District Court New South Wales

• Medium Neutral Citation: Ghosh v Ninemsn Pty Ltd & Ors (No 3) [2013] NSWDC 206
• Hearing dates: 10 October 2013
• Decision date: 10 October 2013
• Before: Gibson DCJ

Decision

See [94]

• Catchwords: TORT - defamation - plaintiff pleads ten claims for defamation - plaintiff not identified in six of the matters complained of - failure to plead particulars of identification for each publication - failure to identify which person(s) identified the plaintiff in each publication and the extrinsic facts enabling those persons to identify the plaintiff - whether plaintiff should be granted a seventh opportunity to amend her pleadings in relation to identification - imputations - whether imputations pleaded are reasonably capable of being conveyed - costs - whether an order for costs payable forthwith should be made where the interlocutory application has taken a lengthy period and the hearing of the proceedings is a long way off
• Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 and 60; Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, and 42.7
• Cases Cited: Aktas v Westpac Banking Corp Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47; Al-Shennag v Woodcock [2013] NSWSC 696; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277; Brasington v Overton Investments Pty Ltd [2001] FCA 571; Burrows v Knightley (1987) 10 NSWLR 651; Cammish v Hughes [2012] EWCA Civ 1655; Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; Dennis v Australian Broadcasting Corp [2008] NSWCA 37; Euromoney Institutional Investor Plc v Aviation News Ltd & Anor [2013] EWHC 1505 (QB); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18; Gardener v Nationwide News Pty Ltd [2007] NSWCA 10; Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63; Ghosh v Ninemsn Pty Ltd & Ors (No 2) [2013] NSWDC 145; Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142; Habib v Nationwide News Pty Ltd [2010] NSWCA 291; Maxwell-Smith v Warren [2007] NSWCA 270; McGrane v Channel 7 Brisbane Pty Ltd [2012] QSC 133; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308; Naxakis v Western General Hospital [1999] HCA 22; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 962; Ritter v Godfrey [1920] 2 KB 47; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; Universal Network Communication Ltd t/as New Tang Dynasty v China Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1; Younan v Nationwide News Pty Ltd [2013] NSWCA 335
• Texts Cited: -
• Category: Interlocutory applications
• Parties: Plaintiff: Dr Ratna Ghosh; First Defendant: Ninemsn Pty Ltd (ACN 077 753 461); Second Defendant: NBN Limited (ACN 000 232 486); Third Defendant: Katie Gregory
• Representation: Plaintiff: In Person; Defendants: Ms L Barnett; Plaintiff: In Person; First Defendant: Johnson Winter & Slattery; Second Defendant: Ashurst Australia; Third Defendant: Banki Haddock Fiora
• File Number(s): 2013/88183
• Publication restriction: None

Judgment

1 The plaintiff seeks leave to file an amended statement of claim in accordance with a document emailed on 20 September 2013 to the defendants. It is the plaintiff's sixth version of this pleading. Previous versions of this statement of claim, which in the previous draft contained 53 causes of action, have been struck out with leave to replead: [2013] NSWDC 63; [2013] NSWDC 145. The relevant background to this application is set out in those judgments.

2 The current draft statement of claim pleads that ten matters complained of (five television broadcasts and five subsequent online publications) were published between the period 13 June 2012 and 5 June 2013. The plaintiff is not named in six of the ten publications pleaded.

3 This judgment sets out the reasons for decision in relation to the 12 orders I made in the course of a day-long hearing at Newcastle District Court on 10 October 2013 in relation to the plaintiff's application for leave to amend. Four of the publications have survived the defendants' summary judgment and strike out applications, and these four publications have been the subject of rulings as to whether each of the imputations is reasonably capable of being conveyed. Further case management in the Defamation List will be necessary to make the matter ready for hearing. I note the defendants propose to requisition a jury.

4 The defendants' objections to the latest proposed draft statement of claim fall into two categories. The first (which relates to the first, second, third, fourth, seventh and eighth publications) consists of objections to the inadequacy and prolixity of the particulars of identification for the six publications where the plaintiff is not named. The second consists of a series of objections to the imputations pleaded to arise. I shall first consider the pleadings in relation to identification of the plaintiff.

Identification issues in the first to fourth and seventh to eighth matters complained of

5 Where a person is not named in the matter complained of, the test to be satisfied may be summarised as follows:

(a) There must be at least one identifiable person with knowledge of specific facts or of the plaintiff who believes that the matter complained of refers specifically to the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373-374. Care must be taken where the unnamed party is a corporation (such as a superannuation company), unless the fact of ownership is notorious (Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [45] - [51]).

(b) This particular knowledge of the plaintiff enabling such persons to make the identification they each assert must be identified and particularised (generally as extrinsic facts of identification) in the statement of claim.

(c) Although the reasoning which results in identification does not need to be clear and precise (Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 at [44]), those who did identify the plaintiff must be ordinary sensible readers.

(d) The plaintiff must establish that those with the relevant knowledge of the plaintiff or of the extrinsic facts both read or saw the matter complained of and honestly identified the plaintiff could reasonably come to that conclusion: Universal Network Communication Ltd t/as New Tang Dynasty v China Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [42]. This means that the imputations pleaded must be enlivened by the particulars of identification in such a way as to identify the plaintiff.Even if there is "overwhelming" contradictory evidence, the case should be left for the jury, as long as there is evidence upon which there could reasonably be a finding of identification: Universal Network Communication Ltd t/as New Tang Dynasty v China Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [44], citing Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [16]) per Gaudron J, see also (at [1]) per Gleeson CJ, (at [40]-[45]) per McHugh J, (at [58], [66]-[68]) per Kirby J, (at [117]-[123]) per Callinan J. (I formally note that the defendants did not submit that the evidence of identification must comply with the different and additional tests set out by Basten JA in Maxwell-Smith v Warren [2007] NSWCA 270 at [45] - [51]).

6 The first problem in each of these publications is that the subject matter was not the circumstances relevant to the plaintiff's property but to "party houses" not only on the Gold Coast but all over Australia, and which have been the subject of a series of broadcasts by "A Current Affair" over a period of some years. This means that if the plaintiff wishes to assert that identification of herself as an owner of a property (or properties) referred to in these broadcasts, she should set out, in respect of each of the matters complained of, particulars of the persons with specific knowledge of the relevant identifying extrinsic facts, and what those facts are. This should have been a straightforward matter for the plaintiff. All she needed to do was to identify, for each publication, the relevant information enabling at least one person to identify her, the basis of that information and who the person(s) identifying her were.

7 The single set of rolled-up particulars that the plaintiff provides for all of these matters complained of are that "extensive video footage of the plaintiff's house is shown" and that "the plaintiff's neighbours are interviewed", which particulars are asserted to have been known to a large number of persons. There is no identification of what that video footage is, or which of the plaintiff's neighbours were interviewed, or how that information came to be in the possession of any of the identification witnesses, or how that identification evidence, when added to the matter complained of, identifies the plaintiff as the person of and concerning whom the imputation(s) in question are conveyed.

8 The next problem is the way in which particulars of those persons who saw one or more broadcast (or downloaded the online version), are not provided for each publication. On pages 2 - 3 of the statement of claim, a list of 35 names of persons is set out, but this list is not broken down for each publication. Nor is it claimed that all of these witnesses saw all programmes and downloaded all online versions. This first list is followed by lists of "groups of viewers", such as "all court staff at Newcastle Court and Southport Magistrates Court"; "all Police Officers in Newcastle"; "all of the plaintiff's patients" (a list of 1,382 names is attached) as well as the number of "hits" onto the "A Current Affair" website, some or all of which persons, the plaintiff appears to be asserting, knew that the plaintiff was the owner of a property shown in "extensive video footage".

9 Four of the matters complained of (the third, fourth, seventh and eighth) are extremely brief, and consist of a voice-over to quick flashes of party scenes in a series of backyard locations, difficult to distinguish from each other. It is impossible, without precise identification (for example, "the property with a black-fenced pool") to know what the "extensive video footage" of the plaintiff's rental property consists of, or how it is identified. The information set out in the particulars refers not to these actual shots, but to "some" viewers seeing a variety of identifying material, such as unspecified earlier programmes containing unspecified footage of the plaintiff's property, information about the plaintiff's house being next to the Marine Aquarium Shop from 2005 - 10 (particular [3](i)), the names of the plaintiff's neighbours and the fact that the plaintiff is a "Newcastle" owner (although Newcastle is not referred to in the text of any of these six broadcasts).

10 The defendants, in their written submissions in relation to earlier drafts of the statement of claim, could not have made their position clearer. As counsel for the defendants points out in her latest outline of submissions (at paragraph 9), the defendants seek a pleading where the plaintiff identifies the persons who identified the plaintiff (and how they did so) for each publication, so that they know the case they have to meet at trial.

11 An additional complicating factor is that many of the imputations pleaded for each of these publications are either not conveyed at all, or are so defective in form that they must be repleaded.

12 The manner in which the particulars of identification are pleaded for the publications as a whole would require the striking out of the particulars, on this basis alone. There are additional problems in relation to each of the matters complained of, which the defendants submit militate against the granting of further leave to replead.

The first and second publications: "Party Houses", A Current Affair, 13 June 2012

13 These identical publications (the first a broadcast, on 13 June 2012, the second online publication of the broadcast) show a series of quick shots of naked persons partying in different backyards, pools and homes.

14 The imputations pleaded for the first and second publications are as follows:

2A. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house from hell" during the entirety of weekends, every weekend, continuously for 48 hours, for many years, "terrorising and scaring neighbours," and causing theft in neighbours houses and fist fights outside their houses.

2B. The plaintiff, as a home owner in the business of letting her house for rental, was selfishly indifferent to the interests of her neighbours.

2C. The plaintiff circumvented the law in letting her house in "a very quiet residential / suburban neighbourhood where only families were allowed".

2D. The plaintiff was selfishly indifferent to community concerns.

2E. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate and unlawful letting of her house for "Bucks Parties" every weekend in a "Very quiet, residential, suburban neighbourhood on the exclusive Isle of Capri".

2F. The plaintiff was subjecting elderly neighbours to abuse.

2G. The plaintiff was running a nightclub nextdoor to neighbours in a very quiet, residential street.

2H. The plaintiff was subjecting neighbours to dangerous behaviour.

2I. The plaintiff was subjecting neighbours to nonstop loud music, adult behaviour and nudity right in their faces daily and continuously for 24 hours in a nonstop party nightmare.

2J. The plaintiff was depriving neighbours of a normal, suburban, happy, quiet, residential life.

2K. The plaintiff circumvented the law in "operating a business in a quiet, residential street".

2L. The plaintiff was trashing and devaluing neighbours' houses, so they could not even sell their houses, as the plaintiff gave the whole neighbourhood a notoriously bad name.

2M. The plaintiff, as a home owner in the business of letting her house for rental, was "The only rogue operator" of the over 14000 holiday rental properties on the Gold Coast, and was the sole operator that was responsible for ruining the reputation of and destroying the entire holiday rental industry on the Gold Coast and all across Australia.

2N. The plaintiff was subjecting elderly neighbours to "unfairness and frustration" by "non stop music and adult behaviour in their faces daily".

15 The defendants have helpfully summarised particulars of identification as follows:

Viewers

The viewers listed under the heading "Particulars of Viewers" on pp2-3;

"All of the plaintiff's patients" (as per the attached list).

Extrinsic facts

1. Extensive video footage of the plaintiff's house is shown ([1](A));

2. The plaintiff's neighbours are interviewed ([1](B));

3. Some viewers has seen most of the "Naked Neighbours" and "Party House" "Campaign" on "A Current Affair", but were unaware that the plaintiff was the owner until she was "named and shamed: by face on "Party House Court" on 5 June 2013 (p3, under item 35 in the section entitled "Particulars of viewers");

4. The plaintiff's house is situated at 15 Bundall Road, Surfers Paradise ([3](i));

5. The plaintiff's house is next door to a retail shop "Marine Aquarium Shop" run by the owner of 17 Bundall Road, Mr John Bee and Mr Michael Ryan, from at least 2005 to 2010 ([3](i));

6. The plaintiff let her house out for rental ([3](ii)(a));

7. The plaintiff was a "Newcastle owner" ([3](ii)(a));

8. The plaintiff's neighbours were Brian and Jeanette Climpson of 13 Bundall Road, Marilyn and John Bee and Michael Ryan of 17 Bundall Road and Adam and Karen Schuch of 67 Rapallo Avenue, Surfers Paradise ([3](ii)(b));

9. The house was identified by "them" by video of the house shown repeatedly on "A Current Affair" ([3](c)).

16 I shall illustrate the problem by examining imputation (a). Imputation (a) refers to "the party house from hell" which was "terrorising and scaring neighbours" the neighbours. The inverted commas indicate a quote directly from the matter complained of, although these quotations do not appear in the matter complained of at all. This suggests that the plaintiff intends to add on material which is not in the matter complained of, but which comes from other (unspecified) sources, on the basis that some viewers saw those other broadcasts or online publications, and thus were able to identify the plaintiff as a result.

17 Leaving aside the undesirability of an imputation simply using the words of the matter complained of, the words in inverted commas do not appear in the matter complained of. The neighbours whose statements support this particular imputation are conceded by the plaintiff to be other neighbours, speaking about other "party houses". The circumstances in which the plaintiff claims her particular Gold Coast neighbours are known to, for example, her Newcastle patients, are not explained. Although the particulars of identification refer to the plaintiff as being identified as a "Newcastle owner", this phrase does not appear in the matter complained of.

18 Similarly, imputations 2B and 2D, which assert selfish indifference of the plaintiff both to her neighbours and to the community, fail to identify the portions of the matter complained of where the plaintiff is identified as being guilty of this conduct. Imputation 2E, which uses the alternative formulation of being callous, includes an extensive quotation about the Isle of Capri which does not appear in these publications at all.

19 Imputation 2C was explained by Dr Ghosh to mean that she was accused of breaking the law. Leaving aside whether or not this is a correct definition of "circumvented", the clear message in these publications is that this conduct is currently within the law, but ought not to be, and no particulars of identification could overcome this problem.

20 Imputation 2M, that the plaintiff was "the only rogue operator" of the over 14,000 Gold Coast holiday rental property and was the sole operator responsible for destroying the entire Gold Coast holiday industry, not only contains quotations which are not in the matter complained of but puts forward a meaning wholly inconsistent with the tenor of the publication, which is that the "very lucrative short term holiday rental and party house situation right across Australia" is sufficiently a problem to require legislation in Queensland and commentary from the Queensland Premier, Mr Newman.

21 Imputation 2G (that the plaintiff was running a nightclub) is pitched too high, and is not reasonably capable of being conveyed. No particulars of identification are provided which could support this imputation.

22 An imputation of subjecting elderly neighbours to abuse (2F and 2N) might be capable of being conveyed, if the persons who saw the broadcast were able to identify one or more of the neighbours who are interviewed as being the neighbours of the plaintiff's house. The person who speaks these words, Margaret Rossi, is the journalist who is summarising the information she has obtained in the course of what is portrayed as an Australia-wide problem. However, the particulars to enable such identification are not pleaded (or alternatively are buried so deep in the maze of identification particulars that their nature is difficult to determine). The plaintiff has told the court that some of those interviewed at the commencement of the broadcast are neighbours in the houses adjoining her property, but their comments about these events, and the imputations which accordingly arise, need to be set out with the appropriate particulars of the persons who knew that these people were the plaintiff's neighbours, and/or that the footage shown in relation to those matters is footage of the plaintiff's house.

23 In addition, the plaintiff pleads a second set of imputations which are common to all publications (set out below under the heading "Imputations pleaded as 'common to all matters pleaded'"). These cannot be imputations arising from having seen all of the broadcasts and downloading all of the online publications because the nature of these publications does not fall within the limited circumstances in which such pleadings are permitted (Burrows v Knightley (1987) 10 NSWLR 651). In any event, many of these imputations do not differ in substance from the imputations already pleaded. The plaintiff told me they were intended as a summary of her case. They appear to have been copied from her 2010 Queensland Supreme Court proceedings. No particulars of identification are provided for this additional set of imputations.

The third and fourth publications: "Over the fence and out of control", A Current Affair, 5 March 2013

24 The imputations pleaded are:

8A. The plaintiff, as a home owner in the business of letting her house for rental, was irresponsible in its letting to "outrageous tenants making life a misery for decent neighbours" twenty four hours a day.

8B. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house from hell" during the entirety of weekends, every weekend, continuously for 48 hours, for four years, "terrorising and scaring neighbours," especially the 89 year old, Jeanette Climpson, "who lived all alone" next door at 13 Bundall Road.

8C. The plaintiff, as a home owner in the business of letting her house for rental, wasselfishly indifferent to the interests of her neighbours.

8D. The plaintiff circumvented the law in letting her house in "a very quiet residential / suburban neighbourhood on the Isle of Capri where only families were allowed".

8E. The plaintiff made false and ridiculous allegations about the neighbours in a Queensland Court (committed Perjury) in malicious retribution for their honest complaints about the plaintiff's house.

8F. The plaintiff was selfishly indifferent to community concerns.

8G. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate letting of her house as a "Party House" for "24 hour Bucks Parties," making life a misery for pensioner neighbours.

8H. The plaintiff and her tenants were delusional in thinking they were "above the law," when they were constantly breaking the law.

8I. The plaintiff, as a home owner in the business of letting her house for rental, was responsible for "disgraceful, out of control behaviour" that was "over the fence line," into the neighbours' properties.

25 The same particulars of identification are provided as for the first and second matters complained of.

26 The plaintiff's case in relation to the third and fourth publication is even weaker. The plaintiff's house is one of a series of property stills or short flashes shown in this 25-second advertisement for "A Current Affair". The plaintiff's summary of the matter complained of sets out its contents as three sentences concerning "outrageous tenants making life a misery for retirees and their families", and there is no reference to the property owners, or to their alleged wrongdoing, at all.

27 It is unclear whether this advertisement was in fact available online (the fourth publication). The absence of an online site reference, or particulars of the persons who downloaded this advertisement, are additional problems.

The seventh and eighth publications: "Party Houses a Big Pain on Gold Coast", A Current Affair, 22 March 2013

28 The imputations pleaded are:

20A. The plaintiff, as a home owner in the business of letting her house for rental, was irresponsible in its letting.

20B. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house" during the entirety of weekends, every weekend, continuously for 48 hours, for four years.

20C. The plaintiff, as a home owner in the business of letting her house for rental, was selfishly indifferent to the interests of her neighbours.

20D. The plaintiff circumvented the law in letting her house in "a very quiet residential / suburban neighbourhood on the Isle of Capri where only families were allowed".

20E. The plaintiff was selfishly indifferent to community concerns.

20F. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate letting of her house as a "Party House" for "every weekend for four long years".

29 The viewers of the programme are identified under the same heading ("Specific viewers" in the "Particulars of viewers" on pages 2-3 of the draft statement of claim) and the same extrinsic facts are identified as for the other matters complained of referred to above.

30 These publications consist of a news item on NBN news on 22 March 2013 and its availability, since that time, on the Ninemsn website. The matter complained of describes complaints by the Member for Mermaid Beach, Mr Ray Stevens, that Council is "stalling on a crackdown" and on the need for change under the Planning Scheme. The countervailing opinion of the Mayor's office, namely that they had emailed proposed legislation changes to the State Government for legislation changes and that the ball is in their court, is then stated. There is no reference to the owners of any properties. Footage is shown very briefly of partying guests in properties, which footage the plaintiff tells me, from the bar table, includes shots of her property's backyard.

31 From this short news item, despite the absence of any reference to homeowners letting these properties, the plaintiff has distilled a series of imputations in the same form as the first and second matters complained of, namely that the plaintiff was selfishly indifferent, callous, and "circumventing the law in letting her house "in a very quiet residential/suburban neighbourhood on the Isle of Capri where only families were allowed" (imputation 20D). As is the case with the other portions of imputations in quotations in relation to this publication, none of these words appear in the matter complained of.

32 None of the particulars of identification could give rise to imputations of this kind.

Conclusions concerning the failure to provide proper particulars of identification

33 Counsel for the defendants concedes, and I agree, that courts will only strike out an action for defamation due to failure to provide proper particulars in the clearest of cases. She submits that this is such a case.

34 The particulars self-evidently confusing and prolix. This problem could normally be overcome by granting leave to amend, but counsel for the defendants reminds me that this is the plaintiff's sixth draft pleading in a motion that has been before the court for six months. The defendants still have no idea of the case they have to meet, and have been left to guess both the nature and extent of the case as pleaded.

35 In extreme cases, where a party repeatedly fails to plead and particularise a case in accordance with court orders, the result may be loss of the action in its entirety. In McGrane v Channel 7 Brisbane Pty Ltd [2012] QSC 133 at [50] - [54], Daubney J struck out the entire proceedings, in circumstances where there had been less delay than the present, stating:

"[50] I am very conscious of the well established proposition that the "exercise of power to summarily terminate proceedings must always be attended with caution".

[51] It is also necessary for me to consider the interests of defendants, who are impelled to incur costs as a consequence of the commencement and service of proceedings, and the interests of the court which, as a public institution, must ensure that its necessarily limited resources are utilised efficiently and in accordance with the underlying philosophy expressed in UCPR r 5.

[52] This plaintiff has had numerous opportunities to present an intelligible case. He has failed to do so. Indeed, his claim has gone from being ludicrous to ridiculous.

[53] In my opinion, the plaintiff has squandered his opportunities to present a proper, comprehensible claim. I see no reason why the defendant should be put to further cost or why the court should be expected to devote further resources to this matter."

36 The defendants have asked me to take this step in these proceedings as well, and have drawn my attention both to the principles enunciated by Daubney J and to recent similar decisions in New South Wales, including Al-Shennag v Woodcock [2013] NSWSC 696, where McCallum J, in the course of striking out the plaintiff's proceedings, noted at [16] that there had been no evidence at the s 7A trial that the matter complained of had been published to anyone with knowledge of the extrinsic facts. Her Honour's concern was that the costs of the litigation would be disproportionate to the damages awarded (at [111]). Her Honour went on to conclude:

"[110] The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties.

[111] In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act."

37 Both these cases involved litigants in person, who are afforded a degree of assistance and flexibility to enable them to prepare and present their case. Counsel for the defendant reminds me that determining these issues has required not only a series of hearings over the past six months, but analysis of hundreds of pages of pleadings and particulars over that period and a series of hearings to ventilate the issues, without the plaintiff getting any closer to the issues.

38 There can be little doubt as to the course which would be taken if a legal practitioner made multiple amendment applications of this kind. In Dennis v Australian Broadcasting Corp [2008] NSWCA 37 at [24], [34] and [35], and again in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308, the NSW Court of Appeal warned that there was a limit to the number of times that a party should be permitted to amend defamation proceedings. Counsel for the defendants submits that the plaintiff was given a final opportunity to amend her statement of claim after a series of poorly drafted claim. She has squandered that opportunity, and her whole claim should be struck out.

39 Where a plaintiff is not named in the matter complained of, and doubt remains concerning whether the plaintiff is identified (Al-Shennag v Woodcock, supra, at [16] per McCallum J) there must be concern as to whether the litigation in question is proportionate in accordance with the principles set out in s 60 Civil Procedure Act 2005 (NSW) (Al-Shennag v Woodcock, supra, at [111]). There have been examples in England where determination that the action had become an abuse of process is against a background where rulings on meaning are given, as it may be possible to show that the proceedings would not achieve anything of practical utility for the claimant: Cammish v Hughes [2012] EWCA Civ 1655 at [60]; Euromoney Institutional Investor Plc v Aviation News Ltd & Anor [2013] EWHC 1505 (QB) at [142]-[144]. Those cases must be viewed with caution because Article 10 European Convention of Human Rights requirements have no place in Australian defamation law. However, while it has traditionally been the case that a plaintiff need only establish that one person saw, heard or read the matter complained of, decisions such as Al-Shennag v Woodcock, supra, show the increasing concern of the courts to take into account principles of proportionality, particularly having regard to the capped nature of general damages for defamation.

40 In Younan v Nationwide News Pty Ltd [2013] NSWCA 335 ("Younan"), the Court of Appeal notes that a plaintiff must establish that "at least some readers of the article" (at [15]) were aware of the particularised extrinsic facts and, in addition, that those persons were "ordinary sensible readers" who could reasonably have come to that conclusion (at [17]), citing Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348.

41 The factual circumstances in Younan were in some way similar to the present, in that the question of ownership of a particular property was the issue. However, Younan differs from the present case in three significant respects. The first is that the matter complained of in Younan related to one property, a boarding house, which had been the subject of extensive publicity following residents' deaths. The new owners were not named in the matter complained of, and the trial judge had wrongly accepted the argument that those who did know of their identity would also have known sufficient factual information to be aware that they had not been the owners of the time, this being the basis upon which identification was held not to have been established for one of the plaintiffs in Warren v Maxwell-Smith.

42 In the present case, the identification is much weaker because it involves more than one property in more than one location, and the identification of the property consists essentially of pool party footage. The plaintiff has failed to specify with any clarity how she was identified (for example, by recognition of her swimming pool by persons who had visited the property and knew it was owned by her). This is particularly a problem for the second and third publications, where only brief flashing scenes of partygoers are shown, in the context of what is described as a geographically widespread problem.

43 The second problem is that the plaintiff in Younan put forward alternative formulations of particulars of identification which the Court of Appeal considered capable of surviving the relatively low bar required of an identifying reader or viewer (at [25]).

44 Thirdly, the imputations pleaded related that factor of identification into imputations capable of being conveyed. That is not the case here. On these three bases, Younan can be distinguished.

45 It might be said that, somewhere in the particulars, there must be one person who could be taken to have seen one or more of the matters complained of and identified the plaintiff. Is it enough for one person to identify the plaintiff? That used to be the situation where s 7A jury trials determined all issues relevant to publication, including defamation. However, doubt was cast on this practice by Maxwell-Smith v Warren [2007] NSWCA 270, where witnesses gave evidence both at the s 7A hearing and separate trial that they identified one or both of the plaintiffs who commenced proceedings for a defamatory book of cartoons about the conduct of a case by unnamed lawyers. The defendants, who had lost that litigation, created a cartoon book of the case which they sold door-to-door in the small country towns where the plaintiffs were in business as a firm of solicitors. Identification evidence included another solicitor who purchased the book, the wife of one of the plaintiffs (who saw the book for sale at a weekend fair) and friends of both plaintiffs who were offered the book for sale or saw it for sale.

46 Basten JA rejected these witnesses' identifications of each of the plaintiffs as insufficient; although it amounted to identification of the respective plaintiffs as individuals, "it may be doubted whether such extrinsic facts would have been widely known, even in a small community" (at [45]) and amounted to identification of the law firm rather than the individual plaintiffs. Although Younan v Nationwide News Pty Ltd does not refer to Maxwell-Smith v Warren, the Court's discussion of the principles for establishing identification does not suggest the existence of any such additional requirement.

47 Accordingly, if the plaintiff had been able to set out in her particulars that a named person watched or downloaded any of these publications, and identified the plaintiff by reason of some reasonably based specific piece of information, that would have been sufficient. Unfortunately, this has not been done. It is necessary to set these apparently conflicting decisions out in some detail because Younan v Nationwide News Pty Ltd was handed down the day after I made rulings in these proceedings. As it happened, the defendants in these proceedings addressed me in accordance with the accepted principles espoused in Younan, as opposed to the additional requirements set out in Maxwell-Smith v Warren.

48 The plaintiff's continued failure to plead and particularise her case in clear and simple language is difficult to comprehend. It is as if she wishes to cloak these particulars in secrecy so that she can elect how to plead identification at the trial. The defendants' legal practitioners have gone out of their way to assist the plaintiff by providing clear submissions and by meeting the requests of the plaintiff for copies of the matters complained of and by meeting her requests for further time to amend, including the request that this latest application be heard in Newcastle to suit the plaintiff's convenience, although defamation proceedings should in fact be case-managed in the Sydney registry. This is not a case where the opposing party should bear any of the blame for the repeated delays in preparation and presentation of the plaintiff's pleadings, which is of significance since the defendants now submit that they plaintiff should not be given a further opportunity to replead identification.

49 The plaintiff has explained to me her wish to represent herself, and to plead her case as she sees fit. Having heard her submissions, I am of the view that there is no likelihood that fresh pleadings will cure the defects I have outlined above, for the same reasons as those expressed by McCallum J in Al-Shennag v Woodcock, supra, at [110].

50 It was for these reasons that I struck out the first to fourth and seventh to eighth claims in the course of the hearing on 10 October 2013.

51 Having set out my findings in relation to these claims, I next consider the issues of form and capacity of the imputations in the remaining four publications, namely the fifth, sixth, ninth and tenth matters complained of.

The fifth and sixth matters complained of: "Party House Misery", A Current Affair, 5 March 2013

52 The plaintiff is named in the fifth and sixth matters complained of, which consist of the television programme and online publications. No objection to the particulars of identification arise and no extrinsic facts are pleaded.

53 The imputations pleaded are as follows:

14A. The plaintiff, as a "Newcastle" home owner in the business of letting her house for rental, was irresponsible in its letting, in deliberately booking continuous twenty four hour "Bucks Parties" every weekend for four long years.

14B. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house" during the entirety of weekends, every weekend, continuously for 48 hours, for four years, "terrorising and scaring neighbours," especially the 89 year old, Jeanette Climpson, "who lived all alone" next door at 13 Bundall Road.

14C. The plaintiff, as a home owner in the business of letting her house for rental, was selfishly indifferent to the interests of her neighbours, who had become "prisoners in their own homes".

14D. The plaintiff circumvented the law in letting her house in "a very quiet residential / suburban neighbourhood on the Isle of Capri where only families were allowed".

14E. The plaintiff made false and ridiculous allegations about the neighbours in a Queensland Court (committed Perjury) in malicious retribution for their honest complaints about the plaintiff's house.

14F. The plaintiff was selfishly indifferent to community concerns, and had insulted the exclusive community where parties were not allowed by law.

14G. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate letting of her house as a "Party House" for "Bucks Parties" "every weekend for four long years".

14H. The plaintiff was knowingly permitting criminal behaviour to continue in her house, although police were called multiple times.

14I. The plaintiff defied the law by booking "Bucks Parties" in her house every weekend, even after new "noise laws" were passed by the Queensland Government.

14J. The plaintiff had shown disrespect to elderly neighbours.

14K. The plaintiff was guilty of "inviting everyone" to her house, not screening tenants for suitable behaviour.

14L. The plaintiff was ruining and devaluing neighbours houses.

14M. The plaintiff was allowing her tenants to "trash the homes" of her neighbours, while the plaintiff falsely accused neighbours of "trashing her home" in Court.

14N. The plaintiff had turned a "quiet and peaceful neighbourhood" into a "nonstop party nightmare," to "torment and terrorise neighbours" with constant full nudity and criminal behaviour in "full view of neighbours, right in their faces".

14O. The plaintiff was responsible for sleep deprivation, anger and mental illness to her neighbours.

14P. The plaintiff was inconsiderate to neighbours and circumvented the law in allowing "near naked women" and "drunk men" "in full view of the neighbours" in the pool area and inside her house.

54 The same imputations are pleaded (at paragraphs numbered 17A - 17P) for the online publication. For convenience, I will deal with the imputations in groups.

55 The principles upon which form and capacity must be determined are set out in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 as clarified, in relation to the uniform legislation by the NSW Court of Appeal. The test for a capacity argument is a low one, and courts should be reluctant to strike out an imputation other than in a clear case: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 18. That is particularly the case where the matter complained of is a television broadcast, where the transient nature and fleeting images of the broadcast may be more likely to be conveyed, especially if the subject matter is sensational (such as the depiction of near-naked partygoers).

Imputations 14A, 14C, 14H

56 For the reasons I gave in the course of the hearing, I am satisfied that imputations that the plaintiff was irresponsible, as well as selfishly indifferent to the concerns of her neighbours as well as to the community, are conveyed. These imputations will go to the jury.

Imputations 14B, 14G, 14K,14N

57 Each of these imputations restates, with little variation, the same material as imputations 14A and/or 14C. Imputations 14B and 14N each suffer from the additional problem that they are "rolled up" and convey more than one imputation, namely the contents of imputations 14A and 14C. These imputations are accordingly struck out.

Imputations 14L and 14O

58 These imputations are struck out with leave to replead, for reasons of form. Imputation 14L should specify the conduct which amounted to ruining and devaluing neighbours' houses. Imputation 14O should identify the basis upon which the plaintiff's conduct is irresponsible.

Imputations 14D, 14E, 14F, 14I, 14J, 14M

59 I have found that each of these imputations is not conveyed.

60 Imputation 14D, 14F and 14P suffer from the same defect, namely that the plaintiff circumvented (which the plaintiff told me she intended to mean "broke") the law by letting her house at all (14D) and inconsiderately to neighbours let it to near-naked women and drunk men. Imputation 14F specifically states that the plaintiff had insulted "the exclusive community where parties were not allowed by law".

61 Nothing could be clearer, from the matter complained of, than that the letting of these premises is perfectly legal: "there's no law stopping these holiday rentals" (page 2 of Exhibit C). The complaint of the broadcast is that the law should be changed so as to prevent short-term lettings of this kind. In those circumstances, imputations of breaking (or circumventing) the law cannot be conveyed. Similarly, imputation 14I, which asserts that the plaintiff "defied the law" by booking these noisy parties every weekend, cannot be conveyed.

62 Imputation 14E asserts that the plaintiff committed perjury in malicious retribution against her neighbours' honest complaints. There are two references to a court case in the matter complained. The first refers to the neighbours being "dragged through court by the owner of this house" following which the parties "seemed to die down a bit". The second refers to the "Newcastle owner" "has fired back, taking many in the street to court" in "retaliation to years of neighbour complaints" (page 4 of Exhibit C). An imputation of perjury and malicious retribution is pitched too high and is therefore not conveyed. For similar reasons, imputation 14M is not conveyed. There is no basis for asserting that the plaintiff was knowingly allowing her tenants to trash the homes of her neighbours.

63 Imputation 14J asserts that the plaintiff had shown disrespect to elderly neighbours. The matter complained of describes the drunken tenants as terrorising the neighbours, including the elderly, but does not ascribe this conduct to the plaintiff personally. This imputation is not conveyed.

64 The plaintiff has been granted leave to replead accordingly.

65 I make the same orders mutatis mutandis for the sixth matter complained of.

The ninth and tenth matters complained of: "Party House Court", A Current Affair, 5 June 2013

66 The imputations pleaded by the plaintiff are as follows:

26A. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house from hell" during the entirety of weekends, every weekend, continuously for 48 hours, for many years, "terrorising" and scaring neighbours.

26B. The plaintiff was selfishly indifferent to community concerns.

26C. The plaintiff as a home owner in the business of letting her house for rental, was circumventing the law in running a commercial business in a purely residential area, on a very quiet street.

26D. The plaintiff, as a home owner in the business of letting her house for rental, was irresponsible in its letting.

26E. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate and unlawful letting of her house for "Bucks Parties" every weekend in a "Very quiet, residential, suburban neighbourhood where only families were allowed" but the plaintiff was not advertising or renting out to families.

26F. The plaintiff made false and ridiculous allegations about the neighbours in both Queensland and NSW Courts (committed Perjury) in malicious retribution for their honest complaints about the plaintiff's house.

26G. The plaintiff and the entire legal and court system in Australia were all guilty for letting the innocent victim neighbours be subject to a court trial.

26H. The plaintiff was callous in subjecting neighbours to nonstop loud music, adult behaviour and nudity right in their faces daily and continuously for 24 hours in a nonstop party nightmare.

26I. The plaintiff was a constant, vexatious litigator harassing her law abiding neighbours with multiple identical court cases across different states until she manipulated and forced the verdict she wanted.

26J. The plaintiff was the real criminal, and committed a crime by photographing the third defendant outside the Newcastle Court House, and was charged by two security officers as a criminal and caught on camera by the third defendant as proof.

26K. The plaintiff falsely alleged she was a victim, when the neighbours are the real victims.

26L. The plaintiff was a lunatic, mentally deranged woman, answering the third defendant's honest, fair, unbiased and factual questions with incoherent and irrelevant "bizarre rants".

26M. The plaintiff circumvented the law by running a nightclub nextdoor to neighbours in a very quiet, residential street.

26N. The plaintiff was cowardly in "hiding in court for forty minutes" to escape commenting on the false allegations she had made about her victim neighbours in Court.

26O. The plaintiff had escalated what should have been a "backyard battle" to court action, in an abuse and manipulation of the court system.

26P. The plaintiff's was inconsiderate in not allowing her neighbours to extract a "pound of flesh" from the plaintiff's body, in an honest "backyard battle" for all the "abuse" and false allegations she had put them through.

26Q. The plaintiff was not entitled to justice, law and order or even court action as the plaintiff was a constant vexatious litigator and a lunatic.

26R. The plaintiff was initially telling lies to hide evidence of constant 24 hour "Bucks Parties" at her house, but changed her story to a "bizarre rant" when confronted with proper video evidence.

26S. The plaintiff was a cruel, evil, selfishly indifferent doctor and human being, callous in the greedy pursuit of profit.

26T. The plaintiff could not be a good doctor, as she was incoherent, and crazy, speaking in "a bizarre rant".

26U. The plaintiff had given her house a notoriously bad reputation, by deliberately advertising and letting the house for "Bucks Parties" and not for "families".

26V. Retail shops and businesses were allowed in the white neighbours houses (in the same zoning) but a holiday rental was not allowed in the black plaintiff's house.

26W. The plaintiff could not be a good doctor, as she was fraudulently using a disabled driver's permit.

26X. The plaintiff was knowingly permitting criminal behaviour to continue in her house, although police were called multiple times.

26Y. The plaintiff was a lunatic, with a ridiculously long list of innocent victim defendants.

26Z. The plaintiff was inconsiderate in not obeying her neighbours commands that her tenants were not allowed to use her pool area semi-naked as in every other pool in Australia, but would have to be fully dressed in the pool area as well as inside the plaintiff's house, as the plaintiff's tenants were not entitled to any privacy, as the neighbours could film them naked inside the house and Channel Nine would show these videos repeatedly on primetime national television, and post them on the world wide web.

67 I shall set out these imputations in groups.

Imputations 26B, 26D, 26H, 26I, 26K, 26N, 26R, 26X

68 For the reasons given in the course of the hearing before me, these imputations are reasonably capable of being conveyed and will go to the jury. The inverted commas must be deleted from imputation 26N.

Imputations 26C, 26E, 26F, 26G, 26M, 26P, 26Q, 26S, 26T, 26V, 26W, 26Y, 26Z

69 Imputations 26C, 26E, 26M and 26V all refer to the letting of the house as having been done unlawfully. As is the case with the other publications, the matter complained of does not assert that the letting is unlawful; it asserts that the law should be changed. In addition, imputation 26E does not differ in substance from imputation 26B.

70 Imputation 26F asserts perjury by the plaintiff in malicious retribution for her neighbours' honest complaints. There is no allegation of perjury. The imputation is that her neighbours are sick and tired of her taking them to court.

71 Imputation 26P, that the plaintiff is inconsiderate in not allowing her neighbours to extract a "pound of flesh", does not arise because this imputation is not conveyed by the matter complained of. This is one of a series of imputations which the plaintiff claimed could arise from material on the website. I could not find that material but, even if I had been able to, it would not be available to plead in relation to the broadcast. Whether it is available in relation to the online publication will depend upon whether the plaintiff brings a strike-in application to add these comments.

72 Imputation 26Q, that the plaintiff was not entitled to justice because she was a constant vexatious litigator and a lunatic, is rolled up, and the imputation that she is a lunatic is not conveyed. The same is the case for imputation 26Y. Imputation 26 T correctly refers to the fact that the matter complained of asserted that the plaintiff made "a bizarre rant", but an imputation that she could not be a good doctor is not, without more, conveyed.

73 Imputation 26S and imputation 26Z contain multiple rolled-up meanings. Imputation 26Z is incomprehensible. Both these imputations are accordingly struck out.

The remaining imputations

74 Imputations 26A, 26J and 26L are struck out with leave to replead, for the reasons that are set out in the relevant orders set out below. Imputation 26O does not differ in substance from imputation 26I and imputation 26U is struck out as not differing in substance from imputation 26D.

75 The same rulings are made mutatis mutandis for the tenth matter complained of, which is the online version of the broadcast. If the plaintiff wishes to rely upon additional imputations being conveyed in the tenth matter complained of by reason of viewer comments, those viewer comments must be the subject of a "strike in" application. I have granted her leave to do this in order 7. In addition, for all online publications, the plaintiff must provide the appropriate details of online publication addresses.

Imputations pleaded as 'common to all matters pleaded'

76 The plaintiff pleaded the following imputations to as arising from each matter complained of:

3A. The plaintiff, as a home owner in the business of letting her house for rental, was inconsiderate in permitting loud music, swearing, screaming, tenant aggression and nudity to take place at her "Party house from hell" during the entirety of weekends, every weekend, continuously for 48 hours, for many years, "terrorising" and scaring neighbours.

3B. The plaintiff was selfishly indifferent to community concerns.

3C. The plaintiff as a home owner in the business of letting her house for rental, was circumventing the law in running a commercial business in a purely residential area, on a very quiet street.

3D. The plaintiff, as a home owner in the business of letting her house for rental, was irresponsible in its letting.

3E. The plaintiff was callous in that she had little or no regard for local people in the interest of maximising profit from the deliberate and unlawful letting of her house for "Bucks Parties" every weekend in a "Very quiet, residential, suburban neighbourhood where only families were allowed" but the plaintiff was not advertising or renting out to families.

3F. The plaintiff made false and ridiculous allegations about the neighbours in both Queensland and NSW Courts (committed Perjury) in malicious retribution for their honest complaints about the plaintiff's house.

77 For the reasons set out at above, and in accordance with the principles set out in Burrows v Knightley, supra, the plaintiff is not entitled to plead an additional set of imputations for each of the matters complained of, or as arising from the whole series of matters complained of. These imputations are struck out.

Application to strike out portions of the pleadings pursuant to UCPR r 14.28

78 The draft statement of claim contains material which is irrelevant and/or unrelated to the publication of the matters complained of. I have struck out a series of paragraphs and set out briefly my reasons for doing so below.

(a) The second sentence of paragraph 1: "The plaintiff's house is repeatedly shown in video footage of an old November 2011 video and referred to as a "party house and business in a residential area.""

79 All particulars of identification should have been placed in one section, not in different parts of the statement of claim. As I have struck out the claims for which particulars of identification are required, this sentence is now surplusage.

(b) All particulars of identification, including: (a) Particulars on page 1; (b) The particulars of viewers on page 2 from the heading "specific viewers" to "10,000 viewers" (page 3); (c) Particulars of extrinsic facts on pages 5-7, as well as the "summary of imputations common to all matters pleaded" on page 7.

80 See [79] above.

(c) The second sentence on page 8, commencing "the plaintiff's house"

81 See [79] above.

(d) The reference to the number of viewers on the A Current Affair website on page 10.

82 Particulars of the number of viewers on this website generally are irrelevant to the issue of the number of persons who viewed the matter complained of. Any relevance they have to damages is an issue for the trial, not for inclusion in the statement of claim.

(e) The sentence on page 13 commencing "the programme stated" and the reference on page 14 to the number of viewers of A Current Affair.

83 See [84] above.

(f) The contents of paragraph 27, which may be repleaded.

84 This is one of a series of paragraphs relevant to financial loss. This must be pleaded with specific reference to actual financial loss and should not include references to statements made to the plaintiff in the street, claims for breach of privacy or references to her son.

(g) The reference to the "unauthorised video of the plaintiff" from the words "it includes... disabled driver's permit", and the similar passages on page 26 of the current version of the statement of claim (and page 20, paragraph 25) and page 26 (paragraph 30)."

85 See [86] above.

Defendants' application for costs to be payable forthwith

86 Costs of a motion await the final judgment of all issues between the parties: UCPR Pt 42 r 42.7. There is a presumption against the making of an order for costs payable forthwith. Costs issues are generally resolved at the end of the litigation, when the rights of the parties can best be determined: Brasington v Overton Investments Pty Ltd [2001] FCA 571 at [13] per Emmett J (concerning Federal Court Rules O 62 r 3).

87 This is also the case in defamation proceedings: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 962 at [22] - [24] per McCallum J. (See also Gatley on Libel and Slander, 10th edition, at [35.15], citing Ritter v Godfrey [1920] 2 KB 47 at 53 per Lord Sterndale MR). McCallum J identified three factors warranting an order for payment of costs forthwith: the completion of a part of the litigation (in those proceedings, the abandonment of a breach of confidence claim), the conduct of the case, and the fact that there is "much to come" in proceedings which will take a long time to be finally disposed of (at [23]).

88 These policy considerations and issues have been comprehensively reviewed by the NSW Court of Appeal in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 142, where a plaintiff who succeeded on a justification defence (but lost the action) was nevertheless refused the substantial costs ($300,000) of successfully defeating the justification defence at the trial.

89 In Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277, the Court of Appeal noted the circumstances in which costs payable forthwith orders were made both before and after the Civil Procedure Act (at [29] - [37]). The court noted that prima facie, such an order was appropriate, and went on to consider whether the trial judge had properly taken into account the relevant discretionary issues. One of those, I note, is the relevance of the financial situation of a party (although in those circumstances the party in parlous circumstances was the party seeking the order), a factor the plaintiff raised with me. Although the Court of Appeal appears to have considered that this was not a relevant factor, it would be reasonable for any court to take into account that an order for costs payable forthwith might stifle the proceedings, and the Court of Appeal does not appear to say anything to the contrary of this.

90 In considering whether to make an order for costs to be assessed forthwith, the court should be guided by the principles set out in ss 56 and 58(1) Civil Procedure Act 2005 (NSW) and in particular:

(a) The costs rules, notably UCPR Pt 42 r 42.7;

(b) The degree of expedition with which the parties have approached the proceedings, including compliance with interlocutory activities (s 58(2)(ii)) and the principles in s 56. Since this matter has a trial date in October, this would include readiness for hearing;

(c) The use that any party has made, or could have made, of any opportunity available in the course of the proceedings (s 58(2)(v)). (A belated application to vary a costs order was refused in Aktas v Westpac Banking Corp Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47);

(d) The need for finality in litigation: Habib v Nationwide News Pty Ltd [2010] NSWCA 291 at [50].

91 The plaintiff could have set out her pleadings in these proceedings in the same clear way that her statement of claim in the Queensland Supreme Court was drafted. She has had many opportunities to redraft her pleadings, and the exemplary consideration shown to her by counsel and the solicitors representing her opponents throughout this litigation should have made this task easy for her. The process of arriving at a pleading in manageable form has been extended and difficult. The plaintiff has placed a burden on the resources of the defendants over a six-month period, Mrs Barnett submits, and the hearing is still a long way off (Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd, supra, at [23]).

92 Mrs Barnett's submission that all costs should be payable forthwith would, however, stultify the litigation. However, given the exceptional amount to time that this application has taken, a limited order for costs payable forthwith should be made. Mrs Barnett's "fall back" position was for such an order to be made in relation to the costs of the 10 October 2013 hearing in Newcastle, a proposal which I considered fair and reasonable, given the amount of time, preparation and travelling involved.

93 Accordingly, the costs order I made on 10 October 2013 was for the costs of the 10 October 2013 hearing, including the preparation costs, to be payable forthwith; the remaining costs of these defendants will await the resolution of these proceedings, which are now returned to the Sydney registry for further case management in the Defamation List on 1 November 2013.

Orders

94 I make orders as follows:

(1) Imputations 3A-3F (pleaded as additional imputations for each of the ten matters complained of) are struck out on the basis that the plaintiff may plead only one set of imputations and may not plead an additional set of imputations arising from the matters complained of in their entirety.

(2) The First, Second, Third, Fourth, Seventh and Eighth Matters Complained Of are struck out on the basis that the plaintiff has failed to particularise extrinsic facts sufficiently capable of identifying her and has failed to set out sufficient details of the person(s) who identified her in each of the matters complained of.

(3) In relation to the Fifth Matter Complained Of:

(a) Imputations 14A and 14C are capable of being conveyed and subject to removal of the inverted commas in imputation 14C will go to the jury.

(b) Imputation 14B is struck out on the basis that it is rolled up and does not differ in substance with 14A and 14C.

(c) Imputation 14D, 14E, 14F, 14I, 14J, 14M and 14P are struck out as not reasonably being capable of being conveyed.

(d) Imputation 14G is struck out on the basis that it does not differ in substance from imputation 14C.

(e) Imputation 14H is reasonably capable of being conveyed and will go to the jury.

(f) Imputation 14K is struck out on the basis that it does not differ in substance from imputation 14A.

(g) Imputation 14L is struck out with leave to replead so that the plaintiff can identify the conduct which amounted to ruining and devaluing neighbours' houses.

(h) Imputation 14N is struck out on the basis that it is rolled up and does not differ in substance from imputations 14A and 14C.

(i) Imputation 14O is struck out with leave to replead so that the plaintiff can identify the basis upon which the plaintiff's conduct irresponsible.

(4) In relation to the Sixth Matter Complained Of:

(a) Imputations 17A and 14C are reasonably capable of being conveyed and, subject to removal of the inverted commas in imputation 14C, will go to the jury.

(b) Imputation 17B is struck out on the basis that it is rolled up and does not differ in substance with imputations 14A and 14C.

(c) Imputations 17D, 17E, 17F, 17I, 17J, 17M and 17P are struck out as not reasonably being capable of being conveyed.

(d) Imputation 17G is struck out on the basis that it does not differ in substance from imputation 14C.

(e) Imputation 17H is reasonably capable of being conveyed and will go to the jury.

(f) Imputation 17K is struck out on the basis that it does not differ in substance from imputation 14A.

(g) Imputation 17L is struck out with leave to replead so that the plaintiff can identify the conduct which amounted to ruining and devaluing neighbours' houses.

(h) Imputation 17N is struck out on the basis that it is rolled up and does not differ in substance from imputations 14A and 14C.

(i) Imputation 17O is struck out with leave to replead so that the plaintiff can identify the basis upon which the plaintiff's conduct irresponsible.

(5) In relation to the Ninth Matter Complained Of:

(a) Imputation 26A is struck out with leave to replead.

(b) Imputations 26B, 26D, 26H, 26I, 26K, 26R, 26X are conveyed and will go to the jury.

(c) Imputations 26C 26F, 26G, 26M, 26P, 26Q, 26S, 26T, 26V, 26W, 26Y, 26Z struck out as not reasonably being capable of being conveyed.

(d) Imputation 26E is struck out as not differing in substance from imputation 26B.

(e) Grant leave to plead imputation 26J, on the basis that the words "and was charged by two security officers as a criminal and caught on camera by the third defendant as proof" are deleted, and the imputation is to go to the jury.

(f) Imputation 26L struck out with leave to replead on the basis that imputations of being a "lunatic, mentally deranged woman" is not conveyed.

(g) Imputation 26N is reasonably capable of being conveyed (subject to deletion of the inverted commas) and will go to the jury.

(h) Imputation 26O is struck out as not differing in substance from imputation 26I.

(i) Imputation 26U is struck out as not differing in substance from imputation 26D.

(6) In relation to the Tenth Matter Complained Of:

(a) Imputation 29A is struck out with leave to replead.

(b) Imputations 29B, 29D, 29H, 29I, 29K, 29R, 29X are conveyed and will go to the jury.

(c) Imputations 29C 29F, 29G, 29M, 29P, 29Q, 29S, 29T, 29V, 29W, 29Y, 29Z struck out as not reasonably capable of being conveyed.

(d) Imputation 29E is struck out as not differing in substance from imputation 29B.

(e) Grant leave to plead imputation 29J, on the basis that the words "and was charged by two security officers as a criminal and caught on camera by the third defendant as proof" are deleted, and the imputation is to go to the jury.

(f) Imputation 29L struck out with leave to replead on the basis that imputations of being a "lunatic, mentally deranged woman" is not conveyed.

(g) Imputation 29N is reasonably capable of being conveyed (subject to deletion of the inverted commas) and will go to the jury.

(h) Imputation 29O is struck out as not differing in substance from imputation 29I.

(i) Imputation 29U is struck out as not differing in substance from imputation 29D.

(7) Grant leave to the plaintiff to bring a strike in application in relation to the tenth matter complained of to include material in the comments section and to renew her application, if successful, in relation to imputations 29L, 29S, 29T, 29W and 29Y. The plaintiff is to provide full particulars of each passage of the additional material alleged to give raise to each of the imputations in order 7 above.

(8) Strike out the following paragraphs of the proposed statement of claim pursuant to UCPR r 14.28:

(a) The second sentence of paragraph 1 (page 1).

(b) All particulars of identification including:

(i) Particulars on page 1;

(ii) The particulars of viewers on page 2 from the heading "specific viewers" to "10,000 viewers" (page 3);

(iii) Particulars of extrinsic facts on pages 5-7, as well as the "summary of imputations common to all matters pleaded" on page 7.

(c) The second sentence on page 8, commencing "the plaintiff's house".

(d) The reference to the number of viewers on the A Current Affair website on page 10.

(e) The sentence on page 13 commencing "the programme stated" and the reference on page 14 to the number of viewers of A Current Affair.

(f) The contents of paragraph 27, which may be repleaded.

(g) The reference to the "unauthorised video of the plaintiff" from the words "it includes... disabled driver's permit", and the similar passages on page 26 of the current version of the statement of claim (and page 20, paragraph 25) and page 26 (paragraph 30).

(9) The plaintiff to file and serve an Amended Statement of Claim by 4:00pm Wednesday 30 October 2013.

(10) Matter stood over for further directions in the Defamation List on 1 November 2013.

(11) The Amended Statement of Claim is to contain full particulars of the internet addresses for the sixth and tenth matters complained of and a comprehensive set of particulars for any claim for special and/or aggravated compensatory damages.

(12) The plaintiff to pay the defendants' costs, including the preparation costs, for the hearing today, such costs to be assessable and assessed forthwith.

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Decision last updated: 11 September 2014