Valk v Kalpikdes (Ruling)
[2023] VCC 368
•15 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Defamation List |
Case No. CI-21-01741
| ANDREW VALK | First Plaintiff |
| and | |
| SHADE SOLUTIONS AUSTRALIA PTY LTD (ACN 619 316 371) | Second Plaintiff |
| v | |
| ELIAS KALPIKDES | Defendant |
---
JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2023 | |
DATE OF RULING: | 15 March 2023 | |
CASE MAY BE CITED AS: | Valk and Anor v Kalpikdes (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 368 | |
RULING
---
Subject:DEFAMATION – CIVIL PROCEDURE
Catchwords: Pleadings – application to amend statement of claim – failure to plead particulars of publication – whether amendment substantially changes pleading
Legislation Cited: County Court Civil Procedure Rules 2018, r36.01; Civil Procedure Act 2010, s1
Cases Cited:Northern Health v Kuipers [2015] VSCA 172; Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12; Baptcare Ltd v Ingpen [2022] VSCA 250; Goodrich v Kilmore Racing Club [2023] VSCA 37; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; McDonald v Dods [2017] VSCA 129; Massarani v Kriz [2022] FCA 80; Newman v Whittington [2022] NSWSC 249; Sims v Jooste (No 2) [2016] WASCA 83; Randell v McLachlain [2022] NSWDC 506; Goodrich v Kilmore Racing Club Inc [2023] VSCA 37
Ruling: Plaintiff’s application dismissed. Plaintiff ordered to pay the defendant’s costs of the application on an indemnity basis, to be taxed immediately.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Olson | Rostron Carlyle Rojas Lawyers |
| For the Defendant | Mr S Mukerjea | Madison Branson Lawyers |
HER HONOUR:
1By Summons dated 23 December 2022, the plaintiff seeks leave to further amend the Statement of Claim pursuant to r36.01(1) of the County Court Civil Rules 2018.
2The plaintiff has provided the proposed Further Amended Statement of Claim (“PFASOC”) for the Court’s consideration.
3The defendant opposes the application on the basis that the proposed amendments add embarrassment and confusion to the plaintiff’s pleadings, and substantially alter the nature of the plaintiff’s case.
4For the reasons set out below, I dismiss the plaintiff’s application and order the plaintiff to pay the defendant’s costs of the application on an indemnity basis, to be taxed immediately.
Procedural history
5The proceedings were commenced on 30 April 2021. It is not apparent when the Writ and Statement of Claim were served on the defendant, but the defendant filed his Defence on 3 September 2021. That Defence was a bare defence, pleading that much of the Statement of Claim was liable to be struck out for failing to disclose a cause of action, invoking the defendant’s privilege against self-incrimination due to criminal proceedings which were on foot at the time, and reserving the defendant’s right to seek a stay of the proceeding until the criminal charges were finalised.
6A date was set for hearing the defendant’s strike out application. Prior to the date set, the plaintiff provided the defendant with a proposed Amended Statement of Claim.
7The matter came before the Court on 8 December 2021. The defendant ventilated his concerns with the proposed amendments to the Statement of Claim, which included that nine of the posts sued on were private publications by the defendant to the plaintiff which could not give rise to a cause of action in either defamation or injurious falsehood, and that sixteen posts sued upon appeared to be statute-barred. The plaintiff’s lawyer sought an opportunity to further amend the proposed pleading. I made Orders for the plaintiff to provide any proposed amended pleading to the defendant by 17 December 2021 and listed the hearing of any application by the plaintiff to amend his pleading for 28 February 2022.
8No such application was made, and the matter came back before the Court on 28 February 2022 for directions. On that occasion, the plaintiff sought a further opportunity to amend his pleading.
9I made Orders that the plaintiff file an application for leave to amend his pleading by 4 March 2022, such application to be heard on 1 April 2022.
10No such application was filed, and the matter did not come before the Court again until 22 July 2022. At that time, the defendant consented to an amended statement of claim in the form proposed by the plaintiff, but sought his costs of the amendment, to be taxed immediately.
11I made that Order, as the plaintiffs had failed to act with competence and diligence in drafting the pleading which had caused the defendant to incur significant costs over and above those which would otherwise have been incurred.
12I ordered that the plaintiffs file and serve the Amended Statement of Claim by 1 August 2022 and listed the matter for further directions on 5 September 2022.
13That Amended Statement of Claim was not filed until 9 September 2022 (“the September pleading”).
14Prior to the date by which the amended defence was due, the defendant became aware that the second plaintiff, Shade Solutions Australia Pty Ltd, had entered into external administration. The matter came back before me on 10 October 2022. On that occasion, the solicitor for the plaintiffs informed me he had not been able to obtain instructions from his clients for some time and would be filing a notice of ceasing to act. I vacated the order requiring the defendant to file an amended defence until the second plaintiff could clarify to the Court whether it was pursuing its claim.
15The matter came back before me on 2 November 2022. The plaintiffs had retained new solicitors the previous day, who informed the Court that the second plaintiff was no longer pursuing its claim against the defendant. I made further Orders providing leave to the plaintiffs to file a further amended statement of claim removing the claims of the second plaintiff and requiring the defendant to file his defence by 14 December 2022. The second plaintiff’s claim against the defendant was dismissed on 9 November 2022.
16On 16 December 2022, the matter came back before the Court. The Statement of Claim had not been further amended to remove the second plaintiff. The first plaintiff (now the only plaintiff) informed the Court that he intended to make substantive amendments to the pleading, which went beyond simply removing the second plaintiff. The defendant does not consent to the further substantive amendments sought by the plaintiff in the PFASOC. Consequently, the plaintiff must obtain leave of the Court.
Legal Principles
17Rule 36.01(1) of the County Court Civil Procedure Rules 2018 provides that:
“For the purpose of–
(a) determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or
(c) avoiding multiplicity of proceedings–
the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.”
18The Civil Procedure Act 2010 requires the Court to facilitate the overarching obligations to effect the just, efficient, cost effective and timely disposition of the real issues in dispute.[1]
[1]Civil Procedure Act 2010 (Vic), s1(c)
19In the exercise of this discretion, the Court should consider the following factors:[2]
(a) whether the amendment will cause substantial delay;
(b) the extent of any wasted costs;
(c) whether the amendment would cause irreparable prejudice;
(d) concerns of case management arising from the stage in the proceeding at which the amendment is sought;
(e) whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) whether a satisfactory explanation has been given for seeking the amendment when it is sought.
[2]See Northern Health v Kuipers [2015] VSCA 172 at paragraph [28] (Kyrou and McLeish JJA); Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12 at paragraph [26] (Beach, Kaye and Croucher JJA); Baptcare Ltd v Ingpen [2022] VSCA 250 at paragraphs [37]-[38] (Macaulay JA and Forrest AJA); recently upheld in Goodrich v Kilmore Racing Club [2023] VSCA 37
20In a defamation proceeding, the plaintiff must establish each element of the tort, including publication. Simply proving a post was uploaded is insufficient to establish publication. Publication requires the material must be downloaded and digested by a third party.[3]
[3] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600-1, paragraphs [25]-[28]
21Therefore, a proper pleading must disclose how publication other than to the plaintiff is said to have occurred, either by identifying another person who downloaded the post, or by setting out a substratum of facts upon which publication can be inferred.[4]
[4] McDonald v Dods [2017] VSCA 129 at paragraphs [46]-[61]
The proposed amendments
22The PFASOC removes the claims of the second plaintiff and defines Shade Solutions Australia Pty Ltd as “the business”, and the plaintiff as a beneficial shareholder of the business and the person who controlled and managed the business.
23The plaintiff pleads:
(a) the first to seventh matters complained of were published by the defendant in the name of “Bob Harris”, on “the company’s Facebook page (“the Facebook page”)” and were able to be, and were read and comprehended by readers of the Bob Harris Facebook page;
(b) the eighth and ninth matters complained of were published by the defendant on Instagram on an account named “andrewvalk_shadysolutions” (“the Instagram account”) and were able to be, and were read and comprehended, by readers of the Instagram account.
24The plaintiff otherwise pleads that particulars of “some” of the readers of the posts will be provided after discovery and interrogatories.
The Plaintiff’s submissions
25The plaintiff says the PFASOC should be allowed because it:
(a) removes the second plaintiff from the pleading and removes a number of causes of action which the plaintiff no longer seeks to pursue;
(b) properly identifies and pleads the plaintiff’s claims;
(c) properly identifies the location of the publications, albeit the location of the first to seventh matters complained of are incorrectly identified as having been published on “the company” Facebook page. “The company” is not defined. Shade Solutions is defined as “the business”. Counsel said this is an error and the pleading should have identified the Bob Harris Facebook page as “the Facebook page” and the location of publication;
(d) reduces the issues in dispute.
26The plaintiff acknowledges there has been delay in the proceeding but argues that the interests of justice favour granting leave. Refusal to grant leave would frustrate the identification and fair resolution of the real issues in dispute. The September pleading, an unwieldly document, would remain on foot. That pleading includes claims that are no longer pressed and incorrectly identifies the location of some of the matters complained of as the Facebook page of Shade Solutions, rather than the Bob Harris Facebook page.
27The plaintiff says, to the extent that the particulars of publication are inadequate, the existing pleading to which the defendant consented contains the same inadequacies.
28The plaintiff relies on Baptcare Ltd v Ingpen[5] in which it was held that undue weight was given to case management considerations without adequately considering the consequences of the refusal of leave to amend, and without adequate consideration of the interests of justice.[6]
[5]Supra
[6]Ibid at paragraphs [43]-[46] and [50]-[52]
29The plaintiff submits that the amendment of the Statement of Claim does not introduce any new factual or legal issues, that the matters complained of remain the same in substance as those currently pleaded, that the imputations are within the scope of those in the existing pleading and the proposed amendments simplify the pleading and narrow the issues in dispute.
The Defendant’s submissions
30The defendant submits that leave should not be granted because the proposed amendments add embarrassment and confusion to the plaintiff’s pleadings, and substantially alter the nature of the plaintiff’s case.
31While the PFASOC is in a more orderly and digestible form, the September pleading is sufficient to enable the defendant to plead and the Court to understand the claims before it.
32The PFASOC causes confusion and embarrassment, and prejudices the defendant in the following ways:
(a) the PFASOC says the publications were “published on the company’s Facebook page” as well as “read and comprehended by readers of the Bob Harris Facebook page”.[7] The plaintiff has not provided the URL to these Facebook pages. The defendant submits that the plaintiff’s plea of publication is inconsistent because the act of publication cannot be bifurcated across two distinct Facebook pages – that is, it cannot be posted at one location and read at another;
(b) if the definition of “the Facebook page” as being the company Facebook page is an error, and the plaintiff intends to allege the publications were posted on the Bob Harris Facebook page, this substantially changes the way the claim is put against the defendant;
(c) the PFASOC does not properly plead publication, in that it does not particularise when or by whom each of the matters were downloaded, nor develop a substratum of facts upon which the court can infer publication occurred;
(d) the PFASOC pleads publication on various dates and “continuing daily thereafter” without specifying any period during which publication is said to have taken place;
(e) the pleading of a grapevine effect is manifestly deficient;
(f) the plaintiff has not properly pleaded identification in respect of the fifth and eighth matters. If the plea is that identification occurred as a result of extrinsic facts, it is deficient in the absence of a class of persons who downloaded the material and have knowledge of extrinsic facts. Alternatively, proper particulars are required to demonstrate identification by others of the plaintiff.
[7]Affidavit of Ella Mackintosh, Further Amended Statement of Claim, paragraphs 2, 6, 10, 14, 18, 22, 26 and 30
33The defendant also says that he has incurred costs in preparing his Defence to the September pleading, albeit that pleading has not been filed. The plaintiff, who has always been legally represented, has amended or sought to amend his pleading six times by providing the proposed amended claim to the defendant and waiting for the defendant to make objections before further amending the pleading, leaving the defendant to decipher which objections the plaintiff has adopted or rejected. Many of the deficiencies have been elemental in nature.
34The overarching obligations require the plaintiff’s application be rejected and the matter proceed without further amendment to the pleading.
Should the Plaintiff be granted leave to amend his pleading?
35The PFASOC is a clear and more digestible document than the September pleading. It narrows the issues in dispute by abandoning a number of claims against the defendant. On that basis, the overarching obligations pursuant to the Civil Procedure Act 2010 would weigh in favour of granting leave.
36However, there is a significant new problem with the PFASOC.
37In the September pleading, the first and second matters complained of are pleaded as having been posted on the Shade Solutions Australia Facebook page at The third matter complained of is pleaded as having been posted on a Facebook page called AndrewValk_shadysolutions. The fourth matter complained of is pleaded as having been posted to a website The fifth matter complained of is pleaded as having been posted on the Facebook page of the plaintiff’s son. There is no mention of the “Bob Harris Facebook page”.
38In the September pleading, the plaintiff pleads all the posts are deleted and, as a result, he is unable to provide digital copies and, in some instances, URL addresses of each matter complained of, until the plaintiff has obtained a report from a qualified forensic computing expert.
39The plaintiff now says that the first to seventh matters complained of were each posted on the Bob Harris Facebook Page, albeit that this is not what is pleaded in the PFASOC, and were read by “readers” of the Bob Harris Facebook Page.
40The plaintiff submitted from the bar table that he could not provide further particulars of the Bob Harris Facebook page, and could not provide for example a URL address, as the Bob Harris Facebook page no longer exists.
41He says two things about this.
(a) First, that the September pleading, which was consented to by the defendant, provides no better particulars of publication than the PFASOC, pleading only that the matters complained of were posted to the various websites and Facebook pages identified without additional particulars; and
(b) Second, that it is within the defendant’s own knowledge as to whether or not he was the owner or creator of the Bob Harris Facebook page and he can simply admit or deny publication in his defence.
42However, for the reasons below, neither of these provides a sufficient remedy to the defect in the pleading.
Is the pleading of publication deficient?
43It is conceded by the plaintiff that the particulars of publication in both the September pleading and the PFASOC are inadequate.
44The defendant said he had considered whether he should refuse to consent to the filing of the September pleading because of these deficiencies. However, the defendant would reasonably have assumed that he could expect proper particulars of publication once the report from a qualified forensic computer expert was obtained, as foreshadowed.
45There is nothing in the September pleading to suggest that the Facebook pages or the website had been deleted, and therefore the defendant and the Court could expect the plaintiff would be able to establish, at least, a substratum of facts upon which publication could be inferred.
46In relation to the posts on the Shade Solutions Facebook page and Matthew Valk’s Facebook page, the defendant could reasonably have expected a request for further and better particulars of publication would be fruitful.
47For example the plaintiff would likely be able to provide evidence of the number of people who followed or were “friends” of the pages or visited the Facebook pages, whether there were any “likes” or replies, and what the Google analytics revealed about each Facebook page upon which publication was alleged to have occurred.
48That is quite different from the way the case is now put. The plaintiff says the matters complained of were published by the defendant on his own Facebook page which no longer exists, or by the defendant on an Instagram account “andrewvalk_shadysolutions”. The pleading does not disclose whether the Facebook page was public, for what period the posts were on the Facebook page, whether the Facebook page had any followers or friends and, if so, how many, nor the basis upon which it is alleged that the matters complained of were read by readers of the Bob Harris Facebook page. The pleading does not disclose whether the Instagram account was a public account. The plaintiff does not plead that the Instagram account was set up or created by the defendant. I do not know whether the Instagram account still exists.
49The tort of defamation is incomplete without evidence that the matter complained of was downloaded by someone other than the plaintiff.[8] In the absence of this evidence, the Court may be satisfied by a substratum or “platform” of facts.[9]
[8]Dow Jones & Co Inc v Gutnick (supra) at 600-1, paragraphs [25]-[28]; Massarani v Kriz [2022] FCA 80 at paragraph [53], approved by Sackar J in Newman v Whittington [2022] NSWSC 249 at paragraph [12]
[9]Sims v Jooste (No 2) [2016] WASCA 83 at paragraphs [18]-[20]; McDonald v Dods (supra) at paragraphs [46]-[61]
50The current pleading appears to require the defendant to provide the material facts and particulars necessary to establish publication, including the URL address and evidence the matters complained of were read by people other than the plaintiff.
51It is for the plaintiff to make out every element of his case. Nothing in the PFASOC supports an inference that the publications were viewed by anyone other than the plaintiff.
52The plaintiff must plead all material facts to support the allegation he seeks to make. If he relies on a claim that the Facebook page was viewed by readers of the Bob Harris Facebook page, he must plead all the material facts which support that claim. If he relies on the claim that the Instagram posts were read by readers of the Instagram account, he must likewise plead the material facts that support that claim. Further than that, the location and extent of the alleged publication must be pleaded in order for the defendant to be able to properly plead a defence.
53There is a complete absence of information in the pleading upon which a substratum of facts could be built.
54Even if, as the plaintiff says, the defendant is the owner or creator of the “Bob Harris Facebook page”, and even if I were satisfied that it is appropriate for the defendant to be required to provide information through discovery, there is no guarantee that discovery will resolve the deficiencies in the pleading.
55If, as the plaintiff says, the Facebook page no longer exists, the defendant might no longer have that information in his possession, custody or control.
56There has been no explanation provided as to why the plaintiff alleged in the September pleading that the matters complained of were posted on three separate Facebook pages and a website, and that particulars would be provided after obtaining the report of a qualified forensic computing expert, but now says the matters complained of were published somewhere else entirely and that particulars will be provided after discovery.
57It is disingenuous for the plaintiff to submit that the PFASOC introduces no new factual issues, when in fact it entirely changes a significant factual issue – the location of the alleged publications. It raises the very real question of whether the plaintiff will actually be able to adequately plead (let alone prove) publication.
58In Randell v McLachlain,[10] the plaintiff provided insufficient evidence of publication and said she had been “locked out” of the relevant Facebook page and therefore could not provide the necessary information. The judge in that case found the particulars provided – that the Facebook page had several thousand “friends” and was published on a Dubbo-specific site, likely to be of interest to residents of a small town – did not establish the necessary platform of facts upon which publication could be inferred. She noted that the plaintiff had had more than a year to obtain Google analytics or other electronic evidence of publication but had not done so.
[10][2022] NSWDC 506
59Although the statement of claim was struck out on other grounds, her Honour Judge Gibson noted:
“The plaintiff cannot establish any evidence of downloading, even on the most generous interpretation of the “platform of facts” submission. The plaintiff’s failure to provide any acceptable particulars of downloading in the statement of claim would be an additional reason why the statement of claim should be struck out and dismissed.”[11]
[11]Ibid at paragraph [63]
60In this case, the supposed “platform’ is completely bereft of ‘planks”. The pleading does not disclose whether the “Bob Harris Facebook page” had any followers, nor how or why it would be likely to attract the interest of any member of the public.
61The PFASOC cannot be filed in its current form. The plaintiff has already acknowledged that it does not reflect the way in which he actually seeks to put his case. Simply amending the “typo” and changing the definition of “the Facebook page” from “the company Facebook page” to “the Bob Harris Facebook page” is insufficient to remedy the defects.
62Accordingly, the plaintiff’s application is dismissed.
Should the Plaintiff be granted a further opportunity to amend?
63The plaintiff must be able to properly plead the requisite elements of publication. For the avoidance of doubt, this would include the period, at least in general terms, during which the matters complained of were posted prior to their apparent deletion. This would also include proper particulars to establish the element of identification required with respect to the fifth and eighth matters.
64The defendant urges that leave not be granted, noting that the plaintiff has made numerous attempts to get the pleading right, and the case has not advanced in nearly two years.
65If, as urged, the plaintiff was shut out from making any further application to amend, the September pleading would remain on foot. On the basis of what is now said about the correct location of the posts, this would not be consistent with the overarching obligation to resolve the real issues in dispute between the parties.
66The appropriate order is to refuse leave to amend the Statement of Claim in the form of the PFASOC but not to shut the plaintiff out from making further application.
67However, I also note the recent decision of the Court of Appeal in Goodrich v Kilmore Racing Club Inc.[12] The plaintiff’s entitlement to amend his pleading is not unlimited. The passage of time will inevitably create circumstances where an inference of prejudice is open. The matters complained of were allegedly posted more than three years ago.
[12]Supra
68The plaintiff will be given a further opportunity to properly plead all the material facts upon which he relies to establish each element of his cause of action. If, after making all appropriate enquiries and undertaking appropriate investigations, he is unable to produce any better evidence of publication, the prospect that he will be granted further indulgence of the Court would have to be extremely limited.
Costs of the application
69The plaintiff, in his Summons, seeks costs of his application but did not press this at the hearing.
70The defendant seeks his indemnity costs of the application and has provided affidavit evidence of the costs incurred in responding to the September pleading, including the work in drawing a Defence.
71The usual order is that costs follow the event. The plaintiff has not been successful on his application and the defendant is entitled to his costs.
72The question is whether costs ought be awarded on a standard or indemnity basis. I am persuaded that indemnity costs are appropriate for the following reasons:
(a) there has been non-compliance by the plaintiff with Orders made in December 2022;
(b) the plaintiff has made numerous attempts to draft an acceptable pleading, each of which has caused the defendant to incur costs;
(c) even if I accepted the plaintiff’s arguments in relation to the defendant’s ability to plead to the PFASOC, it could not be filed in its present form as it still incorrectly identifies the Facebook page on which the posts were said to have been published, causing confusion;
(d) there has been no explanation by the plaintiff as to why it has taken nearly two years to identify the correct location of the matters complained of;
(e) the defendant has already incurred significant costs in responding to and drafting a Defence to the September pleading that are likely to largely be thrown away.[13]
[13]Affidavit of Maryam Tanyous dated 7 February 2023
73Although I am satisfied that the defendant is entitled to his costs of this application on an indemnity basis, he is only entitled to his costs of responding to the September pleading if the plaintiff ultimately makes a further successful application to amend his pleading. If the September pleading remains on foot, those costs incurred in responding to it will not be thrown away.
74Therefore, the defendant is entitled to his costs of the application on an indemnity basis to be taxed forthwith. It is my view that, in the event of successful further application by the plaintiff for leave to amend his pleading, the defendant will be entitled to costs incurred in responding to the September pleading, on an indemnity basis. However, the appropriate order is to reserve determination of those costs until after any further application by the plaintiff to amend his pleading is heard and determined.
75I will hear the parties on the appropriate timetabling orders for any further application by the plaintiff.
- - -
0
9
0