Alexander v Harrison [2004] QDC 570

1 [2004] QDC 570 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 4247 of 2003 VINCENT HARLEY ALEXANDER Plaintiff and ALAN HARRISON Defendant BRISBANE ..DATE 22/11/2004 ORDER CATCHWORDS: Uniform Civil Procedure Rules r 293 - test where defendant seeks summary judgment against plaintiff claiming defamation - relevant statement published as an email to 15 recipients - defendant swears he was not author of the message and did not send it - plaintiff in difficulty proving publication by him - application refused. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 9 -- 22112004 T25/SAC23 M/T CMS132/2004 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an interesting application by the defendant for judgment against the plaintiff under rule 293. The claim is in defamation. The defence, unusually, is that the defendant applicant was not the author of and did not publish the statement claimed to be defamatory. It was contained in an email sent to 15 recipients on 7th of November 2003, supposedly at 8.25 p.m. It purported to come from the defendant's email address and to be signed by him. The material before the Court suggests that his email facility was connected to the internet from a day before the 7th of November 2003 to a day well after then continuously. A reader of the communication would take it to refer to some business venture being jointly pursued on behalf of Mr Harrison and others in respect of which Mr Alexander was exercising some managerial functions. Putting it neutrally, dissatisfaction is expressed about Mr Alexander's performance. Indeed, the prediction is made that he may be about to do a "bunk". I take it means remove himself from the scene. Mr Sheaffe who argued the application for the defendant applicant notes the complete absence of evidence to suggest that anything to do with the matters that appear to be alluded to in the email corresponds in any way or anything in the real world. -- 2 of 9 -- 22112004 T25/SAC23 M/T CMS132/2004 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 Mr Harrison says that he knows a couple of the addressees only. He doesn't go into any detail as to whether or not the email is capable of referring to any actual phenomena. He swears up to his pleaded denials of authorship and of sending the email. He supports that by corroborative detail to the effect that he was encountering virus and/or other problems on a particular computer which he says was the only one he had capable of sending or receiving emails at the relevant time. In particular, he says he could not send emails; indeed, he relies on an affidavit of Mr Smedley, who was brought in on the 6th of November, to look into problems with the computer and took it away on the 7th, prior to 8.25 p.m. There are authorities to the effect that rule 293 should be applied in the same way as rule 292, which has been regarded as a more robust approach to awarding summary judgment than its predecessors. I have always regarded the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; BC6400590 as the locus classicus, so far as concerns the test for a Court shutting out a plaintiff. The reasons for judgment do not set out the particular rules which were considered. The Chief Justice said at 128ff: "The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined -- 3 of 9 -- 22112004 T25/SAC23 M/T CMS132/2004 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a Court was invoked and others in cases in which counterpart rules to O26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its power of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. At times the test has been put as high as saying that the case must be so plain and obvious that the Court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of Court, but although the material available to the Court in either type of case may be different, the need for exceptional caution in exercising the power, whether it be inherent or under statutory rules, is the same. Dixon J (as he then was), sums up a number of authorities in Dey -v- Victorian Railways Commissioners (1949) 78 CLR, 62 Vol CXII-9, where he says (1949) 78 CLR, at p 91: 'A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate, may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, but once it appears that there is a real question to be determined, whether of fact or law and that the rights of the parties depend upon it, then it is not competent for -- 4 of 9 -- 22112004 T25/SAC23 M/T CMS132/2004 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 the Court to dismiss the action as frivolous and vexatious and an abuse of process'. Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion, great care must be exercised to ensure that under the guise of achieving expeditious finality, a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of he jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." I am inclined to think this decision is useful for purposes of applying rule 293 and that statements made by Sir Garfield Barwick following the passage set out to the effect that the Court should be given "some pause because of the degree to which the absence of the cause of action must be demonstrated if an action is to be halted at the very threshold" (p.136) are still pertinent. It is clear from the penultimate paragraph of the judgment that what was in issue included the principles "which govern the exercise of the power summarily to terminate an action".(138) That is what the defendant is seeking in this instance. We are still in the early days of the internet so far as resolving issues in defamation is concerned. One of the difficulties in "cyber defamation" that may arise is that of establishing publication where, as here, the defendant contests it. There is no doubt that from the outset, by which -- 5 of 9 -- 22112004 T25/SAC23 M/T CMS132/2004 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 I mean to indicate when the initial complaint about the publication was made by the plaintiff's solicitors by letter of 20th of November 2003 which attracted a telephone response on receipt on the 26th of November 2003, the defendant placed the plaintiff on notice of his contentions. In that way (and it has been bolstered by being of the present application) I think the defendant has considerably raised the stakes in the litigation, at least in this way, that the plaintiff must understand that he is pursuing a claim which might prove to be hopeless because he cannot prove publication. The defendant's application in my view is not entitled to succeed because on the material before the Court the door is still slightly open from the point of view of the plaintiff establishing publication, notwithstanding Mr Harrison's denials. It is usually the case that if a man denies, for example, that he went to Rome on a particular date, disbelieving him on his oath does not constitute evidence that he did go to Rome then, but there is no universal rule and circumstances alter cases. (See Hobbs v. Tinling [1929] 2 KB 1, 21, cf Steinberg v FCT (1975) 134 CLR 640, esp at 694.) The plaintiff has placed material before the Court indicating that if the defendant's computer is available, or relevant components of it, it may be possible for an independent expert -- 6 of 9 -- 22112004 T26/MMV16 M/T CMS132/2004 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 to retrieve information from it. My understanding today is that that might extend to locating the offending message somewhere in the computer but may not necessarily extend to establishing the sending of that message. As Mr Lumb, for the plaintiff, says, if it turns out that Mr Harrison is wrong about authoring the statements, that may well embarrass him in respect of the more important issue of whether or not he sent it. That some record of the statement may be found in his computer does not necessarily establish his authorship of it. It is a close question; in the end, I think all of the relevant questions are ones which ought to go to trial, although as the evidence stands, the plaintiff faces difficulties in the way of his succeeding in his claim. The evidence available to the plaintiff may change. The bare bones nature of the pleadings may change; they may well be fleshed out to supply the omission that Mr Sheaffe commented on of the actual content of the published statement (published by somebody) having something to do with the parties. The defendant in his defence, which I have looked at, although I am not sure that Mr Sheaffe or Mr Lumb read it, does not go beyond the issues that have been discussed above, with the exception that it is asserted that the words in question were not defamatory of the plaintiff. Defences along the lines that the words were published in good faith for protection of the interests of the addressees and the sender have not been made. -- 7 of 9 -- 22112004 T27/YRL21 M/T CMS132/2004 (Robin DCJ) 8 1 10 20 30 40 50 60 A reader of the publication would not have been surprised had such a defence been relied upon by a person acknowledging that the publication was made by him or her. In the interests of accuracy I perhaps ought to go on to say that the defence pleads that the plaintiff has not been injured in his personal or business representation and has not suffered loss and damage by reason of the contents of the correspondence. I observed earlier in the hearing that there was no statement from Mr Harrison condemning the correspondence or asserting his disagreement with the contents of it. This litigation bodes to be very expensive for the parties. The plaintiff must be aware of that by now. To date there has been an order for substituted service of the defendant obtained and third party "discovery" has been pursued involving the defendant's Internet service provider which has provided some useful information for the plaintiff, also apprised him of the limitations as to what might still be forthcoming. Mr Lumb has foreshadowed orders might be necessary to permit an expert access to the defendant's computer or computers. I take it from the evidence that the principal computer the defendant thinks is relevant might already have been disposed of. -- 8 of 9 -- 22112004 T27/YRL21 M/T CMS132/2004 (Robin DCJ) 9 1 10 20 30 40 50 60 The plaintiff has made the judgment that it is worth proceeding. Although I am not deciding any questions of costs so far as the future is concerned, I might say that I have seriously considered, although, in the end, I am not going to proceed in that way, making an order for security for costs which I think rule 293(2) would authorise, notwithstanding that the party was an individual. No order for security is sought in the defendant's application. It may well be that the Court considers in the future that if the claim fails because the defendant is proved right and it cannot be shown that he made the publication, that indemnity costs may be appropriate. I think we all might be nervous at the prospect of facing litigation like the present on the basis of a defamatory email published as if it came from us by another person having no authority or right to do it by means of the Internet. I think the application should be dismissed and that costs ought to be each party's costs in the cause. ----- -- 9 of 9 --