Ajok v Mares

[2010] NSWDC 62

CITATION:	Ajok v Mares [2010] NSWDC 62
HEARING DATE(S):	23 April 2010
JUDGMENT DATE:	23 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Statement of Claim dismissed. (2) No order as to costs.
CATCHWORDS:	TORT - defamation - application for summary judgment
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29(1)(d) Defamation Act 2005 (NSW), s 27(2) Evidence Act 1995 (NSW), s 138 Limitation Act 1985 (ACT), s 21B Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), Part 13 r 13.4 and Part 14, Div 5, r 14.28
CASES CITED:	Cumberland v Clark (1996) 39 NSWLR 514 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636; (1964) 38 ALJR 253 Gunns Ltd v Marr [2005] VSC 251 Meckiff v Simpson [1968] VR 62 Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) (2004) 51 ACSR 278; [2004] FCA 1393 Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341
PARTIES:	Plaintiff: Elizabeth Ajok First Defendant: Sarah Mares Second Defendant: Grace Iheanacho
FILE NUMBER(S):	5184 of 2009
COUNSEL:	Plaintiff: - First Defendant: Mr A T S Dawson Second Defendant: -
SOLICITORS:	Plaintiff: Mr R Christie (Christie's Advocacy International) First Defendant: Holman Webb Lawyers Second Defendant: Ms G Iheanacho (in person)

Judgment

Introduction – the nature of these proceedings

[1] The plaintiff by Statement of Claim filed on 24 November 2009 brings proceedings for “perjury, interloperies and deformity” and seeks the following relief:

“(a) Resettlement relief claimed for me and my children

(b) To stop Dr Sarah Meares and Grace Iheancho from perjuries, interloperies in my name and my children

(c) To stop spiritual bankruptcy, soul air activation

(d) To stop brains washing and perjuries, interloperies, I need my personality remain naturally safe.”

[2] Although the plaintiff sought to file this application in the Criminal Division of the court, the matter was identified by the Registry as a defamation claim and sent to me as the Defamation List judge, as the Statement of Claim attaches some medical reports.

[3] Also attached to the Statement of Claim is a letter from the plaintiff to the Federal Court of Australia asking that court (and apparently also this court) for the following relief:

“(a) interlopers, perjuries against my will and my children’s will by breach of our privacy.

(b) interlocutory and relief misplacement, misleading, confusing, misusing, mistreating and complicating my children’s lives and my life in Australia with great suffering in spiritual bankruptcy, corruption of the wealth and power of my family.

(c) due to their misinformation, which I did not know about, an order was made for substituted services of a bankruptcy corporation which causes misplacement of my children’s family belonging and mine to other resources field’s power and wealth which is a very painful situation in my children’s lives naturally and serious dangerous suffering situation that my children and I are facing currently. My children’s belonging and my belonging should be in our own field’s power and wealth.

(d) corruption of powers, wealth, spiritual bankruptcy, souls air activation and unit life transfer of my children’s brains and soul. Due to the misplacement of my children’s spirit, souls, power, wealth and unit lives including family belonging origin, every day and night used for the wrong purpose.

(e) my children’s lives and my life are suffering death day and night as a result of Dr Sarah Mears and Grace Iheancho’s activities, interfering both in interlopers, perjuries, interlocutory and relief and bankruptcy, wealth, spiritual souls corruption in my children’s lives and my life as well as in our family belonging origin, including natural resources, environmental clans and they are moving my children family clans of origin Kitgum district (Uganda), including; and escaping with all natural resources of the clan, country of origin, such as airline, power, mineral and natural resources.

(f) Dr Sarah Mears and Grace Iheancho made wrong plans against my children’s lives and my life to destroy my family’s lives and my life. They put my children into DOCS foster case whereby they are using my children’s lives day and night in every way of their business, and they look at my children as machines or tools to get whatever they need in their business, which causes painful suffering in my children’s lives.”

[4] The relief sought in the Federal Court was an order for the defendants to give reasons why they were persecuting the plaintiff and committing a serious criminal offence against the plaintiff and her children. I have not been able to find what happened to these proceedings.

[5] The first defendant is a consultant child and family psychiatrist who provided assessment and reports for the Australian Capital Territory Children’s Court in June 2004 and for the NSW Children’s Court in November 2007, according to her letter of 15 September 2009, which is attached to the Statement of Claim.

[6] The second defendant is, according to the plaintiff, a migration agent who provided the plaintiff with assistance in or about 2004. According to the letter of the African Communities Council, it appears that the second defendant was the carer of the plaintiff and was listed as the contact person of the African Communities Council.

[7] When the matter came before the court on the first return date, the plaintiff was not able to appear in person, as she has problems with lifts. The first return date was conducted by telephone link up. The plaintiff told me she had sent a copy of the Statement of Claim to the first defendant but not the second defendant, and asked the court to do so. She also asked for future hearings of the matter to take place in the Downing Centre, so that she could attend personally. As the Downing Centre courts have criminal trials and sentences in all courts on Defamation List days, the plaintiff’s request has been accommodated by my sitting in the lunch hour in one of the criminal courts in order to enable the plaintiff to attend court personally.

[8] In addition, the plaintiff, although able to speak English, said she would like assistance in her native language, and asked for an Acholi interpreter. As the District Court does not have funds for interpreters for civil proceedings, the cost of this has been borne by the first defendant.

[9] This is the hearing date allocated for the defendants’ Notice of Motion seeking orders for the Statement of Claim to be dismissed. Their written submissions have been served on the plaintiff, and they have arranged for an Acholi interpreter to contact the plaintiff to translate the document. To assist the plaintiff, I have set out this judgment in terms similar to the defendant’s outline of argument.

[10] In addition, the solicitor for the plaintiff, Mr Van de Poll, has sworn an affidavit dated 4 March 2010 containing a helpful and succinct summary of background information as well as identifying relevant legislative provisions.

[11] The plaintiff has provided me with the following documents:

(a) A letter filed in the Registry on 12 February 2010 referring to the relevant events, which occurred between 16 November 2003 and 16 May 2004. These refer mainly to the second defendant, who she says “created a lot of lying and told the nurses to take me to Rozelle Mental Hospital”. A copy of a letter to the Federal Court of Australia dated 22 July 2009 is attached. It asks for similar relief to that which is sought here (“criminal law act of deforming perjuries, interloperies and identity frought [sic - fraud]”;

(b) A statement dated 26 March 2010, handed up in court, to which copies of family passports and copies of correspondence with the African Communities Council (dated 19 May 2004) and the MADI Ethnic Community and Welfare Association New South Wales Incorporated are attached. I note the second letter (dated 6 November 2009) is addressed to the presiding magistrate of the Parramatta Children’s Court but I have no information about what occurred during those proceedings.

An application for an adjournment

[12] When the matter came before me today in court, Mr Christie announced his appearance for the plaintiff and sought an adjournment of the matter, saying he had only received instructions yesterday.

[13] The application was opposed by both defendants. The second defendant, Mrs Iheanacho, who was appearing in court, made a very moving and at times tearful speech about the devastating impact of these proceedings upon her personally. She also said that the proceedings should not be permitted to continue because “the court should not allow this kind of thing to happen because it is not helpful for my community” (meaning members of the African community).

[14] As these proceedings have been listed a number of times, this was a very persuasive submission. Mr Dawson, for the first defendant, added that no costs orders would be sought by the first defendant. The first defendant’s legal advisers have supplied interpreter assistance (including an interpreter in court today) for the plaintiff, and have conducted these proceedings as a model litigant throughout.

[15] Taking all of the above into account, I refused the application for adjournment and heard the application. I received extensive oral submissions not only from Mr Christie, but also from the plaintiff, who was assisted by the telephone interpreter provided by the first defendant. Those submissions essentially covered the matters raised in the pleadings and letters to the court. Mr Christie told me that he considered the claim his client was bringing was a claim of defamation, and noted the relevant limitation provisions applicable to such an action.

[16] The application to dismiss the Statement of Claim is brought for the following three reasons:

(a) The Statement of Claim, in its present form, discloses no cause of action;

(b) The Statement of Claim appears to relate to the first defendant’s reports dated 17 June 2004 and 19 November 2007 in Children’s Court proceedings in New South Wales and the Australian Capital Territory, and these reports are published on an occasion of absolute privilege;

(c) Proceedings against both defendants are brought in relation to conduct which is statute-barred as the conduct occurred six years ago (in the case of the second defendant) and six or two years ago (in the case of the first defendant). In relation to the conduct of the first defendant in 2007, there is no application to extend time past the one-year limitation period, and if there were, it should not be entertained as it was not reasonable for the plaintiff to delay.

[17] I shall deal with each of these objections in turn.

[18] Part 13 r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

“ 13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:



(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,


the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

[19] This is a clear case where, on examination of the pleadings, there is not simply an absence of triable issue (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636; (1964) 38 ALJR 253) but where the case is absolutely hopeless and there is no possibility of the facts pleaded. No cause of action known to law is identified and the language is impenetrable.

[20] Part 14, Div 5, r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

“ 14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:



(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

[21] Looking at the relief sought and the language used, these are proceedings which are doomed to fail because they disclose no cause of action known to the law. A pleading is embarrassing if it is unintelligible or ambiguous (Meckiff v Simpson [1968] VR 62; Gunns Ltd v Marr [2005] VSC 251) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) (2004) 51 ACSR 278; [2004] FCA 1393 at [18]).

Claims brought in respect to conduct of a witness in court proceedings

[22] For the reasons explained by Levine J in Cumberland v Clark (1996) 39 NSWLR 514, witnesses generally enjoy immunity from suit for damages for their conduct in preparation of witness statements, evidence or expert reports which form part of the trial. It is clear from the plaintiff’s statements that her concern is about the conduct of the first defendant in these court proceedings. On the facts as set out in these proceedings, the conduct of the first defendant that is complained of relates to reports she prepared in the course of her duties as an expert witness in court proceedings. Those reports in fact may not be tendered in other proceedings by reason of s 29(1)(d) Children and Young Persons (Care and Protection) Act 1998 (NSW), and the action for defamation based on these would fail in limine by reason of the provisions of s 138 Evidence Act 1995 (NSW).

[23] The first defendant submits, and I accept, that the orders sought by the defendant are consistent with the public policy considerations that underpin the defence of absolute privilege. Courts could not function unless expert witnesses such as the first defendant enjoy the protection of such a defence.

[24] Any action against the first defendant in relation to her evidence or to the report to the ACT Children’s Court is time-barred by reason of s 21B Limitation Act 1985 (ACT) as it applied in 2004.

[25] Any action against the first defendant in relation to her evidence or to the report dated 19 November 2007 is time-barred pursuant to s 14B Limitation Act 1969 (NSW) as it applied in 2007.

[26] In addition, I have noted these reports are inadmissible by virtue of s 29(1)(d) Children and Young Persons (Care and Protection) Act 1998 (NSW), and I also note that Mr Van de Poll refers me to the provisions of s 27(2) Defamation Act 2005 (NSW) in paragraph 8 of his affidavit.

[27] Any action against the second defendant in relation to her conduct in 2004 is time-barred pursuant to s 14B Limitation Act 1969 (NSW) as it applied in 2004.

[28] In Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341 at [40], I noted the burdens faced by courts when litigants in person attempt to bring complex claims such as defamation actions. This case is another example of those problems.

[29] Although costs normally follow the event, the defendants do not seek any costs order.

Orders

[30] Accordingly, the orders I make are as follows:

(1) Statement of Claim dismissed.
(2) No order as to costs.

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