Chan v Sellwood; Chan v Calvert

[2009] NSWSC 1335

CITATION:	Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335
HEARING DATE(S):	2 October 2009
JUDGMENT DATE :	9 December 2009
JUDGMENT OF:	Davies J
DECISION:	(1) In proceedings 20519/2008: (a) Judgment for the Defendant on the causes of action contained in paragraphs 46-55, 170-171, 172-175 and 176-180 of the Amended Statement of Claim filed 24 December 2008. (b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR. (c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings. (2) In proceedings 20538/2008: (a) Judgment for the Defendant on the causes of action contained in paragraphs 123-137, 138-139, 140-143 and 144-148 of the Amended Statement of Claim filed 2 January 2009. (b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR. (c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings. (3) Proceedings 20519/2008 and 20538/2008 be consolidated pursuant to Rule 28.5 UCPR on the following basis: (a) The Defendant Glennis Sellwood in proceedings 20519/2008 become the First Defendant in those proceedings, (b) The Defendant Marian Calvert in proceedings 20538/2008 become the Second Defendant in proceedings 20519/2008, (c) Proceedings 20538/2008 be dismissed in their entirety. (4) Proceedings 20519/2008 be stood into the Defamation List on 14 December 2009 to enable consideration for the granting of leave to the Plaintiff to file a further Amended Statement of Claim in a form to be prepared by him for that purpose.
CATCHWORDS:	PROCEDURE - judgments and orders - summary dismissal - strike out of pleading - claim by former student at TAFE against teachers and supervisors - claim based on breach of TAFE policies - tort of privacy - misfeasance in public office.
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Trade Practices Act 1974 (Cth)
CASES CITED:	ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Chapel Road v ASIC [2006] NSWSC 1014 Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 Gee v Burger [2009] NSWSC 149 Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Griffith University v Tang (2005) 221 CLR 99 Grosse v Purvis (2003) Aus Torts Reports 81-706 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Kalaba v The Commonwealth [2004] FCA 763 Leerdam v Noori [2009] NSWCA 90 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Rippon v Chilcotin (2001) 53 NSWLR 198 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 Tampion v Anderson [1973] VR 715 Walsh v University of Technology, Sydney [2007] FCA 880
TEXTS CITED:	Young, Declaratory Orders, 1984, 2nd Ed, Butterworths
PARTIES:	MATTER 20519/08 Yau Hang Chan (Plaintiff) Glennis Sellwood (Defendant) MATTER 20538/08 Yau Hang Chan (Plaintiff) Marian Calvert (Defendant)
FILE NUMBER(S):	SC 20519/08 & SC 20538/08
COUNSEL:	In person (Plaintiff) S Golledge (Defendants)
SOLICITORS:	Moray & Agnew (Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

9 DECEMBER 2009

20519/08 YAU HANG CHAN V SELLWOOD
20538/08 YAU HANG CHAN V CALVERT

JUDGMENT

1 The Plaintiff, Yau Hang Chan, was a student at the Ultimo Campus at NSW TAFE in a course entitled “Develop and Apply Knowledge of the Library/Information Services Industries”. On 15 November 2005 Mr Chan’s teacher, Sharlene Louey, informed him that he was to be given a “fail” mark in the course. That led Mr Chan to commence proceedings in this Court against Ms Louey, subsequently adding TAFE as a Second Defendant, seeking judicial review of that decision.

2 Those proceedings were subsequently summarily dismissed, such order being affirmed on appeal.

3 Mr Chan has now sued 3 other employees of the TAFE arising from the same matter. The present applications are by 2 of those employees who seek summary dismissal pursuant to Rule 13.4 UCPR, alternatively that the Amended Statements of Claim be struck out pursuant to Rule 14.28 UCPR.

Background

4 The factual background is adequately summarised in the written submissions of the Defendants, the evidence for which summary is derived from 2 affidavits sworn by Mr Oom, a legal clerk in the employee of the NSW Department of Education and Training. That summary is as follows (omitting references to affidavits):

“[5] In 2005, Mr Chan was enrolled as a student at the Ultimo Campus of New South Wales TAFE. He was a part-time student in a course entitled “Develop and Apply Knowledge of the Library/Information Services Industries”. The teacher of that course was Ms Sharlene Louey. The course was a component in the Diploma in Library and Information Services. Ms Glenis Sellwood was the course co-ordinator and was Ms Louey’s immediate supervisor. Ms Calvert was another employee of TAFE.

[6] On 15 November 2005, Ms Louey informed Mr Chan that he was to be given a “fail” mark in the course.

[7] On 16 November 2005, Mr Chan commenced proceedings in this Court against Ms Louey seeking judicial review of that decision. In those proceedings Mr Chan asserted that the decision to award the “fail” grade was made in breach of the rules of natural justice and was made for an improper purpose. A subsequent version of the Summons claimed the decision was made with the deliberate and fraudulent intention of harming Mr Chan. On 21 November 2005, TAFE Commission was added as a Defendant in those proceedings. The proceedings were summarily dismissed with costs by Associate Justice Malpass in June 2006. Appeals from that decision were all dismissed with costs, concluding with an order of Justice Bell on 12 April 2007. Mr Chan has not satisfied any of the costs order made in favour of the Defendant in those proceedings.

[9] In the course of the proceedings referred to in [7] above, Ms Calvert received a request to provide whatever information she could about her dealings with the plaintiff and the Louey proceedings. On or about 25 November 2005, Ms Calvert provided two statements. They were sent to Ms Sellwood (who was Ms Calvert’s superior) and on-forwarded to Mr Oom.

[8] Between 17 – 25 November 2005, Ms Sellwood sent emails to her immediate superior, Ms Julie Frail concerning Mr Chan and the proceedings. On 25 November 2005, Ms Sellwood prepared a document entitled “Statement concerning student Yau-Hang Chan”. That statement was prepared in response to a request from a legal clerk working for TAFE in respect of the proceedings brought by Mr Chan against Ms Louey and TAFE On 13 December, she made an entry on the TAFE “CLAMS” computer system.

[9] The TAFE “CLAMS” computer system is an electronic information management system utilised by TAFE. TAFE staff have limited access to the information recorded in the computer system.

[10] On or about 22 November 2005, Mr Chan purported to withdraw from the course.

[11] On 15 July 2008, Mr Chan obtained copies of the emails and statements as a result of a Freedom of Information application made by him and which became the subject of proceedings in the Administrative Decisions Tribunal of New South Wales.
(The paragraphs in ordinary type are from the submissions in the Sellwood matter and the paragraph in italics is from the Calvert matter.)

The present proceedings

5 Mr Chan has in fact commenced 3 separate proceedings in relation to the events of November/December 2005.

6 In proceedings 20519/08 he sues Glennis Sellwood who was the course coordinator and who was Ms Louey’s immediate supervisor. He claims damages for (a) defamation, (b) misfeasance, (c) alternatively, negligence. He claims a declaration that Ms Sellwood breached TAFE policies Supplement No. 37 of 2002 in her capacity as the Acting-Head Teacher in relation to her dealings with the Plaintiff’s failure grade. He seeks a declaration that in her capacity as the Acting-Head Teacher she breached the NSW Privacy and Personal Information Protection Act 1998 and claims damages in respect of that breach.

7 In proceedings 20538/08 he sues Marian Calvert who was another employee of the TAFE. In these proceedings Mr Chan claims damages for (a) defamation, (b) misfeasance, (c) alternatively, negligence. He seeks a declaration that Ms Calvert’s collection and recording of Mr Chan’s personal information has breached the Privacy and Personal Information Protection Act, alternatively, that she aided and abetted a breach, and claims damages for whichever is found to be the case. He also claims for costs in 2005 proceedings he took against Ms Louey.

8 In proceedings 20561/08 he sues Janet Frail who was Ms Sellwood’s superior at the TAFE. The Frail proceedings have never been served and the Statement of Claim filed on 11 December 2008 is now stale for service.

9 The Motions before me were brought in the Calvert and Sellwood proceedings.

The Motions

10 At the outset of the hearing before me, Mr Golledge, who appeared for both the Defendants, accepted that his argument for summary dismissal in relation to the defamation claims was not a strong one and ultimately he accepted that the appropriate order was to strike out the pleading in relation to the defamation claims so that Mr Chan could be given a further opportunity to plead them correctly. In my opinion that concession was rightly made and, in the light of Mr Chan’s acceptance that the defamation pleadings should be struck out there is no need for me to consider that aspect of the matter any further.

11 Mr Chan said that he did not intend to pursue the claims for negligence or misfeasance. He said that he did not intend to defend the Motions because he wanted leave to file a further Amended Statement of Claim in each of the 2 cases. In that regard he also sought an adjournment of the Notices of Motion to give the Defendants’ solicitor time to consider his proposed amendments.

12 I declined to adjourn the proceedings. Mr Chan had filed an amended Statement of Claim in the Sellwood matter on 24 December 2008 and an amended Statement of Claim in the Calvert matter on 2 January 2009.

13 The present Notices of Motion were filed on 26 May 2009. They were returnable on 15 June 2009. But some time prior to that date it appears that orders were made extending time for the Plaintiff to provide a copy of a proposed further Amended Statement of Claim to the Defendants by 29 May 2009.

14 The matters then came before Nicholas J on 13 July 2009 when the Plaintiff did not appear. The proceedings were stood over to 14 September 2009 and it was noted that each of the matters was to proceed on that day and that the Plaintiff should be prepared to meet the Defendants’ case.

15 The Motions came again before Nicholas J on 14 September 2009. It appears that by reason of a late start on that day there was not enough time to complete the Motions and shortly after they commenced Nicholas J directed that the parties be referred to the List Manager for the purpose of securing a date for the fresh hearing of the Notices of Motion.

16 Mr Golledge of counsel informed me that when the matter was before Nicholas J he was handed a document called “Amended Statement of Claim” in the Calvert matter. He also informed me that shortly before the hearing commenced before me, Mr Chan handed him a further Amended Statement of Claim in the Sellwood proceedings. An earlier version of proposed amendments had been served on the Defendants’ solicitors 2 weeks previously.

17 In the light of that history, I took the view that it would not be appropriate to adjourn the proceedings, particularly when the Defendants and their legal advisors had come fully prepared to argue the Motions on the fixture that the parties had been given. Further, what was asserted by the Defendants was that even accepting all of the facts as pleaded, the Amended Statements of Claim did not (except for the defamation claims) disclose any causes of action.

18 At the hearing of the Motions Mr Golledge read 2 affidavits of Steve Oom which simply set out the background to the claims made together with the procedural history of the matters. Mr Chan wished to cross-examine Mr Oom but I declined to permit that. I took the view, and informed Mr Chan, that Mr Oom simply set out factual matters to put into context the applications for summary dismissal and strike out that had been made. Mr Chan made the submission that what was contained in the affidavits was for the most part irrelevant. I took the view that they set out relevant material and all that was contained in them was permitted to be read and tendered.

19 After I reserved my decision in this matter Mr Chan filed 17 pages of written submissions without any leave having been granted. These submissions took up one complaint that Mr Chan had made during the oral hearing, namely, that Ms Calvert’s solicitor and counsel were improperly appearing because they were not retained by her but by the Department of Education and Training. As I pointed out to Mr Chan during the hearing it was likely, if what he said was correct that the solicitor and counsel were engaged by the DET, that was because Ms Calvert, and for that matter Ms Sellwood, were employees of the DET.

20 The written submissions also took objection to parts of the affidavit of Mr Oom filed in the Calvert proceedings and in particular annexure “F” being the judgment of the Administrative Decisions Tribunal in proceedings Mr Chan had taken against the DET in that Tribunal. The submissions linked, in a way that was not easy to discern, the annexing of that judgment to a conspiracy to injure him that Mr Chan sees between an organisation he has called “Andras” that consists of drug dealers who operate near his home and, apparently, various employees of TAFE. Scandalous allegations are made in the submissions about the influence of this organisation on officers of this Court. The submissions appear to result from paranoid thoughts that Mr Chan has and, except for one matter dealt with later, should be, and have been, rejected as having no relevance to the applications under consideration.

21 I shall now deal with each of the remaining causes of action, it having been agreed, as I have said, that the pleading in the defamation claims should be struck out with leave given to replead. I shall return to that question of leave at the end of the judgment.

22 In discussing the causes of action below I have regard to the principles laid down in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 but, as is made clear in Barwick CJ’s judgment at 130 and further elucidated by Macfarlan JA in Leerdam vNoori [2009] NSWCA 90 at [75], matters are more easily dealt with on a summary basis where issues of fact do not arise. Issues of fact are not involved in the present application.

1. The Sellwood Proceedings

(a) Breach of TAFE policies

23 The pleading is to be found in paragraphs 46 to 55 of the Amended Statement of Claim. It complains that Ms Louey breached paragraph 6.1.3 (which Mr Chan refers to as “Rule 6.1.3”) of the TAFE policies. Clause 6.1.3 is contained in a document entitled TAFE NSW Assessment Policies. Clause 6 is headed “Ensuring Fair and Ethical Practice”. Clause 6.1.3 relevantly provides:

“Assessors conduct assessment in a manner that shows:

…

Openness – the Assessor provides full and accurate information in an easily accessible form to those entitled to receive it.”

24 Mr Chan pleads that Ms Louey did not provide full and accurate information to him and he was a person entitled to receive it, and/or it was not provided in an easily accessible form. Ms Sellwood was said, by reason of the fact that she was the Acting-Head Teacher to whom Ms Louey answered, to have supported Ms Louey’s contravention of that clause.

25 In my opinion, no cause of action is disclosed in those paragraphs. First, it is not shown, and it does not appear to be the case, that there is any form of contractual status between TAFE and any student that gives rise to a legal entitlement for the student to sue even if it is accepted that a breach of that clause is made out. Mr Chan does not plead a contractual basis for this claim.

26 Secondly, even if a contractual basis was established that would not mean a cause of action was necessarily available to a person in the position of Mr Chan. Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30] - [31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]-[80].

27 Thirdly, there is nothing in the Policies that suggests that a private right of action is available to a student for breach of those Policies.

28 Fourthly, the Amended Statement of Claim does not assert in any event that Ms Sellwood was the Assessor within the meaning of the Policy. The only basis from the pleading that she is sued in respect of this contravention is said to be that she “supported the said contravention of Rule 6.1.3” (para 52 and see also para 55). Absent some statutory basis for rendering a person liable for “supporting” the breach or contravention (e.g. Trade Practices Act s 75B) it is difficult to see how a liability would attach to Ms Sellwood.

29 Fifthly, all that is sought in respect of this alleged contravention is a declaration. No damages are sought. It is far from clear what the utility of such a declaration, standing alone, would be: see Young, Declaratory Orders, 1984, 2^nd Ed, Butterworths at para [202].

30 Finally, in the proceedings earlier brought by Mr Chan, he complained about the decision to award him a “fail” mark which, by virtue of paragraphs of 53 and 54 of the Amended Statement of Claim in the present case, appears to be the same basis for seeking the declaration under consideration. If the only basis in the present case for seeking the declaration against Ms Sellwood was that she supported Ms Louey then any such declaration ought, in the first instance, to have been sought in the earlier proceedings: Port of Melbourne Authority v Anshun (1981) 147 CLR 589. However, it was determined in those proceedings that no cause of action was demonstrated where declarations not dissimilar to the present one were sought.

31 By the principle known as extended estoppel as articulated in Rippon v Chilcotin (2001) 53 NSWLR 198 Mr Chan cannot now maintain a claim on the same basis against Ms Sellwood. Although one of the requirements for the operation of the principle set out by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 was that the earlier decision be a final one, I do not consider that the fact that it became final by an interlocutory application for summary dismissal should preclude the operation of the principle. Had Ms Sellwood been a Defendant in those proceedings (and there is some evidence that she was intended to be from documents prepared by Mr Chan) it seems undoubted that the proceedings would have been dismissed for the same reasons given that her involvement is put on some sort of vicarious basis because of her position in relation to Ms Louey.

32 In my opinion, the Defendant is entitled to summary dismissal in respect of the claim made in these paragraphs.

(b) Breach of privacy

33 This claim is to be found in paras 170 and 171 of the Amended Statement of Claim. The essential assertion in respect of which damages are claimed is set out in paras 170 and 171 as follows:

“[170] By 28 November 2005, the Defendant had begun a collection of/recording of personal information about the Plaintiff prohibited by the NSW (PPIP Act). In the alternative, the Defendant had acted without due authorisation in such collection/recording of personal information.

[171] As a result of the fact in the above paragraph, the Plaintiff suffered injury.”

34 The Privacy and Personal Information Protection Act 1998 imposes restrictions on public sector agencies in relation to the collection and disclosure of personal information. It allows the collection of personal information for lawful purposes that are directly related to the function or activity of the agency. However, it is not necessary to delve into the question of whether the information about Mr Chan that was collected and, on his assertions, disclosed, was done for a lawful purpose because “public sector agency” is defined in s 3 as meaning any of the following:

“(a) a government department or the Teaching Service,
(b) a statutory body representing the Crown,
(c) a declared authority under the Public Sector Management Act 1988,
(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:
(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or
(ii) is required by or under any Act to be audited by the Auditor-General, or
(iii) is an account with respect to which the Auditor-General has powers under any law, or
(iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown,
(e) the NSW Police Force,
(f) a local government authority,
(g) a person or body that:

(i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)–(f) of this definition, or that receives funding from any such body in connection with providing data services, and
(ii) is prescribed by the regulations for the purposes of this definition,

but does not include a State owned corporation.”

35 It is clear that Ms Sellwood cannot be regarded as a public sector agency.

36 But there is a further reason that Mr Chan has no cause of action in relation to the collection or disclosure of the personal information. Section 69 of the Act provides:

“(1) Nothing in Part 2 or 3 gives rise to, or can be taken into account in, any civil cause of action, and without limiting the generality of the foregoing, nothing in Part 2 or 3:

(a) operates to create in any person any legal rights not in existence before the enactment of this Act, or
(b) affects the validity, or provides grounds for review, of any judicial or administrative act or omission.

(2) …”

Parts 2 and 3 of the Act are the Parts that deal with information collection and disclosure and the establishment of Privacy Codes of Practice and Management Plans.

37 Whether the law of Australia recognises a tort for breach of privacy is a little unclear. What the High Court said about it in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [40]-[42] and [106]-[132] and [189]-[190] would not appear to preclude the emergence of such a tort. In Grosse v Purvis (2003) Aus Torts Reports 81-706 Skoien J of the Queensland District Court found that there was such a tort (see at [421]-[447]). Heerey J in Kalaba v The Commonwealth [2004] FCA 763 thought that the weight of authority was, at that time, against the proposition that there was such a tort but in Gee v Burger [2009] NSWSC 149 McLaughlin AsJ thought at [53] that the matter was arguable.

38 But, whatever the position is with regard to the existence of such a tort, Mr Chan does not purport to sue based on such a tort. His cause of action is based on specific breaches of the Act. Section 69(1) makes it clear that no breach of the Act can give rise to any civil cause of action and nor can such a breach be taken into account in any civil cause of action. Although para (a) may be thought to preserve any pre-existing right, Mr Chan does not bring his claim based on such a pre-existing right.

39 In my opinion, no cause of action is demonstrated in paras 170 and 171 of the Amended Statement of Claim and the Defendant is entitled to summary dismissal of this claim.

(c) Misfeasance in public office

40 This claim is to be found in paras 172-175. They relevantly provide:

“[172] At all material times the Defendant was also a teacher on public pay roll and in public office.

[173] The Defendant’s various conduct the subject of complaints in this Supreme Court case constituted a calculated, conscious or malicious act of the Defendant.

[174] The Defendant’s publication of the 1 ^st to 7 ^th matters complained of was improper and/or unlawful, with the malicious intent to injure the Plaintiff.

[175] The Defendant is thus liable for misfeasance in public office.

41 The elements of the tort of misfeasance in public office are:

(1) There is a public officer,

(2) who owes a public duty,
(3) which the public officer has breached,
(4) the breach of duty has caused loss or damage to the Plaintiff, and
(5) the public officer breached the duty with the intention of causing harm to the Plaintiff or with the knowledge that he or she was acting in excess of his or her powers.

See Chapel Road v ASIC [2006] NSWSC 1014 and Tampion v Anderson [1973] VR 715 at 720 noting that those cases included as part of the second element that there was a duty owed to the Plaintiff as a member of the public. In the light of the discussion by Macfarlan JA in Leerdam at [115] this would not appear to be a necessary aspect of the element.

42 In my opinion, Mr Chan fails at the outset in relation to this tort on the basis that Ms Sellwood is not a public officer. In Leerdam Macfarlan JA said:

“[108] As P D Finn pointed out in “Public Officers: Some Personal Liabilities” (1977) 51 ALJ 313 there is a need to differentiate between offices and other employment and that drawing that distinction:

“excludes from the ambit of public office law those persons who may be regarded as discharging public duties because they happen to be involved in contracting with a government or with a governmental or public authority” (at 314).

[109] If the tort were not limited to the abuse of public powers and authorities, its scope would be wide indeed. There would be the potential for a multitude of actions to be brought by members of the public in relation to the conduct by public servants and public contractors of their day to day duties. This would in my view involve an unwarranted extension of the tort well beyond what has been treated thus far as its scope.”

(See also the discussion by Spigelman CJ at [3] to [11] as to the inter-relationship between “public office” and “public power”.)

43 Further, I doubt that any duty that Ms Sellwood had could be regarded as a public duty, largely for the reasons discussed by Spigelman CJ in Leerdam but, in the light of the fact that Mr Chan does not wish to contest the notion that there is no cause of action in relation to this claim and says he does not wish to pursue it, it is not necessary to say anything further about it. In my opinion, no cause of action is shown and the Defendant is entitled to summary dismissal.

(d) Negligence

44 This appears in paragraphs 176-180 of the Amended Statement of Claim. It is alleged that Ms Sellwood owed a duty of care to the Plaintiff to comply with all relevant TAFE policies and law in her dealing with the Plaintiff, that it was reasonably foreseeable that the Plaintiff would suffer injuries if she did not and that the Plaintiff has in fact suffered both physical and mental damage as a result of her breach.

45 In Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 the Plaintiff brought defamation proceedings against the Defendant in respect of a restaurant review. Ultimately, the Plaintiff amended his Statement of Claim to add counts in negligence and breach of contract. The Defendant applied to strike out or dismiss those claims on the basis that no cause of action was available when the claims were in effect the same claims that were made in the defamation claim.

46 James J, relying on what had been said by the High Court in Sullivan v Moody (2001) 207 CLR 562 at [53] – [55] and in Tame v New South Wales (2002) 211 CLR 317 at [28], [58], [123], [323] and [325] concerning coherence within the law, said:

“[42] … [I]t seems to me, as a matter of principle, that, if the gist or core of a plaintiff’s complaint is that the plaintiff has suffered injury to his or her reputation and injury to his or her feelings by reason of what the defendant communicated or published about the plaintiff to third persons, the plaintiff’s remedy, if any, lies in defamation (or injurious falsehood) and not in negligence or breach of contract and it makes no difference, if by reason of the operation of any of the controls or defences which apply to claims in defamation, no claim in defamation could have been brought or a claim in defamation which was brought has failed. To hold otherwise would be to destroy, and not to preserve, coherency in the law and the balances which have been struck in the law of defamation between damage to reputation and freedom of expression.

…

[49] I have concluded that in the present case the core or gist of the complaints made by the plaintiffs against the defendants lies in the publication by the defendants of words about the plaintiffs to third persons and that the damage which the plaintiffs claim they have suffered consists of damage to the plaintiffs’ reputations and injury to their feelings. In these circumstances, the plaintiffs’ remedies, if any, are in defamation and injurious falsehood and the plaintiffs cannot seek to rely on the tort of negligence or a claim in contract of the type propounded by the plaintiffs. …”

47 In the present case it is clear that the main complaint in respect of which Mr Chan sues is defamation. Although the Defendant now contends that the defamation claim is improperly pleaded, she no longer seeks summary dismissal of that claim. In those circumstances, there is no basis on which a claim for negligence based on the same matters can be maintained. The Defendant is entitled to summary dismissal of this claim.

(e) Other matters

48 The remaining paras in the Statement of Claim contain a discursive account of matters which led to Ms Louey awarding a “fail” mark to Mr Chan and the subsequent publication by Ms Sellwood to her superiors of 7 documents concerning Mr Chan and the events before and after the earlier proceedings. The paragraphs appear to be the basis for the defamation claim.

49 Even if Mr Chan had not accepted that they needed to be struck out I would have found that they ought to be by reason of the paragraphs breaching Rules 14.7 (pleading must contain only a summary of the material facts and not evidence), 14.8 (a pleading must be as brief as the nature of the case allows) and 14.9(b) (the precise terms of documents should not be stated).

50 Further, the way the facts are set out in these paras is embarrassing within the meaning of Rule 14.28(1)(b) UCPR. They should be struck out.

(2) Calvert proceedings

(a) Paras 1 - 122

51 Paragraphs 1-122 of the Amended Statement of Claim similarly contain a discursive account of some encounters that Mr Chan had with Ms Calvert at TAFE and her alleged participation in what is described by Mr Chan as a Scheme being organised and orchestrated by Ms Sellwood to interfere with the proceedings Mr Chan took against Ms Louey and TAFE.

52 As far as can be gleaned from the pleading the facts which are pleaded appear to be the background for complaints made by Mr Chan in paras 38 and 96 that 2 documents produced by Ms Calvert were published and republished and were defamatory of Mr Chan. It is also asserted in paras 39 and 97 that the publication of the matters interfered with the earlier proceedings.

53 To the extent that paras 1–122 provide the basis for a defamation claim, Mr Chan accepts that they should be struck out so that the defamation claim can be properly pleaded. If these paragraphs are not pleaded to support a defamation claim (and, incidentally, a claim for misfeasance in public office as identified in para 141) they do not appear to form the basis for any other cause of action known to the law. There is no allegation of conspiracy to enable them to support that tort.

54 For the reasons I gave in relation to the factual paragraphs in the Sellwood proceedings these paragraphs should be struck out.

(b) Breach of privacy

55 This complaint is found in paras 123-137.

56 What is pleaded is that TAFE has breached the Act in collecting and disclosing the information but that Ms Calvert is liable because she knew or ought to have known about those breaches by TAFE and that she aided and abetted those breaches deliberately or maliciously.

57 For the reasons given in relation to this claim in the Sellwood matter, no cause of action is demonstrated. The Defendant is entitled to summary dismissal of this claim.

(c) Misfeasance in public office

58 This claim is found in paras 140-143 and is substantially the same as the pleading against Ms Sellwood.

59 For the reasons given in relation to the claim against Ms Sellwood no cause of action is shown and the Defendant is entitled to summary dismissal.

(d) Negligence

60 This claim is found in paras 144-148 and differs in substance from the pleading in this regard against Ms Sellwood only by including a claim for part of the costs of the earlier Supreme Court proceedings against Ms Louey which is said to be the “relevant, direct or probable consequence of the publication of the matter complained of” (para 147).

61 For the reasons given in the claim against Ms Sellwood, and strengthened by the clear relationship to the defamation claim identified in para 147, no cause of action in negligence is demonstrated and the Defendant is entitled to summary dismissal.

(e) Fraudulent misrepresentation

62 This claim is found in paras 138 and 139 as follows:

“[138] The first and second matter (sic) complained of was the Defendant’s fraudulent misrepresentation of the relevant facts.

[139] As a result, the Plaintiff suffered injury.”

63 The “first and second matters complained of” were the 2 publications referred to above in para 50. The claim as pleaded might be thought at first blush to be a claim in deceit but there is no suggestion that Mr Chan’s damage (which he refers to as “injury”) was brought about by a reliance on a fraudulent misrepresentation. Rather, Mr Chan appears to be saying that he was injured (presumably in his reputation) because Ms Calvert fraudulently misrepresented facts in the documents referred to.

64 That is simply part of the claim for defamation and might be thought to be a pre-emptive reference to malice on the part of Ms Calvert to meet an expected defence of qualified privilege.

65 The matter is made more confusing by the fact that these paragraphs do not appear in that part of the Statement of Claim which appears to deal with defamation. It is sandwiched between the breach of privacy claim and the misfeasance in public office claim.

66 The Plaintiff does not demonstrate that he has a cause of action in deceit. Given that he accepts that he must replead the defamation claim I think the appropriate course is to regard the pleading in paras 138 and 139 as a claim for damages for deceit and to order summary dismissal of that claim. If the paragraphs form part of any defamation claim they will be able to be repleaded as part of that claim.

(f) Paragraphs 149-151

67 These paragraphs read as follows:

“[149] In Gibson v Parks District Hospital (1991) 26 NSWLR 9 at 23 it is stated:

‘The common law has always shown itself capable of developing causes of action where justice so demands, whether by the creation of new torts or the extension of well established principles to new types of fact situation … [N]ovelty is not of itself a barrier to a proposed claim.’


[150] The Supreme Court is invited to consider the above principle in Gibson vParks District Hospital (1991) 26 NSWLR 9 to order the Defendant to compensate the Plaintiff due to injuries arising from the Defendant’s conduct.

[151] The Plaintiff claims damages for his said injuries, whether available by existing law or a new tort, against the Defendant.”

68 Those paragraphs are in the form of a submission. They do not disclose a cause of action, they fall outside the Rules for allowable pleading and they will be struck out.

Consolidation

69 At the conclusion of the hearing I raised with the parties the question of consolidating the 3 separate proceedings. I did this because I had formed an initial view that the matters complained of by Mr Chan in each of the matters arose from precisely the same set of facts although it is accepted that some particular matters were pleaded against each Defendant that might not be pleaded against the other Defendants. Mr Golledge did not oppose the proceedings being consolidated. Mr Chan did oppose such consolidation. He made submissions to me suggesting that it would cause problems in terms of service and evidence and in the event that 1 or more but not all of the 3 Defendants wanted to settle the proceedings.

70 In my opinion, none of the matters raised by Mr Chan provides any basis for the proceedings continuing to travel separately. Having now examined the Amended Statements of Claim in the Calvert and Sellwood matters more closely for the purpose of preparing this judgment, it is clear that the factual sub-stratum for each of the claims is the same. All that is different is the identification of the acts alleged against each of the Defendants in terms of the documents and publications complained of. The so-called “Scheme” which Ms Sellwood is alleged to have “encouraged, organised or orchestrated” is the same scheme that Ms Calvert is alleged to have participated in. The documents complained of that Ms Calvert produced were published to Ms Sellwood as her direct supervisor. Ms Frail was also said to be a participant in the scheme.

71 The one difficulty seems to me to be that the Frail proceedings, as I have noted, have not been served and the Statement of Claim is stale for service. It does not seem appropriate to do anything in relation to those proceedings for that reason.

72 However, it seems to me that the Sellwood and Calvert proceedings should be consolidated (in the true meaning of the term) so that there is but one set of proceedings with one of the present Defendants becoming the First Defendant and the other becoming the Second Defendant. The simplest way to achieve this would be for Ms Calvert to be added as the Second Defendant in the Sellwood proceedings (those proceedings having commenced first) and to dismiss the Calvert proceedings in their entirety.

Future conduct of the proceedings

73 In the light of the orders that I have indicated will be made, the only remaining causes of action for Mr Chan to pursue will be defamation claims against Ms Sellwood and Ms Calvert. Given the history of the matters I do not think Mr Chan should simply be given leave to file any further Amended Statement of Claim without that proposed pleading being scrutinised by a judge in the Defamation List. There have been a number of attempts at pleading the defamation claims and Mr Chan accepted, as I have noted, that the present pleadings could not stand. I intend, therefore, to grant leave to Mr Chan simply to make application to a judge in the Defamation List to file an amended pleading if the amended pleading is held to be properly pleaded for the purpose of the Rules and the law of defamation.

Costs

74 Mr Chan has been wholly unsuccessful in relation to the Motions. As I noted earlier, he accepted that he needed to replead his defamation claims and he informed the Court that he did not intend to pursue the claims for negligence or misfeasance in public office. He also said he did not otherwise intend to defend the Motions. In those circumstances, ordinarily Mr Chan would be ordered to pay the Defendants’ costs of the Motions, the costs of the proceedings in relation to the causes of action dismissed, and the costs thrown away by reason of the strike out of the defamation claims and the need to re-plead. Such orders would involve a complicated task of assessment if an assessment takes place. I think an easier course for the parties and for any assessor involved would be simply to order that Mr Chan pays a percentage of the whole costs of each proceedings.

75 Further, although I intend to dismiss the whole of the Calvert proceedings that is simply because they ought to be consolidated with the Sellwood proceedings. I do not think that that order justifies Mr Chan being made to pay the whole costs of those proceedings. But for the order of consolidation, the Calvert proceedings would have remained on foot to enable Mr Chan to make application to re-plead the defamation claim.

76 When considering Mr Chan’s written submissions forwarded after I had reserved my decision (paras 19 and 20 above) I said that there was one matter which required further consideration from those submissions.

77 The one matter concerns the representation of Ms Calvert because it is said Mr Chan should not be liable for the ostensible legal representation of Ms Calvert because she did not authorise it. No basis is provided for the assertion that Ms Calvert did not authorise it. The Notice of Appearance has been filed by a solicitor in a well-known and respectable firm of solicitors and in the absence of any evidence to suggest a serious question about their retainer it does not seem to me that anything has been shown to prevent a costs order being made in favour of Ms Calvert for whom they appear.

Orders

78 I make the following Orders:

(1) In proceedings 20519/2008:

(a) Judgment for the Defendant on the causes of action contained in paragraphs 46-55, 170-171, 172-175 and 176-180 of the Amended Statement of Claim filed 24 December 2008.
(b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR.
(c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings.

(2) In proceedings 20538/2008:

(a) Judgment for the Defendant on the causes of action contained in paragraphs 123-137, 138-139, 140-143 and 144-148 of the Amended Statement of Claim filed 2 January 2009.
(b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR.
(c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings.

(3) Proceedings 20519/2008 and 20538/2008 be consolidated pursuant to Rule 28.5 UCPR on the following basis:

(a) The Defendant Glennis Sellwood in proceedings 20519/2008 become the First Defendant in those proceedings,
(b) The Defendant Marian Calvert in proceedings 20538/2008 become the Second Defendant in proceedings 20519/2008,


(c) Proceedings 20538/2008 be dismissed in their entirety.

(4) Proceedings 20519/2008 be stood into the Defamation List on 14 December 2009 to enable consideration for the granting of leave to the Plaintiff to file a further Amended Statement of Claim in a form to be prepared by him for that purpose.

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