Supreme Court New South Wales Medium Neutral Citation: Gary Leech v John Silvester & Ors [2012] NSWSC 1367 Hearing dates: 05/11/12 Decision date: 14 November 2012 Before: Nicholas J Decision: Par 34 Catchwords: DEFAMATION - pleadings - defamatory publication a book - particulars sought of identity of persons to whom published - sufficiency of particulars - strike-out application - whether reasonable cause of action disclosed - whether proceedings an abuse of process Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 David v Abdishou [2012] NSWCA 109 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Jameel v Dow Jones & Co Inc [2005] QB 946 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 Sims v Wran [1984] 1 NSWLR 317 Category: Interlocutory applications Parties: Gary Leech - plaintiff John Silvester - first defendant Leonard Andrew Rule - second defendant Sly Ink Pty Ltd - third defendant Floradale Productions Pty Ltd - fourth defendant Representation: Counsel: K P Smark SC - plaintiff M Richardson - defendants Solicitors: Kalantzis Lawyers - plaintiff Johnson Winter & Slattery - defendants File Number(s): 12/131699 Judgment 1By notice of motion filed 5 November 2012 the defendants seek dismissal of the proceedings under Uniform Civil Procedure Rules 2005 Pt 13, r 13.4 as disclosing no reasonable cause of action, or as an abuse of process, alternatively, that the statement of claim be struck out under r 14.28 as disclosing no reasonable cause of action, or as an abuse of process. 2By statement of claim filed 26 April 2012 the plaintiff has sued the defendants for the publication on about 1 January 2010 and thereafter of the matter contained in pp 186 and 187 of the book entitled "Underbelly - The Golden Mile" (the book). Particulars of publication pleaded under r 15.19(1) are as follows: "(a) The first defendant wrote the Book or parts of the Book. (b) The second defendant wrote the Book or parts of the Book. (c) The third defendant published the Book. (d) The fourth defendant published the Book. (e) The Book was published by the defendants and made available for sale in New South Wales and in every other State and Territory of Australia. (f) The Book was still available to be purchased from bookstores throughout Australia and over the internet in about August 2011. (g) As at January 2012 at least 48,000 copies of the Book had been sold throughout Australia. (h) Further particulars of the extent of publication of the Book will be provided after discovery and interrogatories. 3The defamatory imputations relied upon are pleaded in par 4. For present purposes it is unnecessary to refer to them. As yet, no defence has been filed, and the interlocutory procedures of discovery and interrogatories have not been taken. 4The relevant background is as follows. 5In January 2010 the book was published and distributed to various outlets on behalf of the defendants by Macmillan Publishing Services (Macmillan). 6On 14 April 2010 Miss Wendy Hatfield commenced proceedings in this Court (10/91020) against the defendants for damages for defamation arising from the publication of the book. These proceedings were finalised on 21 December 2010 when judgment by consent was entered for Miss Hatfield. 7By email of 19 December 2010 the second defendant informed Macmillan of the necessity to recall and quarantine copies of the book from retail outlets. 8By email of 20 December 2010 Macmillan's sales director requested various groups to advise their customers to remove any copies for sale immediately, and to arrange a no-fault return. On the same day an email to similar effect was sent by Macmillan's trade sales representative to numerous book sellers. 9By email of 11 January 2011 the second defendant requested Macmillan to pulp the book immediately. 10By letter of 5 August 2011 to the defendants' solicitors the plaintiff's solicitors complained on behalf of Miss Hatfield that the book was available for purchase at Collins bookstores and online. It advised of the purchase of a copy online that day. 11By letter of 17 August 2011 to the plaintiff's solicitors, the defendants' solicitors advised that on 17 December 2010 steps had been taken by their clients and their distributors to withdraw all stock of the book from sale; to prevent the re-issue of any returned stock; and to pulp all returned stock and stock in storage. Enclosed was a web page printout of the Book Barn of 5 August 2011 which stated the book was out of stock, and indicated that it may be specially ordered through the "contact us" page. 12On 26 April 2012 the statement of claim in these proceedings was filed. 13By letter of 9 July 2012 to the plaintiff's solicitors, the defendants' solicitors denied publication of the book since December 2010. It requested further particulars of publication including dates and locations of any sales within the year prior to filing the statement of claim, the identity of persons to whom the book was published, and the names and addresses of those who purchased and read the book during that period. 14By letter of 10 September 2012 to the defendants' solicitors, the plaintiff's solicitors, inter alia, advised that further particulars would be supplied after subpoenas, discovery, and interrogatories. They confirmed that the claim for damages was confined to publications which occurred within the year prior to commencement of proceedings. 15In their letter of 14 September 2012 the plaintiff's solicitors advised the defendants' solicitors that further particulars of publication would be provided upon completion of enquiries currently being undertaken. 16In response to the specific request for particulars of the identity of the purchaser(s) in par 2.4 of the defendants' solicitor's letter of 27 September 2012, the plaintiff's solicitor's letter of the same date advised that on or about 3 August 2012 the book had been purchased by each of Miss Hatfield and Mr Greg Dodd. 17In correspondence between 2 October and 31 October 2012 the defendants' solicitors pressed unsuccessfully for further particulars of identification of persons to whom the book was published. As stated in their letter of 2 October 2012, the defendants' solicitors concluded that the plaintiff's claim rests upon the purchases made by Miss Hatfield and Mr Dodd. 18The relevant rules for pleading particulars are: "15.1 Pleadings must give all necessary particulars (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. ... 15.19 Particulars in relation to statements of claim for defamation (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 ..." 19Further particulars may be ordered on application to the court (r 15.10). No such application is made in this case. 20The application under r 13.4(1)(b) and r 14.28(1)(a) is for the dismissal of the proceedings or that the statement of claim be struck out on the ground that no reasonable cause of action is disclosed. The claim is based on the proposition that on particulars so far provided the plaintiff could not establish publication, with the result that no reasonable cause of action is disclosed. It is put that only Miss Hatfield and Mr Dodd have been identified as recipients of the book, although it is not alleged that either of them read it. The defendants contend that the availability of the book for purchase to either of these persons is incapable of supporting the inference that, after the recall, the book was published to others. Thus it was put that the proceedings should be summarily disposed of. 21Alternatively, similar orders for dismissal or striking out are sought under r 13.4(1)(c) and r 14.28(1)(c) on the ground that the proceedings or the statement of claim is an abuse of the process of the court. This claim is based on the principles in Jameel v Dow Jones & Co Inc [2005] QB 946. It is put that to date there is no evidence of any actionable publication, alternatively, even if publication was established it would be so minimal that no real and substantial tort would have been committed, and the cost of the exercise would be out of proportion to what the plaintiff might recover. The defendants adopted the criticism of Lord Phillips MR (Jameel p 970): "The game will merely not have been worth the candle, it will not have been worth the wick." 22I turn first to the claim that no reasonable cause of action is disclosed. 23It is common ground that the applicable test is under General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 which requires demonstration that the matter pleaded is so obviously untenable that it cannot possibly succeed, or is manifestly groundless. Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes (Agar v Hyde [2000] HCA 41 (par 57); (2000) 201 CLR 552, pp 575-6). 24As the summary disposal of proceedings deprives a party of the right to a contested hearing the requirement for establishing that there is no arguable case is demanding (Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306, par 32). Because the power to strike out should only be exercised in clear cases, the court will not make an interim inquiry into the merits of the plaintiff's (or defendant's) case (John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 par 114). 25The scope of the plaintiff's obligation to plead particulars of the identity of the persons to whom the publication of an oral or written defamation is alleged to have been made was considered by Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188. He said (p 191): "A plaintiff's obligation to give particulars of his claim is to provide such information as is necessary to make the defendant aware of the nature of the case which he is called upon to meet. The authorities are collected in Sims v Wran [1984] 1 NSWLR 317 at 321-322. In particular, it is not a question of whether the defendant has adequate knowledge himself of the real facts; it is a question of whether he has adequate knowledge of what the plaintiff alleges are the facts, for that is the case which he must meet: ibid at 321." and at p 192: "The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial or trivial damages (Fullam v Newcastle Chronicle and Journal Ltd (at 659; 39)) and the application of the defence of unlikelihood of harm afforded by the Defamation Act 1974, s 13 (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reporter 80-691), will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published." 26However, Hunt J pointed out (p 192) that the plaintiff was usually not required to identify readers, listeners or viewers in newspaper, radio or television defamation cases. His observations are similarly applicable to cases, such as this one, in which the publication is a book. His Honour said (p 192): "... (this) is because the defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know that precise identity for any purpose in relation to its own defence. The plaintiff in his case will be relying upon the width or the unrestricted nature of the publication, not upon the precise identity of the persons to whom it was made, and similarly the defendant will stand or fall in relation to his defences upon the width of the publication and not upon the precise identity of the persons to whom it was made." and (p 193): "... in both oral and written defamation cases, particulars should be supplied of the identity of the persons to whom the publication is alleged to have been made when that identity is relevant to either the plaintiff's or the defendant's case. That identity will usually be relevant in oral defamation cases and in written defamation cases where it was not published in the mass media; but that identity will not usually be relevant in mass media cases." 27As the cases show, the obligation is to provide the best particulars which a party can give at the time, with liberty to provide further particulars after discovery and inspection. The particulars to be provided must be sufficient to alert the other party of the case it has to meet. Particulars are not concerned with the adequacy of the information to actually establish the case sought to be made out (Sims v Wran [1984] 1 NSWLR 317, p 329). That it is open to the plaintiff to prove facts from which it can be inferred that the matter complained of in the present case was read by a third party is supported by the following passage in David v Abdishou [2012] NSWCA 109: "286 It is self-evident that a plaintiff can prove publication without calling evidence in every case that the matter complained of was in fact communicated to a third party. As Gatley says (at [6.9]), if the plaintiff "proves facts from which it can be inferred that the words were brought to the attention of some third person, he will establish a prima facie case". This will be so if it is a matter of reasonable inference that the matter complained of was "actually seen and read by some third party": Gatley (at [34.9]). Such an inference will be particularly obvious "where the matter is contained in a book or distributed in the news media where in practice it would seem impossible to rebut the inference and in such a case it would seem that the presumption of publication would be impossible to displace": Gatley (at [6.14])." 28Consideration of the statement of claim and the correspondence as to particulars, with regard to the applicable principles, enable the defendants' application to be readily determined. In my opinion, for the following reasons, it must be dismissed. 29The plaintiff has confined his claim to publication during the period of one year prior to the commencement of these proceedings on 26 April 2012. The book was published in the marketplace in January 2010 and thereafter. Although there is no evidence of the actual number, it is reasonable to assume that many thousands of copies were published. The recall, which was intended to have copies withdrawn from sale to the public, commenced on about 20 December 2010. There was no evidence of the number of copies either in circulation prior to that date, or which remained in circulation after 26 April 2011. There was no evidence capable of negating the probability that copies of the book were available to readers throughout the period relevant to the plaintiff's claim. 30The plaintiff notified the defendants in the statement of claim (particulars par 3(h)) and in correspondence that further particulars of the extent of publication will be provided after discovery and interrogatories, and on completion of investigations currently in progress. Unsurprisingly, the plaintiff does not say that his case on publication rests on the sales to Miss Hatfield and/or Mr Dodd, or that the basis for the necessary inference as to the extent of readership will be confined at trial to the particulars provided to date. In any event it is difficult to uphold the defendants' insistence for information of the precise identity of readers where they have not demonstrated a need to know for the purpose of their defence (Lazarus p 193). 31The issue on the application is not concerned with the sufficiency of evidence for proof of publication at the trial. Without affording the plaintiff the opportunity to take advantage of the usual interlocutory processes, it could not be said that his case is so clearly untenable that it cannot possibly succeed (General Steel p 130). It is not difficult to foresee that once the procedures of subpoenas, discovery, and interrogatories are employed, necessary evidence might be obtained to advance at trial as to the extent, if any, of circulation during the relevant period on the issue of publication. Accordingly, in my opinion, the defendants are not entitled to an order dismissing the proceedings under r 13.4(1)(b). Furthermore, in my opinion, the stance taken by the defendants that the plaintiff's case depends upon the alleged sale of one copy of the book (defendants' solicitor's letters 14 September, 17 September 2012) appears to be misconceived in that it ignores the advice from the plaintiff's solicitors that further particulars of publication will be provided after completion of enquiries. 32I also find that there is no basis for an order under r 14.28(1)(b). Under this rule an order which summarily strikes out a pleading should only be made where the pleading itself is obviously defective (Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937; Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763, par 39). Relevantly, in Brimson Cross J (p 943) pointed out that where a party wants to attack, before trial, not its opponent's pleading but the opponent's case itself, it should move the court under Supreme Court Rules 1970 Pt 13, r 5 (now UCPR Pt 13.4) or invoke the inherent jurisdiction of the court that it be summarily dismissed. In my opinion the statement of claim, taken as a pleading, is not defective in any way. As formulated, I am satisfied that it complies with the requirements of r 14.30 and r 15.19. Accordingly, in my opinion the defendants are not entitled to an order striking out the statement of claim on this ground. 33In my opinion, the claim for summary relief on the ground of abuse of process upon the principles in Jameel must also fail. It is unnecessary to consider the question of the application of these principles to defamation proceedings in New South Wales. This is because it is sufficient to say that the defendants' case on this ground is entirely without evidentiary support. Orders 34Accordingly it is ordered that: (1)The defendants' notice of motion filed 5 November 2012 be dismissed. (2)The defendants' to pay the plaintiff's costs of the notice of motion. (3)The defendants to file and serve a defence within fourteen days. (4)The parties to prepare a timetable for the future conduct of the proceedings. (5)The proceedings are stood over to the defamation list 9.30am 3 December 2012. ********** 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: 03 December 2012