Alfaro & Ors v O'Brien & Ors

[2006] NSWSC 938

CITATION:	Alfaro & Ors v O'Brien & Ors [2006] NSWSC 938
HEARING DATE(S):	Monday 11 September 2006
JUDGMENT DATE :	14 September 2006
JUDGMENT OF:	Simpson J
DECISION:	statement of claim struck out; plaintiffs to pay the defendants' costs of the proceedings
CATCHWORDS:	defamation - defendants' objections to statement of claim - pleading - failure to plead substance of matter complained of - four publications - no reference to second, third or fourth plaintiffs - publication to first plaintiff - notice of motion - order to strike out statement of claim - order to dismiss proceedings - relief sought inappropriate - capacity of publications to convey imputations pleaded - circumstances in which a court may strike out pleadings - frivolous and vexatious proceedings
LEGISLATION CITED:	Uniform Civil Procedure Rules 1995 13.4, 14.28,
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
PARTIES:	Pedro Alfaro - 1st Plaintiff Silvia Gladys Alfaro - 2nd Plaintiff Diana Alfaro - 3rd Plaintiff Richard Alfaro - 4th Plaintiff Charles O'Brien - 1st Defendant Bridget Brooker - 2nd Defendant Rana Beyrouti - 3rd Defendant Kerrie Kerr - 4th Defendant Jane Booker - 5th Defendant NSW Land and Housing Corporation - 6th Defendant
FILE NUMBER(S):	SC 2006/20239
COUNSEL:	M Lynch - Defendants
SOLICITORS:	P Alfaro in person - Plaintiffs M Callen - New South Wales Land & Housing Corporation

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Thursday 14 September 2006

2006/20239
Pedro Alfaro & 3 Ors v O’Brien C, NSW Land & Housing Corporation & 5 Ors

JUDGMENT
Defendant’s notice of motion: UCPR Part 14, Rule 28; UCPR Part 13, Rule 4

1 HER HONOUR: By statement of claim filed on 20 June 2006 the four plaintiffs seek a variety of orders against six named defendants. The sixth defendant is identified as the NSW Land and Housing Corporation. The first to fifth defendants are all identified as delegates of that Corporation.

2 The orders sought are specified in paragraphs 7, 8 and 9 of the statement of claim, in the following terms:

“7. The Plaintiffs seek Orders that the Consumer Trader and Tenancy Tribunal, be refrained from making any Orders in relation to 12/37 Shropshire Street Miller NSW, until the Supreme Court of New South Wales constituted by a Judge hears and determine the Plaintiffs claims.
8. The Plaintiffs further seek that the Supreme Court of New South Wales constituted by a Judge, hear any Application made by the 6th Defendant Corporation to the Consumer Trader and Tenancy Tribunal, in relation to the Plaintiffs residence at 12/37 Shropshire Street Miller NSW so that the Plaintiffs do not suffer prejudice at the hands of the CTTT and to ensure that all matters of fact and Law be heard and determined and the Plaintiffs do not suffer further Violations of Civil and Human Rights at the hand of CTTT and its members that have Violated and seek to Violate Civil and Human Rights and act ultra vires.
9. The Defendants are responsible for All Damages caused to and suffered by the Plaintiffs.”

3 Notwithstanding the nature of the orders sought, the statement of claim was filed with the notation “Defamation List” and it has indeed been assigned to that list. That, no doubt, is because paragraph 1 asserted that the first to fifth defendants, acting as servants or agents of the sixth defendant:

“… spoke and published defamatory matters of and concerning the Plaintiffs.”

4 In fact, the pleader appears to have intended to plead four separate defamatory publications, on 8 June 2006, 6 February 2006, 5 June 2006 and 7 June 2006. (I have adopted the chronological sequence in which the assertions appear in the statement of claim.)

5 The first asserted defamatory publication is referred to in paragraph 3 of the statement of claim which is in the following terms:

“The Defamatory Publications were made to a female Police Officer named PESSOTTO whom at about 4.20pm on 8 June 2006 in company of a male Police Officer attended the Residence of the Plaintiffs at 12/37 Shropshire Street Miller NSW and alleged that the Defendants had made a complaint about the welfare of the 2nd Plaintiff and 3rd Plaintiff who reside with the 1st Plaintiff and she wanted to speak to them alone and asked the 3rd Plaintiff if she could speak to her and the 2nd Plaintiff. The Police Officers were told by the 3rd and 2nd Plaintiff that they did not whished (sic) to speak to them but the Police Officers continue to remained in front of the Plaintiffs Residence in clear view of the Public at large which caused other Residents to talk and ridicule the Plaintiffs.”

6 The second asserted publication is pleaded in paragraph 4, which, essentially, sets out the terms of a letter allegedly written by the first defendant “together with the 2nd to 5th Defendants” on behalf of the sixth defendant. The plaintiffs purport to reproduce the contents of the letter, which they do in the following terms:

“BROKEN CONSUMER TRADER TENNACY (sic) TRIBUNAL ORDERS
You are advised that you are in breach of money orders issued by the Consumer Trader and Tenancy Tribunal concerning rental arrears of your current tenancy at 12/37 SHROPSHIRE STREE (sic) MILLER NSW 2168.
The amount owing for Rent is currently $829.94 as 4th February 2006. The last payment we have recorded for you was $120.00 on 23rd January 2006.
Please contact your Client Service Officer on the telephone above to immediately discuss this matter.”

7 The next publication pleaded is that of 5 June 2006, which is referred to in paragraph 5 of the statement of claim. It too, appears to be a purported reproduction of a letter, said to have been written on 25 June 2006. The statement of claim purports to reproduce the letter in the following terms:

“FINAL WARNING
The current balance on your rental is $823,DR due on 20/05/06. The last payment on 15/06/05 of $100 was received.
Under the Residential Tenancy Agreement Act,
2. The tenant agree to pay rent on time.
The Dept has now written to the CTTT seeking the matters for a hearing. At the hearing the Dept will be seeking termination of the tenancy – this will lead to the loss of your home.
If you wish to retain your tenancy, you must contact me immediately in 982757888 otherwise that matter will continue to the Consumer, Trader & Tenancy Tribunal.”

8 The final publication pleaded was said to have been made on 7 June 2006. The plaintiffs plead that the first defendant published further defamatory matters of and concerning the plaintiffs in the following terms:

“NOTICE OF TERMINATION
Section 57 of the Residential Tenancies Act 1987
In accordance with the authority delegated to me by the NSW Land and Housing Corporation, your landlord. I hereby give Notice of Termination of your Residential Tenancy Agreement in respect of the premises at 12/37 Shropshire St Miller 2168.
You have breached the Residential Tenancy Agreement by not paying rent on time.
Particulars – Rent Arrears
An amount of $765.68 is owing as at 7th June 2006 which based on a weekly rent of $43.66 is in excess of 14 days in arrears.
You are required by the landlord to give vacant possession on 9th July 2006 being a date not earlier then (sic) 14 days after service of this Notice.
Noter (sic) Information regarding tenancy rights and obligations is contained in the Residential Tenancy Agreement.
Signed by me Bridget Brooker as delegate of the NSW Land and Housing Corporation and hereby certify that I have no notice of the revocation of such delegation, … “

9 Annexed to the statement of claim were a letter dated 6 February 2006, addressed to “Mr P Alfaro” with an address at 12/37 Shropshire Street Miller; a document entitled “FINAL WARNING”, dated 25 June 2006 (but bearing a “received” stamp with the date “05 Jun 2006”) addressed to “Mr Pedron Alfaro”, at the same address; and a document entitled “NOTICE OF TERMINATION”, dated 7 June 2006, also addressed to Mr P Alfaro, again at the same address.

10 Each pleading of an allegedly defamatory publication was followed in the statement of claim by particulars of imputations said to have been conveyed of each plaintiff. Each pleading alleges different imputations in relation to each of the four plaintiffs.

11 Following paragraph 3 were the following imputations said to have been conveyed of the first plaintiff:

“(a) that the 1st Plaintiff on 8 June 2006 had committed Domestic Violence in view of the Defendants how (sic) saw the occurrence at the home of the Plaintiffs;
(b) that the 1st Plaintiff on 8 June 2006 was abusing the 2nd Plaintiff and his Family with Domestic Violence;
(c) that the 1st Plaintiff on 8 June 2006 was intimidating the 2nd Plaintiff and his Family with Domestic Violence;
(d) that the 1st Plaintiff on 8 June 2006 had abused the 2nd Plaintiff and his Family in the presence of the Defendants;
(e) that the 1st Plaintiff was a Criminal Person;
(f) that the 1st Plaintiff on 8 June 2006 was involved in Criminal Misconduct;
(g) that the 1st Plaintiff on 8 June 2006 had committed a Criminal act in view of the Defendants;
(h) that the 1st Plaintiff on 8 June 2006 was guilty of a Criminal Offence and the Defendants had evidence against the 1st Plaintiff of Domestic Violence committed against the 2nd to 4th Plaintiffs.”

12 I do not propose to set out all of the imputations said to have been conveyed of the remaining plaintiffs. A sample will suffice. As to the second plaintiff, seven imputations were pleaded, two of which are in the following terms:

“(a) that the 2nd Plaintiff on 8 June 2006 had given reasons or evidence to the Defendants to believe that the 1st Plaintiff had committed Domestic Violence against her and the 3rd to 4th Plaintiffs.;
(f) that the 2nd Plaintiff on 8 June 2006 had given reasons or evidence to the Defendants to believe that she needed Police Assistance;”

13 Similar imputations were pleaded in relation to the third and fourth plaintiffs.

14 With respect to the letter of 6 February 2006, the subject of the pleading in paragraph 4, the following imputations are said to have been conveyed of the first plaintiff:

“(a) that the 1st Plaintiff was dishonest and had not pay (sic) rent or arrears as ordered by the Tenancy Tribunal;
(b) that the 1st Plaintiff was refusing to pay rent or arrear (sic) of rent;
(c) that the 1st Plaintiff was defrauding the 6th Defendant Corporation;
(d) that the 1st Plaintiff leaving (sic) free of charge in the property owned by the 6th Defendant Corporation;
(e) that the 1st Plaintiff was dishonest by not paying rent to the 6th Defendant Corporation;
(f) that the 1st Plaintiff was working and was not paying rent to the 6th Defendant Corporation.”

The letter was said to have conveyed four imputations defamatory of the second plaintiff, pleaded in the following terms:

“(a) that the 2nd Plaintiff had combined with the 1st Plaintiff in a conspiracy to defraud the 6th Defendant Corporation;
(b) that the 2nd Plaintiff was leaving (sic) free of rent in the property of the 6th Defendant Corporation;
(c) that the 2nd Plaintiff was involved in Criminal Misconduct;
(d) that the 2nd Plaintiff was dishonest by not paying rent to the 6th Defendant Corporation;”

15 Similar (if not identical) imputations were pleaded in relation to the third and fourth plaintiffs.

16 The “final warning” letter, the subject of the pleadings in paragraph 5 (5 June 2006), was said to have conveyed imputations of a similar nature (dishonesty, fraud, living rent free) of the first plaintiff. It was said to have conveyed of the second plaintiff imputations similar to those said to have been conveyed by the 6 February publication (conspiracy to defraud, dishonesty) and others not materially different of the third and fourth plaintiffs.

17 The notice of termination of 7 June 2006, pleaded in paragraph 6 was, again, said to have conveyed defamatory imputations of the same or similar kind to those previously outlined.

18 Under the heading “Particular of injuries to the plaintiffs” appears a discursive account, in which the plaintiffs appear to assert that the “defamatory matters” the subject of the first pleading (paragraph 3) were spoken and published by the defendants to NSW police officers and to residents of a unit at 37 Shropshire Street Miller and others, and that the plaintiffs had been made to feel embarrassed and as if they were criminals; that the “defamatory matters” of 6 February 2006 were published to the tenant of a unit at 8/35 Shropshire Street Miller, again causing embarrassment to the plaintiffs. They asserted that, at the time of publication of “the defamatory matters” the plaintiffs were preparing documents for the Human Rights Commission of Australia (presumably a reference to the Human Rights and Equal Opportunity Commission) and court documents for the District Court of NSW. I will set out two paragraphs in full:

“The Defendants with the intention to damage the Plaintiffs and assist Public Servant and Lawyers who are Defendants in the High Court of Australia, issued the Notice of Termination requesting vacant possession by 9th July 2006 and made the Publications of Defamatory Matters with intention to Damage the Plaintiffs and the High Court Proceedings which include the Commonwealth Government.
The 4th Defendant who is also a relative of Robyn KERR Office Manager for the Electorate Office of Phillip Ruddock MP and Attorney General for the Commonwealth have also made the Defamatory allegations against the Plaintiffs to cause damages to the Plaintiffs with the intention to damage the Plaintiffs the Proceedings in High Court of Australia which Attorney General of the Commonwealth and other Public Servants are trying to prevent the Plaintiffs from producing evidence in the High Court.”

19 There is more but it is unnecessary to set it out. The plaintiffs then particularised damage and loss of various kinds, including loss of income, damage to reputation and “Loss of Benefits” by the third and fourth plaintiffs.

20 On 18 July 2006 the solicitor for the defendants wrote to the plaintiffs, advising that the statement of claim:

“… appears to be deficient in numerous respects”

and signalling his intention, in the absence of rectification, of seeking the orders which he now pursues.

21 In the letter the defendants complained of the following aspects of the statement of claim:

(i) the generality of the allegations made against the individual officers of the sixth defendant in paragraphs 3, 4, 5 and 6; the complaint was that the allegations were insufficiently particularised to enable any defendant to identify the case he or she would have to meet;

(ii) the lack of precision in the allegation made in paragraph 3; the paragraph does not set out any defamatory publication, but rather asserts conduct on the part of police officers, said to be in consequence of something conveyed to them by or on behalf of the defendants. One complaint is that this method of pleading makes it impossible for the defendants to know whether the imputations pleaded are capable of having been conveyed by the publication;

(iii) the failure to particularise the recipients of the publication pleaded in paragraph 4. It is to be noted that one of the complaints apparently made by the plaintiffs is that the letter the subject of this pleading was delivered to Unit 8/35 Shropshire Street. In the letter to the plaintiffs the assumption was made (on behalf of the defendants) that the letter was wrongly addressed. However, a copy of the letter is annexed to the statement of claim and is clearly addressed to “12/37 Shropshire Street”;

(iv) incapacity of the matter complained of in paragraph 4 to convey any of the imputations pleaded;

(v) the failure of the pleadings to identify the recipients of the allegedly defamatory matter set out in paragraph 5; incapacity of the matter complained of to convey any of the imputations pleaded; and that the pleading appeared to assert publication to the person defamed, and not to third parties;

(vi) failure to annex a copy of the content of the publication pleaded at paragraph 3;

(vii) failure to identify the recipients of the publication pleaded in paragraph 6 (the notice of termination);

(viii) incapacity of the matter complained of in paragraph 6 to convey any of the imputations pleaded;

(ix) and (x) the inappropriate nature of the relief sought;

(xi) complaint about the particulars of injuries pleaded on pages 9 and 10, which were said to be irrelevant, embarrassing, vague and ambiguous;

(xii) obscurity and the embarrassing nature of the particulars of damage and loss.

22 The vast bulk of these points, if not all of them, are well made. By notice of motion filed on 4 August 2006 the defendants seek an order, pursuant to UCPR 14.28 that the statement of claim be struck out or alternative orders deemed appropriate by the court.

23 In oral argument reference was also made to UCPR 13.4. It is only necessary, for present purposes, to deal with the complaint arising out of the asserted incapacity of the various publications to convey the imputations pleaded.

24 For example, following paragraph 3 are the imputations to which I have already referred. It is impossible to determine whether anything that was said or written by or on behalf of any of the defendants was capable of conveying these imputations, because the substance of the publication is not set out. For that reason alone, paragraph 3 and the particulars thereto must be struck out.

25 The same applies to the publication pleaded in paragraph 4 and the imputations pleaded thereto. The letter reproduced in paragraph 4 contains merely an assertion of breach of money orders, and that rent was in arrears. It is apparent that the letter was addressed to the first plaintiff, although it may have been delivered in error to a different address. There is no reference in the letter to any of the other plaintiffs. There is not the slightest basis for concluding that the letter conveys any imputation defamatory of any of the second to fourth plaintiffs. The imputations pleaded by the first plaintiff are of dishonesty, fraud and the like. There is nothing in the letter that could possibly give rise to any such imputation. Paragraph 4 and the imputations pleaded will be struck out.

26 The same applies to the publication pleaded in paragraph 5 (the Final Warning). Again, the letter or notice appears to have been addressed to the first plaintiff. It contains no reference to any other plaintiff. It contains nothing that could conceivably convey any imputations defamatory of any of the second to fourth plaintiffs. It contains nothing from which any imputation of dishonesty or fraud against the first plaintiff could be drawn. Paragraph 5 and the imputations pleaded thereto will be struck out.

27 Similarly, paragraph 6 pleads a notice of termination, which is again followed by imputations of dishonesty and fraud. There is nothing in the notice of termination which would give rise to any imputation of dishonesty or fraud on the part of the first plaintiff. There is no reference to any of the other plaintiffs. Paragraph 6 and the imputations pleaded thereto will be struck out.

28 The complaint concerning the nature of the relief sought is also well made. In paragraph 7 an order is sought that involves the Consumer Trader and Tenancy Tribunal, against which injunctive relief is sought. That Tribunal is not a party to the proceedings. It would be quite inappropriate to make any orders concerning that Tribunal in the absence of its being heard, and quite inappropriate to grant injunctive relief.

29 There is no basis (even if there is jurisdiction) to make an order of the kind sought in paragraph 8, and what appears to be a declaration sought in paragraph 9 is quite unsupported by any factual matter pleaded.

30 UCPR 14.28 provides as follows:

“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).”

31 As the first plaintiff, who represented himself and the other plaintiffs, pointed out, the test to be applied is the well known test stated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125.

32 UCPR 13.4 provides as follows:

“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).”

33 I am satisfied that the defendants are entitled to relief under either of the rules invoked. No reasonable cause of action is disclosed and the proceedings are an abuse of the process of the court. Accordingly, r 13.4 would justify an order that the proceedings be dismissed; similarly, I am satisfied that the statement of claim discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment and delay in the proceedings and is, for the purpose of this rule also, an abuse of the process of the court. Accordingly, r 14.28 justifies an order that the statement of claim be struck out, and r 13.4 justifies an order that the proceedings be dismissed generally.

34 I order that the statement of claim be struck out. The plaintiffs are to pay the defendants’ costs of the proceedings.

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