YZ v Amazon (No 5)

HER HONOUR: On 21 September 2015, I made an order in these proceedings in the following terms:

An amended statement of claim was filed by the plaintiff within the time allowed by that order (namely, on 6 October 2015). However, the defendants, represented by Mr Potter, contend that the pleading filed on that date is not "in accordance with" the reasons published in my judgment of 21 August 2015: YZ v Amazon (No 3) [2015] NSWSC 1130.

Mr Potter submitted that the determination of that issue should be approached on the premise that, if there were any argument about departure from the terms of previous imputations ruled on in the earlier judgment, that would indicate that the amended pleading was not in accordance with my reasons and, accordingly, that a question of power would arise since the self-executing order would have executed itself. Whilst I accept that is the correct approach, I would hold, in the case of a self-executing order, that the question the Court should ask itself is whether there has been substantial compliance with the order, reflecting the mandate of the Civil Procedure Act 2005 (NSW) to act in accordance with the dictates of justice.

The amended pleading specifies imputations lettered A to P. As to a number of those, Mr Potter accepts that they are in accordance with the August judgment. Having heard argument from both Mr Potter and the plaintiff this morning as to those imputations where there is a contest on that issue, I have reached the conclusion that the amended pleading is substantially in accordance with my earlier reasons. It is clear from a careful analysis of the amended pleading against my rulings that the plaintiff has used her best endeavours to achieve that outcome. It might be said, in a number of what I would regard to be minor respects, that there is a measure of departure from the literal text of the judgment. Such issue arises in respect of imputations C to F, K, L, M and O.

Dealing first with imputation K, an imputation which formerly included the words "the plaintiff falsely accused her husband" now contains the words "the plaintiff lied under oath claiming that her husband" etc. Having regard to the text by which that imputation is alleged to be conveyed (which is a description of an affidavit sworn in other proceedings), I would not regard that to be a difference of substance such as to fall foul of the self-executing order.

I would read imputation L as a proper attempt to clarify the previous imputation in accordance with what I said in the earlier judgment at [50]. However, there was formerly reference only to the husband's reputation whereas the imputation now has the words "her husband's career and/or reputation". The plaintiff explained that she regarded the notion of reputation to be inextricably linked with the career referred to. The reason for the addition of the word “career” is that career is the word used in the relevant passage of the book. In my view, the degree of departure is inconsequential but, for clarity, the words "and/or reputation" should be struck out of that imputation so that it reads that the plaintiff "threatened to ruin her husband's career by threatening" and so on.

Imputation M attempts to re-plead an imputation struck out in the earlier judgment at [66]. The defendants submit that was not allowed by the earlier judgment, since I did not expressly grant leave to re-plead. Mr Potter submitted that the Court would ordinarily be specific as to whether leave to re-plead was granted in any particular circumstance. Whilst desirable, that is not a practice I always follow with the punctiliousness that I should. I certainly understood the judgment as having implicit leave to re-plead that imputation. The new imputation conforms to the remarks at [66] of the earlier judgment.

Imputation O formerly read:

That imputation was approved in the previous judgment. However, the plaintiff now seeks to clarify it by amending it to read:

Mr Potter submitted that the new formulation changes the substance of the imputation. The plaintiff did not intend to change its substance but was attempting to be more precise. In my view, the statement of claim should be read as if the clarification were not there so that the imputation reads as it originally did:

That conforms to the language of the judgment. I do not think the fact that the plaintiff attempted the clarification means that the pleading filed was not "in accordance with my reasons".

Finally, it remains to deal with imputations C, D, E and F which derive from a limited grant of leave to add new imputations explained at [84] to [88] of the earlier judgment.

At [87] of the judgment, I stated my conclusion that the plaintiff should be granted leave:

There are four imputations in the new pleading against that limit of two but the plaintiff has I think accepted in argument that she can live without D, since the meaning of that imputation is adequately captured within imputation E.

The result is that the plaintiff has adopted, in terms, the two examples of imputations I recorded at [88] of the judgment (which I thought captured the sense sought to be conveyed by her) with one additional imputation which falls within my recollection of the issue articulated by her in oral submissions.

At [84] of the judgment, I attempted to record that concern with a sentence concluding (unfortunately, in the circumstances) with the words "and so on". Notwithstanding the specification that only two imputations should be allowed on that subject, I do not consider the fact that there is a third to take the pleading outside the proper description of being one filed "in accordance with" my earlier judgment.

For those reasons, the determination on the application today is that the amended statement of claim filed 6 October 2015 was filed in accordance with my order made on 21 September 2015 and, accordingly, that (contrary to the contentions of the defendants) the self-executing order has not executed itself.