YZ v Amazon [2013] NSWSC 1522 (18 October 2013)

Last Updated: 19 June 2014

Supreme Court New South Wales

Case Title:	YZ v Amazon
Medium Neutral Citation:	[2013] NSWSC 1522
Hearing Date(s):	8 October 2013
Decision Date:	18 October 2013
Before:	McCallum J
Decision:	Statement of claim struck out
Catchwords:	DEFAMATION - form of pleading - where statement of claim includes extensive material extraneous to cause of action - whether liable to cause prejudice embarrassment or delay
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 s 7 Family Law Act 1975 ss 56Y, 121 Uniform Civil Procedure Rules 2005 r 14.28, r 14.30
Cases Cited:	Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 Dank v Whittaker (No 1) [2013] NSWSC 1062 Hanson-Young v Bauer Media Limited [2013] NSWSC 1306
Category:	Interlocutory applications
Parties:	Note: some of the parties in these proceedings are the subject of an anonymisation order YZ (plaintiff) Amazon (1st defendant) Smashwords Inc (2nd defendant) OP (3rd defendant) QRS (4th defendant) TUV (5th defendant) WX (6th defendant)
Representation
- Counsel:	Counsel: LW Maher (3rd, 4th and 5th defendants)
- Solicitors:	Solicitors: No appearance by or for the plaintiff No appearance by or for 1st and 2nd defendants Dwyer Bruce Legal Pty Ltd (3rd, 4th and 5th defendants) 6th Defendant in person
File Number(s):	2013/178073
Publication Restriction:	Yes

JUDGMENT

1. HER HONOUR: These are proceedings for defamation arising out of the publication of an electronic book. This judgment determines an application by the third, fourth and fifth defendants to have the proceedings summarily dismissed or, alternatively, the statement of claim struck out. The sixth defendant joins in that application.

2. In order to record the issues raised by those applications, it is necessary to give an account of proceedings in the Family Court under the Family Law Act 1975. It is an offence to give any account of such proceedings that identifies a party to the proceedings, a person who is related to or associated with a party to the proceedings or a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate or a witness to the proceedings: see s 121 of the Family Law Act. Accordingly, it is appropriate to make an order that some of the parties to the proceedings be referred to anonymously, as identified on the coversheet to the judgment.

3. Any person reading this judgment should also note that, at the hearing of the applications, I made a non-publication order in respect of all of the material before me on the application including the evidence, pleadings and written and oral submissions.

4. The non-publication order was made on an interim basis (in the course of a busy practice list) pending my having an opportunity to consider the issue of non-publication more closely. Since reserving my decision in the matter, I have revisited that issue. Having regard to the offence created by s 121 of the Family Law Act and the content of the material before me, I am satisfied that it is appropriate to make a suppression order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication or other disclosure of information tending to reveal the identity of or otherwise concerning the plaintiff, the third defendant, the fourth defendant, the fifth defendant or the sixth defendant in these proceedings or any child of the plaintiff and the sixth defendant. As to other material before the court, it is not practicable to make a suppression order prohibiting disclosure by any means. I am satisfied that it is appropriate to make a non-publication order prohibiting the publication of the pleadings, evidence and oral and written submissions in the proceedings without leave of the court. Any person labouring under any uncertainty as to the content or effect of these orders should contact the Court's public information officer.

5. The suppression and non-publication orders are made on the ground that, having regard to s 121 of the Family Law Act and the content of the material before me, I consider it to be necessary in the public interest for such orders to be made. I am satisfied that that public interest significantly outweighs the public interest in open justice in the unusual circumstances of this case.

6. The plaintiff and the sixth defendant are the parents of a child. The proceedings in the Family Court concern the care of that child. An issue in those proceedings is the plaintiff's removal of the child from Australia in 2008 to a location unknown to the sixth defendant. Following that event, the sixth defendant undertook steps to locate the child. The fourth defendant was recruited in some capacity to assist in that process. It is alleged that, following the location of the child, the fourth defendant wrote the electronic book complained of in these proceedings. The book gives an account of the steps taken by the sixth defendant to locate the child and to have the child returned to Australia. The fifth defendant is the fourth defendant's spouse. The third defendant is a company operated by the fourth and fifth defendants and allegedly a publisher of the book.

7. The first and second defendants are companies located in the United States of America. The plaintiff has evidently taken steps to have the originating process served on those companies but neither company has yet filed an appearance in the proceedings.

8. The proceedings were commenced by statement of claim filed on 11 June 2013. The statement of claim was given a first return date of 31 July 2013.

9. On 19 July 2013 the solicitor for the third, fourth and fifth defendants wrote to the plaintiff noting that an issue as to the publication of information relating to the child and the proceedings in the Family Court was due to be heard in that court on 12 August 2013. The letter asked whether, in the circumstances, the plaintiff would be prepared to agree to have the first directions hearing in these proceedings scheduled for 31 July 2013 adjourned to a date to be fixed pending the outcome of the hearing in the Family Court.

10. The plaintiff responded the following day with a refusal to agree to any adjournment of the first mention of these proceedings.

11. In the face of that refusal, the third, fourth and fifth defendants filed a notice of motion in these proceedings dated 29 July 2013 seeking summary dismissal of the proceedings or an order that the proceedings be stayed or the statement of claim struck out. The basis for the application was twofold. First, the defendants relied upon the application pending in the Family Court. In that application, the fourth defendant seeks an injunction to restrain the plaintiff from proceeding with the defamation action due to the potential risk of media and public exposure, to the detriment of the child. The third, fourth and fifth defendants contend that these proceedings should be stayed abiding the determination of that application.

12. Separately, those defendants contend that, in any event, the statement of claim is liable to be struck out under the Uniform Civil Procedure Rules 2005.

13. The notice of motion was made returnable on 5 August 2013 in the Defamation List. Upon the first return of the statement of claim on 31 July 2013, notwithstanding the earlier refusal to accede to the request to have the directions hearing scheduled for that date adjourned to a date after 12 August 2013 (which refusal precipitated the filing of the notice of motion), the plaintiff asked to have the matter referred to the duty judge seeking an adjournment of the hearing of the motion. During the course of submissions before the duty judge (Harrison J), the plaintiff also sought time to amend the statement of claim. The judge stood the proceedings over to the October defamation list. The transcript of the proceedings before Harrison J reveals that his Honour did so on the understanding that an amended statement of claim would be served by the end of September 2013. However, no direction was made requiring that to occur.

14. The date to which his Honour adjourned the proceedings was Monday, 7 October 2013. Unfortunately, that was a public holiday and the Defamation List that week was accordingly due to commence on Tuesday, 8 October 2013. The plaintiff was, however, made aware of the change to the listing.

15. On 16 September 2013, the plaintiff filed an affidavit setting out other commitments and the difficulties encountered in obtaining legal representation. The affidavit stated that the combination of those matters had precluded the service of an amended statement of claim.

16. On 4 October 2013, the plaintiff wrote to the Court. The letter stated that the plaintiff was unable to appear on 8 October 2013 due to having an appointment with a specialist outside Sydney that day. The letter sought an adjournment until next year to afford an opportunity to obtain legal advice and amend the statement of claim.

17. When the proceedings came before me on 8 October 2013 in the Defamation List, there was no appearance for or on behalf of the plaintiff. The third, fourth and fifth defendants sought to have their notice of motion determined in the plaintiff's absence. The sixth defendant joined in the application.

18. In the context of the history I have recited and in the absence of any more specific information or evidence from the plaintiff as to the reason for not appearing that day (beyond the asserted clash with an appointment), I considered it appropriate to determine the application to the extent that it was based on the form of the pleadings. In taking that course, I had regard to the fact that the plaintiff had indicated a desire to amend the statement of claim in any event and that the determination of that issue did not appear to require any evidence. To the extent that the notice of motion was alternatively based on the contention that the action in defamation should be stayed or dismissed as an abuse of process having regard to the proceedings in the Family Court, I did not consider it appropriate to determine those issues in the absence of the plaintiff.

19. Rule 14.28 of the Uniform Civil Procedure Rules 2005 provides:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

20. I am satisfied that the statement of claim has a tendency to cause prejudice, embarrassment or delay in the proceedings and is liable to be struck out on that basis. Since the plaintiff is unrepresented, it should be explained that the term "embarrassment" in rule 14.28 does not refer to personal feeling. It is to be understood in the context of the rule to refer to a tendency to obscure or unduly complicate the issues in dispute.

21. My conclusion that the statement of claim is liable to be struck out is based on a number of considerations.

22. In some respects, the pleading of the cause of action of defamation is relatively simple. The only elements required to be pleaded are that the defendant published the matter complained of, that the matter complained of conveyed imputations defamatory of the plaintiff and the harm allegedly suffered by the plaintiff as a result. The content of those requirements does call for a more detailed understanding of the law and often entails a measure of complexity but ultimately those are the only elements required to be pleaded.

23. The element of publication is not adequately pleaded in the present case. According to counsel for the third, fourth and fifth defendants, the book has been made available for publication only as an electronic book. It is not clear from the pleading whether the plaintiff accepts that to be the case or whether some other form of publication is relied upon. If the book is available only as an electronic book, the element of publication is required to be pleaded in accordance with the principles stated by the High Court in Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575. Specifically, the pleading must grapple with the fact that the publication of material on the internet consists of two acts: the publisher's act of posting the material on a website and the recipient's act of downloading and comprehending the material. The pleading will have to identify with greater specificity the dates, places and scope of publication (that is, downloading and comprehension by a recipient) relied upon.

24. A second difficulty with the pleading of the element of publication arises from the fact that the plaintiff seeks to hold persons other than the author of the book jointly liable as publishers. The pleading does not adequately articulate a basis for doing so. That difficulty is most acute in respect of the fifth defendant (the author's spouse) and the sixth defendant (a parent of the child). The relevant principles are considered in my decision in Dank v Whittaker (No 1) [2013] NSWSC 1062. The present pleading does adequately any state facts, matters or circumstances such as to bring the individual defendants other than the fourth defendant within those principles.

25. As to defamatory imputations, the plaintiff has specified each imputation relied upon, as required under r 14.30 of the Uniform Civil Procedure Rules. Indeed, according to the submissions of the third, fourth and fifth defendants, some 302 imputations are pleaded. Many of the imputations relied upon are in proper form and are clearly capable of being conveyed by the book and capable of defaming the plaintiff. However, some are plainly defective in form.

26. An essential requirement of a defamatory imputation relied upon by a plaintiff is that it must identify the act or condition which the plaintiff alleges is attributed to him or her by the matter complained of. The act or condition identified must be such as to damage reputation.

27. Many of the plaintiff's imputations identify no act or condition allegedly attributed to the plaintiff by the book such as to damage reputation but rather appear to be statements extracted from the book with which the plaintiff disagrees.

28. For example, paragraph 46 of the statement of claim alleges that the book creates "a false impression that life at home with [the sixth defendant] was good and that we were madly in love ... this was not true".

29. Further examples of imputations which simply extract statements from the book with which the plaintiff disagrees (without distilling the act or condition allegedly attributed to the plaintiff by the book) appear at paragraph 53(b) to (e), as follows:

(b) Contact Centre staff observed [the child] to make comments indicating that [the plaintiff] was alienating [the child] from [the sixth defendant].

(c) allegations that [the child] made comments to [the sixth defendant] indicating [the plaintiff] as alienating [the child] from [the sixth defendant] were supported and confirmed by Contact Centre staff who recorded similar comments.

(d) There are records at the Contact Centre from this time stating that [the child] made comments indicating that [the plaintiff] was alienating the child from [the sixth defendant].

(e) [The sixth defendant's] allegations that [the plaintiff] appeared to be alienating [the child] from [the sixth defendant] must be true as the same allegations were recorded by Contact Centre staff.

30. See also paragraph 66(a) "[the plaintiff] was living in hiding".

31. Some of the imputations identify no act or condition allegedly attributed to the plaintiff at all, but refer only to other people. For example:

"[The sixth defendant] was not abusive" (paragraph 65(h));

"[The child] had moved around a lot" (paragraph 69(a));

"There were many findings made in Australia by the authorities" (paragraph 72(a)).

32. Some are bad in form as being rhetorical, such as the imputation at paragraph 51(4): "[the plaintiff] cannot be taken seriously". The vice of an imputation in that form was considered in my judgment in Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 at [18] to [35].

33. Many of the imputations are repetitive. The sheer number of them warrants revisiting. However, even leaving aside the problems with the imputations, the main difficulty in the present form of the pleading is that, to the extent that the imputations are properly pleaded, those parts of the pleading are inextricably mixed with material which is embarrassing in the legal sense. Much of the material pleaded is irrelevant to the cause of action and likely to cause prejudice or delay in the proceedings. In most instances, the embarrassment arises from the fact that the pleading fails to distinguish between the contention that the book is defamatory of the plaintiff and the contention that the book contains false or incorrect statements. Extensive parts of the pleading are devoted to establishing what the plaintiff contends are the true facts and the ways in which the book allegedly misrepresents the true facts (for example paragraphs 13 to 23, paragraphs 46 and 47, 51, 59, 62).

34. The examples identified above are not intended to be exhaustive but only to illustrate the difficulties. In my view, the extent of irrelevant and embarrassing material included in the pleading is such as to warrant striking out the whole of the pleading. As already noted, however, some of the defamatory imputations relied upon by the plaintiff are pleaded in proper form and are clearly capable of arising from the book. The principal difficulty is the inclusion of so much additional material which is wholly irrelevant to the cause of action and apt to cause extensive obfuscation and delay.

35. The defendants accepted in those circumstances that the plaintiff should be given an opportunity to put forward an amended pleading. However, it was submitted that there should not be a general grant of leave to re-plead. Rather, it was submitted that the plaintiff should bring forward any application for leave to amend by providing an affidavit annexing the proposed amended pleading. In my view, that is the appropriate course. I would endorse the remarks made by Harrison J when the proceedings came before his Honour as duty judge that the plaintiff would be greatly assisted in that task by obtaining legal advice, if only limited to the task of settling the pleading.

36. I make the following orders:

(1) A suppression order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication or other disclosure of the following information:

information tending to reveal the identity of or otherwise concerning the plaintiff, the third defendant, the fourth defendant, the fifth defendant or the sixth defendant in these proceedings or any child of the plaintiff and the sixth defendant.

(2) A non-publication order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication of the following information without the leave of the Court:

the pleadings, evidence and oral and written submissions before the Court in these proceedings.

(3) That the following parties be referred to in these proceedings by the following names for anonymity:

(a) The plaintiff as YZ

(b) The third defendant as OP

(c) The fourth defendant as QRS

(d) The fifth defendant as TUV

(e) The sixth defendant as WX.

(4) That, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005, the statement of claim filed 11 June 2013 be struck out as against the third to sixth defendants.

(5) That the plaintiff serve an affidavit annexing any proposed amended statement of claim on or before 25 November 2013.

(6) That the proceedings be stood over to the defamation list on 2 December 2013.

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