B1 v B2

[2017] NSWDC 252

District Court

New South Wales

Medium Neutral Citation:	B1 v B2 [2017] NSWDC 252
Hearing dates:	31 August 2017
Date of orders:	31 August 2017
Decision date:	12 September 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the application of the plaintiff, which is consented to by the defendant, the Amended Defence filed on 9 August 2017 is struck out with leave to replead. (2) The repleaded defence must be filed by 13 October 2017 and, if the defects in the current pleadings are not cured, may be subject to summary dismissal and judgment in favour of the plaintiff, with the proceedings listed for assessment of damages. (3) A copy of her Honour Judge Gibson’s reasons for these orders is to be forwarded to the Registrars of the Federal Circuit Court of Australia and Family Court of Australia. (4) Defendant is to pay plaintiff’s costs. (5) Matter stood over to the Defamation List on Thursday 26 October 2017.
Catchwords:	TORT – defamation – publication of material concerning alleged domestic violence - application to strike out defence – whether leave to amend defence should be granted – proceedings under the Family Law Act 1975 (Cth) currently before another tribunal – material published potentially contrary to s 121 – referral of judgment to registrar
Legislation Cited:	Family Law Act 1975 (Cth), ss 64 and 121 Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Chaudhary v Chaudhary [2017] NSWCA 222 D v Australian Financial Security Authority [2017] NSWCA 50 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Lackey v Mae [2013] FMCAFam 284 Mann v Cahill (1999) 149 FLR 298 Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 Perera v Genworth Financial Mortgage Insurance Pty Limited [2016] NSWCA 53 Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 Sims v Wran [1984] 1 NSWLR 317 Smith v Jones (pseudonyms) [2017] NSWSC 980 Spillane v Curr [2011] NSWDC 150 Xuarez v Vitela [2012] FamCA 574
Texts Cited:	Rachel Davey, “The Family Court and Privacy” (2016) 13(6) PRIVLB 128
Category:	Procedural and other rulings
Parties:	Plaintiff: B1 Defendant: B2
Representation:	Counsel: Plaintiff: Mr M J Lewis Defendant: In person   Solicitors: Plaintiff: Diamond Conway Defendant: In person
File Number(s):	2017/180457
Publication restriction:	Names of the parties and their children have been anonymised

Judgment

1. These are my reasons for the orders made on 31 August 2017.

2. The plaintiff and the defendant were formerly husband and wife, having been divorced on 7 October 2016. There are two children of the marriage.

3. At the time of publication of the first matter complained of, the plaintiff and defendant had been separated for about two and a half years. I have been informed by the defendant, from the bar table, that there are currently proceedings for custody in the Family Court of Australia and that each party seeks orders including, in the case of the defendant, investigation of certain conduct referred to in the matters complained of. In part because of s 121 Family Law Act 1975 (Cth) and in part because of the nature of those investigations, I shall not set out any of the material relating to those allegations, including the imputations. I have also anonymised the names of the parties to B1 and B2.

The first and second matters complained of

4. The first matter complained of was published by the defendant on the wall of her Facebook page, where it was capable of being published to at least 62 persons, namely those of the defendant’s Facebook friends who had either “liked” or “shared” the first matter complained of.

5. In addition to the defendant’s 490 “friends” on her Facebook page, the defendant’s use of hashtags to promote the content of the matters complained of to a wider audience means that the publication might be seen by others. Mr Lewis submitted that, as one of the hashtags used was in connection with domestic violence and to White Ribbon Day, at about the time the publication was made, this was a publication which could have been seen by persons not within the defendant’s range of friends. Although the defendant submitted her Facebook page was private, it was clearly accessible to persons who were not her friends, such as the plaintiff and persons who told him they had seen one or the other of the publications.

6. The second matter complained of is similar in form and content. Both publications used what is described by Mr Lewis as “sensational and emotive language” which the plaintiff complains is used to cause “maximum humiliation and embarrassment to the plaintiff”.

The Defences filed

7. The defendant filed a Defence on 18 July 2017 but only served it on the plaintiff in court on the first return date on 27 July 2017. There is no attempt made to plead defences in accordance with the general pleadings rules, although it appears to be the case, from the language, that the defendant was attempting to plead truth and qualified privilege as her defences.

8. The defendant filed a second document, also entitled “Defence”, on 9 August 2017. This document is described as “an Amended Defence in addition to my Defence previously submitted to the courts (sent by express post on 14 July 2017, stamped as received by the District court [sic] on 18 July 2017, received by return post to me on the afternoon of 27 July 2017).” It is discursive and makes allegations of the most serious nature. Again, it would appear that the defendant is attempting to plead truth and qualified privilege as her defences, but there is no compliance with any of the pleading rules.

9. These pleading defects have been explained to the defendant in correspondence on behalf of the plaintiff and, on the last occasion when these proceedings were before the court, by myself. The defendant was granted leave to file and serve any further amended defence by 17 August 2017 and was referred to a legal advice centre specialising in assisting women and domestic violence issues.

10. The defendant did not avail herself of the leave to file and serve a further amended defence as set out in my orders of 10 August 2017. She was critical of the legal advice centre to which she was referred. Her response to Mr Lewis’s submissions was to repeat that everything in her defence was true, and she stood by it.

11. The circumstances in which courts may strike out pleadings pursuant to r 14.28(1) Uniform Civil Procedure Rules 2005 (NSW) are helpfully set out by McColl and Leeming JJA in Perera v Genworth Financial Mortgage Insurance Pty Limited [2016] NSWCA 53. While more generous approach is taken where the defendant is a litigant in person (see Mann v Cahill (1999) 149 FLR 298) there will always come a time when the court is not prepared to grant any further indulgences: Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595.

12. In particular, as to the defence of justification, there is a need to plead the facts, matters and circumstances with care. It has sometimes been said, particularly where the allegations are of a criminal nature, that the particlars relied upon should be set out with the precision of an indictment: see Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074; Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331. The same is the case for particulars of qualified privilege: Sims v Wran [1984] 1 NSWLR 317 at 327-328.

13. The defendant should be given one further chance to file a further amended defence, and sufficient time for her to consult a legal practitioner capable of drafting a defence setting out the relevant particulars of justification and qualified privilege, if these are the defences upon which she relies.

14. When the requirement for these pleadings was explained to the plaintiff, she was prepared to consent to an order striking out her defences (both the original defence and the additional one) upon the basis that she was granted leave to file a further amended defence, and accordingly that is the order that I have made, although subject to an order for payment of costs.

15. The difficulty for the court in applications such as the present is that, where parties elect to fight proceedings in the court of public opinion in the form of social media, rather than leaving the determination of these issues to the courts or investigative bodies whose job it is to determine these issues, the courts’ powers to protect the judicial and investigative process are effectively non-existent. The seriousness of this problem has been the subject of a series of decisions (Xuarez v Vitela [2012] FamCA 574 and Lackey v Mae [2013] FMCAFam 284) and academic commentary (Rachel Davey, “The Family Court and Privacy” (2016) 13(6) PRIVLB 128).

16. Where there are proceedings contemplated or commenced in the Family Court of Australia, if one of the parties has sought to conduct those proceedings in the public arena in the manner undertaken by the defendant (whether those Family Court proceedings were on foot at the time or not), the risk of distress to family members (especially children), contamination of evidence and breaches of s 121 Family Law Act 1975 (Cth) are high. It would defeat the purpose of s 121 if parties before the court took to social media to ventilate their dispute, make allegations, seek to encourage (or discourage) witnesses and involve their children and families in the discussion of private matters in the public arena. It is with these issues in mind that I propose to refer my judgment to the relevant registrars of the Federal Circuit Court of Australia and Family Court of Australia.

Referral of this judgment for consideration of orders under s 121 Family Law Act 1975 (Cth)

17. As noted above, paragraphs 2 and 3 of the statement of claim seek orders restraining the publication of the first and second matters complained of as ancillary relief in this court. However, the Family Court of Australia possesses not only wider but more appropriate powers for such steps to be taken, if such relief is sought (which I apprehend will be the case in future proceedings in this court).

18. The Supreme Court of New South Wales may, in certain circumstances, make orders in relation to issues arising under the Family Law Act 1975 (Cth) (see Chaudhary v Chaudhary [2017] NSWCA 222 and, where a transfer for a “special Federal matter” is involved, see D v Australian Financial Security Authority [2017] NSWCA 50 at [72] – [73]) as well as injunctive relief. The District Court has no similar power, but does possess ancillary powers to prohibit the continuing publication of material. The court best equipped to deal with the impact of the publications made by the defendant are, however, those courts administering the Family Law Act 1975 (Cth) in which orders may be made pursuant to s 121 where considered appropriate. The use of defamation proceedings to resolve family disputes may be both expensive and unproductive, not only to the litigants but to third parties such as schools (Spillane v Curr [2011] NSWDC 150) and welfare organisations (Smith v Jones (pseudonyms) [2017] NSWSC 980).

19. The District Court has the power to refer the conduct reflected in a judgment to some appropriate court or investigative body. This is not part of the judicial process, but an independent administrative decision by the court, and as is explained by Basten JA in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16]-[18] which, for the benefit of the defendant, I set out below:

“[16] A decision “to refer papers” to some regulatory or policing agency (or on occasion the Australian Taxation Office) is, as the judge noted “an independent administrative decision by the court” and not part of the judicial process. That is an apt description of the process and one which casts doubt upon the propriety of the Bank’s application. There may be circumstances in which, for example, the parties to litigation appear to have been involved in a scheme designed to defraud the revenue. It is likely to be in the interests of neither for the attention of the Australian Taxation Office to be drawn to the circumstances revealed in the litigation. In such cases it may be appropriate for the Court to arrange for the Registrar to send a copy of the judgment to the ATO, or take any other more formal step in that regard; that is not a matter which arises in the present case. In this case, the Bank, through senior counsel, made an application in open court, supported by written submissions, that the Court should “refer certain of the papers in these proceedings (contained in the attached bundle, together with the entire transcript and the telephone records — which are not in the attached bundle — referred to in paragraph 25 below) to the Attorney-General for consideration as to whether charges should be laid …”. The allegations were then particularised.

[17] In the course of the submissions before the trial judge reference was made to a judgment of Brereton J in Paycorp Payment Solutions Pty Ltd v Chai (No 3), where a principle was set out as to the circumstances in which such a referral was appropriate. It has also been thought necessary in such cases to give notice to the affected parties so that they may be heard in opposition to such a “referral”.

[18] No doubt there may be circumstances in which documents have been obtained by discovery and a party may be unable to use them for purposes beyond the purposes for which they were obtained, merely on the basis that they appear to disclose criminal activity. In such a case, the party may wish to be released from the general undertaking relating to discovered documents. Indeed, such an application was made and granted in the present case on 14 December 2016. Whether the Bank had an acceptable justification for seeking such extrajudicial orders from the Court, in circumstances where the Bank itself was able to draw the matters to the attention of prosecuting authorities, is unclear.” (Footnotes omitted)

20. According to the defendant, the plaintiff’s application for custody of the children of the marriage was last in the Family Court on 24 August 2017 and she has sought orders herself. Whether or not the existence of these publications on Facebook breaches s 121 Family Law Act 1975 (Cth) or some order made in the course of those proceedings is a matter best dealt with by a court seized with the relevant jurisdiction, and not by this court.

21. In drawing a copy of this judgment to the attention of those courts, I take into account that s 64 Family Law Act 1975 (Cth) provides that the welfare of the child or children is paramount. Unfortunately, the welfare of the children of the plaintiff and defendant’s marriage plays no part in defamation litigation currently before this court, which is adversarial in nature. It cannot, however, be in their best interest to have private details of their lives and their parents’ lives and, in particular, allegations of complaints to the Department of Community Services and to the Police, being the subject of gossip and chit-chat on social media.

22. Accordingly, I have taken the step of referring a copy of this judgment to the Registrars of the Federal Circuit Court of Australia and Family Court of Australia in the event that the court hearing the parties’ allegations (which was not identified to me) considers it appropriate to make such orders as that court may consider appropriate in the course of the litigation between the parties.

Costs

23. It is the standard practice when a party amends a pleading that the costs thrown away by reason of that amendment should be paid.

24. In the present case, the defendant has had the benefit of correspondence from the plaintiff’s solicitor and Mr Lewis’ written submissions as well as advice from the court as to the inadequacy of her pleading. She has failed to comply with the order to file and serve the further amended defence by 17 August 2017. She has received an indulgence in being entitled to plead a further amended defence, and in being given a substantial period of time to do so. The circumstances in which there are parallel proceedings in another court which she appears to wish to influence are also of concern, and in this regard I note observations to this effect in Xuarez v Vitela and Lackey v Mae.

25. In those circumstances, it is appropriate that the defendant pay not only the costs thrown away by reason of the amendment, but also the costs of this application.

Orders

1. On the application of the plaintiff, which is consented to by the defendant, the Amended Defence filed on 9 August 2017 is struck out with leave to replead.

2. The repleaded defence must be filed by 13 October 2017 and, if the defects in the current pleadings are not cured, may be subject to summary dismissal and judgment in favour of the plaintiff, with the proceedings listed for assessment of damages.

3. A copy of her Honour Judge Gibson’s reasons for these orders is to be forwarded to the Registrars of the Federal Circuit Court of Australia and Family Court of Australia.

4. Defendant is to pay plaintiff’s costs.

5. Matter stood over to the Defamation List on Thursday 26 October 2017.

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Decision last updated: 15 September 2017