Mohareb v Jankulovski [2014] NSWSC 767

Supreme Court New South Wales

Medium Neutral Citation: Mohareb v Jankulovski [2014] NSWSC 767 Hearing dates: 6 June 2014 Decision date: 06 June 2014 Before: McCallum J Decision: Application for order for further and better particulars refused. Catchwords: DEFAMATION - pleading and particulars - application for order for further and better particulars of claim for aggravated damages Cases Cited: Mohareb v Jankulovski [2013] NSWSC 850 Category: Interlocutory applications Parties: Nader Mohareb (plaintiff) Emil Jankulovski (first defendant) Emil & Sons Pty Ltd t/as Inducta Engineering (second defendant) Representation: Counsel: C Dibb (plaintiff) M Dulhunty (defendants) Solicitors: C Jankulovska (defendants) File Number(s): 2012/68684 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation arising out of the publication of two letters. The application before the Court is the defendants' application for an order that the plaintiff provide further and better particulars of paragraph 8 of the second further amended statement of claim, which is the paragraph in which the plaintiff makes a claim for aggravated damages. I have reached the conclusion that the application must be dismissed, for the following reasons. 2It is necessary to recite something of the history of the plaintiff's attempts properly to plead his claim. The claim originally included a claim for misleading or deceptive conduct in addition to the defamation claim. A challenge to that pleading was determined by Harrison AsJ on 27 June 2013: see Mohareb v Jankulovski [2013] NSWSC 850. 3Harrison AsJ struck out the misleading or deceptive conduct claim with leave to replead. Her Honour also struck out paragraph 8 of the further amended statement of claim as it then existed. The form of the pleading her Honour was considering was the further amended statement of claim filed 31 May 2012. In that pleading, the plaintiff had pleaded a claim for aggravated damages in the following terms: 8. Further, as a result of the matters particularised hereunder, the plaintiff claims aggravated damages: Particulars of Aggravated Damage i. The plaintiff's knowledge of the falsity of the imputations; ii. the first defendant's failure to verify the truth of any of the imputations before publication; iii. the malice of the defendants towards the plaintiff including: 1. the refusal of the defendants to continue software support of their product in the knowledge that the plaintiff was using their software to complete a structural engineering design contract; 2. the first defendant's refusal to meet with the plaintiff in a meeting proposed by the representative of Sonenco Apartments (being the addressee of the matters complained of ) in late March or early April 2012, when that representative expressed his wish to meet with both the defendants and the plaintiff to understand and verify the defendants' claims. 3. the deliberate sabotaging of the plaintiff's own version of the software by remotely shutting down the software on the plaintiff's computer at the time when the defendants knew that the plaintiff was using their software to complete a structural engineering design contract; 4. the first defendant communicating with the plaintiff's client and informing them that the defendants could perform the plaintiff's contractual obligations of design instead of the plaintiff; 5. the making of allegations by the defendants to the client of the plaintiff concerning the ability of the plaintiff to perform the design of the building when the only knowledge the defendants concerning the plaintiff was his request for assistance with the software supplied by the defendants. 4Harrison AsJ dealt with the challenge to that part of the pleading from [92] of her Honour's judgment. The judgment reveals that the principal objection was that the plaintiff in effect sought to rely upon the malice of the defendant as a factor aggravating damages. The objection was thus confined to paragraph (iii) of the particulars set out above. It may be accepted that, in terms, those particulars were unsustainable, since they did not tie the defendants' malice to the degree of hurt and harm suffered by the plaintiff. 5The matter which, if it were established, could relevantly aggravate the harm suffered by the plaintiff would be his knowledge of the matters said to reveal the malice of the defendants (in acting in the way in which they were alleged to have acted). 6However, notwithstanding the fact that the objection was plainly directed only to paragraph (iii) of the particulars (the other two paragraphs being in my respectful opinion unexceptionable and properly pleaded particulars of aggravated damages), the order her Honour made was to strike out the whole of paragraph 8. Further, as submitted by Ms Dulhunty on behalf of the defendants, whilst her Honour granted leave to the plaintiff to replead his claim for misleading or deceptive conduct, her Honour did not extend any grant of leave in respect of the struck-out paragraph 8. 7Those circumstances have conduced the defendants to believe and contend that the plaintiff is forever precluded from maintaining any claim for aggravated damages. 8Following an unsuccessful appeal against the decision of Harrison AsJ, which explains some of the delay in the progress of the proceedings since June last year, the plaintiff ultimately propounded a second further amended statement of claim in a form annexed to a notice of motion, seeking leave to file that document. 9In accordance with the defendants' understanding of Harrison AsJ's judgment, that form of the pleading included the whole of paragraph 8 struck out. As I have already noted, that includes the first two particulars of aggravated damages relied upon by the plaintiff which were "the plaintiff's knowledge of the falsity of the imputations" and the contention that the plaintiff's harm has been aggravated by "the first defendant's failure to verify the truth of any of the imputations before publication", each an entirely proper particular of aggravated damage which appears in almost every statement of claim seen in this list. 10The application for leave to amend evidently came before Rothman J at the same time as an application by the defendants to have the proceedings dismissed for want of due despatch. His Honour heard and determined that application on 24 March 2014. 11Ms Dulhunty has noted that the argument proceded by reference to the form of the pleading then propounded by the plaintiff, to which I have referred. However, his Honour did not determine the application with confined attention to that form of the pleading. His Honour said: The proper course, weighing up all of the matters and the drastic nature of a strikeout, is for me to grant the adjournment that is sought by the plaintiff and to grant leave to the plaintiff to file within seven days a further amended statement of claim that complies or seeks to comply with the orders of Harrison AsJ on June 2013. 12His Honour made an order reflecting the terms of those remarks as follows: Order 2: the plaintiff to file and serve by 4pm, 7 April 2014, a second further amended statement of claim that seeks to comply with the orders of her Honour Harrison AsJ of 27 June 2013. 13The plaintiff complied with that order, filing his second further amended statement of claim in the Registry on 3 April 2014. By contrast with the form of pleading propounded by him in the notice of motion which came before Rothman J, that pleading included a paragraph 8 in the following terms: 8. The plaintiff says his damage has been aggravated by the following facts, matters and circumstances: Particulars of Aggravated Damage i. The plaintiff's knowledge of the falsity of the imputations; ii. The first defendant's failure to verify the truth of any of the imputations before publication; iii. The failure of the defendants to apologise to the plaintiff; iv. The plaintiff's knowledge that the defendants were actuated to publish the matters complained of by a desire to replace the plaintiff as the contracted designer for the building project in Parramatta. v. The conduct of the defendants after the publication in withholding technical support and remotely disabling the plaintiff's copy of the design software so as to appear to confirm and exacerbate the impression that the plaintiff was professionally incompetent. vi. The plaintiff's knowledge that the defendants refused the plaintiff's client request for a meeting with them in which the plaintiff would have the opportunity to discuss, address and respond to the defendants' professed concerns. 14The proceedings next came before Harrison J on 14 April 2014. On that occasion it appears the defendants renewed their application to have the proceedings struck out for want of prosecution, notwithstanding the remarks of Rothman J set out above from which, in my respectful view, it is clear that his Honour was not persuaded that the proceedings should be struck out for want of prosecution owing to the "drastic nature" of such a remedy. 15Further, it appears that the defendants on that occasion agitated the question whether the plaintiff was forever precluded from maintaining any claim for aggravated damages. At paragraph 10 of the judgment of Harrison J, his Honour said: It seems to me, having regard to these matters, that the plaintiff's second further amended statement of claim conforms to order 2 made by Rothman J on 24 March 2014. I do not consider that the judgment or orders of Harrison AsJ made on 27 June 2013 lead to the result that the plaintiff became or remains disentitled to maintain a claim for aggravated damages. In expressing that opinion I make no comment about whether or not paragraph 8 is otherwise amenable to attack by the defendants on some other basis. 16His Honour ordered the defendants to file their defence to the second further amended statement of claim filed 3 April 2014 within 14 days of his Honour's judgment, that is, by 1 June 2014. That did not occur. 17On 29 April 2014, that is, two days before the defence was due to be filed, the solicitor for the defendants sent a lengthy request for particulars of the new paragraph 8. Although the request for particulars was dated 29 April 2014, the plaintiff asserted in his response that it was not received by him until 5 May 2014, after the date on which the defence was due. The response appears under the plaintiff's name personally but plainly bears the marks of having been contributed to by Mr Dibb of counsel, who I understand is briefed on a direct access basis. In short, some of the particulars were responded to with the contention that they were not proper requests for particulars, while others provided further information in terms of the matters as to which particulars had been sought. 18Without descending to the detail of the request and the reply, in my view, having received the response (and indeed probably without it), the defendants ought to have been perfectly well placed to plead a defence in accordance with Harrison J's order requiring a defence to be filed by 1 June 2014. What happened instead was that the defendants responded by renewing many of their requests for particulars made in the earlier letter dated 15 May 2014. 19It is in those circumstances that the proceedings have come back before me today to hear the defendants' application that such particulars be provided. DULHUNTY: Sorry, your Honour, the matter was referred to you anyway. When his Honour Harrison J gave his judgment the matter was referred to this list. That was one of his orders anyway. And the argument about the particulars has erupted in the meantime. HER HONOUR: I understood that the only reason his Honour referred it back to me today was because there was still an argument, otherwise there's no need for it to come back before the defamation list judge, it having been before his Honour earlier this week. DULHUNTY: Well, it was originally to come before you on Monday this week anyway following from his judgment on 17 April. There was a notice of motion which was before him which also dealt with some dongles. HER HONOUR: On Tuesday? DULHUNTY: Yes. And he hadn't dealt with that in his orders for that notice of motion. HER HONOUR: But if there had been no argument about these particulars, as I understand it, his Honour would not have then referred it back to me after Tuesday, because we had the conversation about there being no need for it to be listed before two separate judges in the same week on Monday, and I was given to believe that it wasn't going to be before me. But then after Tuesday he said there was going to be an argument about particulars so he had to refer it back to me. Is that not correct? DULHUNTY: He didn't want to deal with the particulars part. He said that-- HER HONOUR: That's my question. DULHUNTY: --you could deal with it. But there wasn't an order - just as part of the matter being in the defamation list generally, but there was already an order made for the matter to be listed in the defamation list anyway. So it's not an extra listing as such, but it is dealing with more matters than was originally intended shall we say. 20The principal issue now sought to be agitated in respect of the particulars relates to particular (iv) which provides, as a particular of aggravation: "The plaintiff's knowledge that the defendants were actuated to publish the matters complained of by a desire to replace the plaintiff as the contracted designer for the building project in Parramatta." 21The defendants have sought a number of particulars of that allegation. Mr Dibb's response was to point out that Rule 15.4 of the Uniform Civil Procedure Rules, which provides that a pleading alleging a condition of mind must give particulars of the facts on which the pleading party relies, expressly excludes knowledge; that is, where a party pleads knowledge of a matter the rules make it clear that that is not a condition of mind as to which a party is required to give particulars. 22The defendants in their reply to that letter accepted that Rule 15.4 has nothing to do with a person's alleged knowledge, but nonetheless maintained that the particulars sought were required in order to understand the allegation set out above. I disagree. It is simply an allegation that the plaintiff's hurt to feelings has been aggravated by his knowledge of the matter identified. The defendants are on notice of the case they have to meet in that respect. 23A separate specific complaint in respect of the refusal to answer the particulars sought relates to paragraphs 5 and 6 of the defendants' request. Paragraph 5 seeks particulars as to whether the plaintiff has been removed as structural engineer from the project at the heart of the proceedings; if so, who has replaced him and whether the project has been completed. Paragraph 6 seeks particulars as to whether the plaintiff has submitted any tenders for the role of structural engineer in other building projects and like information. 24Those particulars appear to me to be misconceived. They are directed to the assumption that the plaintiff makes a claim for special damages, but he has made it clear that he does not. 25Nothing in the balance of the particulars sought and the complaints about the failure to provide them has persuaded me that there is any deficiency in the present pleading of aggravated damages. The defendants in my view have been perfectly well placed since being served with that pleading to plead a defence to it and ought to have done so in accordance with the order of Harrison J made 17 April 2014. 26For those reasons, the application for an order for further and better particulars is refused. 27[discussion as to timetable]. 28I order the defendants to file and serve their defence to the second further amended statement of claim filed 3 April 2014 within ten days. I order the plaintiff to file and serve any reply within ten days thereafter. I stand the proceedings into the defamation list in July 2014, which is 7 July 2014, before me. 29[after hearing argument as to costs]. 30I order that the defendants pay the plaintiff's costs of the application. 31For future case management purposes, having regard to the complex history of these proceedings, I note that, before being informed of the history of interlocutory applications that have been determined in this court, I raised with the parties the prospect of the proceedings being referred to the District Court. Having now seen the extent to which this court is seized of the matter, I do not think it would be fair to the judges of the District Court to transfer the proceedings at this stage with all their inherited history. Had the matter come before me on the first return date I would have entertained the prospect of making such an order, but I think it is probably too late for that. However, if at any stage the parties consent to the proceedings being transferred to the District Court, that is an order that probably should be made. 32For those reasons, however, I note that any further notices of motion or interlocutory applications in these proceedings should in the first instance be referred to me so that these proceedings can be consistently case managed by the same judge.