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2
District Court 5 March 2015

Mohareb v Palmer

[2015] NSWDC 134

Other
TORT DEFAMATION

Citation: Mohareb v Palmer [2015] NSWDC 134
Court: District Court of New South Wales
Date: 5 March 2015
Judge: Gibson DCJ

Background

The plaintiff, a self-represented litigant, brought defamation proceedings arising from a series of publications on Scotland Island in New South Wales. The publications included noticeboard posters displayed in public areas, a photograph of one such poster posted on Facebook, and a thread of comments on the "Scotland Island Community" Facebook page. The materials named and described the plaintiff in strongly negative terms, including characterisations of him as volatile, abusive, threatening, and a danger to women and children.

The defendants applied for summary dismissal of the proceedings under r 12.2 of the Uniform Civil Procedure Rules 2005 (NSW). They argued that three successive statements of claim drafted by the plaintiff had failed to set out a properly pleaded and particularised defamation case. The plaintiff had also failed to provide adequate answers to requests for particulars.

The plaintiff separately pleaded claims for assault. He appeared unrepresented, though he had received some drafting assistance for his pleadings.

  • Whether the proceedings should be summarily dismissed under UCPR r 12.2 due to repeated pleading failures by the self-represented plaintiff
  • Whether any assault claims should also be dismissed on the basis that the alleged injuries were trivial
  • Whether the imputations as pleaded were legally capable of being conveyed by the matters complained of, and whether they were properly formulated
  • Whether the plaintiff had adequately pleaded publication, identification, and the mechanism of online publication (including downloading)

Decision

Gibson DCJ refused the application for summary dismissal. While the pleadings were plainly deficient after three attempts, the court identified several reasons for caution. The plaintiff's case was not unmeritorious on its face, there had been no actual failures to comply with court timetables, the issues of law were complex, and the party in default was a self-represented litigant. The court noted that summary dismissal is a drastic remedy and that its threshold was not met in these circumstances.

On the imputations, the court made a series of rulings. Two imputations (that the plaintiff is mentally unstable, and that he is abusive and threatening towards women and children) were held capable of going to the jury. The imputation that the plaintiff "is a sociopath" was struck out because the word "sociopath" was not conveyed by the material. Several other imputations were struck out with leave to replead, including those concerning criminal history, police suspicion of violence, and police suspicion of mental instability. Leave was also granted to replead the imputation concerning aggression and unpredictability to better capture the sting of the relevant material. One imputation was withdrawn by the plaintiff.

On publication, the court found the pleadings inadequate in two respects. First, the plaintiff had not pleaded sufficient particulars of which defendant published each matter complained of. Second, for online publications, the pleadings did not identify publication through the act of downloading by an identifiable person or persons, a requirement established in the case law on internet defamation. Objections to the third and fourth matters complained of were deferred pending a further amended pleading.

The court ordered that a second further amended statement of claim be filed within 28 days. The plaintiff was required to pay the defendants' costs of the application and the earlier listing on 20 February 2015, with those costs to be assessed and payable forthwith, reflecting that the plaintiff's unreadiness had contributed to the time and cost of the proceedings.

Orders Made

  • Imputations 5(a) and 5(e) to proceed to the jury.
  • Imputation 5(b) struck out with leave to replead (the word "sociopath" is not conveyed by the material).
  • Imputation 5(c) withdrawn.
  • Leave granted to replead imputation 5(d) to capture the sting of aggression and unpredictability.
  • Imputations 5(f) and 5(g) struck out with leave to replead.
  • Imputation 5(h) struck out.
  • Objections to the third and fourth matters complained of deferred pending a further amended statement of claim, which must include full particulars of publication by each defendant (self-executing order).
  • All online publications must identify publication by downloading by an identifiable person or persons (self-executing order).
  • Second further amended statement of claim to be provided to the court and defendants within 28 days.
  • Plaintiff to pay the defendants' costs of the application and the 20 February 2015 listing, assessable and payable forthwith.
  • Defendants' notice of motion stood over to the Defamation List on 23 April 2015.

Key Takeaways

  • Summary dismissal under UCPR r 12.2 requires a high threshold. The District Court held that repeated pleading failures alone do not automatically warrant dismissal where the claim is not unmeritorious on its face, no timetable orders have been breached, and the defaulting party is unrepresented.

  • Courts apply particular caution before summarily dismissing proceedings brought by litigants in person, especially where the underlying legal issues are complex. This caution does not, however, excuse a self-represented plaintiff from costs consequences flowing from inadequate preparation.

  • In defamation proceedings involving internet publications, pleadings must identify publication through the act of downloading by an identifiable person or persons. A bare assertion that material was published online is insufficient.

  • The formulation of imputations requires precision. A court will strike out an imputation where the specific language used (such as "sociopath") is not reasonably conveyed by the matter complained of, even if a related concept might be.

  • Costs of failed or inadequate interlocutory applications may be ordered payable forthwith, rather than deferred to the end of the proceedings. This outcome is more likely where a party's unreadiness or repeated pleading failures have unnecessarily extended the costs of interlocutory argument.

Legislation and Cases Referenced

Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), r 12.2

Cases:
- 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