Miller v Nakhla[2022] QDC 47

DISTRICT COURT OF QUEENSLAND

Contents

Introduction1

The magistrate’s reasons1

The appellants’ submissions2

The respondent’s submissions3

Consideration4

The principles4

The magistrate erred in his approach5

Reconsideration of the strike out application6

Paragraphs 24 to 276

Paragraphs 28 to 317

Paragraphs 32 to 358

Paragraphs 40 to 438

Paragraphs 44 to 488

Paragraphs 49 to 52 and 53 to 569

Conclusion on the substantive appeal9

Costs of the application below10

Introduction

1. [1]
   On 18 June 2021, a magistrate struck out a large number of paragraphs of the appellant defendants’ counterclaim against the respondent plaintiff and ordered that the appellants pay the respondent’s costs of the application.  The appellants have appealed from that decision.
2. [2]
   In the proceeding in the Magistrates Court, the appellants are suing the respondent for defamation.^[1]  The appellants alleged that the respondent had defamed one or more of them in a series of emails and other documents sent to various people.  Each appellant seeks damages of $150,000.
3. [3]
   The bases of the respondent’s attack on the pleading were, in summary, that the pleading did not accurately set out the words of some of the publications (containing typographical errors or missing or inserting words) and it did not, but should, plead the entirety of those or other publications.

The magistrate’s reasons

4. [4]
   The magistrate’s reasons for ordering that the paragraphs be struck out were unsurprisingly brief.  His Honour referred to passages from the Court of Appeal’s reasons in Robinson v Australian Broadcasting Corporation^[2] and concluded:^[3]

I consider it appropriate, having regard to the emails [indistinct] the pleadings that the pleadings should be reflective of the actual emails so they are not taken out of context and be put properly in perspective before the Court in the pleadings.

5. [5]
   His Honour then struck out, not only the paragraphs that had not, in his view, pleaded the communications properly, but also the subsequent paragraphs in which the appellants pleaded, in the case of each publication, the alleged defamatory meanings and that the publication had caused one or more of them harm.
6. [6]
   As to costs, his Honour said, with reference to UCPR rule 681:^[4]

Subrule (1) – Costs of proceeding including an application in proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise.  Whilst accepting that the …plaintiff has not been highly [scil – wholly] successful, it has been, to a large degree, or, to a majority, successful with his application.  And I consider that it should have its costs following the event.

7. [7]
   Relevant to his Honour’s reasons for striking out the paragraphs are some views that he expressed in the course of the addresses to him.  Those views clearly led his Honour to summarise his reasons in the words quoted above.  In particular, his Honour said to counsel for the appellants:^[5]

I’ve considered both the submissions and that reference to the authority of Robinson v Australian Broadcasting Corporation, and I agree that the paragraphs not being reflective of the actual emails should be struck out and re-pleaded appropriately.

And, having regard to that authority, I don’t think you can argue with that, Mr Nelson.  They should be in their proper format.  It’s improper that they’re included in a pleading, capitalisation and not include – with capitalisation, there’s a number of issues, and not in the appropriate form.

But it is your pleading.  You are relying upon it at trial.  There are emails taken out of context, and then having regards to what I’ve been directed to in Robinson in Mr Morris’ submissions, I think it is appropriate they be re-pleaded to be taken in the proper context, because context is very important.

If something’s capitalised in a pleading, taken out of context of the original source document, I think it is taken out of context.

As we all know, in the English language, a comma misplaced can change entirely perspective of matter and context.  It should be pleaded as it was.

I’m not going to let this go to trial with the emails having, possibly as pleaded, a different context to the way they were in the initial source document.  They should be as they were.

The appellants’ submissions

8. [8]
   The appellants submit that, although the magistrate’s decision was discretionary, it is clear that his Honour made errors of law in his reasons.  In particular, he did not apply the principles to which he referred by considering their application separately to each of the paragraphs that he ordered be struck out.  Rather, he applied a blanket approach that, if the pleading did not wholly and accurately set out an entire publication (or a series of communications within which the alleged publication appeared), it must be struck out.
9. [9]
   The appellants submitted that the starting point is that it is a matter for the appellants to set the primary bounds of the litigation and, subject to the substantive and procedural law, to frame their actions as they choose.  The appellants were entitled to plead only those parts of the publications that they alleged carried the defamatory meanings.^[6]  Where the words in the pleading differed from the actual words, punctuation or spelling in the actual publication, or if the pleaded words did not include all of the communication in which those words were published, the respondent had to demonstrate how those differences were capable of bringing about a relevant change to the meanings conveyed.  A difference is not enough; it must be a difference of substance that is capable of changing the meaning of the words about which the appellants complain.
10. [10]
    They submitted that the magistrate’s approach:

    1. (a)
       was contrary to the principle that “the law requires that the words as pleaded and the words as proved at trial be in substance the same”;^[7]
    2. (b)
       disregarded the real issue, whether the appellants were able to prove a publication not substantially different to that which they had pleaded and whether that publication conveyed meanings not different in substance to those pleaded; and
    3. (c)
       disregarded the fact that the appellants were prima facie entitled to set the bounds of their claim by choosing those parts of the publications they relied on as conveying the defamatory meanings.
11. [11]
    They submitted that his Honour did not identify any particular basis on which each part of the pleading should be struck out.  He took the view, wrongly, that the mere fact that something was incorrectly capitalised, or that introductory or closing salutations were omitted, or commas were in the wrong place, was a sufficient ground to strike out the relevant paragraphs, without considering whether in fact there was a material difference between the pleading and the original publications.
12. [12]
    Counsel for the appellants, at my invitation, took me through the relevant paragraphs and contended that, where there were minor differences between the pleaded words and the original publications, they were not such as to be capable of affecting the meanings and, where the pleaded publication excluded other parts of the same communication or chain of communications, nothing in the excluded parts was capable of affecting the meaning of the quoted parts.
13. [13]
    The appellants also contend that the magistrate erred in not giving them leave to re-plead.  At the least, his Honour should have granted leave to replead in a manner that accorded with his reasons.^[8]
14. [14]
    As to the costs order, the appellants submitted that each party was partly successful and the magistrate therefore erred in the exercise of his discretion by not even considering whether another order should have been made.  His Honour should have fashioned an order more in keeping with the parties’ relative success on particular issues, as contemplated by rule 684.

The respondent’s submissions

15. [15]
    The respondent submitted that the orders were made in the exercise of the magistrate’s discretion, his Honour was alive to and took into account the relevant principles and gave good reasons for his decision to strike out the offending paragraphs.  Therefore there is no basis to set aside his Honour’s orders.
16. [16]
    Counsel for the respondent submitted that counsel for the appellants conceded in his address that perhaps the relevant paragraphs could be re-pleaded to correct the errors.  The appellants have a right under the rules to amend their pleading at any time, re-pleading if the current pleading was struck out was expressly contemplated in the hearing below and the respondent does not contest that the appellants should be and are permitted to re-plead the allegedly offending publications, provided that they do so accurately and completely.  There was no need for the magistrate to order expressly that the appellants have leave to re-plead.  The consequence is that this appeal is really about the costs of the application below.  It should not be entertained by this court.
17. [17]
    Mr Morris QC conceded that, if it concerned only the typographical errors and leaving out salutations, he would accept that the decision below was wrong.  Those complaints were made because, if the appellants were going to fix the absence from the pleading of material parts of the publications, they might as well fix up everything.^[9]
18. [18]
    However, Mr Morris contended that, at least in some paragraphs, the appellants had wrongly omitted to plead other parts of the publication that were entirely capable of affecting the meaning of that part pleaded and therefore whether the imputations alleged in fact arose in context.  He took me, by way of example only, to some paragraphs of the pleading and to the original publications to which those paragraphs referred as examples of what he contends were impermissible exclusions from the pleaded communications that justified the magistrate’s orders.
19. [19]
    Overall, the respondent submitted that there was no error revealed in the magistrate’s reasons, nor in his orders.  The orders were within the proper exercise of his discretion.  The appeal should be dismissed.

Consideration

The principles

20. [20]
    The first thing to note about the appellants’ submission is that the authority for the proposition in paragraph [10](a) above is wrong.  There is no such statement in the reasons of Lord Coleridge CJ.  Indeed, his reasons state the opposite:  that the exact defamatory words had to be set out at that time.  Nonetheless, the proposition set out is correct.  As has been noted in a recent publication, the practice of pleading changed in England in the mid-nineteenth century so that it was enough to prove the substance of the words alleged or words to that effect, although not exactly the same.^[10]
21. [21]
    In Robinson, McMurdo P stated the relevant pleading principles:^[11]

In commencing litigation, plaintiffs are entitled to set the primary bounds of the litigation and, subject to the substantive and procedural law, to frame their actions as they choose.  Passages relied on as defamatory are material facts and should be clearly identified and set out in the pleadings.

That does not mean a plaintiff can plead words taken out of context to allege a defamation which in context would not be defamatory. …  Defamation lawyers often express this principle as requiring a plaintiff to take "the bane with the antidote" because, whilst the publication out of context may be poisonously defamatory, it becomes innocuous in context.  If plaintiffs plead alleged defamations out of context so that the meaning of the pleaded words, sounds or images is materially qualified or altered by the omission, defendants are entitled to have the plaintiff plead the full context of the alleged defamation and to have the issue of whether there is a defamation determined from the publication as a whole …

If, however, the meaning is not materially changed by reference to the whole publication a plaintiff need not set out the entire publication for to do so may unnecessarily prolong the trial causing unnecessary escalating costs.

22. [22]
    Atkinson J formulated the principles to similar effect, saying:^[12]

In the usual case, a plaintiff is obliged to plead the whole of an article or a broadcast concerning the plaintiff when he or she sues in defamation.  …

This well-established principle was referred to by O'Connor LJ in Polly Peck (Holdings) Plc v Trelford when dealing with the question of whether the whole of the publication can be considered by the jury:

“The first principle is that where a plaintiff chooses to complain of part of a whole publication, the jury is entitled to see and read the whole publication.

There is a gloss on this general rule. The defamatory matter must be clearly identified.  Where they are severable and distinct, only those passages which are said to be defamatory should be set out.

The test … remains the same, whether it is a strike-out or a strike-in application: can the rest of the publication “in any way alter, qualify or otherwise affect the defamatory matter”.  If it can, then it should be pleaded; if not, then it should not be pleaded.

Whether the passages are distinct and severable, is a question of fact and degree.  The task for the judge in such circumstances is to decide whether the omitted parts are reasonably capable of materially altering or qualifying the complexion of the imputations pleaded by the plaintiff.

23. [23]
    Neither party cavilled with these propositions, either before the magistrate or before me.

The magistrate erred in his approach

24. [24]
    In my view, the magistrate was, with respect, too global in his approach to the application before him.  While it is no doubt correct that, in some instances, an omitted or misplaced comma, or the addition or exclusion of a word or words or of the entirety of a communication or chain of communications may affect the meaning of a phrase or of a communication as a whole, his Honour did not consider at all whether, in the case of each particular allegation in this pleading, the errors in transcription from the original to the pleading or the excluded parts of a communication or chain were capable of affecting the meaning of the allegedly defamatory words. 
25. [25]
    Nor did his Honour consider whether, in each case where only part of a communication or a chain of communications was pleaded, the remainder or any other parts of the communication or chain could affect the meaning of the pleaded words.
26. [26]
    In the case of each paragraph pleading a publication that the respondent sought to have struck out, therefore, his Honour did not consider the proper application of the principles to the matter before him and he did not give adequate reasons for striking out each paragraph. 
27. [27]
    Finally, as I said, his Honour struck out not only the paragraphs pleading the publications, but the subsequent paragraphs pleading the imputations and damage.  He did so, apparently, at the respondent’s urging that, if the pleading of a publication was struck out, the connected paragraphs became meaningless and unnecessary.  However, in my view that consequence could only arise if it was intended that the pleading of a publication be struck out with no leave to re-plead.  Otherwise, re-pleading a publication correctly would make sense of the following paragraphs.  It was unnecessary to strike out those other paragraphs.
28. [28]
    In these respects, I consider that his Honour erred in law.  Therefore the appeal should be allowed.
29. [29]
    I will mention here that I am not convinced by Mr Morris’ submission that the appeal is really about costs because the appellants could simply have re-pleaded their claim.  Certainly it would have been easy to correct the minor errors in transcribing the publications into the pleading.  But, if the magistrate was wrong in striking out some paragraphs because an entire publication or chain was not pleaded, the appellants would have had no choice but to comply with his Honour’s reasons and to plead the entire publications anyway.  If they did not want to be obliged to do that, then, even if they did not need leave to re-plead, it was appropriate for them to appeal at least in respect of those particular paragraphs.

Reconsideration of the strike out application

30. [30]
    Having formed these conclusions, it is necessary to reconsider the relevant parts of the application and to determine what orders should be made.  To do so, it will be necessary to consider each relevant paragraph of the counterclaim and whether, applying the relevant principles, it should be struck out or otherwise amended.  In doing this, I note that the evidence exhibited copies of the original publications, including chains of communications within which the offending publication appeared and set out the respondent’s complaints about those parts of the pleading.^[13]  I shall refer to each of those complaints in considering whether they justified striking out each paragraph.

Paragraphs 24 to 27

31. [31]
    The first paragraph about which the respondent complained was paragraph 24.^[14]  There were three complaints that the pleaded publication had what I shall refer to as transcription errors.^[15]  Neither the second nor the third of those was capable, in my view, of affecting the meaning of the material words, although they should be corrected by amendment.  However, the pleading did not include nine words of one sentence and the next complete sentence in one paragraph.  Those words could possibly affect the meaning of the publication and they should be included.
32. [32]
    The other complaint was that the pleaded words and the email from which they are transcribed referred to a memorandum that was not set out in, or annexed to, the pleading.  The respondent contended below and before me that the words pleaded must be read in the context of the memorandum to which they refer, as the latter is clearly capable of affecting the meaning of the pleaded words by materially altering or qualifying the pleaded imputations:^[16]  the appellants must take the bane of the pleaded email with the antidote of the memorandum.
33. [33]
    Where the publication sued on in defamation is in written form, the plaintiff is obliged to plead every passage which is reasonably capable of materially altering or qualifying the complexion of the alleged imputation.^[17] 
34. [34]
    The appellants accept that the trier of fact will read not only the pleaded words of the publication, but the entire publication and will consider the meaning of the pleaded words in context.  But they submit that, as in Robinson, this is not a case where the email and memorandum read together are reasonably capable of materially qualifying or changing the meaning of the pleaded passages.^[18]
35. [35]
    With respect, I disagree.  The statements made by the respondent in the email currently pleaded in paragraph 24 were expressly made in the context of, and by reference to, the matters that he set out in the attached memorandum.  As Mr Morris QC submitted in his address to me by way of example,^[19] the memorandum is at least capable of affecting the imputation alleged from the email that the second and third appellants have acted dishonestly.  Mr Morris submitted that the memorandum can lead the reader to construe that the complaint is not that those appellants are dishonest people generally, but they have committed particular acts, such as not fulfilling a promise, which the author characterises as dishonesty.  I agree that that could be a reasonable view of the documents taken together.  Therefore the memorandum is reasonably capable of materially altering or qualifying the pleaded imputations and the appellants must set out or annexe the memorandum, as well as correcting the errors in the parts quoted.  The paragraph should be re-pleaded by the appellants.
36. [36]
    Paragraphs 25 to 27 should not have been struck out, although it may be necessary to amend them to accord with a re-pleaded paragraph 24.

Paragraphs 28 to 31

37. [37]
    The respondent’s complaints about the publication alleged in paragraph 28 were in part that the pleading does not set out the opening salutation and closing sign-off and there were two typographical errors.  None of these matters was capable of affecting the pleaded imputations, but the magistrate did not consider that question.  In that respect his Honour erred in law. 
38. [38]
    The respondent also complained that the email the subject of these paragraphs was in a chain of emails that the appellants did not set out in their pleading.  The particular email was written and should be pleaded in the context of the prior emails exchanged between the respondent and others.  Considered in that context the other emails were capable of affecting or qualifying the pleaded imputations.
39. [39]
    The email pleaded in paragraph 28 and those preceding it follow on from the email that is the subject of paragraphs 24 to 27.  In my view, the only relevant contextual documents relating to this email are that particular earlier email and the memorandum attached to it (as this email harks back to statements made by the respondent in those documents) and the email from the second appellant to which the pleaded email immediately responded.  It would be unnecessary and prolix for the plaintiff to set out the former documents again as part of the context in which this email should be considered.  But the plaintiff should plead to the effect that this publication was made in response to the second appellant’s email that preceded it and following the email pleaded in paragraph 24.
40. [40]
    Nevertheless, neither this nor the related paragraphs should have been struck out.  Rather, the plaintiff should have been ordered to amend the pleading to refer to the relevant contextual documents.

Paragraphs 32 to 35

41. [41]
    The complaint about paragraph 32 is that there is a substantial number of errors and omissions in the pleaded version of the email the subject of these paragraphs.  In fact, some of the asserted errors are wrong or were repeated in the affidavit supporting the respondent’s application below and other errors of transcription were not identified by the solicitor in that affidavit.
42. [42]
    The magistrate erred in not considering whether any of the errors (or all combined) were in fact capable of affecting the meaning of the email.  In my view they were not, although the pleading should be amended to plead the respondent’s words accurately.
43. [43]
    Therefore, these paragraphs should not have been struck out.

Paragraphs 40 to 43

44. [44]
    The complaints about the email pleaded in paragraph 40 are that it is missing parts of the first and last sentence, there are several typographical errors, it sets out only two of 13 paragraphs in the email concerned and it is part of a chain of emails that have not been pleaded.
45. [45]
    Again, the magistrate did not consider whether any of these matters were capable of affecting the meaning of the words set out. 
46. [46]
    Clearly the quoted parts should be set out accurately and completely.  The paragraph should be amended to correct those errors.
47. [47]
    But I also consider that the entire email, together with the email to which it responded (an email from the first appellant to the respondent) should be pleaded, as they are certainly capable of affecting the meaning of the words about which the third appellant complains. 
48. [48]
    It may have been appropriate, in this case, to strike out paragraph 40 with leave to re‑plead, but it was not appropriate, in any event, to strike out paragraphs 41 to 43.
49. [49]
    The pleading should be amended accordingly. 

Paragraphs 44 to 48

50. [50]
    Paragraph 44 of the counterclaim alleges that the respondent published certain words on the “Azzura Greens Community Facebook page”.
51. [51]
    The complaint about these paragraphs was that the appellants had not disclosed any documents concerning the alleged Facebook page, despite the respondent denying that he has ever been a member of a Facebook page with that name or publishing anything on such a page.
52. [52]
    The magistrate did not even consider this complaint and therefore erred in striking out these paragraphs.  He clearly struck them out on the basis of his view that transcription errors may affect the meaning of words, but there was no complaint of any transcription errors in paragraph 44.
53. [53]
    I am not satisfied that the evidence demonstrated that the appellants had not provided disclosure of relevant documents.  But, in any event, the application and the magistrate’s order were to strike out the relevant paragraphs of the pleading under rule 171.  That rule concerns the pleading itself and whether it fails to disclose a cause of action or is otherwise an abuse of process of the court (whether in the ways listed or otherwise).  It does not provide a remedy for a failure to disclose documents relevant to an allegation in a pleading.  An application on the basis of a failure to comply with the rules for disclosure could have been made under rule 371.  It was not.
54. [54]
    Therefore these paragraphs should not have been struck out.

Paragraphs 49 to 52 and 53 to 56

55. [55]
    In paragraph 49, the appellants set out what they allege is the content of an email by the respondent.  No complaint was made that it was incorrectly transcribed (to the extent that it was set out in paragraph 49), even though in fact it omitted the opening words and two full paragraphs in the middle of the email.  The complaints made in the respondent’s solicitor’s affidavit were about part of the publication pleaded separately in paragraph 53.  As expressed in that affidavit, the complaint had no relevance to paragraph 49 and did not make sense.
56. [56]
    However, in the respondent’s submissions before the magistrate, the complaint was made that paragraph 49 pleads part of the same email as that pleaded in paragraph 53 and the appellants have improperly separated one email into two apparently separate publications.  The email should be pleaded and read as one complete document, particularly as each part is capable of affecting the meaning of the other.
57. [57]
    In paragraph 53, the appellants plead an apparently separate publication, but in fact the words pleaded (if they were correctly transcribed) were part of the same email as pleaded in paragraph 49.  Additionally, the words pleaded are very inaccurately transcribed from the original, an error that has a tendency to prejudice or delay the fair trial of the proceeding.
58. [58]
    Again, the magistrate did not consider the principles with specific application to these paragraphs and he thereby erred.
59. [59]
    I agree, though, that the publications pleaded in paragraphs 49 and 53 are clearly two parts of one communication.  They should not have been pleaded as if they were two separate communications, but as one publication, even if the appellants were to allege that different parts of the publication had different defamatory meanings.  Each part is reasonably capable of affecting the meaning of the other part and the whole communication should be pleaded and considered in context.  The communication referred to should have been completely and accurately transcribed from the original or a complete copy should have been annexed to the pleading.
60. [60]
    Pleading both alleged communications as one may well lead to differences in the alleged imputations and damage.  It is therefore appropriate to strike out all of paragraphs 49 to 56, with leave to re-plead.

Conclusion on the substantive appeal

61. [61]
    I have made clear that, despite the errors made by the magistrate, in many respects the appellants’ pleading is inadequate or wrong and should be re-pleaded, even if the existing pleading should not, at this stage, have been struck out.  Rather, it would have been appropriate for the magistrate to order that the appellants amend their pleading in the ways I have indicated.
62. [62]
    I therefore consider it appropriate in the circumstances to allow the appeal in part, to set aside paragraphs 1(a) to 1(e) of the magistrate’s order and to order that the appellants amend the counterclaim consistently with these reasons.

Costs of the application below

63. [63]
    I see no error in the magistrate’s exercise of his discretion concerning costs.  He had struck out most of the paragraphs about which the respondent had complained.  While the respondent had also sought other orders, such as to dismiss the proceeding on the ground that it was beyond the Magistrates Court’s jurisdiction, the submissions on the day concentrated on the bases for striking out to which I have referred.  It was not a case in which it was practical, feasible or necessary to make separate orders for the costs of separate issues.  Indeed, the appellants did not seek such an order, but instead proposed that the parties’ costs be their costs in the proceeding.
64. [64]
    The magistrate formed the view, with some justification, that the respondent had been successful to a large degree and should therefore have his costs of the application.  That was a view that was open to his Honour.  Notwithstanding that I have concluded that his Honour erred in other respects, I have still concluded that the counterclaim should be amended and parts of it should be struck out. 
65. [65]
    I see no reason to set aside paragraph 2 of the magistrate’s order, by which he ordered that the appellants pay the respondent’s costs of the application.
66. [66]
    I shall hear the parties as to the costs of the appeal.