Atkins v Australian Broadcasting Corporation (ABC) - [2024] SASCA 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ATKINS v AUSTRALIAN BROADCASTING CORPORATION (ABC)
[2024] SASCA 96
Decision of the Court of Appeal
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Stein)
2 August 2024
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
The applicant (Mr Atkins) seeks judicial review of a decision made by the primary judge on 18 April 2024 giving summary judgment in a defamation claim brought against the respondent.
Upon reviewing the matter, a Supreme Court judge made orders which had the effect of treating the application for judicial review as a notice of appeal.
The primary judge found that there was no reasonable basis for prosecuting the claim and that the respondent could demonstrate that it had available to it compete defences.
Held (the Court) refusing leave to appeal and dismissing the originating application for review:
1.Mr Atkins’ materials do not identify any relevant error of fact or law, nor any error in the exercise of discretion, by the primary judge.
2.Although it is a vexed question whether leave to appeal is required, this Court has tended to treat an order granting or refusing summary judgment to a defendant as interlocutory.
3.As there is no apparent merit in the appeal, leave to appeal should be refused. If the decision was not interlocutory in nature and leave to appeal is not required, the appeal should be dismissed as it is without merit.

Defamation Act 2005 (SA) ss 12A, 12B, 13, 14, 26, 27; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) r 143, 144.2, 213.1, referred to.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Atkins v Protected Person [2022] SASC 31; Attorney-General (SA) v Kowalski [2015] SASC 123; Barach v University of New South Wales [2011] NSWSC 99; Bienstein v Bienstein (2003) 195 ALR 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Coles Myer Ltd v Bowman [1996] 1 VR 457; Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Gassy v The King [2023] SASCA 90; Hall v Nominal Defendant (1966) 117 CLR 423; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168; House v The King (1936) 55 CLR 499; Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; Jennings v Police (2019) 133 SASR 520; Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; McDonald v The State of South Australia [2022] SASCA 81; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Niemann v Electronic Industries Ltd [1978] VR 431; O’Toole v Atkins [2020] SASC 166; Pye v Renshaw (1951) 84 CLR 58; Re Luck (2003) 78 ALJR 177; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40; Tampion v Anderson (1973) 48 ALJR 11; Vacik Distributors Pty Ltd v Australian Broadcasting Corporation [1999] NSWSC 1176, considered.

ATKINS v AUSTRALIAN BROADCASTING CORPORATION (ABC)
[2024] SASCA 96
Court of Appeal – Civil: Livesey A/CJ and Stein AJA
THE COURT:
Introduction

This matter concerns an originating application for review filed by the applicant (Mr Atkins) on 16 May 2024.
By a claim filed on 15 May 2023, Mr Atkins sued the respondent (the ABC) for defamation.
The originating application sought judicial review of a decision by a District Court judge made on 18 April 2024, giving summary judgment in favour of the ABC. After reviewing this matter, on 14 June 2024 Parker AuxJ made orders and remarks which had the effect of treating the application as a notice of appeal and requiring that the parties exchange written submissions. His Honour directed that the appeal be heard on the papers.
As will be seen, Mr Atkins requires leave to appeal. For the reasons that follow, Mr Atkins has failed to identify any arguable error in the decision of the primary judge, with the result that leave to appeal should be refused.
Background to the appeal
Mr Atkins wishes to litigate over an article uploaded to the ABC website at 7.05pm on 7 April 2022. That article reported on two Supreme Court judgments in which Mr Atkins was involved, O’Toole v Atkins,[1] and Atkins v Protected Person.[2] The ABC article was headed “Man claims lawyer misunderstood colloquial ‘Aussie language’ in threats that led to intervention order”. The article included the following:
[1] O’Toole v Atkins [2020] SASC 166.
[2] Atkins v Protected Person [2022] SASC 31.
A man who claimed threats to his former lawyer were misinterpreted because he only speaks “Aussie language” and not proper English has lost an appeal against an intervention order against him.
Key points:
·Paul Atkins had an intervention order issued against him in 2019
·He claimed the threats he issued against his former lawyer were misunderstood
·A Supreme Court judge said it was reasonable to suspect he might abuse the lawyer
Mr Atkins became aware of the article on 26 May 2022. The following day he served a “final notice” and other documents on the ABC advising of his intention to claim millions of dollars plus costs.
The response from the ABC on 17 June 2022 was that the article was protected by the “fair report” defence under s 27 of the Defamation Act 2005 (SA) (the Defamation Act).
On 29 June 2022, the ABC received correspondence from Mr Atkins which included an unfiled and unsealed claim for defamation concerning the article. Mr Atkins then engaged in correspondence with the District Court Registry which rejected his claim for filing because it was an abuse of process.
On 10 January 2023, the ABC received from Mr Atkins a letter dated 25 December 2022 purporting to be a “concerns notice”.
On 13 January 2023, the ABC sent Mr Atkins a letter advising him that he had breached the time limits contained in ss 13 and 14 of the Defamation Act, the article was protected by the “fair report” defence under s 27 of the Defamation Act and, as the claim had been rejected by the Registry, the ABC did not intend to take further action.
On 15 May 2023, Mr Atkins filed the claim. This was received by the ABC on 20 June 2023. It emerged that though Mr Atkins had not sought a review of the Registrar’s decision to reject his claim, the claim was re-filed and approved for filing.
On 27 June 2023, the ABC sent a letter to Mr Atkins advising that the claim had been filed outside the relevant limitation period, a concerns notice had not been issued and there had been a failure to comply with pre-action requirements.
On 18 August 2023, Mr Atkins purported to serve the ABC with a “revised statement of claim”. On 19 February 2024, Mr Atkins filed an application to amend and annexe to his affidavit a “proposed revised claim”. The primary judge’s decision applied to all three iterations of the claim.
The hearing before the primary judge
The application spanned two days during which Mr Atkins was fully heard. Although he was not heard on the costs order, that was because Mr Atkins decided to leave the court room part way through the delivery of her Honour’s ex tempore reasons:
MR ATKINS:     Your Honour. Can you get to the bottom line, because my parking ticket is probably run out by now, and I do not want to get a parking ticket.
HER HONOUR: All right. Mr Atkins, I will continue to provide my reasons. If you need to leave you can do so, but I will be dismissing your claim.
MR ATKINS:     Yes, I thought so. Thank you.
HER HONOUR: There is one matter before you go, Mr Atkins.
MR ATKINS:     I thought you were dismissing.
HER HONOUR: I am, but there is one other matter you may want to be heard about, and that is the respondent’s application for costs.
MR ATKINS:     Oh, okay, nah, it does not worry me. …
The judge then continued with her reasons, before making orders.
The reasons of the primary judge
Although other provisions were relied on, the primary judge gave summary judgment pursuant to r 144.2(2)(a) of the Uniform Civil Rules 2020 (SA):
144.2—Summary judgment
(1)The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)     on a claim if there is no reasonable basis for defending the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a)     on a claim if there is no reasonable basis for prosecuting the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
The primary judge found that there was no reasonable basis for prosecuting the claim, relying upon the principles set out in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd.[3] Her Honour did not find it necessary to address various limitation arguments raised by the ABC. The decision of the primary judge rested on the following conclusions:
1.Mr Atkins commenced proceedings without serving anything which could properly be described as a “concerns notice” for the purposes of ss 12A and 12B of the Defamation Act. Her Honour gave reasons explaining why the letter from Mr Atkins dated 25 December 2022 could not be regarded as a “compliant concerns notice”.
2.None of the versions of the claim advanced by Mr Atkins pleaded the necessary elements of a cause of action in defamation, particularly each defamatory imputation he relied on.[4] Rather, Mr Atkins pleaded a number of complaints about the findings made in the two judgments which were the subject of the article and which he said were wrong. The primary judge was satisfied that there was no reasonable basis for prosecuting the claim.
3.Whilst satisfied that there was no reasonable basis for prosecuting the claim, the primary judge “for completeness” addressed the availability of two statutory defences.
4.The primary judge found that the article fairly summarised what was contained in the judgments, which could each be regarded as a “public document” for the purposes of s 26(4) of the Defamation Act. The primary judge found that the ABC had available to it a defence under s 26(1) because the matters complained about were contained in a public document or comprised a fair summary of a public document. The primary judge undertook her evaluation from the perspective of the ordinary reasonable reader reading the publication as a whole.[5] The primary judge rejected the proposition that Mr Atkins could establish that the article was not published honestly for the information of the public, cf s 26(3) of the Defamation Act.
5.The primary judge also found that ABC had available to it a defence pursuant to s 27 of the Defamation Act because the article concerned a matter which was or was contained in a “fair report” of “proceedings of public concern”. By s 27(4)(e) these include “any proceedings in public of a court or arbitral tribunal of any country”.[6] The primary judge rejected the proposition that Mr Atkins could establish that the article was not published honestly for the information of the public, cf s 27(3) of the Defamation Act.
[3] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] 137 SASR 117.
[4] The primary judge relied on Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, Barach v University of New South Wales [2011] NSWSC 99, and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
[5] Relying on Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325, [88].
[6] Relying on Vacik Distributors Pty Ltd v Australian Broadcasting Corporation [1999] NSWSC 1176.
Accordingly, as there was no reasonable basis for prosecuting the claim and as the ABC could demonstrate that it had available to it complete defences, the primary judge ordered that summary judgment be entered and that Mr Atkins should pay the ABC’s costs of and incidental to the proceeding.
Whether leave to appeal is required
There is an issue about whether the order made by the primary judge is final or interlocutory in nature. If it is an interlocutory order, leave to appeal is required by s 50(4)(b) of the Supreme Court Act 1935 (SA) and r 213.1(1) of the Uniform Civil Rules 2020 (SA).
It is a “vexed question” whether an order of this kind is interlocutory. In Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd, the Full Court referred to the analysis of Blue J in Attorney-General (SA) v Kowalski before finding that it was unnecessary to enter into the controversy.[7] Blue J had referred to a substantial body of intermediate appellate authority in other jurisdictions to the effect that an order granting or refusing summary judgment to a defendant was interlocutory. His Honour held that as this line of authority was not plainly wrong, it was in practical terms binding on him.[8]
[7] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44, [12] (Nicholson J, with whom Kourakis CJ and Hinton J agreed), referring to Attorney-General (SA) v Kowalski [2015] SASC 123, [113]-[136].
[8] Attorney-General (SA) v Kowalski [2015] SASC 123, [113]-[136] (Blue J).
Later, in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd, Doyle J considered a number of other authorities, albeit only for the purposes of determining whether hearsay evidence was admissible on a hearing seeking summary determination.[9] Doyle J held in that case that he could not proceed on the basis that an application for summary judgment was not capable of leading to a final determination, with the result that hearsay evidence was not admitted under r 101.4(1), as distinct from 101.4(5) of the Uniform Civil Rules 2020 (SA).[10]
[9] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117.
[10] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [80]-[97] (Doyle J), referring to Jennings v Police (2019) 133 SASR 520, [48] (Kourakis CJ, with whom Stanley and Parker JJ agreed).
In McDonald v The State of South Australia this Court referred to a contention that an order for summary dismissal was interlocutory in nature, and referred to a passage from the decision of the High Court in Re Luck:[11]
… reliance is placed on the decision of the High Court in Re Luck for the proposition that leave to appeal is required:[12]
An order is an interlocutory order… when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.
Notwithstanding what might possibly be an expression of opinion to the contrary,[13] that statement by the High Court has generally been followed, including in this Court.[14]
[11] McDonald v The State of South Australia [2022] SASCA 81, [17]‑[18] (Livesey P, Doyle and Bleby JJA).
[12] Re Luck (2003) 78 ALJR 177, [9] (McHugh ACJ, Gummow and Heydon JJ).
[13] Jennings v Police (2019) 133 SASR 520, [31](3) (Kourakis CJ, with whom Stanley and Parker JJ agreed).
[14] Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401, [40] (Spender, Graham and Gilmour JJ); JLS v Chief Executive for Department of Child Protection (No 3) [2022] SASCA 2, [19] (Livesey P and Bleby JA).
In Re Luck McHugh ACJ, Gummow and Heydon JJ referred with approval to cases where orders dismissing actions because they failed to disclose a reasonable cause of action were treated as interlocutory in nature.[15] Whilst there is a difference between summary dismissal and summary judgment, they may be ordered where no reasonable cause of action is capable of being disclosed or where there is no reasonable basis for prosecuting the claim.[16] We will proceed on the basis that leave to appeal is required.
[15] In Re Luck (2003) 78 ALJR 177, [6]-[8] (McHugh ACJ, Gummow and Heydon JJ), referring to Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326, 1328; [1956] 3 All ER 513, 514 (Lord Evershed MR); Tampion v Anderson (1973) 48 ALJR 11, 12; 3 ALR 414, 416 (PC) (Lord Kilbrandon); Pye v Renshaw (1951) 84 CLR 58, 77; Hall v Nominal Defendant (1966) 117 CLR 423, 440 (Taylor J); Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Bienstein v Bienstein (2003) 195 ALR 225.
[16] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [51]-[52] and [68] (Doyle J). Preceding his discussion about the difference between summary dismissal and summary judgment, Doyle JA referred to Chapter 12, Parts 3 and 4 of the Uniform Civil Rules 2020 (SA) which address the respective orders: r 143 provides for summary dismissal on two grounds, including that no reasonable cause of action is capable of being disclosed; r 144.2 provides that summary judgment may be given if there is no reasonable basis for prosecuting the claim.
The determination of the application for leave to appeal
When determining whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions:[17]
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2)whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.
[17] Richani v Martins Plaza Shopping Centre Pty Ltd(No 2) [2022] SASCA 98, [4]-[6] (Livesey P and Doyle JA).
The Court is reluctant to grant leave to appeal against interlocutory orders that do not, whether directly or by their practical effect, finally determine the substantive rights of the applicant seeking leave.[18]
[18] Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, [14] (Bleby J) citing Niemann v Electronic Industries Ltd [1978] VR 431; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40; Coles Myer Ltd v Bowman [1996] 1 VR 457.
Mr Atkins is not legally represented. We have tried to make some allowance for that, by addressing what appear to be the substantial merits of his case and without regard to his failure to comply with the Rules of Court.[19] Mr Atkins has not filed conventional grounds of appeal. However, he has filed a “Statement of Facts, Issues and Contentions” which contain his complaints. We shall treat these as containing his grounds of appeal. They span 27 paragraphs and just over two pages.
[19] Cf Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [21]-[24] (Livesey P) citing Gassy v The King [2023] SASCA 90, [33]-[37] (Livesey P, David JA and Stein AJA).

The striking feature of the grounds relied on by Mr Atkins is that he has made no attempt to identify any relevant error of fact or law by the primary judge. Insofar as the primary judge exercised a discretion, apart from accusing the primary judge of bias and corruption, no attempt is made to demonstrate relevant, material error.[20]
[20] House v The King (1936) 55 CLR 499.
For example, at paragraph 22, Mr Atkins contends that the decision by the primary judge “was so obviously corrupt period, she has invited the sarcasm. Secondly Atkins clearly doesn’t speck [sic] English which is ironically what this claim is all about”. As for the orders he seeks:
Atkins would have demanded the Judge Sutcliffe be removed from office and the corruption between herself, the Registrar Todd and the respondent lawyer be investigated for attempting to pervert the course of Natural Justice, however this is now already is being investigated by the ICAC, and if all are not jailed, the Adelaide legal system will indeed collapse, period.
The written submissions filed by Mr Atkins are discursive and ill-focused. Mr Atkins complains about the outcome without identifying any particular error of fact or law, nor any error in the exercise of discretion.
There is no basis on which to grant leave to appeal because the appeal is without any apparent merit. No issue of principle or general importance is raised, and it has not been shown that allowing the decision to stand would work any substantial injustice.[21] Even if it could be said that the order of the primary judge was final in nature, and leave to appeal was not required, the appeal should be dismissed as being without apparent merit.
[21] Richani v Martins Plaza Shopping Centre Pty Ltd(No 2) [2022] SASCA 98, [4]-[6] (Livesey P and Doyle JA).
Conclusion
As the appeal is without merit, there is no utility in granting leave to appeal. The originating application for review will be dismissed, with costs.