ABC v Parsonage; ABC v Commissioner of Corrective Services

[2022] NSWSC 994

Supreme Court

New South Wales

Medium Neutral Citation:

ABC v Parsonage; ABC v Commissioner of Corrective Services [2022] NSWSC 994

Hearing dates:

22 July 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. In proceedings 2021/279947 I make the following orders:

(a) Order that the plaintiff be referred to as ABC.

(b) Direct the Registrar to amend the title of the proceedings to read ABC v Parsonage.

(c) Order that the plaintiff’s husband be referred to as XYZ.

(d) A non-publication order in respect of Exhibit MJC-1 and Exhibit A, except in respect of the parties to the proceedings, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground in s 8(1)(a) of that Act.

(e) Order that the sixth and tenth defendants be removed as parties to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).

(f) Dismiss the proceedings against the remaining defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(g) Order the plaintiff to pay the costs of the defendants.

2. In proceedings 2021/289841 I make the following orders:

(a) Order that the plaintiff be referred to as ABC.

(b) Direct the Registrar to amend the title of the proceedings to read ABC v Commissioner of Corrective Services.

(c) Order that the plaintiff’s husband be referred to as XYZ.

(d) Dismiss the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(e) Order the plaintiff to pay the defendant’s costs.

Catchwords:

CIVIL PROCEEDINGS – summary disposal – dismissal of proceedings – statement of claim naming 12 defendants – unrepresented plaintiff seeking compensatory and aggravated damages – claim arising out of care proceedings under Children and Young Persons (Care and Protection) Act 1998 – defendants were police officer, caseworkers, solicitors, and Magistrate who heard care proceedings – plaintiff claiming defamation in documents and affidavits prepared for care proceedings – defence of absolute privilege available – where plaintiff cannot make claim on behalf of her husband for defamation – witness immunity – advocates’ immunity – judicial immunity –whether plaintiff raising tort of misfeasance of public office in relation to police officer named as defendant – no harm caused to plaintiff – no reasonable cause of action disclosed – abuse of process – orders pursuant to r 13.4 UCPR

CIVIL PROCEDURE – parties – misjoinder – no relief sought against two defendants named in statement of claim – order removing parties – rule 6.29 UCPR

CIVIL PROCEEDINGS – summary disposal – claim for breach of privacy of plaintiff’s husband – tort of privacy – whether such tort recognised in Australian law – standing of plaintiff to bring proceedings – no reasonable cause of action disclosed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 45, 61, 105

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Defamation Act 2005 (NSW) ss 4, 27

Judicial Officers Act 1986 (NSW) ss 44A, 44C

Law Reform (Vicarious Liability) Act 1983 (NSW) ss 8, 9B

Uniform Civil Procedure Rules 2005 (NSW) rr 4.10, 6.29, 13.4, 14.28

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Bendigo and Adelaide Bank Limited v Chowdhury [2012] NSWSC 592

Bruce v Odhams Press Ltd [1936] 1 KB 697

Burton v Babb [2020] NSWCA 331

Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 270

Donaldson v Commonwealth of Australia [2011] NSWSC 423

Donaldson v State of New South Wales [2019] NSWCA 109

Ea v Diaconu [2020] NSWCA 127

Fingleton v R (2005) 227 CLR 166; [2005] HCA 34

Kostov v Nationwide New Pty Ltd (No 1) [2018] NSWSC 1822

Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210

Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65

Quail v Gibson [2021] FCA 1115

Robinson v State of New South Wales [2021] NSWSC 1571

Smethurst v Commissioner of the Australian Federal Police [2020] HCA 502; (2020) 94 ALJR 502

Stankovic v State of NSW [2016] NSWSC 18

Stankovic v State of New South Wales [2016] NSWCA 168

Ugur v Attorney General for New South Wales [2019] NSWCA 86

Texts Cited:

Nil

Category:

Principal judgment

Parties:

ABC v Parsonage (2021/279947)
ABC (Plaintiff)
Dorothea Parsonage (First Defendant)
Kimberley Sawyer (Second Defendant)
Alessia Salvatore (Third Defendant)
Claire Stewart (Fourth Defendant)
Kathryn Renshall (Fifth Defendant)
Clare Colquhoun (Sixth Defendant)
Denise Kati (Seventh Defendant)
Jennifer Botterill (Eighth Defendant)
Stacy Cogdran (Ninth Defendant)
Melissa O'Malley (Tenth Defendant)
Sue Duncombe (Eleventh Defendant)
Damien Paul Bateman (Twefth Defendant)

ABC v Commissioner of Corrective Services (2021/289841)
ABC (Plaintiff)
Commissioner of Corrective Services (Defendant)

Representation:

Counsel for ABC v Parsonage (2021/279947)
In person (Plaintiff)
I Harvey (First, Third, Fourth, Sixth, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants)
A Reid (Second Defendant)
D Farinha (Fifth Defendant)
G Adelstein (Seventh Defendant)

Solicitors for ABC v Parsonage (2021/279947)
Self-represented (Plaintiff)
Crown Solicitor’s Office (First, Third, Fourth, Sixth, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants)
Hall & Wilcox (Second Defendant)
Sparke Helmore Lawyers (Fifth Defendant)
Elmassian Lawyers (Seventh Defendant)

Counsel for ABC v Commissioner of Corrective Services (2021/289841)
In person (Plaintiff)
I Harvey (Defendant)

Solicitors for ABC v Commissioner of Corrective Services (2021/289841):
Self-represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2021/279947 & 2021/289841

Publication restriction:

Nil

Judgment

1. This judgment concerns two sets of proceedings commenced by the plaintiff. The first matter I will call “the care-related proceedings” and the second matter I will call “the Corrective Services proceedings”.

Orders to protect children

2. As will become clear, the present proceedings are related to proceedings brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the CYP Act) in respect of some four of the children of the plaintiff. The plaintiff’s husband has been charged with sexual offences concerning another of the children.

3. Section 105 of the CYP Act relevantly provides:

(1) The name of a child or young person -

(a)   who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1)   who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b)   with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c)   who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d)   who is the subject of a report under section 24, 25, 27, 120, 121 or 122,

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

…

(1B)   This section applies to the publication or broadcast of a child or young person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the internet, or by any other means of dissemination.

…

(4)   For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material -

(a)   that identifies the child or young person, or

(b)   that is likely to lead to the identification of the child or young person.

4. The solicitor for the fifth defendant sought suppression orders by virtue of s 105 of the CYP Act. He also annexed to his affidavit correspondence between the plaintiff and the fifth defendant during the care proceedings. He asked for the exhibit containing the correspondence to be marked as confidential, in the sense that the exhibit be disclosed only to the Court and the parties but to no-one else.

5. In those circumstances, orders will be made that the plaintiff is to be referred to as ABC, and the plaintiff’s husband will be referred as XYZ. The name of the care-related proceedings will be changed to “ABC v Parsonage” and the name of the Corrective Services proceedings will be changed to “ABC v Commissioner of Corrective Services”. These orders will be made pursuant to the inherent jurisdiction of the Court by reason of s 105 of the CYP Act.

6. A non-publication order will also be made with respect to Ex MJC 1 pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground contained in s 8(1)(a) of that Act.

7. The plaintiff had sought that a very large volume of documents (over 3000 documents) associated with the care proceedings be included in the Court Book. For practical reasons, only the index to those documents was included in the Court Book and was identified as Ex A. The plaintiff had provided a hyperlink to those documents. Ultimately no reference was made by the plaintiff to those documents. Nevertheless, the same order made in relation to Ex MJC 1 should be made in relation to the documents referred to in Ex A.

The care-related proceedings

8. On 1 October 2021 the plaintiff filed a statement of claim naming 12 defendants. She seeks compensatory damages and aggravated damages of $950,000.00 per defendant. She also seeks an “apology order” and costs.

9. The section of the statement of claim headed “Pleadings and Particulars” reads as follows:

Pleadings and Particulars

1.   The plaintiff claims the defendants have made false allegations against her husband and falsely imprisoned him on allegations of child sexual abuse that the same 12 year who made the same allegations about previous men who weren't charged or imprisoned even though they made statements, one man who made a confession who actually sexually assaulted my daughter and myself and is being protected by Detective Bateman and all the other defendants listed above.

2.   The defendants have made false affidavits knowing there is no evidence therefore they have criminally perjured themselves by lying, defamation and falsely alleging things that happened with no evidence.

3.   Defendants have made claims my husband bashed me, tied me up and held a knife up to me they have made claims my husband hurt my children and sexually assaulted my vindictive 12 year old with no medical evidence where they have labeled (sic) him on evidence I hold that he is dangerous and a peadophile (sic), and all defendants had told myself and my husband that if we didn't agree we wouldn't ever be with each other again or see our children. Again, this was said by Detective Bateman who also said if I didn’t sign a statement he had pre- written that he knew was false he was going to make sure my husband rotted in jail, he even manipulated me to make a statement to Wollongong police stating the same to thay (sic) affect (sic) but I never signed it as it would be a lie and a lie that my husband had hurt me.

4.   Ms Renshall made defamatory remarks in her submissions that I was filthy dirty in my house and that I mistreated my children with no proof except a false report that was maliciously made, when previous case workers attended my place they clearly praised me for the wonderful hob (sic) I was doing with my children and how clean my house was for someone who had 8 kids.

5.   Ms Renshall and parties have called my husband a domestic violence perpetrator and a child abuser once again with no evidence and no medical evidence, I suffer a blood disorder but yet my husband has still been accused for being a domestic violence perpetrator.

6.   Defendant Kimberley Sawyer has told my children they weren’t coming home.

7.   Kimberley Sawyer has also put in paperwork my children come from a sexually abused home once again this is defamation and made out in her paperwork last year in December which I might quote these poor kids going through that abuse, again this is defamatory as there is no evidence of abuse its only malicious reports that had been made which was from my 17 year old who never lived with us in Sydney and made 75 reports of abuse and this evidence was shown to dcj who ignored the fact it was lies and that my daughter had apologised for doing malicious reports and wanted to get back at me, this evidence can also he (sic) provided to the court again this is defamatory and malicious with intent to destroy our lives.

8.   Claire Stewart has wrote defaming things in her affidavit that is untrue and unfactual.

9.   Magistrate Sue Duncombe has been bias and prejudice and also has allowed this defamation and attacks to occur on myself and my husband from the other defendants.

10.   Ms Renshall has used my mental health against me and has been prejudice and biased against myself and husband and again has made special attacks at me in the court room and this was allowed by Magistrate Duncombe.

11.   Dorothea Parsonage has lied in every single affidavit and again no factual evidence.

12.   Jennifer Botterill had attended my property last year and claimed on a few occasions and said how clean my house was and what good parents [XYZ] and I were this also was recorded. Jennifer then went back to her office and starting writing defamatory things about my husband and I and refused us a copy of any report she had written, but previously was happy to provide this.

13.   Stacy Cogdran, Jennifer Botterill and Alessia Salvatore then went and took out a ADVO out on my husband because he had mental health and I misunderstood and thought he was trying to kill himself when he wasn't and then [XYZ] was blamed for putting petrol in spray bottles when it wasn't him it was my special needs boy who had a history and fascination with fire.

14.   When the ADVO was applied we then had to live apart and the ADVO had that [XYZ] was able to see the children if it was in writing by myself, this DCJ and Detective Bateman lied about and had my husband arrested for because he was taking the children and I to be away from all this, he had all intentions of meeting Detective Bateman on December 16 2020 but again lies were told to the court and rather then (sic) the detective and DCJ wait for this to occur the (sic) got a warrant for his arrest when he was already arrested.

15.   Dorothea used my past rapes against me as a excuse to remove my children and this was heard by witnesses including the police who shook their heads with disgrace, this is bias and also defamatory.

16.   Due to these lies, defamation, manipulation we have lost our businesses, cars, phone, money, house, reputation in thr (sic) community and on social media and other places we go to.

17.   Financial costs in having to fight a malicious ADVO.

18.   I'm asking my husband and I are compensated tremendously for all of the above listed.

10. Each of the defendants (except the seventh defendant) seeks by notice of motion summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), alternatively, that the pleading be struck out pursuant to r 14.28 of the UCPR. On 3 November 2021 judgment was given for the seventh defendant with no order as to costs.

11. The background to these proceedings appears to be this.

12. On or about 16 December 2020, a delegate of the Secretary of the Department of Communities and Justice took steps under s 44 of the CYP Act to assume care responsibility for five of the plaintiff’s children. The basis for the application made by the delegate included:

•   serious concern about the plaintiff's mental health and her capacity to make decisions that impacted on the safety and wellbeing of the five children;

•   concern about the plaintiff’s relationship with XYZ, in respect of whom an Apprehended Domestic Violence Order (ADVO) made on 12 November 2020 was in place;

•   the plaintiff's action in taking the five children to South Australia with XYZ; and

•   concern that as XYZ had been charged with sexually abusing one of the plaintiff’s other children (a 12 year old daughter), he posed a risk to the five children.

13. Four of the five children were then placed in authorised foster care pending further assessment, with attempts made to contact the fifth child's biological father.

14. On about 23 or 25 November 2020, the plaintiff made an application at a Local Court to have the ADVO revoked so that XYZ could return to the household. On or about 9 December 2020, a provisional ADVO in respect of XYZ was made by a detective senior constable in the Child Abuse Unit of the NSW Police and by the twelfth defendant as the applicant officer pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

15. The twelfth defendant was the informant in relation to charges brought against XYZ. The seven offences include aggravated sexual assault of a child.

16. On 18 December 2020, a care application in respect of the five children was made to the Children's Court by the fourth defendant as delegate of the Secretary of the Department of Communities and Justice pursuant to ss 45 and 61(2) of the CYP Act. A report in support of the care application, and produced to the Court, was signed by the first and fourth defendants. The fourth defendant swore an affidavit dated 14 January 2021 in support of the care application and proceedings held in the Children's Court on 15 January 2021. Affidavits were also sworn in the Children's Court in relation to the care application by the first and third defendants.

17. The first, third, fourth, eighth, ninth and tenth defendants all relevantly held positions concerned with child protection as managers or caseworkers in the Department. The fifth defendant was a solicitor in private practice who acted for the Secretary of the Department in the care proceedings.

18. The second defendant was employed as a caseworker by Challenge Community Services, a not-for-profit organisation responsible for assisting and supporting children in care.

19. The sixth defendant was a Legal Aid solicitor, but how she was involved in the proceedings was not elucidated.

20. The eleventh defendant was the Magistrate who heard the care proceedings.

21. The twelfth defendant, as noted above, was the informant in relation to the charges brought against XYZ, and was the applicant in relation to the provisional ADVO in respect of him.

22. No allegations are made at all about the sixth and tenth defendants.

The course of the hearing

23. The first, third, fourth, sixth, eighth, ninth, tenth, eleventh and twelfth defendants were represented by the Crown Solicitor, and Mr Ian Harvey of counsel appeared for those parties. The Commissioner of Corrective Services was also represented by the Crown Solicitor with Mr Harvey briefed to appear.

24. Each of the second and fifth defendants was separately represented, and Ms Amy Reid and Mr Daniel Farinha, both of counsel, appeared for those parties respectively. Only the second defendant had filed a defence, and that defence denied that any reasonable cause of action had been pleaded against her.

25. The plaintiff filed an affidavit in relation to each motion, and submissions in relation to the care-related proceedings. The plaintiff addressed briefly, but had the understandable difficulty as a litigant in person in distinguishing the substantive complaints which she had from the procedural and legal issues raised by the notices of motion. I endeavoured to focus the plaintiff’s attention on those matters whilst she was addressing, but her submissions generally did not come to grips with the issues being determined on the motions. In particular, she found it difficult to accept that judges, lawyers and witnesses had immunity from suit in respect of court proceedings, particularly when she considered that those parties had not acted honestly or properly.

23. The claim the plaintiff makes in the care-related proceedings appears to be in defamation, although in relation to the twelfth defendant a claim of misfeasance in public office may be being made. This is discussed later in the judgment. The claim in the Corrective Services proceedings appears to be for breach of privacy.

Summary judgment

27. In Robinson v State of New South Wales [2021] NSWSC 1571 I summarised the principles dealing with summary dismissal of proceedings:

[31]   Proceedings may be summarily dismissed if they disclose no arguable cause of action, are clearly untenable and are doomed to fail, if they are an abuse of process or if they are frivolous and vexatious: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 at 128-129; [1964] HCA 69; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15]; see also Shaw v State of New South Wales [2012] NSWCA 102 at [30]-[33].

[32]   In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, the plurality said at [57]:

It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

[33]   In Spencer v the Commonwealth (2010) 241 CLR 118; [2010] HCA 28, a case concerned with s 31A of the Federal Court of Australia Act 1976 (Cth), French CJ and Gummow J quoted with approval what the High Court had earlier said in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

[34]   In Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, Hammerschlag J said at [62]:

Whilst UCPR Pt 13 r 13.4 does not expressly provide (as does s 31A of the Federal Court of Australia Act 1976 (Cth)) that a proceeding need not be hopeless or bound to fail to have no reasonable prospects of success, the combination of the inclusion of the word reasonable and the operation of s 56(2) sufficiently clearly indicates, in my view, that the approach to exercising the power to dismiss under the rule is the same as that elucidated by the High Court in relation to the federal enactment.

[35]   The provisions of the Civil Procedure Act 2005 (NSW) do not warrant any result different from that indicated by the General Steel test; Shaw at [134].

28. Where the determination of summary dismissal turns on the resolution of matters of law, it will be easier to obtain orders for summary dismissal. In Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210, Macfarlan JA said at [75]:

Such a course [summary dismissal] should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as “so obviously untenable that it cannot possibly succeed” and “manifestly groundless” (General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.

29. In Ugur v Attorney General for New South Wales [2019] NSWCA 86, White JA said (Meagher and Brereton JJA agreeing) at [70]:

One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.

The first, third, fourth, eighth and ninth defendants

30. Each of these defendants was a witness in the care proceedings or had prepared documents preparatory to those care proceedings. To the extent that they are identified in the statement of claim, they are alleged to have done the following:

(a)   Paragraphs 1 and 2 allege that the defendants made false allegations and affidavits against the plaintiff and her husband (presumably in the care proceedings) including allegations of child sexual abuse and domestic violence;

(b)   Paragraph 3 alleges that the defendants made claims that her husband assaulted her and sexually assaulted her 12-year-old child.

(c)   Paragraph 8 alleges that the fourth defendant wrote defamatory things in her affidavit;

(d)   Paragraphs 11 and 15 allege that the first defendant lied in her affidavit and gave evidence that was biased and defamatory;

(e)   Paragraph 12 alleges that the eighth defendant wrote defamatory things about the plaintiff and XYZ in reports, and has refused to provide those reports to the plaintiff;

(f)   Paragraph 13 alleges that the third, eighth, and ninth defendants took out an ADVO against XYZ on the basis of a misunderstanding about his actions;

31. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said at [39]:

From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:

"The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them."

(Citations omitted – emphasis added)

32. In Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 270, Beazley JA (with whom Mason P and Young CJ in Eq agreed) said:

[41]    The principle of immunity from suit was explained by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows:

“… neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”

[42]    The existence of the general immunity is not in dispute. The issue in this case is the reach of its application. There is no doubt that the immunity protects a person from being sued as a result of evidence the person gives in proceedings. There is also no doubt that the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The swearing of an affidavit is an easily identifiable example: see D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311. ….

[43]   The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere avoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again: see D’Orta-Ekenaike v Victoria Legal Aid at 17-20 [37]-[42]; Meadow v General Medical Council [2007] QB 462 at 476 [14].

[44]   The immunity operates even if the evidence given by a witness is false: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. In that case, Ms Cabassi had brought proceedings against a Mr Ferrando, alleging assault. The proceedings were defended and Mr Ferrando called a number of witnesses to explain the circumstances in which Ms Cabassi had received the injuries of which she complained. The assault proceedings were dismissed. Subsequently, Ms Cabassi brought an action against Mr Ferrando and two of the witnesses in the assault proceedings, claiming they had conspired together for the purposes of injuring her by the giving of false evidence.

[45]   In dismissing the appeal, Rich ACJ explained the rationale underlying witness immunity at 139:

“An action by the defeated party cannot … be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation.” (Citations omitted)

Starke J, commenting on this point, said at 140-141:

“No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be ... the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court.” (Citations omitted )

McTiernan J stated at 144-145:

“It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.

…

In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies.”

(emphasis added)

33. Further, s 27 of the Defamation Act 2005 (NSW) relevantly provides:

27 Defence of absolute privilege

(1)   It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2)   Without limiting subsection (1), matter is published on an occasion of absolute privilege if –

…

(b)   the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) -

(i)   the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii)   the publication of matter while giving evidence before the court or tribunal, and

(iii)   the publication of matter in any judgment, order or other determination of the court or tribunal, or…

34. The documents which the plaintiff claims are defamatory of her were all documents prepared for the care proceedings, or were affidavits sworn by a number of the defendants in those proceedings. The documents are contained in what is described as Ex A in the Court Book. So much is made clear by email correspondence between the plaintiff and Ms Holly Turner, the solicitor for the second defendant.

35. The matters complained of were published in the course of the proceedings of an Australian court. In those circumstances a defence of absolute privilege is available to those defendants.

36. In addition, the defendants who swore affidavits or gave oral evidence in the care proceedings are immune from suit in respect of that evidence, by reason of the principles set out above in Griffiths and Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41.

37. In those ways, the proceedings against those defendants do not disclose a reasonable cause of action, and are an abuse of the process of the Court.

The second defendant

38. The pleading against the second defendant can be summarised as follows:

(a)   Paragraphs 1 and 2 allege that the defendants made false allegations and affidavits against the plaintiff and her husband (presumably in the care proceedings) including allegations of child sexual abuse and domestic violence;

(b)   Paragraph 6 alleges that the second defendant told the plaintiff’s children that “they weren't coming home”;

(c)   Paragraph 7 alleges that the second defendant made defamatory statements in paperwork about malicious reports of abuse provided to the Department by one of the plaintiff’s children;

39. What is pleaded in par 6 is incapable of constituting a defamatory statement about the plaintiff. Accordingly, the only specific allegation against the second defendant is contained in par 7 of the statement of claim. The position of the second defendant is relevantly the same as for the other defendants who are caseworkers, dealt with above. There is a defence of absolute privilege by reason of the publication of the matter to the court in the care proceedings. Moreover, as best as can be discerned from the pleading of the statement of claim when understood in the context of the background to the care proceedings, any statement about abuse of the children could only be a statement about XYZ and not about the plaintiff.

40. The second defendant also has an immunity from suit with regard to the documents prepared by her that form part of the evidence in the care proceedings. It is clear from the communications between the plaintiff and Ms Turner that all of the documents identified in Ex A, and which are part of the documents contained in the hyperlink already referred to, are the documents prepared for the care-related proceedings.

41. No reasonable cause of action is disclosed against the second defendant, and the proceedings constitute an abuse of the process of the Court.

The fifth defendant

42. The fifth defendant was the solicitor acting for the Secretary of the Department in the proceedings. The statement of claim pleads against the fifth defendant the following matters:

(a)   Paragraphs 1 and 2 allege that the defendants made false allegations and affidavits against the plaintiff and her husband (presumably in the care proceedings) including allegations of child sexual abuse and domestic violence;

(b)   Paragraphs 4 and 5 allege that the fifth defendant made defamatory remarks in her submissions;

(c)   Paragraph 10 alleges that the fifth defendant used the plaintiff’s mental health against her, had been prejudiced and biased against the plaintiff and her husband, and made attacks on the plaintiff in court, which attacks were allowed by the eleventh defendant;

43. In the case of D'Orta-Ekenaike v Victoria Legal Aid the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said:

[85]   No sufficient reason is proffered for reconsidering the Court's decision, in Giannarelli [Giannarelli v Wraith (1988) 165 CLR 543], that an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court. Should the boundary of the operation of the immunity be redrawn?

[86]   Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court" or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, "work intimately connected with" work in a court. (We do not consider the two statements of the test differ in any significant way.)

[87]   As Mason CJ demonstrated in Giannarelli, "it would be artificial in the extreme to draw the line at the courtroom door". And no other geographical line can be drawn that would not encounter the same difficulties. The criterion adopted in Giannarelli accords with the purpose of the immunity. It describes the acts or omissions to which immunity attaches by reference to the conduct of the case. And it is the conduct of the case that generates the result which should not be impugned.

44. As the solicitor appearing in court in the care proceedings, the fifth defendant is immune from suit whether for negligence or otherwise.

45. Further, the fifth defendant has a defence of absolute privilege under s 27 of the Defamation Act. Words spoken by the fifth defendant constitute a “matter” referred to in s 27(2)(b). The word “matter” is defined in s 4 of the Act as follows:

matter includes -

(a)   an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and

(b)   a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and

(c)   a letter, note or other writing, and

(d)   a picture, gesture or oral utterance, and

(e)   any other thing by means of which something may be communicated to a person.

46. In Quail v Gibson [2021] FCA 1115 the plaintiff alleged defamation against the prosecutor in the plaintiff’s trial for attempted murder, in relation to the conduct of trial. Although the proceedings were dismissed for want of jurisdiction, Abraham J said that the proceedings would otherwise have been summarily dismissed for a number of reasons. The first reason was that the proceedings offended the finality principle. Her Honour then said:

[30] Second, in any event, and aligned with the issue of finality, the respondents could plainly avail themselves of defences and immunities. The three bases identified by the respondents apply.

[31] The statements made by Mr Gibson QC were made in the course of conducting the prosecution of the applicant in the Victorian Supreme Court, and therefore constitute matters published on an occasion of absolute privilege, such that no action in defamation may be brought in respect of the statements: s 27(2)(b) of the Defamation Act; Clyne v Bar Association (NSW) [1960] HCA 40; (1960) 104 CLR 186 at 200 .

[32]   Mr Gibson QC’s statements would also attract advocates immunity: see for example Giannarelli at 558.

…

[34] The immunity applies in respect to allegations of defamation. For example, in D’Orta-Ekenaike McHugh J observed at [192]:

Collateral attack and re-litigation are not the only bases for maintaining the advocates’ immunity. The immunity of other participants in legal proceedings - the judge, jurors and witnesses - rests on the necessity that those who participate in the administration of justice should not be hampered in the discharge of their duties by fear of litigation concerning what they say and do. The administration of justice demands fearless and independent advocates who are not hampered in the discharge of their role by the need to consider whether their conduct might be actionable. The advocates’ immunity from a suit for defamation in part rests on this basis.

47. To the extent that the statement of claim suggests that the fifth defendant was “prejudiced and biased” against the plaintiff’s husband, the plaintiff cannot make a claim on behalf of her husband for defamation. It is an essential part of the cause of action for defamation that “the words are defamatory of the plaintiff”: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705.

48. No reasonable cause of action is disclosed against the fifth defendant, and the proceedings constitute an abuse of the process of the Court.

The sixth and tenth defendants

49. These defendants are not mentioned in the pleading section of the statement of claim, and no relief is sought against them other than the general claim for damages. In those circumstances, they have been wrongly joined to the proceedings, and should be removed as defendants.

The eleventh defendant

50. The eleventh defendant was the magistrate who heard the care proceedings. The allegations pleaded against her are these:

(a)   Paragraph 9 alleges that the eleventh defendant displayed “bias and prejudice" and allowed defamatory allegations to be made by the other defendants;

(b)   Paragraph 10 alleges that the fifth defendant used the plaintiff’s mental health against her, had been prejudiced and biased against the plaintiff and her husband, and made attacks on the plaintiff in court, which attacks were allowed by the eleventh defendant.

51. It may be observed that both allegations concern the eleventh defendant’s role and actions as the judicial officer presiding over the care proceedings. As a judicial officer she was entitled to judicial immunity.

52. In Fingleton v R (2005) 227 CLR 166; [2005] HCA 34, Gleeson CJ said at [38]:

[38]   This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. …

[39]   This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

(citations omitted)

53. In Donaldson v State of New South Wales [2019] NSWCA 109, the plaintiff had sued the State of New South Wales as a result of a judgment I had given against him: Donaldson v Commonwealth of Australia [2011] NSWSC 423. Justice Hamill struck out the claim, and the plaintiff sought leave to appeal to the Court of Appeal. In its judgment, the Court of Appeal (Macfarlan and Meagher JJA) said:

[7]   First, Davies J had the benefit of common law judicial immunity in respect of his conduct and judgment in Mr Donaldson’s proceedings against the Commonwealth. The existence of such immunity, at least where as here there is no supportable allegation that the judge knowingly acted without jurisdiction, is beyond question (Sirros v Moore [1975] 1 QB 118 at 134-6; Rajski v Powell (1987) 11 NSWLR 522 at 534-6, 538-40; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [40], [96]-[100]). The Registrar has the benefit of a similar immunity by reason of s 44C of the Judicial Officers Act 1986 (NSW).

[8]   That immunity is absolute and precludes liability (Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28 at 238 (Gummow J)). Absolute immunity has thus been described as “indefeasible” (Gibbons v Duffell (1932) 47 CLR 520; [1932] HCA 26 at 528 (Gavan-Duffy CJ, Rich and Dixon JJ)).

[9]   It is well-established that a judge of the Supreme Court is protected by this immunity (Re East; Ex Parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 at [30] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Rajski v Powell at 534-6 (Kirby P) at 538 (Priestley JA, Hope JA agreeing)).

54. In Stankovic v State of NSW [2016] NSWSC 18, the plaintiff brought proceedings against the State of New South Wales and the Land and Environment Court claiming damages as a result of what was said to be a tortious liability of one of the judges of that Court. In my judgment I said:

[20]   The immunity of judicial officers is a common law principle fundamental to common law jurisdictions. The matter was discussed extensively by Kirby P in Rajski v Powell (187) 11 NSWLR 522 at 534-537 and by Priestley JA (with whom Hope JA agreed) at 538-539. The matter was further discussed in Yeldham v Rajski (1989) 18 NSWLR 48 at 61-64 and 66; and see also Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 at [24].

[21]   The immunity does not derive from the Judicial Officers Act. Sections 44A to 44C merely clarify and extend the common law principle.

[22]   The essence of the Statement of Claim is that Pain J has a tortious liability for the orders that her Honour made on 14 March 2005. From her Honour’s liability the vicarious liability of the State of NSW is said to flow.

[23]   In the first instance, Pain J has no liability in respect of the orders she made. Even if they had been incorrectly made (and the evidence is to the contrary) neither she nor the State of NSW has any liability for what she did.

[24]   In any event, no duty of care is owed by the Defendants to the Plaintiff. A similar argument was put forward in Hammond v State of NSW [2013] NSWSC 1930 and rejected on the basis that the duty alleged did not satisfy the six step test identified by McHugh J in Crimmins v Stevedoring Industry FinanceCommittee [1999] HCA 59; (1999) 200 CLR 1 at [93]: see Adamson J in Hammond at [51]-[52] and [55]-[57]; upheld by the Court of Appeal in Hammond at [27].

55. The Court of Appeal dismissed a summons for leave to appeal against that decision: Stankovic v State of New South Wales [2016] NSWCA 168.

56. The Judicial Officers Act 1986 (NSW) relevantly provides:

44A Immunity of Supreme Court Judges

The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge.

44C Immunity of officers performing duties of judicial officers

A registrar, an associate Judge of the Supreme Court, a Commissioner of the Land and Environment Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties.

57. Two things are apparent from s 44A. First, that section is not the source of judicial immunity; rather, the position is, as Gleeson CJ said in Fingleton at [38], that the immunity is conferred by the common law. Secondly, the section acknowledges the existence of the common law doctrine.

58. No reasonable cause of action is disclosed against the eleventh defendant, and the proceedings against her are an abuse of the process of the Court.

The twelfth defendant

59. The twelfth defendant is a police officer. The claim against him is pleaded in this way:

(a)   Paragraphs 1 and 2 allege that the defendants made false allegations and affidavits against the plaintiff and her husband (presumably in the care proceedings) including allegations of child sexual abuse and domestic violence;

(b)   Paragraph 3 alleges that the twelfth defendant attempted to force the plaintiff to sign a statement concerning abusive conduct by XYZ which the twelfth defendant knew to be false;

(c)   Paragraph 14 alleges that the twelfth defendant lied in a court when an ADVO was sought in relation to XYZ, and then wrongly obtained a warrant for the arrest of XYZ;

60. Section 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) relevantly provides:

(1)   A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer’s functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2)   Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3)   A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.

61. On 27 October 2021 the Crown Solicitor’s Office wrote to the plaintiff drawing her attention to the provisions of s 9B above, and saying:

I advise that the Crown does not deny that it would be vicariously liable for an alleged tort against Detective Senior Constable Bateman if such tort was established. Accordingly, you may not make a police tort claim against Damien Paul Bateman in the proceedings that you have commenced. The name of Damien Paul Bateman must be removed as a party to these proceedings.

62. The plaintiff submitted that the right of a plaintiff to name a police officer as a defendant was upheld by the Court of Appeal in Burton v Babb [2020] NSWCA 331.

63. In Burton v Babb the plaintiff brought proceedings against two defendants who were the Director of Public Prosecutions and the head of the Department of Communities and Justice claiming damages for malicious prosecution. The primary judge had removed those parties from the proceedings and had joined the State of New South Wales as a party. The Court of Appeal set aside those orders. The basis for doing so turned on s 8 of the Vicarious Liability Act and r 6.24 of the UCPR. The case was not concerned with police officers who are specifically dealt with in s 9B of the Vicarious Liability Act.

64. Section 9B concerns a matter of pleading and procedure. A pleading filed in contravention of that section could not justify summary dismissal of the proceedings. Such a pleading might be struck out pursuant to r 14.28 UCPR, but the more likely outcome would be an order removing the named officer as a defendant and substituting the State of New South Wales in lieu.

65. It is necessary, therefore to consider if any reasonable cause of action is disclosed regardless of the procedural error.

66. For reasons already given in relation to the first, second, third, fourth, eighth and ninth defendants, what is contained in pars 1, 2 and 14 of the statement of claim does not disclose a reasonable cause of action because the twelfth defendant has the protection of immunity as a witness in the proceedings.

67. The other allegation made against the twelfth defendant is what is contained in par 3 of the statement of claim which reads:

3.   Defendants have made claims my husband bashed me, tied me up and held a knife up to me they have made claims my husband hurt my children and sexually assaulted my vindictive 12 year old with no medical evidence where they have labelled (sic) him on evidence I hold that he is dangerous and a peadophile (sic), and all defendants had told myself and my husband that if we didn't agree we wouldn't ever be with each other again or see our children again, this was said by Detective Bateman who also said if I didn’t sign a statement he had pre-written that he knew was false he was going to make sure my husband rotted in jail, he even manipulated me to make a statement to Wollongong police stating the same to that affect but I never signed it as it would be a lie and a lie that my husband had hurt me.

68. It is not clear if this alleged behaviour is said to be ancillary to the claim for defamation or if it stands alone. If it is ancillary to defamation, it could only be defamation concerning XYZ because the statement is said to relate to abusive behaviour by XYZ and not the plaintiff. If it is an additional and separate cause of action, there must be doubt about what such cause of action was available. Mr Harvey of counsel for (inter alia) the twelfth defendant quite properly suggested that, taken at its highest, it might amount to misfeasance in public office.

69. One of the essential elements of the tort of misfeasance in public office is that the relevant act causes harm to the plaintiff: Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 357 per Brennan J and 370 per Deane J; Ea v Diaconu [2020] NSWCA 127 at [36].

70. Taking what is contained in par 3 of the statement of claim at its highest for the plaintiff, the person who was injured by what Detective Bateman is alleged to have done is XYZ and not the plaintiff. It seems clear that what Detective Bateman was allegedly trying to do was to obtain evidence from the plaintiff against XYZ that XYZ had “hurt” her. There is the further difficulty that the plaintiff (on the pleading) did not do what Detective Bateman was alleged to have tried to make her do, that is, to sign the statement. In those circumstances, neither the plaintiff nor XYZ suffered loss from the wrongful act.

71. I do not consider that the pleading identifies any reasonable cause of action in par 3.

The Corrective Services proceedings

72. On 12 October 2021 the plaintiff filed a statement of claim naming as defendant Kevin Corcoran, Office of the Commissioner, Corrective Services. She seeks compensatory damages and aggravated damages of $950,000. She also seeks an “apology order” and costs.

73. The section of the statement of claim headed “Pleadings and Particulars” reads as follows:

1.   The plaintiff claims the defendants has let one of his employees at Goulburn Gaol Officer Denny to breach my husband XYZ privacy by telling inmates what his charges were.

2.   Officer Denny withheld XYZ mail, and withheld telephone rights to my husband.

3.   Officer Denny had my husband bashed and knocked out where he woke up in the toulet (sic) block with just his underwear on.

4.   I made this report to corrections who had John Purcell interview both my husband and I and he was told that XYZ wasn't administered any care to check if he suffered any serious injuries.

5.   From this day forth no Corrective Services have investigated this properly nor were any inmates charged or investigated and neither was the officer. This was ignored and all emails of my concerns can be shown in evidence.

6. I ask my husband be issued a sec 77 on screen as he is incarcerated and he needs to be a witness in this matter.

74. By notice of motion filed 5 November 2021 the defendant seeks, first, an order in these terms:

Acceptance of the document e-Filed by the plaintiff on 12 October 2021 be refused by the Court pursuant to r 4.10(4) of the Uniform Civil Procedure Rules 2005 (UCPR).

The defendant seeks in the alternative an order that the proceedings be dismissed pursuant to r 13.4 UCPR, alternatively that the pleadings be struck out pursuant to r 14.28 UCPR.

75. The background to this claim is contained in an affidavit of the plaintiff filed in response to the defendant’s notice of motion. In that affidavit, and an annexed statement, it is said that the plaintiff’s husband XYZ was arrested and charged in December 2020 with a number of serious sexual assault offences related to the plaintiff’s daughter DE, who was at the time of the alleged assault aged 12 years. XYZ was refused bail and was incarcerated at Goulburn Gaol where he had been held since February 2021 after being transferred from Silverwater Gaol.

76. The plaintiff alleges that her husband has been beaten and mistreated and deprived of human rights by Corrective Services. She alleges that a Corrective Services Officer named Denny had told inmates what her husband’s charges were, and subsequently her husband was assaulted by two inmates. He suffered from head injuries and, according to the plaintiff, was refused any medical care.

77. It seems that the matter was investigated by a person named John Purcell, who took a statement from the plaintiff. The plaintiff alleges that Mr Purcell told her that he would make sure that the officer was dealt with for breaching the privacy of an inmate and for denying her husband his human rights. She also alleges Mr Purcell said that he would ensure that her husband was moved, and that the inmates concerned were charged.

78. The plaintiff alleges that Mr Purcell subsequently rang her and told her that the Commissioner told Mr Purcell not to act upon the report, and that her husband’s complaints were to be dismissed because he was a prisoner.

79. The plaintiff also alleges that prison officers had stolen her husband’s property and food.

80. The Commissioner submitted that any cause of action identified in the pleading in the statement of claim could only be based on a breach of XYZ’s privacy. The Commissioner submitted that there was not yet a recognition of any tort of privacy in Australia, although he accepted that the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [107] left the door open for the incremental development of such a tort. However, he submitted that the standing to bring such an action would lie only with the person whose privacy had been affected.

81. In any event, the Commissioner submitted, in a statement of the plaintiff made to Mr Purcell (put into evidence by the plaintiff) she said that the prison officer Denny had denied making the statement to the other inmates that XYZ was a paedophile, and that XYZ had told Denny that no threats had been made to him.

82. In Kostov v Nationwide New Pty Ltd (No 1) [2018] NSWSC 1822, I discussed at [61] to [67] what I saw as the state of the law touching any tort of privacy at that time. I said at [66] that no Australian superior court had recognised a generalised tort for breach of privacy. Subsequently, the High Court discussed the matter in passing in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 502; (2020) 94 ALJR 502 at [78] to [90], [155] and [240] to [244], whilst also speaking of the concept of privacy in the context of a breach of confidential information in equity. Smethurst did not establish that a tort of privacy is recognised in Australia.

83. It is not necessary to dwell on the question of whether such a tort is recognised, or whether any doctrine of equity could be called in aid. What is very clear is that, if such a tort were available, it would be XYZ who would have to bring the action. If any rights are being infringed, they are his rights, not those of the plaintiff.

84. When I put to the plaintiff that she could not sue on behalf of her husband she told me that she held his power of attorney, and that the things that were said were also said about her as well as her husband. There was no evidence of any power of attorney. The suggestion that defamatory things were also said about the plaintiff was well outside anything pleaded in the case against the Commissioner, which was confined to alleged statements about XYZ by a prison officer to other inmates.

85. The Commissioner submitted that the proceedings should be dealt with pursuant to r 4.10 of the UCPR. That rule relevantly provides:

(3)   Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing.

(4)   The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.

(5)   An officer of the court may refuse to accept a document for filing in the following circumstances -

(a)   in the case of originating process -

(i)   if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or

(ii)   if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,

(b)   in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.

86. This rule was discussed by Johnson J in Bendigo and Adelaide Bank Limited v Chowdhury [2012] NSWSC 592. That was a case where a defence had been filed with nothing contained in the section of the defence headed “Pleadings and Particulars”. The document contained only the parties and the affidavit sworn in the usual form.

87. Justice Johnson said:

[12] To my mind, however, where a document sought to be filed in this Court contains a fatal and obvious deficiency, such as a complete absence of any pleaded and particularised defence, the appropriate course is for an officer of the court to refuse to accept the document for filing. This process does not require any exercise of judgment, involving an evaluation of particular wording contained in the document to assess whether the document complies with the UCPR. Rather, it is to note, on the face of the document, the complete absence of a critical and essential ingredient. The document is defective in a fundamental respect and is not, in truth, a Defence.

…

[16] In my view, the appropriate course is for the Court to refuse to accept the document for filing, even though an officer of the court accepted the document for filing on 26 April 2012. Rule 4.10(3) and (4) UCPR provides for this approach, which has the effect that a Defence will not have been filed in the proceedings.

88. Significantly, however, his Honour also said:

[11] It may be observed that the scheme under Rule 4.10 UCPR is different to that contained in O46 r7A Federal Court Rules 1979 which provides expressly that a Registrar of the Federal Court of Australia may refuse to accept a document if it appears on its face to be an abuse of the process of the Court or to be frivolous or vexatious, with provision for the Registrar (if he or she sees fit) to seek a direction from a Judge as to whether a document ought be accepted. (See, generally, Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222; Gibbons v Commonwealth of Australia [2010] FCA 1447 and Vasiliou v Honourable Justice Marshall [2011] FCA 588).

89. The statement of claim in the present case is not obviously on its face, to a non-lawyer including a member of the registry staff, fundamentally defective in the way the defence was in Chowdhury. Deciding that the present statement of claim was defective in a legal sense, rather than not complying with the correct form, would involve an exercise of judgment, or an evaluation of wording, to see whether it complies with the UCPR, whether by reason of r 13.4 or r 14.28.

90. I do not consider that the circumstances of this case make application of r 4.10 appropriate. Determination of the matter involves a consideration of the principles relating to summary dismissal, or principles of pleading at the very least.

91. In my opinion, for the reasons given earlier, the proceedings against the Commissioner disclose no reasonable cause of action and are an abuse of the process of the Court.

Pleading of the claim

92. In the light of my conclusions that no reasonable causes of action have been shown, it is not necessary to deal at any length with issues of pleading. It is sufficient to say that, if I am wrong in my conclusions, the statements of claim in each of the matters do not comply with the rules of pleading, particularly rr  14.7 and 14.30.

Conclusion

93. Accordingly, I make the following orders:

1. In proceedings 2021/279947 I make the following orders:

(a)   Order that the plaintiff be referred to as ABC.

(b)   Direct the Registrar to amend the title of the proceedings to read ABC v Parsonage.

(c)   Order that the plaintiff’s husband be referred to as XYZ.

(d) A non-publication order in respect of Exhibit MJC-1 and Exhibit A, except in respect of the parties to the proceedings, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground in s 8(1)(a) of that Act.

(e) Order that the sixth and tenth defendants be removed as parties to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).

(f) Dismiss the proceedings against the remaining defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(g)   Order the plaintiff to pay the costs of the defendants.

1. In proceedings 2021/289841 I make the following orders:

(a)   Order that the plaintiff be referred to as ABC.

(b)   Direct the Registrar to amend the title of the proceedings to read ABC v Commissioner of Corrective Services.

(c)   Order that the plaintiff’s husband be referred to as XYZ.

(d) Dismiss the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(e)   Order the plaintiff to pay the defendant’s costs.

*******

Decision last updated: 29 July 2022