District Court New South Wales Medium Neutral Citation: Mohareb v Palmer [2015] NSWDC 134 Hearing dates: 5 March 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: See section under Orders after [47] Catchwords: TORT - defamation - three successive statements of claim drafted by litigant in person fail to set out a properly pleaded and particularised case in defamation - defendants' application under UCPR r 12.2 for summary dismissal - whether additional claims for assault should also be dismissed on the basis of the trivial nature of any injury - need for caution in summary dismissal application where the party in default is a litigant in person, the issues of law are complex, there are no actual failures to comply with timetables and the claim is not unmeritorious on its face - application for summary dismissal refused - challenge to form and capacity of imputations - challenges to pleading of liability for publication, identification and particulars of downloading - substantial repleading of claim necessary - costs of the amendment and argument to be paid by the plaintiff on the ordinary basis but to be assessed forthwith Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.2 Cases Cited: Bishop v New South Wales [2000] NSWSC 1042 Byrne v Deane [1937] 1 KB 818 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Cranbrook School v Stanley [2002] NSWCA 290 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Facer v Wolfe (2013) 17 DCLR (NSW) 391 Frawley v State of New South Wales [2006] NSWSC 248 Jenman v McIntyre [2013] NSWSC 1100 Category: Procedural and other rulings Parties: Plaintiff: Nader Mohareb First Defendant: Matt Palmer Second Defendant: Annette Palmer Representation: Counsel: Plaintiff: In person Defendant: Mr M Lewis Solicitors: Plaintiff: In person Defendant: Kennedys File Number(s): 2014/243522 Publication restriction: None Judgment 1. These are reasons for the rulings that I made on 5 March 2015 refusing to make the order for summary dismissal sought by the defendants and directing the plaintiff to file a further amended statement of claim. 2. The defendants bring an application for summary dismissal of the plaintiff's claim pursuant to r 12.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") by reason of asserted defects in successive statements of claim and failures to provide answers to particulars. 3. The application was foreshadowed on 17 November 2014. An amended draft pleading prepared by Mr Dibb of counsel was provided and an application to strike out portions of the statement of claim, as well as for summary judgment, was listed for argument on Friday 20 February 2015. 4. On 20 February 2015 neither party was ready to proceed, and I made orders which included the following: 1. Defendant's application to strike out the plaintiff's statement of claim is listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate 2 hours). 1. Mr Mohareb has been conducting these proceedings as a litigant in person, although he has had some assistance in relation to the drafting of pleadings. It should have been clear to him, from the orders made, that the application before the court was an application for summary dismissal and not just an argument about imputations. As it happens, it was readily apparent to me, without calling upon Mr Mohareb, that the proceedings should not be summarily dismissed, but his unreadiness for the application is indicative of his lack of understanding of the litigation process. However, that unreadiness added to the time spent on this application, which must be taken into account in relation to costs issues. 2. I shall first set out the matters complained of and imputations, and then outline the basis upon which summary dismissal was sought by the defendants. The matters complained of 1. The first matter complained of consists of a series of noticeboard posters posted in public areas around Scotland Island. 2. The text of the first matter complained of is as follows: "ATTENTION ISLAND RESIDENTS WARNING! [Photograph of the Plaintiff] Nader MOHAREB Born [D.O.B] – CAIRO EGYPT For those of you have not had the 'pleasure' of meeting Nader please be aware he is highly volatile individual, prone to manic outbursts. He is often abusive and threatening - particularly towards women and children. He is easily recognisable by the ridiculous bum bag he wears, from which he is prone to pull a mobile phone and film you, and the large Bluetooth ear piece permanently lodged in his ear. Of the many incidents which have occurred since he arrived on the island – most seem to resolve [sic] around his objection to controlling his 2 King Charles Cocker Spaniel dogs on a leash whilst in public places. The dogs, like their owner, are often agitated and highly excitable. The dogs can be as intimidating as their supposed Master. Nader is known to NSW Police, and should you be threatened by him you are urged to contact Broken Bay Water Police immediately on 9910 or [mobile number]. Nader's behaviour is often bizzare and unpredictable and residents are warned to avoid approaching or confronting him. Complaints about his unleashed dogs or their mess Nader refuses to pick up should be made directly to Pittwater Council on [telephone] or by email to [email address]" 1. The imputations pleaded to arise from the first matter complained of are as follows (at paragraph 5 of the Draft Amended Statement of Claim): 1. The plaintiff is mentally unstable. 2. The plaintiffs [sic] is a sociopath. 3. The plaintiff is a bully who picks on women and children. 4. The community should avoid all contact with the plaintiff as there are reasonable grounds to suspect that his aggression and unpredictability may lead him to commit physical acts of violence on members of the community. 5. The plaintiff is abusive and threatening toward women and children. 6. The plaintiff has a history of criminal violence; or, alternatively 7. The plaintiff is reasonably suspected by police of being a dangerously violent man. 8. The plaintiff is reasonably suspected by police of being mentally unstable. 1. The second matter complained of, which is not attached as it was taken down from Facebook before it could be copied, is a photograph posted on Facebook showing the first matter complained of. 2. The same imputations are pleaded to arise from the second matter complained of as for the first, namely (at paragraph 7): 1. The plaintiff is mentally unstable. 2. The plaintiffs [sic] is a sociopath. 3. The plaintiff is a bully who picks on women and children. 4. The community should avoid all contact with the plaintiff as there are reasonable grounds to suspect that his aggression and unpredictability may lead him to commit physical acts of violence on members of the community. 5. The plaintiff is abusive and threatening toward women and children. 6. The plaintiff has a history of criminal violence; or, alternatively 7. The plaintiff is reasonably suspected by police of being a dangerously violent man. 8. The plaintiff is reasonably suspected by police of being mentally unstable. 1. The third matter complained of appears to stem from the Facebook postings subsequent to the removal of the second matter complained of. The third matter complained of, looking at the document attached to the statement of claim, consists of a series of comments on the "Scotland Island Community" Facebook account posted over a period of some hours on 21 July 2014. There also appears to be a pixelated version of the second matter complained of at lines 14-17. 2. The text of this matter complained of is as follows: "1. (52) Scotland Island Community 2. July 21 3. It has come to the attention of the SIC moderators that at least one poster like 4. this one is being displayed on the Island. The person subject of the posters 5. was recently reported to have verbally abused someone on the island after 6. being asked to restrain his dogs. A discussion about the incident took place on 7. this page. SIC moderators took immediate action when a photo and text 8. similar to this poster was posted on the SIC page and removed the post. SIC 9. moderators do not condone 'mob justice' or any other vigilantism. If you have 10. problems with a fellow resident, you ought to use the legal channels our 11. society offers to tackle the problem. We are not sure what is worse: a verbally 12. abusive dog owner, or an apparent racially tinted attempt to vilify a fellow 13. resident. 14 - 17. [Pixelated picture of the first matter complained of] 18. Like . Comment . Share 1 Share 19. 10 people liked this Top Comments 20. Write a comment… 21. Catherine Moy As the person who was verbally abused last week I was shocked 22. to see the poster – it was totally out of order and has not helped the situation! I think 23. incidents need to be reported to the authorities so they can deal with them 24. accordingly! 25. Like . Reply 4 July 21 at 4.46pm 26. Jo MacDonald People were saying before that the police and council weren't 27. going to act. Is there an alternative? 28. Like . Reply 3 July 21 at 5.48pm 29. Scotland Island Community This page is a place for respectful conversation. 30. Personal naming and shaming crosses the line. 31. Like . Reply July 28 at 7.47am 32. Annette Palmer I have been confronted by this man and his dogs 4 times now… 33. Each time his interactions are louder and more vehement and more frightening than 34. the time before. I have taken affirmative action via the proper channels and do not 35. condone this poster… It did not originate from our family… despite our compulsion to 36. say too much at times… And yes grace would be nice but I'll settle for freedom to go 37. for a walk. 38. Like . Reply 2 July 21 at 8:09pm 39. Geoff Bullock Sometimes building bridges takes more time, more understanding, 40. and more grace than we feel justifiable or possible. Yet, wouldn't it be the 41. conclusion that we would all be proud of. 42. Like . Reply 1 July 21 at 6:51pm 43. Matt Palmer I posted this individual's name and picture on this forum. I am NOT 44. responsible for posters being displayed around the island. I named and shamed this 45. individual, not as an ill thought out and clumsy attempt at mob justice, but rather, in 46. response to people who asked and as a warning to people not to confront or 47. antagonise him. In hindsight my second post – that which included a photograph 48. and a suggestion he may or may not be related to Satan may have caused offence 49. to some sensitive souls or those without a sense of humour and for that I apologise. 50. I do not apologise, or regret for one moment, outing the individual as I (and quite a 51. number of other residents) am genuinely concerned by the viciousness of the 52. increasing number of confrontations. If anyone feels that my actions may have been 53. an infringement of anyone's civil rights then I would say those rights are fortfeited if 54. an individual refuses to act appropriately as everyone else, in any community, is 55. required to do. 56. Like . Reply 1 July 21 at 7:33pm 57. Write a comment… 58. https://www.facebook.com/ScotlandIslandCommunity 9/08/2014" 1. The imputations pleaded to arise from the first defendant's contribution to the third matter complained of are as follows (at paragraph 9): 1. The plaintiff is a dangerously violent man. 2. The plaintiff is contemptuous of accepted social conventions and decorum. 3. The plaintiff is guilty of having committed a shameful or criminal act for which he deserves to be "named and shamed" and "outed". 4. The plaintiff is guilty of having committed a shameful or criminal act by which he has forfeited and deserves to be stripped of and denied his civil rights. 1. Although not specifically referred to in the Draft Amended Statement of Claim, the fourth matter complained of appears to refer to the comments by the second defendant, Annette Palmer, in the third matter complained of (at lines 32-37). 2. The imputations pleaded to arise from the fourth matter complained of are as follows (at paragraph 10): 1. The plaintiff is a dangerously violent man. 2. The plaintiff by his presence constitutes such a menace as to infringe on other people's freedom to go for a walk. The defendants' application 1. The defendants' application is brought on the following bases: 1. There is what Mr Lewis calls a "long and unfortunate history" of the plaintiff failing to attend to inadequacies in the pleading of this claim, as well as in answering particulars. The original statement of claim was filed on 19 August 2014 and then amended on 7 November and 18 December 2014. Nevertheless, its contents are still deficient. 2. Additionally, Mr Lewis complains that this is the fifth time the matter had been in court, although it was the first time the matter had been listed for any contested application to be heard. 3. Mr Lewis also relied upon plaintiff's failure to reply to what he called "requests for particulars" on three occasions (see Exhibit A, which consists of letters dated 14 November and 17 December 2014 and 17 February 2015). Although particulars had been provided when the defendants had been acting for themselves, those particulars had been deficient and more particulars were needed. 4. There was a seven month delay in these proceedings as a result of the defaults. The defendants were persons of limited means who had to borrow money in order to pay the legal costs of these proceedings. 1. The circumstances in which proceedings may be struck out for failure to comply with orders, failure to provide adequate pleadings and failure to provide adequate particulars are reviewed and discussed in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 and Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244. The failure to answer particulars is viewed by the New South Wales Court of Appeal as a particularly grave step, even where those particulars are not sanctioned by a timetable: Coren v Master Builders Association of New South Wales Pty Ltd, supra. 2. As to the letters from the defendants' solicitors, Mr Mohareb pointed out that the first letter, dated 14 November 2014, did not contain any request for particulars. As to the remaining two letters, Mr Mohareb reminded me that I had indicated in court when listing this argument, in relation to the letter of 17 December 2014 and 17 February 2015, that the preferable course was for the issues relating to the pleadings to be settled before parties sought particulars. 3. This was in fact the course I took, on the basis that publication, including particulars as to the downloading of the internet publications by identifiable persons, must be set out in the statement of claim, rather than the subject of particulars in correspondence. 4. In those circumstances, it cannot be said that the plaintiff failed to provide these particulars in any contumelious fashion. The problem is that he has failed to understand what particulars of publication are required, and that he must set these out in the statement of claim. 5. There has been delay in this matter, which includes the failure of both parties to be ready on the last occasion, and there are defects in the statement of claim. The current statement of claim is a considerable improvement upon the poorly drafted document the plaintiff initially submitted to the court. A significant part of the delay in these proceedings has been the plaintiff's unyielding approach to the litigation generally. 6. However, there is a compelling factual reason why I should not accept the defendants' submission that there are totally inadequate particulars of publication warranting the dismissal of the defamation claims in these proceedings. As the third matter complained of shows, the first defendant admits, in his Facebook entry which forms part of that publication, that he uploaded the poster that is the second matter complained of, and the circumstances in which both he and the second defendant made posts on the website for the purposes of the third publication are such that requirements for particulars will be straightforward. It is really only the first matter complained of (namely the poster which was placed around the island) for which any application for summary dismissal could have any hope for success. 7. Courts should be careful not to be too ready to accede to requests for summary dismissal of proceedings on the basis of delay, failure to answer correspondence and pleadings failures, particularly where the party in default is a litigant in person, the issues of law are complex, there are no actual failures to comply with timetables and the claim (or defence) is not unmeritorious on its face. Such applications seem to be particularly common in defamation proceedings; in both Facer v Wolfe (2013) 17 DCLR (NSW) 391; Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 failure to answer a request for particulars, sent without the benefit of a timetable, by a party itself in breach of the timetable, resulted in summary judgment. Where possible, courts should determine cases on their merits, rather than encourage parties to exchange requests for information for a wide range of information, some of which may be irrelevant, obvious, prolix or misconceived. 8. The plaintiff must, however, provide particulars of publication in relation to the each of the matters complained of, identifying: 1. As to the first matter complained of, the facts and matters relied upon to establish that each of the defendants was the person who wrote and/or posted the posters, and information sufficient to ensure that some third party saw those posters; 2. As to each of the subsequent publications, particulars of when and by whom each was downloaded, as well as the facts and matters relied upon to establish that each of the defendants was a publisher (and identifying each such publication with precision). When those particulars of publication are provided, the defendants can consider whether they wish to bring a further application for the summary dismissal of any of the claims for defamation. The circumstances in which a court will be prepared to consider such an application where there are disputed issues of fact as to publication would, however, need to be to the level required by Simpson J in Frawley v State of New South Wales [2006] NSWSC 248 at [12] – [20], citing Byrne v Deane [1937] 1 KB 818 and Bishop v New South Wales [2000] NSWSC 1042. For example, as to the first matter complained of, even if those particulars are no more than a suspicion that one or both of the defendants should be suspected of being an author by reason of the subsequent endorsement of this publication as well as its republication on Facebook (which I apprehend is the plaintiff's basis for this claim), that may be sufficient, on the very low bar as explained by Simpson J, for the plaintiff to avoid summary dismissal. However, much will depend upon how the plaintiff particularises this claim. 1. While I am not prepared to strike out the defamation claims summarily, the delays and the inadequacies of pleading over the past seven months are unacceptable. Having regard to the difficulties and expense caused to the defendants by the plaintiff's failure to plead and particularise this case to date, I have made a costs order in favour of the defendants which is assessable and payable forthwith, rather than at the conclusion of these proceedings. The defendants are not, however, excused from their obligations to provide a memorandum of costs in assessable form should such a request be made by the plaintiff. 2. This brings me to a consideration of the defects in the statement of claim. I shall first deal with the objections to the imputations pleaded for the first matter complained of. I apprehend that the defendants are considering a jury trial and have made orders accordingly. The first matter complained of Imputation (a) – The plaintiff is mentally unstable. 1. The objection previously taken to this imputation in correspondence, on the basis that it was incapable of being defamatory, was withdrawn. Imputation (b) – The plaintiffs [sic] is a sociopath. 1. The term "sociopath" is objectionable in form because it purports to apply a pseudo-medical diagnosis to the conduct attributed to the plaintiff. The pleader appears to be avoiding the many disparaging allegations in the matter complained of, such as having manic outbursts and behaving bizarrely and unpredictably. It will not be difficult for this imputation to be repleaded. More than one imputation will probably be necessary. Imputation (c) – The plaintiff is a bully who picks on women and children. 1. The plaintiff withdrew this imputation as it is acknowledged it does not differ in substance from (e). Imputation (d) – The community should avoid all contact with the plaintiff as there are reasonable grounds to suspect that his aggression and unpredictability may lead him to commit physical acts of violence on members of the community. 1. This imputation needs to be pleaded in such a way that there is an act or condition by the plaintiff which differs in substance from the other imputations pleaded. The imputation in its current form does not identify what that act or condition may be. This imputation was accordingly struck out with leave to replead. Again, more than one imputation may be necessary. Imputation (e) – The plaintiff is abusive and threatening toward women and children. 1. As imputation (c) is withdrawn the defendants no longer object to this imputation. Imputation (f) – The plaintiff has a history of criminal violence; or, alternatively Imputation (g) – The plaintiff is reasonably suspected by police of being a dangerously violent man. 1. Both these imputations come from the reference to the plaintiff being "known to police". That does not impute convictions, or violent actions, or even suspicion of such conduct; the inference is that police know about the problems with his dogs and the other conduct referred to in the matter complained of, not that he is dangerously violent or that he has a history of criminal violence. These imputations overstate the allegations to such an extent that they are not capable of being conveyed. 2. These imputations are struck out, but with leave to replead, in order to capture the sting of the plaintiff being "known to police" in the context of the conduct complained of. Imputation (h) – The plaintiff is reasonably suspected by police of being mentally unstable. 1. The matter complained of indicates that the plaintiff is known to police, the inference being, from the following sentence, that his behaviour is so bizarre and unpredictable that residents are warned (by inference, on police advice) to avoid approaching or confronting him. From the plaintiff's submissions, he appears to be attempting to plead an imputation to this effect. 2. However, the matter complained of does not infer that the police have a belief as to his mental stability (or lack thereof). This imputation should be repleaded to encapsulate the sting that is conveyed in these two sentences about the need for residents to avoid approaching or confronting him. The remaining publications 1. It is premature to deal with objections to the remaining imputations. As I indicated above, the principal reason why I did not summarily dismiss the defamation proceedings is the admission by the first defendant, Mr Matt Palmer, in his Facebook entry which forms part of the third matter complained of, that he was the person who uploaded a copy of the poster which is the first matter complained of onto the Scotland Island Community Facebook page. This publication was then removed by the person or persons with responsibility for the Scotland Island Community Facebook page, who may be taken as persons who read the second matter complained of. 2. Accordingly, the second matter complained of needs to be pleaded as consisting of the first matter complained of, as published on the internet for a comparatively brief period, by either the first defendant only or, if the plaintiff asserts that the second defendant played some role, identifying what that role was. The imputations conveyed would of course be the same for the first matter complained of; if there is some extraneous material in addition to the first matter complained of, that would need to be identified. 3. Subsequent to the posting of the second matter complained of on Facebook being taken down, the "Scotland Island Community Moderators" appear, from the third matter complained of (see lines 3 to 17 of the text set out above), to have re-posted this in circumstances where the plaintiff's image was pixelated and where the relevant document does not contain the words of the matter complained of. I do not understand the plaintiff to bring proceedings against the Scotland Island Community Moderators for this publication; clearly it forms part of the context in which there are comments published by both Mr and Mrs Palmer and as such forms part of the discussion thread that is currently pleaded as the third matter complained of. The question of whether it in some way repeats the matter complained of, independently of those comments or together with them, is an issue of real difficulty. 4. Mr and Mrs Palmer have made posts at separate times later on the same day. One of the difficulties with internet publications is whether these should be treated as the same or separate publications. What should be done in relation to each of these publications is that the relevant imputations, together with the line numbers for each imputation, should be set out, and a decision made about whether to plead this as a whole publication or a series. 5. The correct pleading of the Facebook publication poses real difficulties even to the experienced pleader. While the plaintiff was indignant that the pleadings put forward by the two experienced barristers he consulted required any amendment, the problems caused by a series of publications which include the taking down and pixelation of the second matter complained of will require very careful drafting. I encourage the plaintiff to continue to consult skilled counsel in this area. Particulars of downloading and identification 1. As indicated above, the particulars of publication should include references to the downloading of the Facebook page by such person or persons as are known to the plaintiff. Although Mr Mohareb was inclined to be dismissive of his obligation to provide such particulars, they are essential: see Jenman v McIntyre [2013] NSWSC 1100 citing Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, and should have been included in previous drafts of the statement of claim. 2. When the amended pleading is provided in proper form, the defendants' objections to the form and capacity of the imputations pleaded as having arisen from the Facebook page entries by Mr and Mrs Palmer respectively may be dealt with. The imputations arising from the publication by Mr Palmer of the Facebook comments may well be the same as for the poster, but I am reluctant to speculate, particularly as there seems to have been an additional publication by him, comparing the plaintiff to Satan. 3. Although not raised before me, I suspect that identification will later be an issue to be raised by the defendants in relation to the third matter complained of, as the plaintiff is referred to as "this individual" rather than by name. Particulars of how the plaintiff is identifiable (namely to persons who saw the second matter complained of before it was pixelated and/or saw the poster in the neighbourhood and/or are familiar with the ongoing saga) would also be advisable. The personal injury claims 1. The application before me for summary dismissal related only to the defamation claims. However, an application to strike out the claims for assault on the basis that these were claims which would result only in nominal damages and no injury was suffered were foreshadowed when the proceedings were before me in December 2014. 2. While the courts have been prepared to take a dismissive view of claims seen as "small claims" (Cranbrook School v Stanley [2002] NSWCA 290), this is not a course which should be embarked upon lightly. Although Mr Lewis describes the assault claims as very minor, this is not a conclusion that should be arrived at until the nature and extent of any ongoing disabilities can be clarified. The problem is that Mr Mohareb has not filed the statement of particulars required for claims for personal injury. In particular, if Mr Mohareb is bringing a claim for any physical injury, he needs not only to file a statement of particulars but to serve any medical evidence, including expert reports upon which he proposes to rely upon. 3. These are matters which, although not referred to by either party to date, should be addressed in future directions hearings. In the course of making submissions, Mr Mohareb spoke in distressed way about what he called the "vendetta" against him by his neighbours, which included his tyres being slashed, the acts of assault pleaded, and the putting up of the poster and Facebook material which is the subject of the defamation claims. If he has a claim for injury to health, this will need to be pleaded and particularised with some care, with regard to whether this was caused by the assault, the publication of the defamatory material, or a combination of the above. Again, I encourage him to seek skilled legal advice on this topic. Orders 1. Imputations 5(a) and 5(e) will go to the jury. 2. Strike out imputation 5(b) with leave to replead on the basis that "sociopath" is not conveyed. 3. Imputation 5(c) is withdrawn. 4. Grant leave to the plaintiff to replead imputation 5(d) to capture the sting of aggression and unpredictability. 5. Imputations 5(f) and 5(g) are struck out with leave to replead. 6. Imputation 5(h) is struck out. 7. Defer the objections taken to the third and fourth matters complained of until a Further Amended Statement of Claim, in draft, is provided by the plaintiff. The Further Amended Statement of Claim must also include full particulars of publication of each of the matters complained of by each of the defendants, such order to be self-executing in nature. 8. Additionally, all publications online must identify publication by downloading by an identifiable person or persons (for example, the person who took down the poster, or the persons who identified themselves on Facebook as having read that poster), such order to be self-executing in nature. 9. The Second Further Amended Statement of Claim is to be provided to the court and the defendants in 28 days. 10. The plaintiff is to pay the defendants' costs of the application today and of the listing on 20 February 2015, such costs to be assessable and payable forthwith. 11. Defendants' notice of motion stood over to the Defamation List on Thursday 23 April 2015 at 2:00pm. ********** 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: 27 July 2015