Petersen v Blanco

[2020] WADC 80

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PETERSEN -v- BLANCO [2020] WADC 80

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   4 JUNE 2020

DELIVERED          :   25 JUNE 2020

FILE NO/S:   CIV 355 of 2018

BETWEEN:   JOHN PETERSEN

Plaintiff

AND

CAMILO BLANCO

Defendant

Catchwords:

Practice and procedure - Defamation action deficiencies within the pleadings - Whether the deficiencies could be remedied by obtained information by subpoena

Legislation:

Nil

Result:

Application dismissed in part
Matter adjourned to give the plaintiff to obtain further information by way of subpoena

Representation:

Counsel:

Plaintiff	:	Mr C Chenu
Defendant	:	Mr S Shepherd

Solicitors:

Plaintiff	:	Vogt Graham Lawyers
Defendant	:	Clyde & Co (Perth Office)

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

Nil

DEPUTY REGISTRAR HEWITT:

1. This action began by a writ filed on 31 January 2018.  That writ was duly served and a judgment in default of appearance was entered against the defendant on 20 March 2018.  That judgment was subsequently altered pursuant to an order dated 19 June 2018 and was eventually set aside by the order of court dated 1 July 2019.  A statement of claim was lodged on 8 July 2019 and a substituted statement of claim was lodged on 28 January 2020.  By a chamber summons filed 10 March 2020 the defendant applied for:

   1. An extension of time within which to bring the application; and

   2. Strike out of certain identified paragraphs of the statement of claim.

2. In regard to the application for an extension of time I note that the plaintiff has not progressed the matter with any vigour and failed to meet a number of deadlines set by the court before the substituted statement of claim was eventually filed.  In the light of such failures it seems to me that the plaintiff can scarcely complain if the time for bringing the application is extended and given the fact that the extension required is not great, and the fact that there is no obvious prejudice to the plaintiff I am inclined to grant the extension which is sought.

3. I now turn to the remainder of the application but before doing so I shall give a brief outline of the case.

4. The plaintiff's case is based on what are alleged to be defamatory publications by the defendant firstly by way of email dated 9 September 2017 to an email address [email protected] which is alleged to be an email address maintained by the Labor Party of Western Australia and secondly by a publication on 29 September 2017 on Facebook essentially in the same terms as the original publication.

5. In essence the defendant advances its strike out propositions on the fact that:

   1. An email is not published until it is downloaded and read by someone; and

   2. The pleading is barren of the particulars which are required to be proved to amount to a publication within the meaning of that term in the context of a defamation action.

6. Likewise in regard to the publication by way of a posting on a Facebook page there are similar complaints that the plaintiff has failed to identify whether and by whom the page was accessed and read.  In regard to each of these issues I agree with the applicant defendant that the pleading is deficient.  What I do not agree with is that the pleading should be struck out at this stage.  In applying to set aside the default judgment which had been entered against him the defendant filed an affidavit dated 11 February 2019 in which the defendant deposed to the fact that he sent the email dated 9 September 2017 to the Labor Party and furthermore that on 29 September 2017 he posted the Facebook post complained of.  Therefore I have the position that it is an admitted fact by the defendant that he sent the email and made the Facebook post intending it to be read by the recipients.  The plaintiff has not yet been able to identify the recipients as is required when pleading a defamation action.

7. There has already been a considerable delay in this action and were the plaintiff to be given leave to issue subpoenas there is every likelihood that the plaintiff could ascertain the information necessary to be pleaded and amend his statement of claim accordingly.  Therefore in so far as the defendant proposes that the offending paragraphs concerning publication be struck out I propose that I should grant the plaintiff leave to issue subpoenas and should adjourn that application to establish whether or not the necessary information can be obtained and the deficiencies in the statement of claim overcome.

8. Insofar as the applicant contends that the imputations said to be drawn from the alleged defamation are too general and imprecise and embarrassing I do not agree.  I am of the view that a judge hearing this matter might well consider that the imputations fairly arise from the defamatory words alleged.  Of course it is open to the judge to reach a different conclusion, it is only necessary for the proposition to be arguable to deflect the defendant's efforts to strike out these passages.  In conclusion therefore my decision is that insofar as the defendant challenges par 5A, par 6, par 10 and par 11, those matters be adjourned and in the meantime the plaintiff have leave to issue subpoenas limited to the establishment of the facts necessary to support the allegations of publication in those paragraphs.  Insofar as it is alleged that the imputations contained in pars 8A - 8J and pars 13A - 13J are inadequate, I do not agree.  I am of the view that the imputations may, but not necessarily will, be drawn from the materials published. 

9. The final challenge which is levelled by the defendant to the plaintiff concerns these materials which are set out in pars 14 - 16.  In fact, the word republication was clumsily used.  The allegations do not relate to republication in the sense used in the context of a defamation action but to the gradual dissemination of the allegedly defamatory comments through the population and in particular the population of the town of Port Hedland.  Since it is probable that the plaintiff will re-plead portions of its statement of claim it may well be advisable on that revision to tidy up the paragraphs to which I have just referred but I do not see any need to strike them out at this stage.

10. The final complaint is as to the pleading of damages.  There is no doubt that the propositions contained in regard to damages are broadly expressed.  Damages in defamation cases are an amorphous beast and it is rarely possible to plead the impact of a defamatory statement in other than general terms.  It is a matter for trial whether the plaintiff can establish that the defamatory statements have had the impact which he alleges.  I am not persuaded that the paragraphs setting out the claim for damages suffer from significant defects although I accept unhesitatingly that it is quite probable that the plaintiff will not persuade a judge that the impact of the defamatory material is such as is alleged.  As to the allegations of malice, I am of the view that the facts as I know them concerning this case, namely that the defendant and his wife were expelled from the Labor Party, and the defamatory material was generated in response to that action, that a court might well draw the implication that the material if found to be defamatory was published with malicious intent.  Accordingly, I am not inclined to tamper with the allegation of malice. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

10 JUNE 2020