Dupois v HJK [2013] QDC 52

DISTRICT COURT OF QUEENSLAND CITATION: Dupois v HJK [2013] QDC 52 PARTIES: CHARLES DUPOIS (Plaintiff) And HJK (Defendant) FILE NO/S: 4189/12 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 20 March 2013 DELIVERED AT: Brisbane HEARING DATE: 28 February 2013 JUDGE: Robin QC, DCJ ORDER: 1. Strike out the amended statement of claim in its entirety. 2. 10 weeks from the date of publication of these reasons for the plaintiff to re-plead. 3. The defendant have costs on the standard basis CATCHWORDS: Uniform Civil Procedure Rules r146 r149 r150 r152 r171 r670 r671 – Defendant to defamation claim applies for striking out of statement of claim and for security for costs – Pleading struck out – Deficiencies included failure to allege precise words used in oral defamation, or identify properly persons to whom allegedly defamatory were spoken – Security application adjourned in the circumstances – Court concerned this plaintiff is pursuing the defendant for reasons other than vindicating his reputation. COUNSEL: Mr A D O’Brien for the Applicant/Defendant SOLICITORS: Boe Williams Lawyers for the Applicant/Defendant Self-Represented for the Respondent/Plaintiff -- 1 of 24 -- 2 [1] Two applications by the defendant are before the court. The first, filed 5 December 2012 seeks striking out of the statement of claim pursuant to r 171, the other, filed 11 February 2013 seeks security for costs pursuant to r 670 and 671(h). Both sought costs on the indemnity basis. The earlier application was originally returnable on 21 December last year. [2] Although the defence filed 26 November 2012 and running to eight (double spaced) pages responds in some detail to the original statement of claim with denials of any defamation, it essentially contends that the statement of claim ought to be struck out for not presenting the claim in a way that permits a response. The application for striking out was filed nine days later. It was listed by the Registry for a date the defendant’s solicitors found inconvenient; unpleasantness and lack of cooperation characterised the process that lead to its being adjourned for hearing on 28 February 2013 together with the security for costs application. On that day the plaintiff amended the statement of claim, as he was entitled to do. Although amendment had been foreshadowed, the defendant was given no opportunity to read and consider the amended pleading in advance of the hearing. Mr O’Brien relied on his outline of argument prepared in response to the original one. It makes general points that are still useful; however, the task of the court is to adjudicate upon the new pleading. This is it: The claim in this proceeding is made in reliance on the following facts: 1. At all material times inter alia, the relevant A Current Affair segment as defined in paragraph two herein is the one referred to: (a) The plaintiff also used his former entertainment name Charles Gant. -- 2 of 24 -- 3 2. In late January 2012, the Defendant saw the “A Current Affair” Television Program broadcast nationally after being advised by her sister SJM and formed a view of the plaintiff that was totally defamatory of him without at the time hearing or enquiring about the real facts surrounding the other side of the story. Thereby coming to a bias adverse conclusion against the plaintiff. The Defendant HJK made statements, implications and imputations: 3. In February 2012 the defendant was in a fully committed relationship with the plaintiff which was disapproved by her sisters and mother, due to the “A Current Affair Broadcast”. 4. That on or about the 25th of May 2012 during a recorded conversation between the plaintiff and the defendant, the defendant stated words to the effect that her family stated to her personally, the following imputations, which she stated to her sister SJM: (a) To the suggestion that the plaintiff would pick the defendant up from her sister’s house on the Gold Coast, she told the plaintiff, “No you can’t because after my sister saw the current affair show she said that you are a criminal and I told my sister that I agree with her, and that our family doesn’t mix with scum like you”. The defendant then said to the plaintiff that he must only pick her up out the front of the church down the street as she told her sister that she believed that the allegations had substance and the defendant told her sister that she will not allow the plaintiff to be seen near her house so as to not ruin the family’s reputation” (b) The defendant told her sister words to the effect “That I should not mix with the plaintiff who is the type of person that I know is not welcome in your home” (c) The defendant told her sister words to the effect “That she will break up with the plaintiff as trash like him are not worthy of her, as we are good people” (d) The defendant told her sister words to the effect “That she agrees that she has lowered her standards and that she must not allow anyone to know about the relationship between herself and the plaintiff as it will affect the family’s reputation by mixing with this type of person, which we do not mix with” 5. (a) That as a direct result of the defamatory statements by the defendant particularised in paragraph 6(a) herein both the private investigators refused to accept any further work from the plaintiff. 6. (b) As a direct result of the defamatory statements by the defendant particularised in paragraph 6(b) herein the said Melbourne Observer Newspaper refused to accept any further business from the plaintiff causing him severe embarrassment and financial loss which cannot be quantified. -- 3 of 24 -- 4 7. That on various occasions between mid-September 2012 and late to December 2012 the defendant stated to numerous members of the public who are acquainted with the plaintiff and some of his mutual friends, words to the effect “That the plaintiff is a Psychopath, an Animal, a Criminal and a Conman, Scammer who Harasses and Stalks the defendant and will not leave her alone” in particular: (a) On the 19th of December 2012 in a telephone conversation between the defendant and a private investigator by the name of David Robson and former Police Officer employed by the plaintiff, in which she stated words to the affect “You delivered a letter to my family from Charles Dupois, you should know that he is a criminal, a conman who has been stalking and harassing me”. He the (Plaintiff) has been following members of my family and there were threats in that letter you delivered. In addition, the defendant told Robson that the plaintiff is not someone you should associate yourself or your business with as it will be bad for your business as he is a criminal and not a good person. (b) On or about the 17th of December 2012, the defendant telephoned the editor and a staff member of the Melbourne Observer Newspaper making the following Defamatory statements: (i) The plaintiff is a conman and a fraud, that my images were used fraudulently as I was never in a relationship with Charles Dupois and he is a psychopath and a scammer who harasses and stalks me and will not leave me alone. (ii) That Karl Pederson his publicist is not real and Charles just pretends to be him. 8. The defendant is spreading rumours about the plaintiff which are defamatory and false to cover up her deceit within their relationship as the plaintiff issued District Court proceedings in Newcastle on 10 th of October 2012 under the Torts – Other – Deceit and that within six days the defendant made a frivolous and false allegations to Queensland Police of harassment and stalking to be able to obtain an interim Domestic Violence Order in Queensland against the plaintiff to offset the claim that the plaintiff had filed and served on the defendant on the 16th of October 2012. The defendant has defamed and lied about the plaintiff to police, court staff and many other members of the public which has been very embarrassing, stressful and demeaning to the plaintiff’s reputation. 9. The defendant is well aware that the plaintiff is a Television Host and International Recording Artist and that he is currently in pre-production with a new publicised TV Show which has an estimated value in excess of Ten Million Dollars, and that the natural consequence of all the defamatory remarks will undoubtedly destroy his role in the up and coming series as the host of the show. 10. On the 28th October 2012, on or about 9.50am the defendant during a telephone conversation with one of the lead reporters of the Sydney Telegraph, who was intending to write a story regarding the Newcastle -- 4 of 24 -- 5 District Court proceedings against the defendant by the plaintiff for Deceit – Torts – Other, as the plaintiff is owed $50,000.00 by the defendant. The defendant advised the reporter that this was a scam and that the plaintiff is a liar, conman and is stalking me. Please do not believe anything he says he is not and was not my boyfriend. (a) That Karl Pederson his publicist is not real and Charles just pretends to be him. 11. The implications are defamatory of the plaintiff. 12. Further the defendant published and made the imputations in circumstances where: (a) She knew or ought to have known that persons that heard and saw the imputations would think less of and shun and avoid the plaintiff: (b) They were made in contumelious disregard for the plaintiff’s right not to be unlawfully defamed. 13. Further publication of the imputations lacked bona fides, was improper and unjustifiable. 14. Further the imputations were published and stated maliciously in that: (a) The defendant knew the content of the publication to be false or recklessly not caring whether it was true or false: 15. By letter dated the 12th of September 2012 (The Concerns Notice) from the plaintiff, an apology and retraction was requested from the defendant. 16. The defendant failed to respond to the letter of the 12th of September 2012. 17. In the premises the defendant is liable to the plaintiff for damages for defamation including aggravated damages. AND THE PLAINTIFF CLAIMS (a) $70,000 – General Damages for Defamation, Such Damages being calculated as global sum. (b) $30,000 – As Aggravated Damages. (c) Interest. (d) Costs Dated: 25th of October 2012” [3] As it will appear, my view is that this new pleading, although it may represent some improvement upon the original, ought to be struck out. It is unnecessary to say more than that it has a tendency to prejudice or delay the fair trial of the proceeding, -- 5 of 24 -- 6 to satisfy r 171(1)(b) and in large measure is “unnecessary” for purposes of paragraph (c). Arguably, other paragraphs are triggered as well. [4] I have gone to some trouble to locate and re-produce passages from the leading Australian work about defamation of practice which explain my decision and indicate how the claim ought to be pleaded. What follows is intended to assist the plaintiff, should he embark upon re-pleading by identifying some basic principles. [5] The controlling legislation is the Defamation Act 2005 (Qld) which provides that subject to its terms “the operation of the general law and relation to the tort of defamation” is unaffected (s 6). Section 7 confirms that the general distinction between slander (which requires proof of special damages) and libel remains abolished and declares that: “(2)…The publication of defamatory matter of any kind is actionable…” There is a single cause of action, even if defamatory matter carries “more than 1 defamatory implication”. Schedule 5 defines “matter” to include “oral utterance”. [6] The leading practice book is Tobin & Sexton, Lexis Nexis, Australian Defamation Law and Practice, Looseleaf (currently at service 67) The authors make it clear that: “Publication DEFINITION [5001] Publication, in civil proceedings, means the communication of the defamatory matter to a third party. If the defamatory matter is -- 6 of 24 -- 7 communicated only to the plaintiff, there is no cause of action. He may be angry or upset. He may even have a case in criminal defamation against his detractor. But there is no civil remedy available if the defamatory statement is made only to the plaintiff. This is in accordance with the policy of the law which is to protect reputation, that is, what others think of the plaintiff, not what he thinks of himself. The tort of defamation is not concerned with what one person says in private to another person. A person's reputation is not capable of being injured unless the defamation is conveyed to someone else…… [5010] Conveying of defamatory meaning The test of whether or not the published matter contains defamatory imputations concerning the plaintiff is an objective one. Therefore, once proved that it has been published to at least one other person, not being the plaintiff, the cause of action is complete. There is no issue as to whether that person in fact understood the published matter in the manner complained of by the plaintiff” Mr Dupois should not be pleading statements made to him. [7] The plaintiff must plead the precise words he alleges the defendant said on each occasion; the authors state: “[25,025] Oral defamation In an action for oral defamation, the plaintiff must set out verbatim the words relied upon as conveying the defamatory meaning. At trial, it will however suffice if the plaintiff proves that words substantially to the same effect as those pleaded were spoken by the defendant.1 For a long time, it has been held to be enough to prove the substance of the words alleged in the declaration, but if there was a difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed.http://www.lexisnexis.com/au/legal/frame.do?reloadEntireP age=true&rand=1362531107041&returnToKey=20_T16846234116 &parent=docview&target=results_DocumentContent&tokenKey=rsh -20.328971.1842378186 - DEF.PTP.25025.ANT2 Unless the plaintiff was himself present when the slander was spoken, he will have to rely upon reports of others as to what was said. By reliance on such reports, he may re-construct and plead what was said. However, he is not entitled simply to guess at the words, or 1 Tournier v National Provincial & Union Bank of England [1924] 1 KB 461 at 488 -- 7 of 24 -- 8 to commence proceedings as a fishing expedition to see if he has a case.” [8] The necessity to plead precise words, which requires the avoidance of indirect speech or stating the “effect” of what was said (for example by use of terms such as “plaintiff” that would not have been used) is established by Tournier v National Provincial and Union Bank of England [1924] 1 KB 461. Bankes LJ said at 469- 70: “The strictness of the old rule in reference to variance between proof and pleading in actions of libel and slander has long ago disappeared. It is still necessary to plead the exact language complained of, but proof of language substantially the same as that pleaded is admissible and should be submitted to the jury. Lord Coleridge C.J. states the present rule in Harris v Warre (1) as follows: ‘In libel and slander everything may turn on the form of words, and in olden days plaintiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them. For a long time it has been held to be enough to prove the substance of the words alleged in the declaration, but if there was a difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends’” and Scrutton LJ at 478: “There is no doubt that precise words must be alleged in the statement of claim, and only a century ago the most minute variation in proof was grounds for non-suiting the plaintiff. One who complained of the words: “This is my umbrella, and he stole it from my back door,” and proved: “It is my umbrella, and he stole it from my back door” was non-suited in 1819 by the full Court: Walters v Mace [1819] EngR 514, it being proved that the umbrella was not in the presence of the speaker, so that -- 8 of 24 -- 9 “This” referred to a present umbrella, and “It” to an absent one, a different thing. But I think modern practice is, as stated by Lord Coleridge in Harris v Warre (1878) 4 CPD 125 that is enough to prove the substance of the words alleged, or I would add, of a material and defamatory part of them. So far as the words proved make a materially different allegation, amendment is necessary if that allegation is to be relied on.” Rule 152 recognises that on occasion it may be appropriate to plead the effect of words, rather than the precise words that were used. In my opinion, this rule is not available to Mr Dupois in this proceeding. Here the “precise words are material”. [9] To plead properly, Mr Dupois must identify by name each and every person to whom he alleges the defamatory matter was published. Tobin & Sexton say: “[5035]… In cases involving spoken words, the plaintiff may be required to identify to the defendant by way of particulars the persons to whom it is alleged that the matter complained of was published, although in some circumstances the names of the persons in question may not be known to the plaintiff.2 [10] The case cited is instructive. Hunt J said: “The identity of the persons to whom the publication is alleged to have been made 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 on both cases upon the identity (general or precise) of those to whom the matter complained of was published. 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 2 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 191-3 -- 9 of 24 -- 10 where it was not published in the mass media; but that identity will not usually be relevant in mass media cases. The present is a case of oral defamation. To what extent must the plaintiff identify the persons to whom he alleges the matter compliant of was published? The only details that he has given so far is that the publication, which consisted of a statement made by the defendant’s servant or agent to the plaintiff himself, was to those passengers seated in the immediate vicinity of where he was standing and who heard what was said. The defendant insists upon those persons being named, but the plaintiff says that he does not know their names and thus is unable to give such particulars. He intends to prove the publication by his own evidence that there were persons whom he recognised as other passengers seated in the immediate vicinity of where he was standing and that the matter complained of was said by the defendant’s servant or agent in a voice which was loud enough to be heard by those and other passengers. If the jury infers that they did in fact hear the words spoken (and that those other passengers understood English: Amann v damm (1680) 7 CB (NS) 597 at 600; 141 ER 1300 at 1302; Fullam v Newcastle Chronicle and Journal Ltd (at 657-658; 38) then publication has been established and there is no need for the plaintiff to call anyone else to prove that issue. A plaintiff in an action for oral defamation is obliged to identify the persons to whom it is alleged that the matter complained of was published. The names of those persons must be given unless he does not know them and thus is unable to give such particulars. In that case, provided that the plaintiff is able to demonstrate a prima facie case of publication, it will be sufficient for him to give the best particulars he can identifying those persons. The plaintiff’s assertions that there were persons who he recognised as passengers seated in the vicinity of where he was standing when the matter complained of is alleged to have been spoken to him, if accepted, constitute a prima facie case of publication, and he should not (in the words of Johnson J) be prejudiced by his inability to name those persons. Neither those assertions nor the plaintiff’s claim that he does not know the names of the persons to whom the publication was made are on oath. Because a plaintiff in this situation is the beneficiary of a significant indulgence, I consider it to be only fair that he should verify those assertions and his lack of knowledge on oath. That is not to suggest that a plaintiff will be permitted to proceed with his claim without naming those persons whom the publication is alleged to have been made unless his oath is accepted by the court. But his assertions and his lack of knowledge must be verified – in the sense that Pt 15, r 23, requires certain pleadings to be verified – so as to prevent plaintiffs incorrectly claiming not to know those names in order to avoid giving the particulars to which the defendant is otherwise clearly entitled. -- 10 of 24 -- 11 The defendant’s application to strike out the plaintiff’s statement of claim because of his inability to name the persons to whom he alleges the publication was made is therefore rejected. The pleading is, however, in grave need of proper particulars. Even those given by the plaintiff in his letter of further and better particulars do not include the statement that the plaintiff is unable to identify those persons to whom he alleges that the publication was made. That information had to be extracted from his counsel during the argument. I order the plaintiff to verify on oath the factual basis of his allegation of publication and his lack of knowledge of the names of the persons to whom the matter complained of was alleged to have been published, and to give the best particulars he can identifying those persons.” Mr Dupois has not gone on oath to show that there were particular persons to whom defamatory statements about him were made and that he cannot ascertain and provide their names. [11] The next requirement, much insisted upon by Mr O’Brien, picks up what s 8 of the Act calls “defamatory matter about the person” (italics added), dealt with by the authors thus: “[6001] It is essential to the plaintiff's case to prove that the defamatory matter was about him, or in the language of the pleadings, that the matter complained of was published “of and concerning the plaintiff”. There will be clear distinction between those cases where the plaintiff is named and those where he is not.” There can sometimes be uncertainty as to the subject of an allegedly defamatory publication, as in Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 371. Mr Dupois must prove publications are about him and therefore should allege that they are about him. It seems to me that he has done it, but he would be well advised to be careful about this aspect, should he re-plead. -- 11 of 24 -- 12 [12] The next topic is “Imputations”, as referred to in section 8. In England, “Innuendo” is often used. Mr Dupois uses the word often, and also “implications”, maybe to mean the same things. Tobin & Sexton say, referring to the Act: “[3060] Imputations The UDA [Uniform Defamation Acts] uses the term “imputation” in a number of its provisions. In considering this term, which was also used in the Defamation Act 1974 (NSW) Samuels JA said: There is no reason to suppose that the word “imputation” is used in any sense different from its ordinary meaning. Hence it means “the action of imputing or charging, the fact of being charged with a crime, fault etc”; in short, an accusation or charge.3” and: “[25,025] Oral defamation It is now accepted that the plaintiff should identify the defamatory meanings alleged to arise from the publication in question, unless the meanings are obvious from its terms. The practice whereby the pleader could rely simply on the matter complained of without pleading that any particular defamatory meaning arose from it, has fallen into disfavour. Fox J explained in Hadzel v De Waldorf why it was unsatisfactory: In my view a defamation action does not in this connection differ from any other. The plaintiff in defamation must at the trial make clear to judge and jury the defamatory imputations upon which he relies. In straightforward cases, as, for example, the case where the plaintiff has been called a thief, little if anything need to be said to make it clear what the imputation relied upon is. In other cases, the plaintiff will have to be quite explicit. The judge rules on the particular imputation relied upon; he does not attempt to rule on every imputation a jury may find in the matter published. The defendant who denies that there was any defamatory imputation is not obliged to negative all possible defamatory meanings, but only those asserted by the plaintiff. The defendant who justifies does not have to justify in relation to all possible defamatory meanings, but only those relied upon by the plaintiff. Further, he may plead justification to some or one only of the imputations. 4 Lord Denning made the same point in DDSA Pharmaceuticals Ltd v Times Newspapers Ltd: 3 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 189 4 (1970) 16 FLR 174 at 179 -- 12 of 24 -- 13 That is the whole of that statement of claim. It is defective — and I say it deliberately … [There] ought to have been an innuendo pleaded. This article is capable of many different meanings — so many that it was necessary for the fair conduct of the trial that there should be pleaded a “popular” or “false” innuendo, or whatever you like to call it. In that innuendo the plaintiffs should set out the meaning or meanings which they say the words bear. That is necessary, not only for the fair conduct of the trial, but also to enable the defendants to know what to plead, whether to plead justification or fair comment or to apologise. I need not go through all the cases … Those cases establish that in most cases, if not all, it is necessary for the plaintiffs, even when they rely only on the natural and ordinary meaning of the words, to plead an innuendo setting out what they say is the natural and ordinary meaning of the words. This is just such a case. 5… The consequences of pleading specific meaning was discussed by Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers Ltd. 6 Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her statement of claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues. While the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity “would be whether the justification would be substantially different”. And since the decision in Lucas-Box v News Group Newspapers Ltd, a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning.” [13] Hall in the Solicitor General’s argument (at 377) sets out in the typical way imputations said to be conveyed by the publication set out at 383-4. They are different. I have some sympathy for the view that what Mr Dupois complains of is capable of being seen as defamatory on the natural and ordinary meaning. But he has gone further and referred to “imputations” without, in my view, pleading what they are. He must plead what they are, if he continues to refer to “imputations” or the like, and set them out in a way that enables them to be readily located and understood, ideally collected together. 5 [1973] 1 QB 21, 26 -- 13 of 24 -- 14 [14] I am intrigued by the plaintiff’s pleading that the defendant “agreed” with statements made to her by family members that might have been defamatory of him. I am doubtful that mere agreement with the family members privately or communicated to the plaintiff could possibly give rise to a cause of action or even be relevant, but have found no helpful authority. The closest case appears to be Trantum v McDowell [2007] NSWCA 138 where there was not only agreement, but also the signing of a letter with a view to its republication in a process of the original defamer collecting co-signatories. [15] By rule 149, which is the basic rule for all pleadings, each pleading must: (a) Be as brief as the nature of the case permits; and (b) Contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to proved… In Mathews v Morgan [2005] QSC 222, White J said: “[20] For a litigant in person these rules and the body of authority which has grown up about them may seem formidable. Mr Mathews has a law degree but he does not purport to have any skill in drafting a pleading. Of such a person Kirby P said in Wenworth v Rogers No 5 (1986) 6 NSWLR 534 ‘… the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage.’ Nonetheless, an opposite party is entitled to a concise statement of material facts and not a discursive setting out of the relationship between the parties with no or little regards to relevance or conciseness. Background or context often 6 (1998) 154 ALR 294, 311 -- 14 of 24 -- 15 included by the inept or untutored has no or little role in a properly drafted pleading.” In Moharab v Lambert & Rehpein (SEQ) Pty Ltd [2009] QSC 324 her Honour said that the: “function of pleadings is to state with sufficient clarity the case that must be identified and, if possible, narrowed, and allow the issues to be met. The reason for this is so that an opposite party has a clear understanding of the case against him or her and the issues are defined. A difficulty which beginner pleaders commonly experience is distinguishing between evidence and material facts for it is the latter alone which must be pleaded. The well known observation of Scott LJ in Bruce v Odhams Press Ltd identifies what must be pleaded. Material facts are those facts: ‘…necessary for the purpose of formulating a complete cause of action.’ It is thus clear that there is no place for the opinion of the pleader. [14] Because it is necessary that all elements of a cause of action must be encompassed in the material facts for that cause of action it is essential that the pleader understands what is required to succeed, prima facie, in a plaintiff’s action against a defendant or defendents. Unless this fundamental matter is grasped then it is unlikely that a pleading can meet the requirements of rr 149 and 150. It is here where many self-represented litigants fall down. Furthermore, pleadings which are unnecessarily long, rambling and repetitious will be difficult to understand and impossible to plead to. In that sense they are characterised as “embarrassing” and are susceptible to strike out. The principal offence alleged here against the plaintiff’s pleading is a failure to be “as brief as the nature of the case permits” and the introduction into the Statement of Claim of evidence, and much of it irrelevant evidence that, by which the plaintiff would seek to prove his case.” [16] The extent of the indulgence that a self-represented plaintiff may expect is limited. In both matters, the entire statement of claim was struck out and a limited time (two months or one month) was given to the relevant plaintiffs to re-plead. See also Burke v Hampton [2011] QDC 095 and again Burke v Hampton [2012] QDC 316. -- 15 of 24 -- 16 [17] In and surrounding this proceeding, as appears elsewhere in these reasons, there are concerns additional to the way in which the current pleading is expressed. By rule 171(3), “the court is not limited to receiving evidence about the pleading”. [18] Turning to Mr Dupois’ pleading, paragraph 4 purports to describe things the plaintiff said to the defendant. Whatever she said to him cannot be defamatory in any relevant way unless at least one other person was there to hear it, cannot (except for that special case) impact on what anyone else thinks of him. To the extent that the identified sister (SJM) might have been spoken to, that sister was the utterer of statements that might (for the sake of the argument) be defamatory; all the defendant is said to have done was indicate agreement. It appears from paragraph 3 (and from the former paragraph 5) that the case is that the defendant’s mother and/or sisters (none of whom is party), influenced by a television program, were pressing the defendant to take a certain course. It is not clear from paragraph 4(a) whether particular statements are alleged to have been made by the defendant or by her sister – the “scum” phrase, in particular. The whole paragraph is confusing in an oppressive way. The defendant should not have to meet it. It appears that the alleged defamation was to SBM, yet that SBM was the instigator of it all by drawing attention to the TV broadcast. If it is true that there exists a recorded conversation, the plaintiff should have no difficulty in pleading the precise words that were said. I cannot accept that the defendant would have used the word “plaintiff”. And yet it is pleaded surrounded by inverted commas, which convey to a reader that it was an actual word used. [19] The same difficulty about descriptions of the plaintiff (and the defendant) is a serious deficiency in paragraph 6. It is uninformative and oppressive to refer -- 16 of 24 -- 17 without details to “numerous members of the public”, and to allege a three and a half month period. Paragraph 6(a) comes closest to giving what is required, with a named receiver of the alleged statement, the date and means of communication. What is to be made of some of the alleged statements being in quotation marks, some not? [20] In paragraph 6(b) there are no quotation marks. The reader does not know whether the “editor” and the staff member are the same person. A name or names should have been given, as well as direct speech, i.e. the words as allegedly said by the defendant. There is some irony in 6(b) as paragraph 9 (now withdrawn) in the original statement of claim alleged threats by the defendant to misuse images of the plaintiff. [21] Paragraph 5 (replacing one accusing the defendant’s mother and sisters of pressing the defendant to keep secret or end an alleged relationship with the plaintiff “as he is a criminal and not worthy… even though they never personally knew him”) (a) does not enable a reader to identify “both” private investigators, as reference is made to one only, and (b) gives no idea of what might be the business refused or the nature of the “severe embarrassment” or “financial loss”. Rule 149 (especially (1)(c)) requires such details. What is the point of pleading financial loss which cannot be quantified if the assertion is to support the claim for aggravated damages? It should be made in the appropriate part of the statement of claim. [22] If paragraph 7 is intended to plead additional instances of defamation, then dates and individuals involved should be given, as well as the precise words alleged to have been uttered. It is insufficient to allege “spreading rumours” or making -- 17 of 24 -- 18 statements to “Queensland Police”. The last sentence is particularly embarrassing to the defendant and her lawyers, who are given no useful idea of what is alleged for the purpose of responding. [23] It is difficult to know what the make of paragraph 8, which is belied by an email communication to my associate of 5th March 2013 advising that from the 2nd of April until the end of the month he will be “away visiting various locations where the shows are expected to be filmed”. He told the court in respect of the cost application that he expected shortly to receive a “nearly million dollars” (presumably) from the show. One would think that the real threat to the plaintiff’s show business career was the Channel Nine Broadcast of 24 January 2012, being subject of Supreme Court proceeding 2754 of 2012 commenced on 26 March 2012. (Mr O’Brien suggested that if his client was to be sued at all, she ought to be joined in that proceeding, but produced no arguments in support of such a proposition, which I do not consider further.) Perhaps this paragraph is intended to support the claim for aggravated damages by alleging that the defendant deliberately set out to “destroy” prospects of his. Indeed, this appears to be the purport of much of the statement of claim, including, for example, paragraph 2 which charges the defendant with failing to ascertain “the other side of the story”. This allegation, if persisted in, should be located else where. [24] As to paragraph 9, in large measure, it is pleading “evidence”, rather than “material facts”. In any event, it does not name the reporter or allege the precise words attributed to the defendant. -- 18 of 24 -- 19 [25] As to the following paragraphs, and indeed some earlier material, such as the words in bold between paragraphs 2 and 3 rate and which, being unnumbered, fail to comply with rule 146(1)(f), a general and important vice of the statement of claim (original or amended) is the misuse (probably attributable to some misunderstanding) of “imputations”. Imputations in the context of a defamation proceeding are meanings/charges that the plaintiff contends are conveyed to a reader or hearer by the actual words uttered. I find it difficult to get out of paragraph 4 what are “the following imputations”. None of the lettered sub-paragraphs is restricted to an imputation. A reader of the pleading could not develop any confident understanding of what are the “imputations” or “implications” referred to. [26] The statement of claim (paragraphs 3 and 4 in particular) tells a story of the defendant wishing to continue whatever relationship she had with the plaintiff, apparently against the wishes of family members. [27] An affidavit of Ms Williams, the defendant’s solicitor filed 11 February 2013 exhibits what she says on hearsay from the defendant are text messages sent to the defendant from a telephone number she knows Mr Dupois to use. The messages start late September 2012, apparently with demands or pleas that the defendant come back to him: “If you don’t sort this out now and give us a chance I will make us both penniless” “I don’t know how to be without you so I’m going to drag us through the courts and spend lots of money so are you to make my point win or loose” “I will be placing a caveat on your house ASAP in Newcastle if you want to play dirty that’s fine! Be assured after your threat I will take every legal step to make you penniless that’s my promise!... If only you knew the shit I have on you…” -- 19 of 24 -- 20 “…Tell any bitch or bastard you know that involves themselves with this that I will spend any amount of money to ruin their lives any! Legally! Your sister gets involved I will pay producers money to never hire her again!” “I don’t bluff HJK never have I have money and determination win or loose in whatever I do legally of course we will both down and I don’t care you come back to me untouched or have not touched any other man in anyway and give me 100% in a relationship as I did with you not 2%” “Understand this is not a game! The legal fees when it goes to trial will cost me $60,000 to $80,000 then theirs the district court fees and incidentals so don’t think your going to roll your blue eyes and make me feel bad” “Involving another guy so soon will be the last straw I don’t want you and I will have no remorse or regret in my legal and public actions!... The gloves are off I will make you understand that what you did and continue to do will only ruin us both!” [28] Mr Dupois correctly submitted that there was no forensic evidence to show that such messages emanated from him, or even from his telephone. On an Interlocutory application such as the present, as Mr O’Brien pointed out, hearsay evidence of this kind is admissible. There is no evidence from Mr Dupois in his affidavit affirmed 13 February 2013 denying that the messages are from him. Indeed that affidavit presents text messages in a similar way presumably to harm the defendant’s case by the court linking her with them. Mr Dupois appears to consider there is one rule for him, another for her and her lawyers. He appeared determined at the hearing to be highly critical of Ms Williams, seeking to voice multiple allegations against her performance of a serious nature. He has placed before the court a complaint to “Mr Robert Brittan, Director of Investigations Legal Services Commission” containing allegations that Ms Williams is working to ensure that the proceeding is not compromised, and worse. Mr Dupois persisted in attempting such attacks on Ms Williams in the face of repeated intimations from me that they were irrelevant. He clearly wanted the hearing turned into an investigation of her conduct, rather than of -- 20 of 24 -- 21 his pleading. I thought that he was determined, if he could, to question the defendant, which would have been equally irrelevant. In the end he stormed out of the hearing, whereupon I announced that I would reserve my decision, with a view to considering the substantial material, and including a written submission, which he had placed before the court. The submission even requires that the defendant’s family members “that are allegedly supporting her legal fees must be present at the court to give evidence under oath…and I must be given my civil right to cross examine the evidence”. This document includes more attacks on Ms Williams (for misleading the court, allegedly, etc). I record that I have every sympathy for her in her decision not to receive telephone calls from Mr Dupois, but have everything in writing. [29] This is a strange defamation proceeding, leading me to have developed serious concerns that the purpose is something other than the vindication of the plaintiff’s reputation against alleged attacks on it by the defendant. My decision on the r 171 application would have been the same in any event, that is, whether regard is had to the possibility that what Mr Dupois is really after is some kind of revenge against the defendant, or to ruin her – if not to achieve some reconciliation with her. [30] These considerations are of potential relevance in the application for security for costs. Mr O’Brien accepted that only in exceptional circumstances will security for costs be ordered against a plaintiff who is a natural person, however impecunious. He relied on Mbuzi v Hall [2010] QSC 359, and in particular on what was said at [60] by reference -- 21 of 24 -- 22 to a “dissenting” judgment in Jeffery v Katauskas Pty Ltd SST Consulting Pty Ltd (2009) 239 CLR 75: “[60] Heydon J stated: ‘Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so. In particular, there are instances additional to those listed in r 42.21(1)(a)-(c) and (e) where it can be done. They include the vexatious conduct of litigation by a plaintiff who had failed to set aside an earlier judgment, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case for the benefit of others, but not solely for that benefit. Hence the supposed ‘general principle… that poverty is no bar to a litigant’ is a severely qualified one. So is the ‘overriding principle of open access to justice’ (or, more realistically, at least access to the courts).’ Green (as liquidator of Arimco Mining Pty Ltd) v CGY Insurance Ltd [2008] NSWCA 148 and Weger v Boola Boola Petroleum and Natural Gas Co (No Liability) [1923] VLR 570 were cited in support of these propositions. [61] In Green the New South Wales Court of Appeal considered the general rule that “a natural person who sues will not be ordered to give security for costs, however poor he is”, and qualifications to it. The discussion arose in the context of an application for costs in proceedings brought by a company liquidator. I respectfully follow the Court’s analysis of the general rule. The leading judgment of Hodgson JA, with whom Basten and Campbell JJA agreed on matters of principle, confirmed that it is clearly established that the Supreme Court has a discretion to order security for costs against a natural person in circumstances falling outside those set out in the rules of court. Reference was made to exceptions to the general rule that “ a natural person who sues will not be ordered to give security for costs, however poor he is”, and to the statement of Young CJ in Melville v Craig Nowlan and Associates Pty Limited that security would be ordered were not to do so would allow proceedings which would be vexatious or oppressive or an abuse of the court’s process.” [31] For the moment, impecuniosity is established by Mr Dupois’s application for reduction of fees liable on filing the claim (which were reduced to $105). Mr Dupois presented a current pensioner concession card, indicted that his total funds -- 22 of 24 -- 23 (on hand and in the bank) amounted to $450 and that his income was a fortnightly benefit of $900 against which $800 went on rent/board, food, telephone, utilities and “other petrol”. In my judgment, the stage is not yet reached where security for costs ought to be ordered. Rather than see the application in that regard dismissed, I think that it ought to be adjourned to a date to be fixed to be brought on by the defendant on 7 days notice expiring after the end of April 2013, in light of Mr Dupois’ email referred to above if future events exhibit any continuance of vexatious conduct of the proceeding. It will be known whether the defendant faces an unacceptable pleading for a third time. Proper evidence can be presented on both sides as to whether the concerning text messages have any connection with Mr Dupois. He should have a chance to deny it on oath and face cross-examination if the defendant requires it. Costs in relation to that application should be reserved. [32] In relation to the striking out application, that succeeds in respect of the statement of claim in its entirety. In the circumstances I would allow 10 weeks from the date of publication of these reasons for the plaintiff to re-plead. Although rule 171 invites the court to make an order for costs on the indemnity basis, in my view the defendant ought to have her costs, but on the standard basis. As it happens, in contrast to Burke v Hampton, the defendant has had (so far) to make only one application about a defective statement of claim. [33] Formal orders will be made as indicated above on the last court day of the week of publication of these reasons . (It should be recorded that, invited by the court to indicate what he expected by way of a Statement of Claim, Mr O’Brien nominated the form of Statement of Claim reproduced in Tobin & Sexton at [61,000]. My associate provided Mr Dupois with a hard copy downloaded from the online version -- 23 of 24 -- 24 of the work. The document is not entirely appropriate as it is based on New South Wales legislation and rules, and complains of defamatory matter printed in newspapers, rather than published orally. Further, it is not free of error: I instance the reference to the plaintiff in paragraph (a) of the particulars of aggravated damages. For some reason pleaders often fail to get references to plaintiff and defendant right; even the Defence filed in this proceeding in paragraph 8(b)(ii) has the defendant stating words to herself.) -- 24 of 24 --