikes a balance between the parties' respective rights under articles 6, 8 and 10.”

72. This is not a case where the plaintiff has discovered the publication after the limitation period has expired. On more or less the day after the publication was made, the plaintiff negotiated the removal of what he saw as a vital identifying factor, and was content to leave the article in that format for a further three and a half years, until the former fourth defendant approached the first defendant to ask if her suspicions concerning the identity of the plaintiff (drawn from her own independent personal experiences with him) were correct.

Nominal damages?

73. The defendants submit that damages are likely to be nominal for all publications, for the following reasons:

1. The plaintiff is not named in the first matter complained of. Any publication to the former fourth defendant occurred in circumstances where she not only already held the view he was guilty of such conduct, but was suspicious only, and was looking for further evidence. The fact that the former fourth defendant had to check her suspicions with the first defendant suggests that identification of the plaintiff to other persons from the website alone would be a task of very great difficulty.

2. There is no evidence of any downloading of the 2015 Facebook publication.

3. As to the second matter complained of, damages for slander are generally acknowledged to be less than for written publications (Umeyor v Ibe [2016] EWHC 862 (QB); uncapped damages of $5,000 for three slanders in Jones v Sutton [2004] NSWCA 439 were not challenged on appeal). The extent of publication here is limited to one person. The plaintiff has settled or discontinued his claim against her. Her opinion of the plaintiff is such that his reputation could hardly be thought less of. I understand a plea of mitigation of damages is likely. Counsel for the first defendant has also told the court that a justification plea will be brought.

4. The currently pleaded claim is acknowledged to be inadequate in fundamental areas such as identification and extent of publication and the statement of claim will clearly require further revision after this application is dealt with. Many, if not most, of the defects have been pointed out in correspondence, but ignored. Rather than wait for further versions to be produced, and seek further rulings, the claim should be struck out now.

5. While the first and sixth defendants acknowledge that the imputations are serious and that there have been no prior applications for rulings on pleadings, they point to the absence of a properly pleaded case even on the iterations of the pleadings to date, including the antiquity of the claim for the Honi Soit publication, the continued absence of the text of the slander, proper particulars of identification, evidence of the nature and extent of downloading and publication to third parties other than the former fourth defendant.

74. As previously noted, the plaintiff’s written submissions and oral argument acknowledge the need for a further pleading, but state that the plaintiff has a strong case for resisting summary dismissal. These include:

1. Summary dismissal is for exceptional cases only, of which this is not one.

2. The element of vindication of reputation, which may be achieved by a favourable judgment and not in monetary terms, is not to be disregarded.

3. When the online readership of the first matter complained of is taken into account, it cannot be said that only nominal damages could be awarded. The submission that the plaintiff’s identification case for the online publication is “hopeless” cannot be made, when, on the first defendant’s own evidence, Ms Franki viewed the first matter complained of in the relevant period and identified the plaintiff, whether she sought confirmation of the plaintiff’s identity from the first defendant or not. That is sufficient for the case to proceed to trial and not to be determined summarily, even putting aside the fact that the plaintiff will refer to up to four other persons who the plaintiff says did the same. While those particulars are acknowledged to be defective in that the basis for identification, the reason for consultation of this archived document (i.e. whether they did so at the instigation of the plaintiff) and the dates upon which these occurred are not specified, these are matters for further particulars and/or the trial.

4. Despite having been directed to file a defence by 1 October 2019, the first defendant has not yet done so (I note, however, that the bringing of this application is the explanation).

5. While the first defendant submits that publication to Ms Franki alone means that the plaintiff essentially suffered no harm (first defendant’s submissions, paragraph 52), publication to one person other than the plaintiff completes the cause of action. There have been actions where publications to one person have been considered sufficient for a defence of unlikelihood of harm to fail (Jones v Sutton being an example where awards of damages of $1,000 and $2,000 were considered unappellably correct) or where leave to appeal has been granted by the High Court. In Dillon v Cush; Dillon v Boland [2010] NSWCA 165 the Court of Appeal did not deal with the application for leave to appeal the triviality defence. The legal issues arising in this case of publication to one person were considered of such import that leave to appeal was granted by the High Court despite the slander being made only to one person and the damages awarded being only $5,000 (Cush v Dillon; Boland v Dillon (2011) 243 CLR 298). What is more, the Court of Appeal entertained further appeals (including Boland v Dillon; Cush v Dillon [2015] NSWCA 183), which sends a very clear message to defendants that the Court considers slanders to one person very seriously. The costs of the appeals and the three trials at first instance (including a s 7A jury trial) would have been enormous. In those circumstances, the first defendant cannot claim that her costs would be “so vast” and thus “out of all proportion” (as claimed in her counsel’s submissions) to the interest at stake as to warrant the stay or dismissal.

1. Proceedings should only be struck out where they are an abuse of process, and that is a very high barrier for any defamation claim on a summary basis. Neither the first nor the sixth defendant has met their onus of establishing that these proceedings are an abuse of process because they have been brought for an illegitimate purpose, or that they are unjustifiably oppressive, or that they would bring the administration of justice into disrepute.

2. The first defendant’s submission (written submissions, paragraph 56) that these proceedings are “in truth... fundamentally driven by Massarani’s upset at the disruption to his relationship with Treeves” or “an attempt to litigate a falling out between friends” should not have been made. These are disputed issues of fact for the trial.

Conclusions concerning proportionality

75. As is emphasised in the extracts from the decisions set out above, proportionality issues generally turn on the facts of the case. In a summary dismissal application, the plaintiff’s case must be put at its highest. I have disregarded all the affidavit material put forward by both defendants as to the asserted strengths of their cases and looked at the plaintiff’s claim in its most favourable light.

76. I agree that the remedy is to be applied only in exceptional cases. Mrs Justice Sharp, in Budu v The British Broadcasting Corporation, stressed the exceptional nature of the granting of such relief at [128] as follows:

“[128] I am conscious that the abuse jurisdiction is exceptional. But if the Claimant were to succeed at trial in relation to a vestigial case, the cost of the exercise would in my judgment, have been out of all proportion to what had been achieved. If it were it necessary for me to do so, considering the matter "in the round" I would take the view that the BBC should not have to be put to the cost and trouble of defending these proceedings so many years after the initial publications, taking into account all the factors to which I have referred, including the potential prejudice to it in doing so; and that permitting this action to continue, on the facts of this case, would constitute a disproportionate interference with the BBC's article 10 rights and would be an abuse of the process.”

77. I also acknowledge that there have been decisions in the past (although under the repealed legislation) where slanders to one person have been considered at length by appellate courts at the highest level and where defences of triviality have not merely failed, but failed dismally.

78. However, the winds of change have led to the uniform legislation and its introduction of capped damages, the enactment of the Civil Procedure Act 2005 (NSW), a greater concern about the overriding purpose (Dennis v Australian Broadcasting Corporation at [29]) and court resources, previously regarded as “infinite” (Bleyer v Google Inc at [56]) and finally to the favourable observations as to the correctness of Bleyer v Google Inc by Basten JA in Farrow v Nationwide News Pty Ltd at [39].

79. Stripped of its technicalities, the second matter complained of came about because the former fourth defendant sought out the first defendant because of her suspicions, based on her interpretation of own previous sexual encounter with the plaintiff (which the plaintiff acknowledged in the affidavit of 17 January 2019 he served on Ms Kriz in support of his Summons and which is not a fact in dispute). The plaintiff has discontinued his claims against the fourth defendant, including for her publications to her boyfriend. Her evidence at the trial will not assist the plaintiff in recovering a significant amount of damages.

80. If there are other independent readers of the first matter complained of (namely in circumstances where they have made the identification independent of any request by him), the plaintiff should have been able to give full and proper particulars of these by now, or risk the loss of the action, conformably with the principles set out in Lazarus v Deutsche Lufthansa AG at 192 (see the application of this decision to the obligation to provide particulars of downloading in MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206; Sims v Jooste (No 2) [2016] WASCA 83; Cronau v Nelson [2018] NSWSC 1769; El-Mouelhy v Q-Society of Australia Inc (No 2)).

81. In addition, Mr Glasson has already conceded there are no particulars for the Facebook publication. That claim must be struck out.

82. The issue of proportionality in relation to the second matter complained of arises from different problems. I acknowledge that appellate decisions in slander cases do not support a contention that publication of a slander to one person (even where that person’s opinion of the plaintiff could hardly be worse) is disproportionate to the protection of reputation. However, there are other problems. Just what is the first defendant alleged to have said, and how can it be distinguished from what was said by the fourth defendant (against whom the plaintiff has discontinued in relation to all claims, including this claim)? The plaintiff’s failure to set out those portions of the conversation attributed to the first defendant is only the first difficulty of a case where the plaintiff is effectively suing one person for defaming him to another person who defames him back. This is a much stronger case than Marble v Chapin (1882) 132 Mass 225, in that the former fourth defendant’s part of the conversation was not merely the endorsement of the publication but a fresh set of allegations (see Trantum v McDowell at [7]).

83. In all the circumstances, given the failure to provide such essential prerequisites and the acknowledgement that the pleading in its current form is untenable. These proceedings should be struck out pursuant to rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

84. Although acknowledging the difficulties of the Facebook publication, Mr Glasson seeks leave to replead those other portions of the current pleading the subject of any successful challenges by the first and sixth defendants.

85. For the reasons set out above, I consider that the plaintiff should not be granted another chance to do so. The plaintiff has engaged the defendants’ legal representatives in a series of out-of-court correspondence exchanges but has not moved forward in terms of identifying concisely the nature and extent of publication. The principal changes to the plaintiff’s claim have been to the names and number of defendants. This failure has occurred where the fundamental nature of the defendants’ concerns has been acknowledged as an essential concern (see, for example, the many judgments applying Lazarus v Deutsche Lufthansa AG referred to above). The threat of having a defamation action struck out due to a failure to plead essential elements is not a new one, or one relevant only in proportionality claims; Hunt J made these observations as long ago as 1985.

86. These failures render the probability of dismissal of the proceedings likely, not merely on proportionality bases, but on the overlapping basis indicated by Macfarlan JA in Ghosh v Ninemsn Pty Ltd at [44]. In the present case, these failures are not those of form, such as failure to comply with timetables, but a more serious pleading failure, namely inability over a series of pleading attempts to identify one or more of the fundamental features of each of the two defamation claims.

87. The exceptional remedy of striking proceedings out is not a course to be taken lightly, and I have given much anxious consideration to the entitlement of the plaintiff to take his case to trial regardless of legal technicality, expense and the size of the ultimate financial reward, as the vindication of reputation in the public sphere is as important as the consolation afforded by the jingling of the guinea. I do not hear the first and sixth defendants gainsaying these principles.

88. I have also given consideration to striking out only the more obviously hopeless claim (the first matter complained of) and of leaving the slander, where pleading issues are no less serious, but where there are no identification or limitation problems. However, the interrelationship of the two publications is such (in that the plaintiff relies or will rely on publication to the former fourth defendant in both cases) that partial dismissal of the kind that occurred in Armstrong v McIntosh [No 2] is impractical. Although the second matter complained of appears better pleaded, the task of identifying what parts of the conversation (if any) the first defendant (and not the fourth defendant) said will be a significant task. I also consider the likelihood of an award of any substance is very low.

89. The burden on court resources is also a factor, although a relatively small one in this case. The likelihood of a series of further pleading and particulars arguments is the only real concern.

90. Taking into account all of the above, I am satisfied that this one of those exceptional cases where the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake. Accordingly, the principles of proportionality as set out in ss 60, 61 and 67 of the Civil Procedure Act 2005 (NSW) and UCPR r 12.7 also form part of the basis for dismissal of the plaintiff’s claim for defamation against the first and sixth defendants in relation to the first and second matters complained of.

The orders to be made

91. I am reluctant to strike out the proceedings in their entirety because of the position of the unserved fifth defendant as Mr Glasson indicated during argument that he was considering what steps his client should take. I propose therefore to make the orders striking out specific paragraphs as sought by the first and sixth defendants. The parties have liberty to apply in relation to any additional orders that they may consider necessary in those circumstances.

92. The Summons filed by the plaintiff on 19 January 2019 remains active on Justicelink as against the first defendant, although it was struck out as against Ms Forsyth. I have accordingly made orders for the Summons as well as the relevant paragraphs of the statement of claim to be dismissed and for the plaintiff’s claims for leave to replead these claims to be refused.

93. I have not been addressed as to costs and grant liberty to apply.

Orders

1. Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the “Further Amended Statement of Claim” filed on 13 August 2019 are struck out and dismissed, with leave to replead refused.

2. Summons filed on 19 January 2019 struck out and dismissed.

3. Costs reserved.

4. Liberty to apply on seven days’ notice.

5. Exhibits retained until further order.

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Decision last updated: 27 February 2020