Barach v University of New South Wales

[2011] NSWSC 1327

Supreme Court

New South Wales

Medium Neutral Citation:

Barach v The University of New South Wales [2011] NSWSC 1327

Hearing dates:

26 September 2011

Decision date:

07 November 2011

Jurisdiction:

Common Law

Before:

Walmsley AJ

Decision:

(1) Plaintiff given leave to file and serve Second Amended Statement of Claim, subject to its having deleted from it particulars K and L in paragraph 109, and paragraphs 143-145.

(2) Direct that the Second Amended Statement of Claim be filed and served by 5.00pm on 21 November 2011.

(3) Pursuant to section 56A Limitation Act 1969 the limitation period mentioned in section 14B of that Act in relation to the eighteenth matter complained of in the Second Amended Statement of Claim (paragraphs 92A- 92C) is extended to 5 December 2011.

Catchwords:

DEFAMATION - Limitation Act - extension of time - employment contract - misleading and deceptive conduct - conduct by silence - discovery- implied obligation not to use document for improper purpose - particulars

Legislation Cited:

Employees Liability Act 1991
Fair Work Act 2009 (Cth)
Limitation Act 1969
Trade Practices Act 1974 (Cth)

Cases Cited:

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136
CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714
Demagogue v Ramenski (1992) 39 FCR 31
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Dwyer v Craft Printing Pty Ltd [2009] NSWCA 405
Feros v West Sydney Radio PL (Unreported, New South Wales Court of Appeal, 22 June 1982)
Gregory v Beecraft [1998] ACTSC 48
Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ASC 55-943
Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663
Riddick v Thames Board Mills [1977] 1 QB 881
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

Texts Cited:

Edward Bray, Law of Discovery, (1885), Legal Books Pty Ltd

Category:

Interlocutory applications

Parties:

Paul Randall Barach (Plaintiff)
The University of New South Wales (First defendant)
Professor Raphael Hilary Grzebieta (Second defendant)
Professor Ann Williamson (Third defendant)
Associate Professor Andrew McIntosh (Fourth defendant)
David Michael Ward (Fifth defendant)
Professor Richard Henry (Sixth defendant)
Harold Karaka (Seventh defendant)
Lori Mooren (Eighth defendant)

Representation:

T Blackburn SC with M A Friedgut (Plaintiff)
D R Sibtain (First defendant)
B Burke (Second, third, fourth, fifth, sixth, and eighth defendants)
Harmers Workplace Lawyers (Plaintiff)
Blake Dawson (First defendant)
Banki Haddock Fiora (Second, third, fourth, fifth, sixth, and eighth defendants)

File Number(s):

2010/136384

Judgment

1. Dr Barach is by profession an anaesthetist. In September 2008 he was appointed by the first defendant as director of the New South Wales Injury Risk Management Research Centre.

1. On 23 June 2009 the first defendant terminated his employment.

1. On 1 June 2010 Dr Barach commenced proceedings for defamation against the first defendant and seven individuals. On 14 July 2010, and before he had served his statement of claim, he amended it. In his amended statement of claim he claimed damages, including aggravated damages, for a number of publications by the individuals, for whose publications he says the first defendant is vicariously liable. Altogether, there were 17 matters said to be defamatory.

1. The seventh defendant is a citizen of the United States of America. On 22 September 2010 Rothman J, being satisfied significant and wide ranging steps had been taken by the plaintiff to effect service on him, made an order for substituted service. The seventh defendant, by notice of motion of 21 October 2010, applied inter alia to set aside service. In the course of preparation for that motion, he swore an affidavit in which he referred to certain emails. He declined to make those emails available to the plaintiff although asked to. On 22 March 2011 Schmidt J ordered him to produce them. When they were produced the plaintiff took the view that one of them disclosed additional defamatory material. The relevant imputations arising from that material appear in an amended pleading which he now seeks leave to file. They appear in the pleading as the eighteenth matter complained of.

1. Because section 56A of the Limitation Act 1969 requires proceedings for defamation to be commenced within 12 months of publication, that cause of action is out of time. So in the application before me the plaintiff has also applied for an extension of time. The reason he says he did not sue in time in respect of that publication was that he simply did not know of it until more than a year after it had occurred.

1. On 24 May 2011 Garling J dismissed the application by the seventh defendant to set aside service and gave leave to the plaintiff to continue the proceedings against him.

1. On 14 December 2010 Kirby J heard and determined an application by the defendants other than the seventh defendant, concerning certain imputations. His Honour struck out six imputations, ordered that one go to the jury on an innuendo based on extrinsic facts, and gave leave to replead seven imputations. The further conduct of the matter, in particular, the making of appropriate amendments and the serving of an appropriately amended pleading, was left in abeyance by the plaintiff until the determination of the seventh defendant's application to set aside service.

1. In the application before me, at which there was no appearance by or on behalf of the seventh defendant, I was called on to consider:

(a)   Whether the plaintiff should have an extension of time to sue on the eighteenth matter complained of, and

(b) Whether the plaintiff should have leave to file a proposed further amended statement of claim in which he adds two new causes of action against the first defendant, namely for breach of his employment contract, and for breach of s 53B Trade Practices Act (TPA).

1. On the application, Mr T Blackburn SC, with Mr M A Friedgut, appeared for the plaintiff. Mr D R Sibtain appeared for the first defendant, and Mr B Burke appeared for the second, third, fourth, fifth, sixth and eighth defendants.

1. By the plaintiff's notice of motion filed on 29 July 2011 the orders sought were:

(1) Leave be granted to the plaintiff pursuant to section 64 of the Civil Procedure Act 2005 to amend his amended statement of claim in accordance with the document annexed and marked A (the Second Amended Statement of Claim);

(2) Order that pursuant to section 56A of the Limitation Act 1969 the limitation period mentioned in section 14B of the Limitation Act 1969 in relation to the Eighteenth Matter Complained of in the Second Amended Statement of Claim (paragraphs 89 to 91) be extended for a period of one month from the date of this order to enable the plaintiff to file the Second Amended Statement of Claim;

(3)   Direct the plaintiff to file and serve the second amended statement of claim within 14 days of the date of this order;

(4)   Costs;

(5)   Further or other relief.

1. I took the position of the first defendant to be that it did not oppose leave being given to the plaintiff for the filing of the Second Amended Statement of Claim (SASC), subject to deletion of some parts, and repleading of some others.

1. Mr Burke's position was, in general terms, to adopt Mr Sibtain's submissions as to what could be described as pleading defects, but to oppose the application in so far as it permits the plaintiff to add the causes of action for breach of contract and section 53 TPA .

1. I shall deal in turn with objections raised by Mr Sibtain on formal pleading aspects.

Twelfth matter complained of

1. The amended pleading provides relevantly:

" 65. On or about 25 September 2009 the second defendant, acting in the course of his employment with the first defendant, published to numerous persons including ... the following words, or alternatively words to the following effect, of and concerning the plaintiff... "Paul Barach kidnapped his son."

....

67. The publication of the twelfth matter complained of in its natural and ordinary meaning conveyed the following imputations of and concerning the plaintiff:

67.1 Paul Barach is a kidnapper

..."

1. Mr Sibtain submitted 67.1 is a concise matter but contains considerable ambiguity in the distillation of its meaning: the word "kidnapped" is capable of meaning either the commission of a criminal offence or hyperbole describing a matrimonial difference.

1. When Kirby J heard argument on the imputations on 14 December 2010, Mr Sibtain made no application to strike out this imputation. But when referring to the imputation in his judgement, at paragraph 139, His Honour said:

"... An issue arises whether the words ("Paul Barach kidnapped his son") suggests a criminal offence as opposed to being hyperbole describing a matrimonial difference. It would be different were it suggested that the plaintiff had kidnapped a complete stranger."

1. In Feros v West Sydney Radio PL (Unreported, New South Wales Court of Appeal, 22 June 1982) this was said:

"The purpose of an imputation is to specify the meaning which the language of the matter, which may be imprecise or rambling and prolix, is alleged to convey":

(Per Samuels JA, with whom Moffitt P and Reynolds JA agreed.)

1. In Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 Gleeson CJ said:

"[T]he issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends."

1. Mr Sibtain referred me to Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 at [119]-[129], for the proposition that an imputation is to be a distillation of a meaning or a sense conveyed by a formula of words, as opposed merely to a repetition as an imputation of the words complained of.

1. Mr Sibtain conceded that the matter complained of is slightly different from the imputation. But he submitted it remained unclear as to whether it was alleged the plaintiff is a criminal who engaged in an act of criminal kidnapping.

1. As Gleeson CJ said in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 37:

"Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity."

1. I decline to strike out imputation 67.1. Although, to describe someone as a kidnapper may be thought to have more than one meaning, I consider that, overwhelmingly, 67.1 carries the meaning that the plaintiff committed the criminal offence of kidnapping. That, I consider, is its ordinary meaning, and it would be open to the ordinary reasonable reader of the matter complained of to construe it in that way. It is a matter which should go to the jury for its determination.

Thirteenth matter complained of

1. By paragraph 71 the plaintiff pleads that in or about September 2009 the eighth defendant in the course of her employment with the first defendant published to the second defendant these words of and concerning the plaintiff:

"'Paul Barach kidnapped his own son.' (The Thirteenth matter complained of)"

By paragraph 73.1 he avers that that publication conveyed among others, this imputation:

"Paul Barach is a kidnapper"

Mr Sibtain contended imputation 73.1 is defective for the same reason as 67.1. For the reasons I declined to strike out 67.1, I also decline to strike out 73.1.

Seventeenth matter complained of

1. Paragraphs 90 and 91 provide:

"90. In or about September 2009, the seventh defendant, acting on behalf of the first defendant and acting within the scope and authority of his engagement by the first defendant, or alternatively acting with the approval of the first defendant, published... the following words... of and concerning the plaintiff (the Seventeenth Matter Complained of):

"Hello Dr... My name is Harold Karaka. I am private investigator in California. I sent you an email about an investigation I am conducting in the Florida area. As noted in previous telephone message, I am presently in the Miami area. I am conducting an investigation into the termination of [the plaintiff] by the University of New South Wales.

I represent the University of New South Wales, which is in Sydney, Australia. I am conducting an investigation for the university into the character and honesty of [the plaintiff] who was recently terminated from the University. I have spoken with people at the University of Miami who have confirmed to me that [the plaintiff] has a history of unethical and dishonest behaviour and that he was terminated from that university for dishonesty. I have been told that you are familiar with [the plaintiff] and his work, and that you could provide me with information about his character and history. I was hoping to meet with you while I am in Florida to take my investigation further.

Well, I am investigating allegations that [the plaintiff] had stolen and has been dishonest. In fact, he was terminated from the University of New South Wales for these kinds of behaviours. I am obtaining additional evidence about his character and previous problems at the University of Miami. I was hoping you would be able to assist."

...

91. The Seventeenth Matter Complained of in its natural and ordinary meaning conveyed the following imputations of and concerning the plaintiff:

91.1 Paul Barach has been unethical and dishonest in his employment at the University of New South Wales;

91.2 Paul Barach was fired by the University of New South Wales for being unethical and dishonest;

91.3 Paul Barach was a person who had a pattern of engaging in unethical and dishonest behaviour.

..."

1. Mr Sibtain put to me that imputation 91.3 is a bad imputation as it rolls up two distinct concepts, and that wrapping them up as one might deprive the first defendant of defending: it might for example prove dishonesty but not unethical conduct.

1. Mr Blackburn submitted that there is no authority for the proposition that if an imputation can be broken up it must be broken up if there is a possibility a defendant could plead a defence such as truth only to the broken up version. No such authority was in fact put to me. Further, in Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 678 after argument as to a large number of imputations, the Court (Hunt J) suggested as appropriate imputations which involved similar combinations of expressions, such as " unlawful, criminal and dishonest". I do not consider that in its present form, involving two distinct concepts, the imputation is bad. I decline to strike it out.

Eighteenth matter complained of

1. These imputations are based on an email sent by the seventh defendant to the plaintiff's former wife on 27 September 2009. In that email he said inter alia:

"UNSW recently terminated Paul, which I believe you are aware of by now. Unlike the other locations where there were disagreements and subsequent settlements between Paul and the institutions he left, UNSW intends to defend its decision. I have uncovered some disturbing information related to Paul's tenure at the University of Miami/ Jackson Memorial Hospital and am attempting to produce corroborating evidence. It is my understanding that you may be able to assist me in this endeavour. I also reviewed the divorce files at the County Clerks office yesterday.

I also understand that there may be some hesitation due to possible unsettled business or monetary issues. With the inner knowledge you have of Paul's extensive past, I would hope that you can see that this may be one of the few times anyone has stood up to him and the opportunity is at hand to prevent future concerns that may adversely affect the medical profession and (sic) as well as patient related concerns."

1. The imputations which are said to arise here are:

"92B.1 Paul Barach is a danger to the medical profession;

92B.2 Paul Barach is a danger to his patients;

92B.3 Paul Barach has engaged in serious misconduct of a disturbing nature at the University of Miami / Jackson Memorial Hospital"

1. Mr Sibtain submitted in effect that the imputations pleaded are overblown: the email was addressed in conditional terms: it was merely saying there were matters which needed to be investigated.

1. However, I consider the email has the capacity to convey the imputations and I decline to strike them out: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 164 (Levine J).

The discretion under section 56A Limitation Act

1. The plaintiff needs an extension of time to sue on the eighteenth matter complained of. Section 56A provides:

"(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."

1. The plaintiff did not give evidence. But there was before me an affidavit affirmed by the plaintiff's solicitor, Mr Yap, on 4 August 2011, in which he said inter alia:

"16. I have been told by Dr Barach, and I believe, that he only became aware of the existence and the content of the email dated September 26, 2009 from the Seventh Defendant to Ms Kamar (the Eighteenth Matter Complained of) when that email was finally provided to his honour on or about 25 March 2011...

17...

I have been told by Dr Barach, and I believe, that prior to him receiving annexure "I", he was not aware of the existence or of the content of the Eighteenth Matter Complained of, and he did not know and no one had ever said or suggested to him that the words comprising the Eighteenth Matter Complained of had been published by the seventh defendant."

1. Mr Yap was not required for cross examination. Although Mr Burke expressed some criticism of the plaintiff in not having given evidence on the issue, and Mr Yap's evidence as being only on information and belief, I regard his argument as going only to the weight of the evidence. Quite apart from the evidence of Mr Yap, a reasonable inference can be drawn (and I do so) from the litigation thus far, that the existence and contents of the email were news to the plaintiff when made known by the seventh defendant on his unsuccessful application to set aside service.

1. Having regard for the plaintiff's lack of knowledge of the email's existence until its author made his set-aside application, should I make an order extending time? In Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 McCallum J said at [45]:

"The ... provision... [i.e. s 56A] imposes a burden on the plaintiff to satisfy the court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period."

1. As was noted by Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676, the provision does not confer a discretion on the court to extend the limitation period where, for example, it is just and reasonable to do so, or, where it was reasonable for the plaintiff not to have commenced proceedings within the prescribed time.

1. At [28] Her Honour said:

"Firstly, it [s 56A] requires the plaintiff to prove that it was not reasonable to commence proceedings within time; secondly, far from conferring a discretion on the court to extend time if the plaintiff proves that fact, it obliges the court to extend time. Extension, in those circumstances, is mandatory."

1. The plaintiff has proved to my satisfaction that it was not reasonable for him to commence proceedings in respect of the matters forming the basis of the eighteenth matter complained of, within the period of 12 months following its publication. He is entitled to an extension of time. I propose making an order extending the limitation period in the manner requested in the notice of motion.

Objection to some particulars of the breach of employment contract claim

1. Paragraphs 94 to 110 of the FASC contain a claim for damages for breach of the plaintiff's employment contract with the first defendant. In substance, it is alleged that by the contract, the plaintiff was appointed as director of the New South Wales Injury Risk Management Research Centre for a term of five years with a 12 month probationary period; his employment was not to be terminated during the probationary period absent certain situations, and even then, only through the Vice Chancellor. Certain other conditions, in particular, dealing with what was to occur beyond the five-year appointment, were also pleaded. By paragraph 97, certain matters previously pleaded as arising from the contract, were alternatively pleaded as arising from a collateral contract. The plaintiff then averred that by reason of the contract, together with or alternatively to the collateral one, he left the USA and came to Australia and began his employment on or about 15 September 2008. He pleaded that after his arrival, by a further agreement, he was appointed acting head of the School of Risk and Safety Science from 17 November 2008. He then averred that although he performed his duties in accordance with the contracts, his employment was by letter of 23 June 2009 terminated. By paragraph 109, he alleged that the termination put the first defendant in breach of the contracts pleaded, and was wrongful. Thereafter he particularised the wrongfulness of the termination.

1. The first defendant took exception to particulars F, G, K and L, in paragraph 109, asserting they were confusing and therefore embarrassing and that it is not clear how they relevantly relate to or sustain the relevant allegation.

1. The relevant particulars are as follows:

"F The Fifth Defendant advised the plaintiff on 2 June 2009 that the only complaints that have been made against him were those contained in a protected disclosure, and in relation to which he gave him particulars on 2 June 2009; and that

G the Fifth Defendant advised Professor Archer on or about 5 June 2009 that the only one complaint about the Plaintiff that he had seen "is the one that Richard [the Sixth Defendant] received that we are presently dealing with."(Email from the Fifth Defendant to Professor Archer dated 5 June 2009 2:34pm); and that

...

K The Sixth Defendant was not concerned about the fact that a senior member of staff had retained the reference letter, and had breached the Plaintiff's privacy and confidentiality in relation to that letter, and had not placed it on the file of the Plaintiff in the possession of the Human Resources (HR) division of the First Defendant (this arises by implication from the Henry email); and that

L The Sixth Defendant was not concerned that the Plaintiff was not being accorded due process (this arises by implication from the Henry email)."

(The "reference letter" in K concerns a letter about the plaintiff given to the first defendant's selection committee in 2007 before he was employed, and was, the plaintiff alleged, explored at that time and found by the first defendant to be of no concern to it. The Henry email is one said to have been sent by the Sixth Defendant to the first defendant's Professor Archer on or about 8 June 2009 in which he was informed there had been numerous unsolicited complaints).

1. An allegation which emerges from the whole of these particulars is that the sixth defendant, who, for the first defendant, terminated the plaintiff's employment, did not approach his task in a fair way. Thus when it came to his considering complaints which were said to have been made about the plaintiff's conduct, for example, he did not take an objective approach. As I construe particulars F and G they amount to allegations of procedural unfairness, in the sense that the sixth defendant, though obliged to give notice of adverse material and permit a response before dismissing, took account of matters the plaintiff had not been given any opportunity to respond to before his dismissal. Further, the obligation to give such notice and that opportunity, is averred in paragraph 96.1. I see nothing confusing about those particulars.

1. K and L however refer to the state of mind of the sixth defendant at the time he was required to consider relevant matters before dismissing the plaintiff. Each of them really only amounts to a submission: contrary to Mr Blackburn's submission I consider they do not amount to particulars of the wrongfulness of the termination. If proved, K and L may reflect poorly on the sixth defendant at trial. But that is another issue. K and L should be omitted from the FASC.

Particulars of special damage

1. There is evidence, which I accept, that the plaintiff has, on several occasions since the amended statement of claim was served, been asked to provide particulars of special damages. He has not provided any such particulars. Mr Blackburn submitted that these can more adequately be given after discovery. That is probably so. But the plaintiff has alleged there are such damages. I infer there must have been a foundation for the allegation, for it to have been made. Thus I consider the plaintiff should now supply those particulars as best as he is able. UCPR rule 15.1 imposes an obligation to provide, now, the best particulars he can. See also Ritchie Uniform Civil Procedure New South Wales, volume 1, 15.1.25.

The misleading and deceptive conduct claim

1. In the alternative to the contractual counts, the plaintiff pleads a case of misleading and deceptive conduct. He alleges that he acted on a number of representations made by the first defendant, which proved detrimental to him. Although the damages assessment may be a different exercise on this count from that arising from any contractual breaches proved, the factual material relied on for this count under section 53 TPA is essentially that which provides a basis for the contract count.

1. Some of the representations said to have been misleading and deceptive may be described as representations by silence. For example the plaintiff says that a matter very important to him in the course of his contractual negotiations with the first defendant, was the matter of tenure. In paragraph 115 he averred that the first defendant promised to take the necessary steps to ensure that the position was tenured. When he was offered employment, he sent emails to a number of professorial staff members of the first defendant, in which he signified his acceptance of the offer, and an understanding that the position was "fixed term tenured ...". One of those to whom he sent the email sent him an unqualified email of welcome and reply. None of the recipients of his emails suggested he was wrong in identifying the position as "tenured". Yet, as things turned out, it was not. He alleges the fact that those people did not correct his apparent misapprehension, amounted to a representation by silence by the first defendant that it had agreed to provide tenured employment.

1. Mr Sibtain at first submitted that without more, these allegations were unsustainable, because inadvertent conduct cannot be actionable. But he later, and correctly, resiled from that position. In CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232 the Full Court of the Supreme Court of Victoria at [34] said:

"As to the law, the misleading and deceptive quality of remaining silent inheres in the non-disclosure of information; not in any refusal to provide it. Consequently, it does not follow from the fact that a failure to act must be intentional in order to be actionable, that silence must be intentional in order to be actionable. It is plain in principle and authority that it is not necessary that silence be intentional in order that it may constitute misleading and deceptive conduct for the purposes of s 52."

1. See also to this effect Demagogue v Ramenski (1992) 39 FCR 31 at 40-41; Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 88; Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ASC 55-943 at 53, 195, and Dwyer v Craft Printing Pty Ltd [2009] NSWCA 405 at [55].

1. In Demagogue at [30] Gummow J said that in a case where a failure to speak is relied upon the question must be whether in the particular circumstances the silence constitutes or is part of misleading or deceptive conduct; and that "[t]he expanded meaning given by section 4(2) [of the TPA] to "conduct" should not distract attention from the fundamental issue in the case at hand."

1. Mr Sibtain submitted that the paragraphs dealing with representations by silence do not disclose a cause of action. He referred in particular to 119,126 and 132. He also put to me that paragraphs 143 and 145 are irrelevant to the claims made and are embarrassing and liable to be struck out.

1. It seems clear to me that what is being alleged in paragraphs 112 to 118 inclusive is the set of circumstances on which the plaintiff will ultimately rely in asserting that the silence alleged constituted or was part of misleading or deceptive conduct and constituted what is called the second representation. The same applies to paragraphs 126 and 132 in relation to the sixth representation. In each case there are assertions of various circumstances, from which, as I construe it, the plaintiff says there was a duty to say something. The circumstances relied on may not in the end be proven. But if they are, I consider the plaintiff has at least an arguable cause of action in the case of each representation. I decline to strike out any parts of the pleading relying on what is said to be a representation by silence.

1. Although Mr Blackburn submitted the purpose of paragraphs 143 to 145 is to acquaint the first defendant with the case it must meet, I am inclined to the view that paragraphs 143 to 145 are not relevant matters for the plaintiff to prove to succeed in his TPA claim. I propose ordering that they be struck out.

1. The first defendant also submitted paragraph 146 should be struck out. However I consider the allegation means in its context that the representation was false from the time it was made. In those circumstances I do not understand Mr Sibtain to maintain his earlier position that it was a representation with respect to the future, and that the mere fact that a representation as to the future does not materialise is not a basis for the contention that it is false.

1. The first defendant next complained that paragraph 149 ought be struck out as embarrassing. The argument was that by section 82 TPA , a claimant may claim only "compensation". What is being claimed however is more than that, in that the plaintiff is claiming the value of the expectation that his contract would be fulfilled. Mr Sibtain argued that is not of itself a basis for a claim for compensation. However I consider paragraph 149 ought remain. It is clear that the plaintiff is claiming what he lost by reason of the contraventions and then attempting to particularise them. He may or may not succeed in that endeavour.

The arguments for the second, third, fourth, fifth, sixth and eighth defendants

An improper use of a document?

1. I shall now deal with Mr Burke's submissions. Initially Mr Burke complained that it had been an improper use of the email, for the plaintiff to rely on it as a foundation for a new cause of action. He referred me to and relied on Riddick v Thames Board Mills [1977] 1 QB 881. Although there are long-standing public policy reasons why a document obtained on discovery in one action ought not be used in another (see for example Edward Bray, Law of Discovery , (1885), Legal Books Pty Ltd, at 238) this is not such a case. Indeed, in Riddick the Court of Appeal of the United Kingdom gave positive support for what the plaintiff has done here. In Riddick , the plaintiff had been dismissed by his employer. He sued for wrongful dismissal and settled his wrongful dismissal claim. In the course of preparation for that claim, the defendant had disclosed on discovery a memorandum. After he had settled that claim the plaintiff commenced a fresh action for libel, based on the memorandum disclosed in the previous case. The Court of Appeal held that he was not entitled to use it. The decision was based on the public policy which encourages full and frank disclosure on discovery. But the court made observations as to how the memorandum might have been used in the first action. At 901 to 903 Stephenson LJ said a party to litigation who uses a document otherwise than in the proceedings in which it is disclosed is in breach of an implied obligation not to use it:

"[T]he obligation is owed to the party who produces the document on discovery and to the court; that party is entitled to the protection of the court against the use of the document otherwise than in the action in which it is disclosed; and that protection is necessary for the proper administration of justice; it is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it.

...

[I]n my judgment the court has and should generally use the power to protect parties who make full and frank disclosure of documents, and the public interest in such disclosure, by discouraging the use by a plaintiff in a later action of a document obtained on discovery in an earlier action.

...

There may be cases in which a plaintiff would be justified in bringing an action on a document disclosed in an earlier action. I do not say that it could never be done without abusing the process of the court. But generally speaking it would be an abuse of its process and in the circumstances of this case the plaintiff's use of this memorandum is an improper use which the court should not countenance. I see no reason why he could not have done justice to himself - and to the company - by amending his writ in the 1969 action to add the claim which he delayed making until he pleaded paragraph 10 of his statement of claim in the 1972 action and is making in this action. Perhaps he was then advised that it added so little to his existing claim as to be not worth making."

1. There is also support for the plaintiff's position in Hearne v Street (2008) 235 CLR 125 at [96], (per Hayne, Heydon and Crennan JJ).

1. I am not satisfied that there is anything improper about the plaintiff's proposed use of the email to found the eighteenth matter complained of, given that its existence only became known to him in the course of this litigation, and it is proposed that he use it in the same litigation. In the end, I understood Mr Burke to withdraw his earlier submission that there would be an impropriety on the plaintiff's part in relying on this email.

Fair Work Australia

1. Mr Burke contended that the plaintiff was engaged in an abuse of process by duplicating in these proceedings, proceedings already commenced under the Fair Work Act 2009 in Fair Work Australia. But there were no documents tendered, nor indeed any evidence, concerning those proceedings, and I am far from persuaded that the cause of action arising from the contract of employment pleaded in the FASC resembles in any way any claim made in Fair Work Australia. Nor, for the same reasons, am I persuaded that the remedies sought there were the same as those claimed here. Thus the assertion there would be an abuse of process if the amendments were permitted lacks any foundation.

No ties in Australia

1. Next Mr Burke expressed concern arising from his clients' lacking the resources of an institution such as the first defendant. He submitted that it was unfair to his clients to be parties to proceedings brought originally only in defamation but later joined with proceedings brought only against the first defendant alleging contractual and TPA breaches. He submitted the case will be significantly longer as a result of the addition of those causes of action, which do not concern them, and his clients will suffer financially by reason of that increase in time. That, he submits, would be particularly unfair, as the plaintiff has no ties to Sydney.

1. However there is no evidence the plaintiff has no ties in Sydney. Further, Garling J made a finding that he now lives here permanently: see paragraphs 40 and 89 of his Honour's judgement. I am not persuaded there is any merit in that aspect of the argument.

Lack of resources generally

1. No evidence was introduced about the financial situation of any of the natural defendants. Nor was there evidence the first defendant would not indemnify them or has not been indemnifying them for their costs. Absent evidence, I am not prepared to infer they will suffer financially by reason of the addition of the new causes of action.

1. Further, as employees (as I take Mr Burke to concede they were) they are entitled to be indemnified for torts by the first defendant under section 3 (1) Employees Liability Act 1991. That provision is as follows:

"3(1) If an employee commits a tort for which his or her employer is also liable:

....

(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability)."

1. All of the claims against those defendants are, on their face, ones for which their employer, the first defendant, will, if upheld, also be liable. It is true the Employees Liability Act does not cover the contractual and TPA claims. But those claims are brought only against the first defendant. And as to the possibility that the costs to the natural defendants may be greater because of the addition of the new causes of action, those are costs for which the first defendant will be liable to indemnify them if the claims against them succeed. As a practical matter, when in the course of the trial evidence is given about the contractual and TPA issues, there will not necessarily be a need for the natural defendants to be present or represented unless in the capacity as witnesses or other representatives of the first defendant. Further, that is a matter which the trial judge can deal with in the course of the trial and regulate by appropriate directions.

1. Mr Burke drew my attention to Gregory v Beecraft [1998] ACTSC 48, where an employee, sued in tort with his employer, succeeded only in recovering party/party costs and not indemnity costs from the employer. But there were special reasons for that outcome. The case was settled before trial. There was some evidence to suggest the alleged tort had not been committed in the course of employment. There was also some evidence suggesting the legislation might not apply.

1. Mr Burke argued there would be no indemnity under the Employees Liability Act if a defendant is found guilty of serious and wilful misconduct. He argued that without clear particulars, the natural defendants are unable to know whether they will face this argument from the first defendant. His concern seems mainly for the eighth defendant, for the words she is alleged to have used which form the basis for the thirteenth matter complained of. The plaintiff asserts however that some particulars have been given, and she, in any event, is in the best position to know whether she used the words complained of. No evidence before me suggests there is any basis for a 'serious and wilful misconduct' finding.

1. Given the absence of evidence on the issue, the mere possibility the first defendant will not indemnify her (or, indeed any other natural defendant) is a matter I take account of but give little weight to when exercising my discretion to give leave.

Security for costs

1. Mr Burke in his written submissions of 26 September 2011 asserted that as an alternative to refusal of the proposed amendments, the plaintiff should be required to discontinue against his clients or provide security for costs. The first alternative lacks any merit, and would have the potential for the commencement of a new set of proceedings against those parties. As to the second, no evidence was provided to support it, and no application was made.

Conclusion

1. As Mr Sibtain submitted, to ask for leave, as the plaintiff is doing, is to ask for an indulgence. He submitted I would not grant the indulgence unless satisfied of the propriety of giving leave. Having given leave, he submitted I ought consider the extent of amendment permitted. Mr Sibtain expressly did not oppose leave being given for the FASC, although, as I have observed, Mr Burke did.

1. I consider the plaintiff has moved as quickly as he could have at all relevant stages of the litigation. There were good reasons to wait until now to make this application. The defendants have largely caused the delays. Because of the delays the proceedings have not progressed even to the filing of defences. There are good, practical, reasons for all causes of action to be dealt with at once. The same factual material is relevant to both the contract and TPA claims. Some of the material for the defamation claims is related to that material. Some of those sued for defamation are potential witnesses in the contract and TPA claims. Prima facie, the natural defendants have the protection of the Employees Liability Act for torts. Having all matters heard at once, would, I consider, save money, time and court resources. I consider an overwhelming case has been made for leave to be given.

1. Orders

(1)   I give leave to the plaintiff to file and serve his Second Amended Statement of Claim, subject to its having deleted from it particulars K and L in paragraph 109, and paragraphs 143-145.

(2)   I direct that it be filed and served by 5.00pm on 21 November 2011.

(3) Pursuant to section 56A Limitation Act 1969 the limitation period mentioned in section 14B of that Act in relation to the eighteenth matter complained of in the Second Amended Statement of Claim (paragraphs 92A- 92C) be extended to 5 December 2011.

(4)   I will hear the parties on costs.

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Decision last updated: 07 November 2011