Supreme Court New South Wales Medium Neutral Citation: Newman v Whittington [2022] NSWSC 1725 Hearing dates: 24 June 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Common Law Before: Rothman J Decision: The Court makes the following orders: (1) Grant leave to file a Fourth Amended Statement of Claim in the terms submitted to the Court except as outlined in the reasons for judgment; (2) Dismiss the defendant's Motion insofar as it deals with the lack of a concerns notice for matters 11 and 12 and as to the particulars of downloading and readership relating to publication. (3) Uphold the Motion insofar as it deals with the particulars of uploading and the pleading of the role of the defendant in the posting of the allegedly defamatory material; (4) Costs will be costs in the cause. Catchwords: DEFAMATION – attempt to re-agitate interlocutory issues in absence of new or different circumstances – amendment to add allegedly defamatory publications dated after commencement of proceedings – discussion on need for additional concerns notice – discretion to require whether or not necessary – material facts as to defendant posting material not pleaded – material facts on downloading – pleading of special damage being mental injury. Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, 64 Defamation Act 2005 (NSW), ss 10A, 12A, 12B Uniform Civil Procedure Rules 2005 (NSW), r 15.1, 15.19 Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 M1 v R1 [2022] NSWDC 409 Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20 Newman v Whittington [2022] NSWSC 249 Prestney v Corporation of Tolchester (1883) 24 Ch D 376 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Jarman; ex parte Cook (1997) 188 CLR 595; [1997] HCA 13 Sims v Jooste (No 2) [2016] WASCA 83 Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325 Category: Procedural rulings Parties: Jasmin Newman (Plaintiff) Adam Whittington (Defendant) Representation: Counsel: R Armitage (Plaintiff) T Smartt (Defendant) Solicitors: Unrepresented (Plaintiff) Makinson d'Apice (Defendant) File Number(s): 2021/35572 JUDGMENT 1. HIS HONOUR: By Motion on notice dated 13 April 2022, the defendant seeks for the Court: to make orders refusing leave for the plaintiff to file a Fourth Amended Statement of Claim; to refuse leave to re-plead in relation to any matter complained of; to dismiss the plaintiff's Statement of Claim; and for the plaintiff to pay the defendant's costs of the motion and the proceedings. If those orders were granted, and, in particular, if the Court were to dismiss the proceedings, the defendant proposes that he withdraw a cross claim that has been filed, with no order as to costs. Background 1. The proceeding is a defamation proceeding. The plaintiff, Ms Jasmin Newman is alleged to be an author, psychologist and accredited as a "Family Dispute Resolution Practitioner". The defendant, Mr Adam Whittington, is alleged to control, edit and/or is an author of websites and, relevantly, of Facebook and Twitter accounts and is a "blogger". 2. By Amended Statement of Claim, filed 20 July 2021, the plaintiff seeks damages and an injunction against the defendant. The matters about which the plaintiff complains are 15 publications allegedly made by the defendant on blog, Facebook or Twitter pages allegedly controlled by the defendant and two of which were published after the concerns notice was served. 3. On 12 August 2021, the defendant filed a defence and cross claim, which, in turn, complained of five publications by the plaintiff. On 24 February 2022, Sackar J issued orders regarding the plaintiff's proposed Third Amended Statement of Claim, allowing her to re-plead 10 matters and refusing leave to re-plead 15 other matters. 4. On 4 March 2022, the plaintiff filed a Notice of Motion seeking orders that the judgment delivered on 24 February 2022 be amended so as to permit the plaintiff to re-plead matters [11]-[21], in addition to those for which leave was granted. 5. The Fourth Amended Statement of Claim is the result of the addition of proposed paragraphs [11] to [21] to the Statement of Claim, amended purportedly pursuant to the leave granted by Sackar J. The Fourth Amended Statement of Claim was sought to be filed pursuant to a motion, notice of which was filed on 13 April 2022. The defendant, by motion filed 27 May 2022, seeks to have the Court strike out, or, more accurately, not allow the filing of, the Fourth Amended Statement of Claim. 6. As already stated, the plaintiff seeks damages, both general and aggravated, interest, and an order seeking permanent restraint of the publication of matters pertaining to the plaintiff. The plaintiff also seeks an order removing all publications about which complaint has been made, and costs. 7. The plaintiff claims that the defendant has caused 24 publications, comprising blogs and social media posts concerning the plaintiff, which have brought the plaintiff into hatred, ridicule and contempt and which have injured her character and reputation. The plaintiff claims that the imputations are that the plaintiff supports paedophiles, sexual abusers, domestic violence perpetrators, has committed fraud, is dishonest, has committed criminal offences, and falsely purports to be a psychologist. 8. On 14 April 2022, the Court (Sackar J) issued the following orders: 1. The defendant shall prepare written submissions in support of proposed orders [1] to [3] inclusive contained in the Notice of Motion filed on 13 April 2022; the defendant shall provide those submissions to the Associate to Sackar J and to the plaintiff by 22 April 2022. (Orders one to three, to which the foregoing refer are in or to the effect of those before the Court in these proceedings, namely, that the plaintiff be refused leave to file a proposed Fourth Amended Statement of Claim; that the plaintiff be refused leave to re-plead all matters; and that the plaintiff's Statement of Claim be dismissed.) 2. The plaintiff shall prepare written submissions in response to the defendant and to provide those submissions to the Associate to Sackar J and to the defendant by 29 April 2022; and 3. The matter be listed for further directions on 29 April 2022. 1. On 18 March 2022, Sackar J had made earlier orders, in the following terms: 1. The plaintiff be refused leave to file the Third Amended Statement of Claim dated 17 February 2022; 2. Unless otherwise stated in order three, the plaintiff be refused leave to re-plead in relation to any matter about which complaint is made and that is referred to in the Third Amended Statement of Claim; 3. The plaintiff be granted leave to re-plead in a further Amended Statement of Claim the following matters about which complaint is made (numbered in accordance with the numbering within the Third Amended Statement of Claim): [1], [2], [4], [6], [7], [9], [11], [14], [21], [22], [23] and [24] on the basis that: 1. the plaintiff specify the jurisdiction or jurisdictions in which she alleges each of the matters about which she complains were downloaded; and 2. the plaintiff re-plead matters [23] and [24] insofar as the 'serious harm' element is concerned; 1. The plaintiff serve on the defendant and send to the Associate to Sackar J a short written outline on the costs orders she seeks by 25 March 2022; 2. The defendant serve on the plaintiff and send to the Associate to Sackar J a short written outline in response by 1 April 2022; 3. The question of the appropriate costs orders to be made be determined on the papers in the absence of an application to the contrary; 4. The plaintiff serve her proposed Fourth Amended Statement of Claim on the defendant by 4 April 2022. 1. On 27 May 2022, the Court, as presently constituted, gave directions for the filing and serving of written submissions by the plaintiff and listing the motions for hearing. Submissions 1. The defendant relies on the evidence contained in the affidavit of George Mourani, sworn 13 April 2022 and filed 27 May 2022. The defendant complains that the plaintiff has served eight Statements of Claim on the defendant since 9 February 2021, reflecting and seeking to overcome objections by the defendant and orders by the Court. 2. The defendant submits that the Fourth Amended Statement of Claim suffers the same or similar defects that led Sackar J to refuse leave for the filing of the Third Amended Statement of Claim. Those defects include that the pleading falls short of sufficiently explaining the particulars of publications of which complaint is made and do not disclose that the defendant was the publisher of all publications. The defendant also complains that the plaintiff has not served a concerns notice or sought leave to commence proceedings with respect to the eleventh and twelfth matters complained of. Nor has the plaintiff disclosed the case for serious harm for these matters. 3. Further, the defendant submits that the Statement of Claim discloses no reasonable prospect that special damages will succeed and is otherwise embarrassing. The defendant submits that the plaintiff has not particularised the persons who have viewed or downloaded the publications complained of in 12 matters. 4. The defendant provides specific submissions with respect to the following matters complained of: matters 4 and 5 at the defendant's submissions paragraphs [10] to [13]; matters 6 and 7 in the defendant's submissions at [14] to [18]; in matters 3, 8, 9, 10, 11 and 12 at the defendant's submissions paragraphs [19] to [28]; and in relation to matters 1 and 2 at the defendant's submissions paragraphs [29]-[33]. 5. Moreover, the defendant submits that the plaintiff has not particularised that the defendant was the publisher of four matters complained of: matters 2(a), 3, 4, and 5. The defendant submits that there is no prospect of the plaintiff remedying her claim to a sufficient extent and, thus, the claim ought to be dismissed. 6. The plaintiff submits that the orders sought by the defendant ought to be refused with costs. The plaintiff notes that she began these proceedings while legally unrepresented in 2021. 7. The plaintiff relies upon the fact that she issued several Notices to Produce to the defendant, which would provide to the plaintiff further information regarding the downloading of the matters complained of, to which the defendant has refused to respond. The Court (Sackar J) observed that the plaintiff is entitled to issue limited Notices to Produce. Thus, the plaintiff contends that this does not render the pleadings defective. 8. The plaintiff submits that the pleadings in their current form comply with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"), and that the scope of the particulars are sufficient. The plaintiff submits that the Statement of Claim is not required to cover all facts, evidence or possible defences in the pleading as that is for the plaintiff to deal with at trial. 9. After the close of proceedings, the defendant sought to rely upon the analysis and reasoning in a recent judgment by Gibson DCJ in M1 v R1 [2022] NSWDC 409. This additional material was the subject of written submissions, to be dealt with on the papers. 10. The defendant's supplementary submissions were filed on 4 October 2022 and the plaintiff's response thereto on 18 October 2022. The additional issue relates to the relationship between these proceedings and a concerns notice in circumstances where two publications that were raised after the commencement of the proceedings were not the subject of a separate concerns notice and the effect the absence of the concerns notice may have on the proceedings. Consideration Concerns notice 1. I deal first with the submission raised in the supplementary submissions as to the operation of the provisions of s 12B of the Defamation Act 2005 (NSW) on the plaintiff's claims in relation to the eleventh and twelfth publications about which complaint is made. In short, the submission is that, by operation of s 12B of the Defamation Act, the plaintiff is unable to include in the Fourth Amended Statement of Claim the eleventh and twelfth matters, because no concerns notice has been served in relation to these proceedings. The provisions of s 12B of the Defamation Act are in the following terms: "12B Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless— (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on— (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court— (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. (5) In this section— limitation law means the Limitation Act 1969." 1. The reference to a "concerns notice" is a reference to a notice in writing that specifies the location where the matter can be accessed, informs the alleged publisher of the defamatory imputations said to be carried by the publication, and informs the alleged publisher of that which is said to be the serious harm caused to the plaintiff's reputation. It is unnecessary to deal with excluded corporations in these reasons. Further, the legislature has made clear that a document used to commence proceedings cannot be used as a concerns notice. [1] 2. In construing the statutory provisions, like all statutory provisions, they must be read in context of the statute as a whole and the terms of the statute must be used to ascertain the legislative purpose in the enacting of the provisions, so that the Court may give effect to the legislative purpose. Further, the statute must be construed in a manner that gives rise to harmonious goals for the statute. [2] 3. Previously, in these proceedings, the Court (Sackar J) dealt with the issues associated with concerns notices at length. [3] 4. There is a degree of irony in the application to file supplementary submissions on the effect of the judgment of Gibson DCJ in M1 v R1, supra, in circumstances where her Honour expressly distinguished the situation in these proceedings from the situation with which her Honour was dealing. Nevertheless, the principles adopted by Sackar J and by Gibson DCJ are consistent. Each of them, in dealing with the history of the provisions and the mischief to which they are directed, deals with the purpose of the legislation. I accept and adopt the principles and purpose adumbrated by each of them. 5. Clearly, the purpose of these provisions, together with the promulgation of s 10A of the Defamation Act was to ensure that proceedings commenced for defamation related to reputational damage that caused serious harm and, to the extent possible, to bring forward and to encourage the early resolution and settlement of the issues between the parties. The history traced by both Gibson DCJ and Sackar J disclosed the growing incidence of trivial defamation claims in which the publication reached a very limited number of persons or otherwise involved very limited harm to reputation. 6. The prohibition in s 12B of the Defamation Act is to the commencement of proceedings. Prior to the promulgation of s 64(2) of the Civil Procedure Act 2005 (NSW) and its predecessors, there was a common law prohibition on amending pleadings to include a cause of action that arose after the commencement of the proceedings. That common law prohibition no longer operates. 7. As a consequence, even though the date of the commencement of proceedings for the purposes of limitation is on the date on which the amendment is filed, the proceedings are the same and the proceedings had already commenced prior to the publication of matters 11 and 12. On its face, the prohibition in s 12B of the Defamation Act does not apply to the amendment to the cause of action to raise matters 11 and 12. 8. As a matter of discretion, where additional matters are raised, the Court may, in defamation proceedings, refuse to allow the amendment unless a concerns notice has been served. However, in the present proceedings, the imputations said to arise from matters 11 and 12 are the same imputations — or so similar as not to be distinguishable — as the imputations raised in relation to the matters previously published and in respect of which a concerns notice has been already served. The effect of the foregoing circumstance is that the purpose of the legislature has been achieved by the initial service of the concerns notice and the identification of that which is said to be the serious harm caused by the alleged defamation. 9. In those circumstances, the prohibition in s 12B of the Defamation Act does not apply, and there is no discretionary reason why the Court should, because of the failure to serve a further concerns notice, not permit an amendment. 10. The foregoing does not deal — nor is it necessary to deal in these proceedings — with whether the Court has a discretion to allow the service of a concerns notice after the purported commencement of proceedings by the filing of a Statement of Claim. Nor is it necessary to deal with whether, in such circumstances, the proceedings would be stayed pending the service of such a concerns notice, and the prescribed steps thereafter have occurred. Neither of those issues has been raised by either party. Nor do the issues arise as a result of the circumstance that, in this case, the Statement of Claim was filed after the prescribed steps had been taken. Re-agitation of previously determined issues 1. It is next necessary to deal with the power and jurisdiction of the Court to determine again issues associated with the orders made by Sackar J in this matter, which the plaintiff seeks to re-agitate. On 24 February 2022, the Court (Sackar J) granted leave for the plaintiff to re-plead certain matters and file amended pleadings. That which is sought to be filed is the amended pleading arising from leave granted by Sackar J. 2. As has been made clear on a number of occasions by the highest authority, there is no inherent power in a court to resurrect proceedings and limited powers to vary or amend judgments. The judgment of the Court, including an interlocutory judgment, is entered once it is entered on the computer system and thereafter forms part of the record of the proceedings. At common law and absent statutory expansion, such an order forms a basis for certain prerogative relief. [4] 3. Prior to a judgment being entered, including an interlocutory judgment, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to final orders, what needs to emerge to enliven the jurisdiction, is that the court has apparently proceeded according to some misapprehension of facts or relevant law and such misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. [5] 4. Again, in relation to a final judgment, after judgment has been entered, the only bases upon which a judgment or order may be reopened and amended are: the "slip" rule; where the intention of the court has not manifested in the judgment; and, if the initial order were made in chambers. [6] 5. Bailey v Marinoff, supra, related to self-executing orders which had come into effect, which resulted in the proceedings being dismissed. The High Court determined that the Court of Appeal could not, as it had purported to do, reinstate the matter into the list. In DJL, supra, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said: "[34] The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders." (Footnotes omitted.) [7] 1. This line of authority, at least in part, relies upon the principle of finality of judgments. Parties are not free to re-agitate issues determined by a court. 2. In relation to interlocutory orders, slightly different principles apply. First, orders issued by a court are issued by the whole court, notwithstanding that they may be issued by a single judge or, in the case of an appeal, more than one judge. The jurisdiction of a superior court of record is exercised en banc under the common law, and by a single judge, when the statutes that now operate, permit it to be exercised by a single judge (or on appeal two or more judges). 3. The judges exercise the jurisdiction of the court as a whole. [8] As a consequence, when a single judge issues a judgment, interlocutory or otherwise, the court has determined the issues between the parties. 4. In the case of an interlocutory order, the principle of finality continues to apply, but because the court is not dealing with the determination of the rights between the parties on a final basis, interlocutory orders may be amended by the court, including by another judge. 5. Nevertheless, the basis upon which even interlocutory judgments may be amended, does not include a re-agitation of the same issues already determined by the court, in the absence of different or new circumstances. 6. Where an order does not decide the existing rights between parties, but directs the parties to perform actions in relation to proceedings that are on foot and continue, the court has a right to amend the directions. This is permitted when new facts are brought before the court, or where it is shown that the original orders may create an unnecessary inconvenience or other injury to one or more of the parties. 7. In so doing, the court may give directions that are different from that which had been previously determined. These directions may amend and/or replace previous interlocutory orders. [9] 8. On one view, the court may have a duty to issue different orders where new facts are brought before it rendering it necessary so to do for the purpose of the due administration of justice and to facilitate the just, quick and cheap resolution of the real issues between the parties. 9. Applying the foregoing principles, the Court has the jurisdiction to vary or amend the directions issued by Sackar J. However, as a matter of principle, the Court ought not to vary them in circumstances where all that is sought is a re-agitation of the issues already determined, without circumstances having changed from that which was available to be, or was, before the Court on the earlier occasion. 10. The plaintiff has a right, in the general sense, to file and serve an amended Statement of Claim pursuant to the Court's earlier orders. Objection is taken on the basis of the number of draft amendments that have been proposed by service on the defendant. None of those draft Statements of Claim have been filed and, on any formal basis, that which is sought to be filed is the amendment arising from or purportedly arising from leave granted by the Court. 11. I do not consider that the circumstance that there have been seven earlier drafts served on the defendant and upon which comment has been made — comments which have been taken into account in crafting the Fourth Amended Statement of Claim — is a basis upon which the Court ought to refuse leave it had already granted. Pleadings with respect to publication 1. Otherwise, the issues between the parties are the deficiencies in pleadings in the Statement of Claim itself, one aspect of which is whether the pleadings disclose publication pursuant to the terms of the UCPR. 2. The commencement point for this discussion is UCPR r 14.7 which requires that a pleading must contain a summary of the material facts upon which a party relies and not the evidence by which those facts are to be proved. Further, a pleading must give all necessary particulars, being such particulars of every claim or matter pleaded, as are necessary to enable the opposite party to identify the case that the pleading requires the party to meet. [10] 3. The following terms of UCPR r 15.19, and in particular UCPR r 15.19(1)(a) and (b), are also relevant: 15.19 Particulars in relation to statements of claim for defamation (cf SCR Part 67, rule 12; DCR Part 49, rule 11) (1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following— (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified, (b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified," 1. As has been made clear on a number of occasions, relying on the judgment of the High Court in Gutnick, [11] publication — in which the alleged defamatory statement has been made — is a two-step process. It requires both the posting or printing of material and the reading of material or its distribution. 2. In the case of the internet, this means that publication does not occur until a person or persons download or read that which has been posted. Publication does not occur at the point at which words are posted. 3. There seems to be no issue (in relation to the adequacy of the pleading) as to the circumstance that the defendant posted some of the material. Secondly, defamatory imputations are said to arise on the posts (if they were published) about which the Court is not required to deal in these proceedings at this time. 4. The issue arises as to whether sufficient particulars have been given to satisfy UCPR r 15 .19(1)(a) and (b). Essentially, the defendant submits that the plaintiff is required to provide particulars of the downloading and, in some matters, the uploading of the post in order to prove publication. It seems that the defendant submits that particulars should include the identity of the person who has read the post and the address or contact details of that person. 5. There is no requirement in the UCPR or pursuant to the Defamation Act for a plaintiff to provide to a defendant, in the ordinary course, the identity and contact details of any or all persons who have read a publication or are party to a publication. If the defamatory material arose in a newspaper, the fact of the distribution of the newspaper is such as to allow a court to draw an inference that the article was read by at least some of those to whom it was distributed. 6. In the case of an internet posting, in order for publication to occur, at least one person (other than the plaintiff and defendant) must have read the post. In order to satisfy UCPR 15.19(1)(b), sufficient facts and/or particulars must be pleaded that would allow the Court to draw the inference that the post has been read. 7. Such facts may form a wide class. The class would certainly include the name of any person who had downloaded. It would also include the fact that the post was the subject of response or the subject of comment such as the posting of a "like" or other symbol evidencing that a person or persons have read the post. 8. In relation to the First Matter complained of, such material is pleaded by reference to persons who have read and/or commented on the publication. In respect of the publication of the subsequent iterations: * the second iteration, a publication on Facebook, received 24 "likes" and five "comments". There were also 10 "shares" and the fact is pleaded that the readership of the Facebook page concerned was equal to or greater than 23,385. Further some, at least, of those who had read the article were within the State of New South Wales; * the third iteration pleadings assert a number of likes, comments, shares and a readership of 23,385 or more. Again, some of those individuals were in New South Wales; * similarly, regarding the fourth iteration, the plaintiff asserts a number of likes, comments, shares and an audience of 23,385; * the fifth iteration also asserts likes, comments, views and a readership of 23,385; * in the same category, the sixth iteration alleges a number of likes, comments, sharing, and a readership figure; * the seventh and eighth iterations are in the same position; * the ninth iteration is in a slightly different category in that the particulars allege an identifiable reader in NSW to the publication and identifies, inferentially, a different reader located in Queensland; * the tenth iteration has only four likes and two comments and identifies one Queensland resident as a reader. 1. In relation to the Second Matter: * the pleading identifies two New South Wales readers and one Queensland reader. At present, the extent of the readership is otherwise unknown; * the second iteration on Facebook received 11 likes, two comments, was shared four times and the page had a readership of 19,805; * the third iteration, also on Facebook, received two likes, was shared five times and the page had a readership of 1483; * the fourth iteration on Facebook received three likes, four comments, two shares and the page had a readership of 446 or more. * the fifth iteration, a publication on Twitter, received one "tweet", one "like" and the page had a readership of 737 or more. 1. In relation to the Third Matter, which is a publication on Facebook, the pleading asserts five likes, five comments, five shares and the readership of the page was 1483. 2. In relation to the Fourth Matter, which is a posting on Twitter, the pleading alleges one "retweet" and a page readership of 737. 3. In relation to the Fifth Matter, which is a posting on Twitter, the pleading alleges one "re-tweet" and a page readership of 737. It further alleges 12 individuals had reacted to the publication, albeit indirectly. 4. In relation to the Sixth Matter, a posting on Facebook, it had received 92 likes, 34 comments, had been shared 18 times and the page had been read by 23,385 persons. (Or, more accurately, the page had been read 23,385 times.) 5. In relation to the Seventh Matter, a posting on Facebook, the posting had received four interactions, including two comments, and the page registered that it was read 23,601 times. This publication was subsequently deleted. 6. In relation to the Eighth Matter, a posting on Facebook, the pleading again particularises the number of likes, comments, a sharing of the page and a readership of the page of 446. 7. In relation to the Ninth Matter, a posting on Facebook, the pleading alleges two likes, one sharing and a page readership of 19,760. 8. In relation to the Tenth Matter, a posting on Facebook, the pleading particularises two likes, one comment, one share and a page readership of 1488. 9. In relation to the Eleventh Matter, a posting on Facebook, the pleading alleges 581 likes, 15 comments, 284 shares, and a page readership of 23,601. 10. Finally, in relation to the Twelfth Matter, also a posting on Facebook, the plaintiff in the pleading asserts 12 likes, two shares and a page readership of 4,445. 11. In respect of the terms of UCPR r 15.19(1)(a) and (b), one must apply to the provisions the ordinary rules of construction. In construing the provisions, recited above, the Court is required to give effect to the legislative intention evidenced by the terms of the provision and seek to ensure that the provisions give effect to harmonious goals. The legislative intention is derived from the words used in the provision. Those words are not necessarily construed in a manner that reflects the "dictionary" meaning of each word. [12] 12. While the foregoing principles were laid down in relation to a statute, subsidiary legislation, such as the rules of court, should be construed in the same way, the necessary changes being made. The purpose for the provision in UCPR r 15.19(1)(a),expressed in the provision itself, is to enable a defendant, faced with a claim in defamation, to identify the publication to which reference is made. All that is necessary in that regard is for particulars to be "sufficient" to achieve that purpose. 13. In the current pleading, the post is identified by its internet address. Due to the obvious purpose of the paragraph, UCPR r 15.19(1)(a) utilises the term "publication" to mean, in the present circumstances, posting. Were the term "publication", where used in UCPR r 15.19(1)(a), used in the sense of the two-step process and require identification of the posting and the reading, it would render r 15.19(1)(b) otiose. 14. Similarly, if one were dealing with a defamation that concerned written material other than on the internet, it would be sufficient to comply with the requirements of UCPR r 15.19(1)(a) to identify the written document, without identifying the circumstance that it was circulated, distributed and/or read. 15. Dealing then with the provisions of UCPR r 15.19(1)(b), the pleading must particularise sufficient material to enable a court to draw the inference that the posting has been downloaded, in the case of an internet, or the article read in the case of other written material, or the broadcast seen and/or heard in the case of radio, television or video distribution. As the West Australian Court of Appeal has said: "The cases also establish that an inference to the effect that the material on which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties." [13] 1. Here, the plaintiff has provided the almost identical particulars in relation to each of the postings to that provided in Sims v Jooste, supra, and upon which Martin CJ concluded that there was evidence that the defamatory material had been downloaded and comprehended. 2. The above analysis does not suggest that greater particularity could not be given, but the plaintiff has not sought, in this motion, further and better particulars. The Court is, at present, neither indicating such particulars would be granted or indicating that they would not be. 3. Further, given the terms of UCPR r 15.19(1)(b), the particulars that have been provided so far are the particulars upon which the damages would be based, subject to any further material that may, in the course of the proceedings, be admitted. The immediately preceding comment does not include any grapevine effect. 4. Further to the foregoing, the defendant submits that the details of the "publication" refer to the posting of the material on pages owned by the "Child Abduction Recovery International", which is described as a Swedish company founded by the defendant and of which the defendant is Chief Executive Officer. In circumstances where the Facebook page is a public page owned by Child Abduction Recovery International, then that company, said to be incorporated in Sweden, is a publisher of the documentation, at least inferentially. [14] 5. The Fourth Amended Statement of Claim asserts that it is "likely" that the defendant is the author of the First to Twelfth matters. The defendant complains that the reliance upon the defendant's position in the company to ground a basis upon which the Court could find that the defendant posted the material would require more facts than those pleaded, "including the size of the company and the absence of a connection between anyone else in the company and the plaintiff". It is unclear why there needs to be no connection between anyone else in the company and the plaintiff, unless it goes to the absence of motive. 6. If there were no motive possessed by anyone other than the defendant in the company, then it may well be that the plaintiff could prove, beyond reasonable doubt, that the defendant authored and/or posted the material. Evidence of the size of the company — for example, that there is not more than one employee or officer — may also prove beyond reasonable doubt that the person in the company who authored and posted the material was the defendant. The existence of others in the company may raise, on that evidence, a reasonable hypothesis inconsistent with such a finding. 7. But these are civil proceedings. The plaintiff doesn't have to prove any fact or element beyond reasonable doubt. What the plaintiff is required to do is prove on the balance of probabilities that the defendant authored and/or posted the material. In other words, all that the plaintiff is required to do is prove that it is more likely than not that the defendant posted the material and/or authored it. That is the effect of the pleading about which the defendant complains. 8. The complaint about the pleading is nevertheless justified. 9. The Court, and all common law courts, deal in certainty when dealing with historical facts. Even though an historical fact is required to be proved only on the balance of probabilities, once a court has obtained the required degree of satisfaction as to the occurrence of that historical fact, the fact is accepted as certain and as having occurred. [15] 10. The fact that is material to the cause of action, and a necessary element of the cause of action, is that the defendant published the material about which complaint is made. To prove that publication, the plaintiff is required to prove that the defendant posted and/or authored the material and that the material was downloaded and/or read. I have dealt already with the issue raised in relation to downloading. 11. The material fact and element, which the plaintiff is required to plead, is that the defendant published the material. The fact, if it be the fact, that the Facebook page and or webpage is owned by a Swedish company, owned by the defendant and of which the defendant is the CEO, are facts from which the plaintiff submits, it seems, that the Court should draw the inference that the defendant posted, authored or approved the posting and authoring of the material. 12. The Court may or may not draw that inference and whether it draws that inference may depend upon how many, if any, other employees are employed by the Swedish company; how many of those employees have access to and are authorised to post on the webpage and/or Facebook page and other such matters. Pleading the likelihood that the defendant authored the material, assuming for present purposes that it is a pleading that the authorship of the defendant is more likely than not, is not pleading a material fact. 13. The material fact would be that he did so author the material and/or post it. Nor is the pleading evidence from which the inference can be drawn. It is a conclusion as to likelihood. As such, the pleading is bad and the material fact as to the defendant posting, authoring, or approving the posting and authoring of the material — in other words, having a role in the publication — has not been pleaded. It is a matter upon which further particulars could be provided and a pleading of the material fact is required. Special damages 1. One of the further issues raised by the defendant is the "embarrassing" nature of the claim for special damages. It is appropriate to cite the pleading in its entirety; it is short. It is in the following terms: "[50] The Plaintiff claims special damages for moneys expended on medical treatment undertaken as a result of the publication of Matters One to Twelve inclusive. The amounts claimed include moneys for: (f) (sic) Medical treatment including clinical psychology; and (2) Ongoing prescription medication." 1. There are a number of difficulties with the foregoing pleading. First, causation is not pleaded, although inferentially it arises. In other words, the plaintiff would be required, and is required, to plead that the publication of the defamatory material caused injury requiring medical treatment. 2. If such a claim were made, then the claim for special damages is a claim for damages in respect of personal injury. As such, as soon as practicable after the serving of a Statement of Claim, the plaintiff is required to serve (and file) copies of all documents available to the plaintiff in support of the claim, whether past, present or continuing, including all hospital and medical accounts; any workers compensation insurance payments; any letters from employers and/or wage records; and all reports, award rates and correspondence relied upon to support any assistance required. Further, the plaintiff is required to set out the particulars of the injury received, the particulars of any continuing disability and the particulars of out-of-pocket expenses. 3. There are other requirements. The claim for special damages is, in its current form, impossible to meet. 4. The plaintiff is required, if this claim were to be pursued, to plead those facts that give rise to the causation; the amount of medical expenses; any disorder or diagnosis in relation to medical or mental illness; and particularise the expenditure and/or losses associated therewith. The plaintiff shall be granted leave to amend paragraph 50 to plead the issue of special damage, if it is to be pressed, in a form that is not embarrassing, and which sufficiently particularises the material upon which the plaintiff relies and will rely for such damage. Orders 1. On the foregoing basis, the Court will make orders the effect of which is to allow the filing of a Fourth Amended Statement of Claim. The terms of that pleading must reflect the foregoing and, in particular, not include those paragraphs relating to the role of the defendant as being "more likely" or "likely" to be the person responsible for the posting of the material. Leave is granted to replead those paragraphs so that it pleads a material fact, and leave is granted to provide further and better particulars in the pleading. Further, the Fourth Amended Statement of Claim may not include any matter for which Sackar J refused leave and must, to the extent pressed, replead Special Damage. In that regard, the defendant's rights as to any objection that may then be taken are reserved. 2. The Court makes the following orders: 1. Grant leave to file a Fourth Amended Statement of Claim in the terms submitted to the Court except as outlined in the foregoing reasons for judgment; 2. Dismiss the defendant's motion in so far as it deals with the lack of a concerns notice for matters 11 and 12 and as to the particulars of downloading and readership relating to publication. 3. Uphold the Motion insofar as it deals with the particulars of uploading and the pleading of the role of the defendant in the posting of the allegedly defamatory material; 4. Costs will be costs in the cause. ********** Endnotes 1. Defamation Act 2005 (NSW), s 12A(1) and (2). 2. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 3. Newman v Whittington [2022] NSWSC 249 (Sackar J). 4. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58. 5. Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6. 6. Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49; DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [34]-[35]. 7. DJL, supra, at [34] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 8. Re Jarman; ex parte Cook (1997) 188 CLR 595 at 610; [1997] HCA 13 (Dawson J). 9. Prestney v Corporation of Tolchester (1883) 24 Ch D 376 at 384-385 (Cotton LJ); Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325 at 331-332 (NT Supreme Court, Muirhead J). 10. Uniform Civil Procedure Rules 2005 (NSW), r 15.1. 11. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56. 12. Project Blue Sky, supra, at [70] and [78] (McHugh, Gummow, Kirby and Hayne JJ). 13. Sims v Jooste (2) [2016] WASCA 83 at [19] (W. Martin CJ, Buss JA and Mitchell J agreeing); cited with approval and applied in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [6] (Gleeson JA with whom Macfarlan and Brereton JJA agreed). 14. Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27. 15. Malec v Hutton (1990) 169 CLR 638 at 639 (Brennan and Dawson JJ) and at 642-643 (Deane, Gaudron and McHugh JJ); [1990] HCA 20. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022