District Court New South Wales

• Medium Neutral Citation: Petty v Zhao [2014] NSWDC 174
• Hearing dates: 22 October 2014
• Decision date: 22 October 2014
• Jurisdiction: Civil
• Before: Gibson DCJ

Decision

(1) The defendant is to file a further amended defence in 14 days particularising and pleading, in proper form, any plea of contextual truth.

(2) The defendant pay any costs thrown away by reason of the filing of the further amended defence.

(3) The defendant is to provide particulars in 14 days as follows: (a) Each conversation with the plaintiff in which she asked him not to park in their driveway. (b) The email sent by the plaintiff to the defendant to which she pressed "reply" for the purpose of publishing the matter complained of.

(4) Costs to be defendant's costs in the cause.

(5) Reply filed 14 days thereafter.

(6) Matter stood over to the Defamation List on Friday 28 November 2014.

• Catchwords: TORT - defamation - application to strike out particulars of justification - inadequate plea of contextual truth - turns on its own facts
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 57; Road Rules 2008 (NSW), r 198(2); Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.8, 14.28 and 15.10
• Cases Cited: Brown v The Brisbane Newspaper Co Ltd [1902] QWN 25; Church of the New Faith Inc v Bower & Australian Broadcasting Commission (1977) 18 SASR 554; Cohen v Mirror Newspapers Ltd [1965] NSWR 1484; Marks v Wilson-Boyd [1939] 2 All ER 605; Sims v Wran [1984] 1 NSWLR 317
• Texts Cited: Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd e.d., Carswell); Gatley on Libel and Slander (13th e.d., Sweet & Maxwell)
• Category: Interlocutory applications
• Parties: Plaintiff: Geoffrey Roy Petty; Defendant: Yocy Zhao
• Representation: Plaintiff: Mr R Rasmussen; Defendant: Mr A Nelson; Plaintiff: Burston Cole & Associates; Defendant: Martin Solicitors
• File Number(s): 2014/148290
• Publication restriction: None

Judgment

1 This is an application by the plaintiff to strike out certain particulars in relation to the plea of justification set out in the Amended Defence, and for particulars as requested in relation to paragraph A8.3 of the plaintiff's letter dated 6 August 2014.

2 As the application required me to read the correspondence between the solicitors, I directed the plaintiff to provide submissions no later than 4:00pm 16 October 2014, and for the defendant to provide submissions by 4:00pm 21 October 2014, the day before the matter was listed for argument. Regrettably, counsel for the plaintiff did not provide his own submissions until the day before these proceedings and, although the correspondence was attached to his email, the file was not in a printable format.

3 Additionally, the ambit of complaint was considerably enlarged. The plaintiff's letter of 2 October 2014 identified the objections as relating to paragraphs 8.a(iv) - 8.a(vi) of the amended defence and the particulars in paragraph A8.3. The submissions of counsel for the plaintiff referred to additional matters as follows:

(a) that the Defendant provide particulars of paragraph 8(a)(ii) of the Amended Defence, failing which it be struck out;

(b) that the Defendant provide particulars of paragraph 8(c)(i)1 of the Amended Defence, failing which it be struck out;

(c) that the Defendant provide particulars of paragraph 8(c)(ii)3 of the Amended Defence, failing which it be struck out;

(d) that the Defendant provide particulars of paragraph 8(c)(ii)5 of the Amended Defence, failing which it be struck out;

(e) that the Defendant provide particulars of paragraph 9 of the Amended Defence, failing which it be struck out;

(f) Particulars of people to whom an (the) email was sent.

4 Counsel for the defendant has responded both to the objections raised when the matter was before the court on 10 October 2014 and to the six matters raised in the submissions provided to him on 20 October 2014, but has indicated in his submissions that some of these submissions are done "on the run". I have taken this into account when dealing with the plaintiff's objections.

The relevant statutory provisions

5 The plaintiff's application is made pursuant to rr 14.28 and 15.10 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Counsel for the defendant refers me to s 57 Civil Procedure Act 2005 (NSW) and rr 14.7, 14.8 and 14.14 UCPR.

6 Counsel for the plaintiff does not refer me to any authority, but merely to the general obligation to provide particulars of justification. However, as is pointed out by Professor Brown (Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd e.d., Carswell)) at [20.4(2)] and Gatley on Libel and Slander (13th e.d., Sweet & Maxwell) at [29.1], there are specific principles which should be applied to the provision of particulars of justification and to the degree of specificity which may be required.

7 Counsel for the defendant helpfully refers me to Sims v Wran [1984] 1 NSWLR 317 at 321G, where Hunt J stated:

"There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led. It is however important to emphasize that, ordinarily speaking, particulars are concerned with the nature of the case which is to be made by way of evidence; particulars are not to be used, except in the extraordinary case, to ascertain the legal characterization which a party places upon the facts and matters already identified in the particulars: cf Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350 at 359. Generally, it may be assumed that such argumentative matters or concepts will be either made clear in the pleadings or apparent from the facts and matters stated in the particulars supplied. If they are not, then the other party may in some cases be entitled to particulars in order to know the nature of the case he has to meet. But this situation will be rare."

8 I briefly note the relevant principles in relation to the particulars of justification necessary for the imputations arising from the matter complained of (which is set out below). The matter complained of sets out a dispute about parking and damage to the defendant's car in considerable detail, and the imputations reflect that factual matrix. Where the defamatory charge is sufficiently specific so that the plaintiff would know what must be established in justification, particulars may not be required at all: Cohen v Mirror Newspapers Ltd [1965] NSWR 1484. In Cohen, Asprey J stated at 1486:

"if the words charged as a libel are themselves so specific, so precise that the plaintiff must know from them what the charge is, no further particulars are required."

9 This statement reflects what has long been the law in England, where Goddard LJ in Marks v Wilson-Boyd [1939] 2 All ER 605 at 608 explained that there was no hard and fast rule for the provision of particulars in all cases, and that each case turned on its facts:

"In the opinion of the court, there is not, nor ought there to be, an absolute rule of practice that, whenever a plea of justification is raised in the common form "that the words are true in substance and in fact," an order for particulars must be made in this general form. A plaintiff is entitled to know with certainty on what the defendant intends to rely in support of his plea. Indeed, it has been said that the justification ought to state the facts with as much particularity as an indictment. No doubt in the great majority of cases a plea in this bald form ought to be supplemented by particulars from which the plaintiff can ascertain the precise nature of the charge which it is proposed to make against him, for he needs this information in order to prepare his evidence for the trial. Each case, however, must depend on its particular facts. If the words charged as a libel are themselves so specific-that is, precise-that the plaintiff must know from them what the charge is, no further particulars are required. Counsel for the respondents agreed that, if, for instance, the libel were (to take a clear case), "The plaintiff is a thief because he stole my watch from my house last Monday," no further particulars would be required, and, if asked for, would be properly refused on the other hand, were the charge merely, "The plaintiff is a thief," he would be entitled to the facts and matters on which the defendant intended to rely in support of his plea that the plaintiff was a thief."

10 Additionally, while the defendant is required to give particulars, he or she is not required to give details of the evidence upon which he or she relies: Brown v The Brisbane Newspaper Co Ltd [1902] QWN 25. In Church of the New Faith Inc v Bower & Australian Broadcasting Commission (1977) 18 SASR 554, Bray CJ said at 559 that the court would be careful to see that the defendant "is not compelled to disclose his evidence to any greater extent than that which is necessary to enable the plaintiff to know the precise charges he has to meet".

11 Having noted these principles, I now set out the text of the matter complained of and the imputations.

The matter complained of

12 The text of the matter complained of is as follows:

(1) Dear griffin [sic] community members:

(2) My name is Yocy Zhao from #27 the shore terraces, I recently had some extremely unpleasant experiences with my neighbor Mr. Geoffrey Petty from #25 who constantly parks his BMW X3 on the common driveway. This selfish and careless and unlawful action leaves me with a very narrow path to drive in/out causing me many troubles.

(3) About 2 months ago, my Range Rover got hit and scratched by Mr. Petty's garage door when he was trying to open his door. It happened when we were driving pass his X3 to try to park into our garage.

(4) Mr. Petty was aware the consequences of his action and agreed to compensate our damage.

(5) The next day, my husband took the car to Range Rover's officially appointed workshop, they quoted $1,200 (attached pic of the quotation), my husband tried to save him some money by taking the car to another workshop which we had our Porsche fixed at there before, we bargained and got a discount price of $880 under the condition of to wait 3 weeks as they were fully booked.

(6) We presented the both quotations to Mr. Petty and of course he chose the cheaper one. We waited 3 weeks to send our car to fix, and during the repairing period of one week, the workshop offered us a loan car for $250/day which we are surely entitled, but we refused and borrowed a car from a friend. All because we were trying to HELP and SAVE his money as much as we could. I sincerely did the best a neighbor could have done.

(7) We got our car back on the 8/April, we came to visit Mr. Petty on the 9th after I saw him drove back home in his X3, but he didn't open the door, so I swing by the next day and got told by his son that Mr and Mrs Petty went on holiday. I would be much appreciated if Mr. Geoffrey Petty opened his door and explained to me in person than just hiding in his home escape from this matter.

(8) Then we left a message to his son asking Mr Petty to come to see us when they come back.

(9) We waited patiently until they got back home before the long weekend, we didn't bother him and were expecting him to visit us proactively on the next few days but he didn't show up, so my husband went to see him on the 28/April. He talked with bad attitude said he didn't have the cheque with him, and would come to see us the next day.

(10) He didn't show up on the next day as he said, so I went to see him a day after, he was extremely rude and disrespectful to me, I asked him when to pay me, he wouldn't gave me a specific time then he shut his door before I finish talking. I had also told them to STOP parking his car on the driveway.

(11) Until now, he is still parking his X3 there and not paying me nor apologize to me for his damage.

(12) I truly don't understand if a decent person specially a barrister would knowingly violate the law, treat me rude and disrespectful especially after all the kind things we have done for him. I'm very furious and disappointed by having such a neighbour living next to me!!!

(13) I have the authorization from #23 to represent for them and myself who are effected the most by Mr. Petty's unacceptable action, I request the strata and building manager to stop him parking his car on the common driveway immediately, to stop causing damages and problems to me and to other residents.

(14) Kind regards.

(15) Yocy Zhao.

13 The imputations pleaded as arising are as follows:

(a) The plaintiff cannot be relied upon to pay his just debts.

(b) The plaintiff evaded paying an acknowledged debt owed to the defendant's husband.

(c) The plaintiff knowingly violated the law.

The particulars of justification

14 In the defendant's Amended Defence filed on 24 July 2014, the defendant pleaded the following particulars of truth:

Particulars of Truth (Justification)

a. In relation to the imputation at paragraph 4(a) of the Statement of Claim that the Plaintiff cannot be relied upon to pay his just debts:

i. The Plaintiff was aware of the $880 debt that he owed, and continues to owe, to the Defendant and/or her Husband for damage that the Plaintiff caused to the Defendant's motor vehicle;

ii. the Plaintiff had to be repeatedly asked by the Defendant and her Husband for payment of the $880 debt;

iii. the Plaintiff appeared to be keeping house in order to avoid payment of the

$880 debt;

iv. the Plaintiff appeared to be avoiding the Defendant and her Husband in order to avoid payment of the. $880 debt because:

1. on 28 April 2014 the Plaintiff said to the Defendant's husband words to the effect "I haven't got my cheque book, I will come and pay you tomorrow" but on 29 April 2014 he did not do as he said that he would;

2. on 30 April 2014 the Plaintiff shut his door on the Defendant while she was mid sentence asking him to pay the $880 debt;

v. the Plaintiff made no effort, or made insufficient effort, to pay the $880 debt that he owed to the Defendant until after the time that the Defendant send the email referred to in paragraph 3 of the Statement of Claim.

vi. having tendered payment of the $880 debt that he owed to the Defendant by personal cheque dated 1 May 2014, on or about 6 May 2014 the Plaintiff gave his bank a stop order or similar direction to ensure that the cheque would not be honoured upon presentation by the Defendant

b. In relation to the imputation at paragraph 4(b) of the Statement of Claim:

i. The Plaintiff was aware of the $880 debt that he owed, and continues to owe, to the Defendant and/or her Husband for damage that the Plaintiff caused to the Defendant's motor vehicle;

ii. the Plaintiff had to be repeatedly asked by the Defendant and her Husband for payment of the $880 debt;

iii. the Plaintiff appeared to be keeping house in order to avoid payment of the $880 debt;

iv. the Plaintiff appeared to be avoiding the Defendant and her Husband in order to avoid payment of the $880 debt because:

1. on 28 April 2014 the Plaintiff said to the Defendant's husband words to the effect "I haven't got my cheque book, I will come and pay you tomorrow" but on 29 April 2014 he did not do as he said that he would;

2. on 30 April 2014 the Plaintiff shut his door on the Defendant while she was mid sentence asking him to pay the $880 debt;

v. the Plaintiff made no effort, or made insufficient effort, to pay the $880 debt that he owed to the Defendant until after the time that the Defendant send the email referred to in paragraph 3 of the Statement of Claim.

vi. having tendered payment of the $880 debt that he owed to the Defendant by personal cheque dated 1 May 2014, on or about 6 May 2014 the Plaintiff gave his bank a stop order or similar direction to ensure that the cheque would not be honoured upon presentation by the Defendant.

c. In relation to the imputation at paragraph 4(c) of the Statement of Claim that the Plaintiff knowingly violated the law:

i. The Plaintiff had for more than six months repeatedly parked his motor vehicle in the driveway of the Shore Terraces strata scheme contrary to:

1. Regulation 198(2) of the Road Rules 2008 (NSW); and

2. By-Law 11 of the By-Laws for the Shore Terraces strata scheme;

ii. The Plaintiff:

1. was a learned man having been a legal practitioner since 1974 and having been appointed as Queens Counsel in 2000;

2. was the driver of a motor vehicle of many years standing:

3. could reasonably be expected to know the content of the Road Rules 2008 (NSW);

4. could reasonably be expected to know the content of the By-Laws for the strata scheme in which he lived;

5. had been asked many times by the Building Manager for the Shore Terraces strata scheme and by the Defendant not to park his car in the driveway because it was contrary to the By-Laws for the Shore Terraces strata scheme; and

iii. The Plaintiff nevertheless (knowingly) continued to park his motor vehicle in the driveway of the Shore Terraces strata scheme.

15 The particulars of contextual truth are pleaded as follows:

Particulars of Contextual truth

a. The additional imputations which were carried by the email and which were defamatory of the Plaintiff and which were substantially true were:

i. That the Plaintiff is s selfish man;

ii. That the Plaintiff is a careless man;

iii. That the Plaintiff is cheap;

iv. That the Plaintiff is extremely rude:

v. That the Plaintiff is extremely disrespectful;

vi. That the Plaintiff is ungrateful;

vii. That the Plaintiff is infuriating;

viii. That the Plaintiff is extremely unpleasant;

ix. By way of false innuendo, that the Plaintiff is a bad neighbour.

16 This poorly pleaded and unparticularised defence must be redrafted, as is noted below.

The plaintiff's objections

17 Many of the plaintiff's objections evaporated when counsel stopped looking at the correspondence and instead considered the issues. I take into account, when considering the adequacy of provision of these particulars, the strident tone adopted in the plaintiff's solicitors' correspondence and indeed in the orders sought in this application. Solicitors should correspond with each other in a courteous fashion, whether or not there is provocation. Some of these issues could have been resolved by a simple telephone conversation between counsel.

18 Having made that general observation (which is also relevant as to the costs order), I set out the particulars in dispute.

Paragraph 8.a(ii)

19 This complaint was resolved during argument by counsel for the defendant confirming that the 5 March 2014 conversation was the occasion of provision of the two competing quotations to the plaintiff.

Paragraph 8.a(iv)

20 The plaintiff points to asserted inconsistencies in the particulars as to when the plaintiff's cheque was stated to have been placed in the defendant's letter box. The defendant says she does not know when the letter was placed in the letter box; she only knows when she received it. Any alleged inconsistency is a matter for cross-examination at the trial, and I decline to order further answers to this particular.

Paragraph 8.a(v)

21 The plaintiff seeks the identity of the person referred to as "the resident of 23 Griffin Court Glebe" to whom the defendant says he spoke (23 Griffin Court is the home unit on the other side of the plaintiff's dwelling). I apprehend that a family of five persons lives there, and the plaintiff says he is entitled to know to whom the defendant says he spoke.

22 This is a request for the name of a witness, which is not generally a proper basis for particulars. The defendant has identified the relevant resident at number 23 who told her about this conversation (as opposed to the persons to whom the plaintiff spoke) as a lady named Mrs Cui Di Yu. That is a sufficient answer.

23 I decline to order further particulars or to strike out this particular.

Paragraph 8.c(i)1

24 This is an objection to the reference to "the alleged Rule 11 of the Road Rules" on the basis of relevance.

25 The defendant has particularised a claim that the plaintiff was parked upon a "driveway". Regulation 198(2) Road Rules 2008 (NSW) provides:

"(2) A driver must not stop on or across a driveway or other way of access for vehicles travelling to or from adjacent land unless:

(a) the driver:

(i) is dropping off, or picking up, passengers, and

(ii) does not leave the vehicle unattended, and

(iii) completes the dropping off, or picking up, of the passengers, and drives on, as soon as possible and, in any case, within 2 minutes after stopping, or

(b) the driver stops in a parking bay and the driver is permitted to stop in the parking bay under these Rules.

Maximum penalty: 20 penalty units."

26 There is nothing to take the plaintiff by surprise or cause embarrassment by the reference to this rule. Whether it succeeds or fails at the trial (the plaintiff claims that this provision does not apply to the driveway in question) is not for me to determine, as it is a matter for the trial judge or the jury. I note there is also a reference to the relevant provisions in the By-Laws that is not challenged.

27 I decline to strike out this particular.

Paragraph 8.c(ii)5

28 The defendant has particularised that the plaintiff had been asked "many times" by the Building Manager and by the defendant not to park in the driveway because it was contrary to the By-Laws. The plaintiff is seeking particulars of each time he had been asked by those persons.

29 The matter complained of identifies occasions that the defendant asked the plaintiff not to park there. If there were additional occasions, these should be individually listed and the substance and (approximate) date provided.

30 The occasions when the plaintiff was spoken to by the Building Manager are not within the defendant's knowledge unless the Building Manager told her about it. If she had any conversations with the Building Manager, she should set out the substance of the conversation and the date.

31 The defendant should provide particulars of any additional conversations with the plaintiff not referred to in the matter complained of, and the dates and substance of her conversations with the Building Manager, in 14 days.

Paragraph 9

32 No objection having been raised to the form and lack of particularisation of these imputations prior to 20 October 2014, I direct that these matters be attended to within 14 days, as offered by the defendant. Given the lack of felicity with which the pleading is drafted, the defendant should pay the costs thrown away by reason of the need to file and serve a further amended defence.

Particulars of people to whom the email was sent

33 The defendant has provided the email addresses to which the email was sent, this being an email list of her neighbours. In the course of argument, it emerged that the defendant had taken this list from an email sent to her by the plaintiff; she had simply pressed the "reply" button and included the text of the matter complained of.

34 There are 13 apartments in this particular development. Apart from the plaintiff, the defendant and Mrs Cui (at number 23), there are only ten other relevant residents. The plaintiff himself has those names in his computer system, and is just as able as the defendant to identify them. The only order I propose to make is to require the defendant to send, to the solicitors for the plaintiff, the email from which she extracted these addresses, as I apprehend that this list of addresses may be of significance in relation to the qualified privilege defence.

Costs

35 The defendant has had a greater degree of success than the plaintiff, and the appropriate order for costs of this argument is for those to be the defendant's costs in the cause.

Orders

(1) The defendant is to file a further amended defence in 14 days particularising and pleading, in proper form, any plea of contextual truth.

(2) The defendant pay any costs thrown away by reason of the filing of the further amended defence.

(3) The defendant is to provide particulars in 14 days as follows:

(a) Each conversation with the plaintiff in which she asked him not to park in their driveway.

(b) The email sent by the plaintiff to the defendant to which she pressed "reply" for the purpose of publishing the matter complained of.

(4) Costs to be defendant's costs in the cause.

(5) Reply filed 14 days thereafter.

(6) Matter stood over to the Defamation List on Friday 28 November 2014.

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Decision last updated: 22 October 2014