Debrossard v AB Commission

[2016] NSWDC 109

District Court

New South Wales

Medium Neutral Citation:	Debrossard v AB Commission [2016] NSWDC 109
Hearing dates:	25 January; 24 February; 11, 12 and 13 May 2016
Date of orders:	16 May 2016
Decision date:	16 May 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Strike out paragraph 4 of the Amended Statement of Claim. (2)   Strike out the reference to defamation on page 1 of the Amended Statement of Claim under the heading “TYPE OF CLAIM”. (3)   Order the plaintiff to provide particulars of any damage including any mental or psychiatric damage by a date to be fixed by the Judicial Registrar. (4)   Otherwise dismiss the defendants’ notices of motion. (5)   Order the recoverable costs of the plaintiff as a self-represented litigant, not including any time-based costs, be the plaintiff’s costs in the proceedings. (6)   Stay the entry of the costs order for 2 weeks. (7) Make a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 by ordering that there be no publication of any matter that would lead to the identification of any party in the proceedings on the grounds that it is necessary to prevent prejudice to the proper administration of justice because the Family Court of Australia and Federal Circuit Court of Australia have preserved the confidentiality of the parties’ names under s 121 of the Family Law Act 1975 by using pseudonyms in published judgments involving the plaintiff, and to do otherwise would operate to defeat the purpose of s 121, the use by those courts of pseudonyms and the purpose of these proceedings. (8)   Grant liberty to any party to apply to me in respect of the costs order and the non-publication order within 14 days. (9)   List the matter for directions on Monday, 30 May 2016 at 9.30am before the Judicial Registrar. (10)   Note that the defendants have no objection to the plaintiff appearing by phone on 30 May 2016.
Catchwords:	PROCEDURE – summary dismissal – strike out – breach of publication order – breach of privacy – negligence – breach of confidence – breach of statutory duty – defamation – self-represented litigant
Legislation Cited:	Civil Liability Act 2002, s 31, s 32 Court Suppression and Non-publication Orders Act 2010, s 7, s 8 Family Law Act 1975 (Cth), s 121 National Privacy Principles Privacy Act 1988 (Cth), s 25, s 25A, s 89, s 90, s 93, Pt VIII Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, r 14.30
Cases Cited:	Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Day v Lynn [2003] FCA 879 Debrossard & Carey & Ors [2014] FCCA 2915 Everett v Neale [2012] NSWDC 73 Gao v Federal Privacy Commissioner [2002] FCA 823 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 Ibarcena v Templar [1999] FCA 900 Marshall v Prescott [2015] NSWCA 110 Maynes v Casey [2011] NSWCA 156 New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Preston v Commissioner for Fair Trading [2011] NSWCA 40 Simmons v Protective Commissioner (NSW) [2012] NSWSC 455 Wardley Australia Ltd v State of Western Australia (Rothwells Loan case) (1992) 109 ALR 247
Category:	Procedural and other rulings
Parties:	Ms Debrossard (plaintiff) AB Commission (first defendant) Mr Merril (second defendant) Ms Carey (third defendant) Ms Norman of Ms Norman & Co (fourth defendant)
Representation:	Counsel: Ms T Berberian (first, second and third defendants) Ms M Avenell (fourth defendant)   Solicitors: HWL Ebsworth Lawyers (first, second and third defendants) Mullane & Lindsay Solicitors (fourth defendant)
File Number(s):	[Restricted]
Publication restriction:	Non-publication order re any matter that would lead to the identification of any party in the proceedings.This coversheet uses pseudonyms which can be adopted in the publication of the decision.

Judgment

A.  BACKGROUND

1. The plaintiff was a party to Family Court proceedings some years ago.  Those proceedings concerned some real property in which she held an ownership interest.  The Family Court ordered the appointment of the second and third defendants, employees of the first defendant, as trustees for the sale of the property.  The fourth defendant was a solicitor engaged by the first, second and third defendants in those proceedings and in relation to the sale of the property.

2. Copies of the Family Court orders containing the plaintiff's name were filed in that Court. However, a cover sheet, orders and reasons for judgment were published in the name of a pseudonym of the plaintiff and a notation was placed in that document at the conclusion of the orders stating:

“IT IS NOTED that publication of this judgment under the pseudonym [which is then given] is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).” [Bold in original].

That form of judgment was published on and perhaps in other legal databases.

3. The plaintiff complains about the disclosure of her name in connection with the Family Court proceedings.

B.  THE APPLICATION

4. The defendants apply for the proceedings to be summarily dismissed or struck out pursuant to Uniform Civil Procedure Rules13.4 and 14.28. The plaintiff, who is not legally qualified, acts for herself in these proceedings, including by drafting the originating process.  Although the statement of claim does not bear the indicia of having been professionally drafted, the defendants' arguments concern the substance of the claims made by the plaintiff, rather than the form of the pleading (apart from one matter which is considered below).

5. The relevant principles for an order for summary dismissal can be expressed as follows (see O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3], General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129):

1. a lack of a cause of action must be clearly demonstrated;

2. the real issue is whether there was an underlying cause of action, not simply whether one is pleaded;

3. the challenged action requires more than merely fanciful prospects of success. Demonstration of the ultimate outcome is required rather than an assessment of its prospects of success (cf the obiter comment in Simmons v Protective Commissioner (NSW) [2012] NSWSC 455 at [28]); and

4. the power to summarily terminate proceedings must be exercised with great caution.

C.  THE ITEMS OF CONDUCT IN THE PLAINTIFF’S CLAIM

6. The plaintiff complains about four items of conduct. Each is concerned with the public disclosure of the plaintiff’s name in connection with the Family Court proceedings. The first, second and third defendants are alleged to be involved in the first item of conduct. In respect of that item, for the purpose of this application, no party makes a distinction between the fourth defendant and the first, second and third defendants.  

7. First, the defendants prepared a contract of sale for the property. That contract included a copy of the orders originally made, which included details of the plaintiff's name, the name of the Official Trustee who was the other party to the proceedings, the date of the order and the file number.  This document, it is alleged by the plaintiff, was distributed to parties interested in the sale of the property.

8. The second and third items of conduct occurred initially in February and March 2012 when the fourth defendant prepared and presented papers in connection with bankruptcy and Family Court proceedings to legal conferences in Sydney, Albury and Armidale.  In one of those papers the fourth defendant referred to the Family Court decision involving the plaintiff, and stated the plaintiff's name, the name of the Official Trustee, the year of the decision and the Family Court.  The decision was stated to be authority for the principle that "Upon bankruptcy the Trustee in Bankruptcy stands in the shoes of the bankrupt spouse".  The other paper also referred to that decision, stating the names of the parties, the year of the decision and the court and recounted that in the decision:

"[O]rders were made that the Official Trustee get 40% and the wife 60%. The parties had a long marriage and there were 3 children who were all grown up. The Official Trustee was appointed Trustee for Sale."

9. Neither reference to the Family Court decision included the judgment number, or the file number of the proceedings. However, the reference to the year and to the Official Trustee was sufficiently distinctive to enable the corresponding judgment on published under a pseudonym, to be ascertained as, so I am informed by the defendants, the Official Trustee was a party to only one published decision in 2011.  Both papers containing these references are alleged to remain on the fourth defendant's website.

10. The final item of conduct concerns a blog on the Insolvency Practitioners Association of Australia (“IPA”) website.  The particular page of the site appears to have been visited by in excess of 1,000 people as at the date of the printing of the copy (of the items in the blog) exhibited in this application, namely 30 November 2014.  The blog stated:

"FAMILY LAW DIVIDE – 40% TO THE CREDITORS

by IPA Aug 23, 2011

The Family Court has divided up a former matrimonial home - 60% to the wife and 40% to the Official Trustee as trustee of the husband's bankruptcy.  The wife was ordered to give vacant possession of the property not later than 21 days before the completion date for the sale of the property and she remained responsible for all mortgage repayments, rates, insurances and other outgoings until then. 

On one issue, the bankrupt's interest in the deceased estate of his mother was considered as part of the matrimonial property, despite the fact that her death occurred after separation and divorce of the bankrupt and his wife. 

The Official Trustee was appointed a trustee for sale:

[plaintiff’s surname] v Official Trustee [2011] FamCA, [date]. 

Thanks to [fourth defendant] & Co for bringing this case to the IPA's attention. 

IPA".

As can be seen, the blog attributed the information to the fourth defendant and published the name of the plaintiff, the name of the Official Trustee, the year, the court and the date of the decision, enabling a sufficiently interested reader to access the judgment and all the details therein.  As the decision was cited as an authority in the blog and in the two papers, it can be supposed that interested parties might seek to locate the judgment, including to verify that it stands for the principle cited and to identify the relevant paragraphs or sections of the judgment authoritatively stating those principles.

D.  CAUSES OF ACTION

11. The fourth defendant identified seven potential causes of action that could be discerned from the statement of claim. The plaintiff accepted three of these and a fourth in an amended form.  Treating the amendment as a separate cause of action the eight items can be listed as: 

1. breach of publication order;

2. breach of s 121 Family Law Act 1975 (Cth);

3. breach of the Privacy Act 1988 (Cth);

4. negligence;

5. breach of confidence;

6. breach of privacy;

7. defamation; and

8. breach of a statutory duty arising from a breach of s 121 of the Family Law Act 1975 (Cth).

12. The first seven matters are the causes of action nominated by the fourth defendant. The last four are those specifically accepted by the plaintiff.  They also constitute the four items listed under the heading "TYPE OF CLAIM" on the first page of the amended statement of claim.

E. SECTION 121 FAMILY LAW ACT 1975 (CTH)

13. Section 121 of the Family Law Act 1975 (Cth) forms the basis of all possible claims by the plaintiff, for without it the disclosures in the last four items of conduct would merely be stating details of a public decision of a court. Section 121 provides:

“121 Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:

(a) it contains any particulars of:

(i) the name, title, pseudonym or alias of the person;

(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

(iii) the physical description or the style of dress of the person;

(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

(b) in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or

(c) in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.

(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.

(5) An offence against this section is an indictable offence.

(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

(9) The preceding provisions of this section do not apply to or in relation to:

(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

(b) the communication of any pleading, transcript of evidence or other document to:

(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or

(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or

(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or

(d) the publishing of a notice or report in pursuance of the direction of a court; or

(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or

(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:

(i) a separate volume or part of a series of law reports; or

(ii) any other publication of a technical character; or

(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or

(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or

(ii) to a person who is a student, in connection with the studies of that person; or

(g) publication of accounts of proceedings, where those accounts have been approved by the court.

(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.

Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.

(11) In this section:

court includes:

(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and

(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.

electronic means includes:

(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.”

14. The offence provided for in s 121(1) relevantly requires:

1. publication to a section of the public;

2. of an account of any part of the proceedings;

3. identifying a party to the proceedings. 

15. No issue is taken on this application that each of the four items of conduct constitutes a publication to a section of the public. 

16. Although the plaintiff's full name was only revealed in the orders attached to the draft contract, her surname is distinctive and, again, no issue was taken by the defendants on this application about whether any of the publications, by referring only to the surname of the plaintiff, relevantly identified a party to the proceedings, Section 121(3) provides an inclusive definition of how a person may be identified, including by "the name,…pseudonym or alias of the person" if those particulars are "sufficient to identify that person to a member of the public".  A distinctive surname might be thought sufficient to do that. 

17. An issue was taken, however, about whether any of the items of conduct contained "an account of proceedings, or of any part of proceedings". In Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747 at [53], Kenny J stated:

“Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings.”

18. It was submitted that the publication of the orders at least did not constitute publication of an account of part of the proceedings.  The orders provide, in some detail, for the procedure by which the trustees could sell the property and the obligations of the parties in the intervening period prior to sale.  They do not contain any narrative of the factual foundation of the orders or the course of the proceedings or the evidence therein.  However, the orders of the court are a part of the proceedings, perhaps the final part.  To recite the orders is to recite a part of the proceedings. 

18. The blog recites some of the orders, identifies the property as a "former matrimonial home", and recounted some history of a part of the property which came from a deceased estate.  This also constitutes a reciting of part of the proceedings. 

19. The second paper, as well as referring to the decision, provides two details of the orders, and it describes the length of the marriage and the number and level of maturity of the children.  This, in my view, also constitutes a reciting of part of the proceedings.

20. The first paper states one legal principle for which the decision is authority.  I have some doubt as to whether that amounts to a recounting of a part of the proceedings, especially as it is unclear where the principle stated is found to be expressed in the judgment, and whether it is expressed precisely or even substantially in the terms stated in the paper.  If it is not and perhaps even if it is (because the account of the part of the proceedings is so limited, on the basis of the de minimis principle), the first paper could not be said to constitute an account of part of the proceedings.  In that event, a question might arise as to whether a broader "account" has been published by means of references to the Family Court judgment. Section 121 refers to and includes matters "otherwise [disseminated] ... by any means". In view of the other publications, it is unnecessary to decide this question.  No party suggested that there is utility in striking out a lone reference to the first paper for this reason alone and, in the circumstances where some uncertainty remains, I do not propose to do so.

21. Section 121(9) provides that s 121 does not apply in certain circumstances. Subparagraphs 121(9)(e)(ii) and 121(9)(f)(i) are relied upon by the defendants. The application of subpara (e)(ii) requires, among other matters that appear to be satisfied, that the publication be "bona fide" and that the publication be a publication (other than as part of a series of law reports) "of a technical character".  No party addressed me on whether the paper satisfied the "technical character" requirement or precisely what was the meaning of that phrase.  Plainly, law reports are indicated, by the use of the word "other" in the paragraph, to be of a "technical character" and arguments can certainly be advanced that a paper for professional training of insolvency practitioners satisfies that requirement.

22. On the same basis, the blog of the IPA might also be so regarded.

23. As to "bona fide", the plaintiff pleads occasions where she communicated the asserted breach of s 121 to the defendants and pleads that the defendants "refused to act to remedy the offences" and "saw fit to humiliate the plaintiff by their arrogance and contumelious disregard of the plaintiff's rights or even from malicious intent". Whatever be the final position about the truth of these allegations, these and other references in the pleadings indicate a challenge to the bona fides of the defendants.  Perhaps the continued publication on the internet of the decision, in the plaintiff's name with an incomplete citation rather than a reference to the proper and full citation with the pseudonym, notwithstanding the alleged complaints of the plaintiff, can be fully explained. But it has not been explained on this application, and I do not think it is appropriate on a summary dismissal application to make assumptions in the defendants’ favour about matters not the subject of evidence.

24. The other subparagraph relied upon is s 121(9)(f)(i), which concerns publication to a person "who is a member of a profession" and who is (apparently, although an alternative construction may be arguable) either practising in that profession or involved in professional training.  Although the principal recipients of the papers and the blog would be expected to be members of the profession, no evidence was tendered on the application to prove that all the recipients of the publications, which is presumably all those who viewed the relevant pages on the internet, satisfied that criterion.  Again, that seems to be more appropriately a matter for trial than to be a basis for summary dismissal.

25. For these reasons, I am satisfied that the claim that there is a contravention of s 121, for the purpose of civil causes of action alleged by the plaintiff, is reasonably arguable. It follows that I reject the submission that there is no possible contravention of s 121.

26. However, to maintain the proceedings the plaintiff must also have a reasonable cause of action arising out of the alleged contravention of s 121. This too is disputed by the defendants.

F. ALLEGED CAUSES OF ACTION

28. I return to the various causes of action alleged.

(1) BREACH OF A PUBLICATION ORDER

29. The plaintiff did not, in submissions, adopt this cause of action and it does not appear in the section "TYPE OF CLAIM" to which I earlier referred.  One reference to "a Publication Order" in the statement of claim is made in the context of being something for which the defendants did not apply. However, there is also more than one reference in the statement of claim to a "breach of the publication order under Section 121 of the Family Law Act".  In proceedings in the Federal Circuit Court in 2014, the plaintiff referred to the notation quoted in paragraph 2 of this judgment as a "Publication Order" (see Debrossard & Carey & Ors [2014] FCCA 2915 at [11]) and before me no other alleged order was identified as a publication order.

30. It is apparent that the notation is not an order but an approval under s 121(9)(g) of the Family Law Act 1975 (Cth). In this regard I agree with what is said in Debrossard in the Federal Circuit Court at [18] to [20]. Further, the notation does not, in terms, prohibit any publication but, rather, allows a publication in a certain form.

31. Thirdly, no provision has been identified indicating that a cause of action for damages for breach of a Family Court order can be maintained in this Court. The reasoning in New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27 indicates that this Court would have no jurisdiction in such a matter. Thus, an action for breach of a Family Court order contained in the notation cannot be sustained and if it is maintained by the plaintiff, should be dismissed under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005.

32. Accordingly, under Uniform Civil Procedure Rule 14.28(1), para 4 (but not 4A and following) of the amended statement of claim should be struck out.  The other references to such a breach of a publication order are in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order.

(2) BREACH OF SECTION 121 OF THE FAMILY LAW ACT 1975 (CTH)

33. The plaintiff, in submissions, did not adopt this cause of action. There are references to a breach of s 121 in the statement of claim, although not clearly as a statutory cause of action. Breach of s 121 of the Family Law Act 1975 (Cth) is an offence punishable upon conviction by imprisonment. But proceedings for an offence cannot be commenced without the consent of the Director of Public Prosecutions (“DPP). There is no basis to conclude that the plaintiff has commenced criminal proceedings by this action. As there is no evidence of consent by the DPP, such proceedings could not be maintained in any event: see Debrossard in the Federal Circuit Court at [23].

34. The Family Law Act does not, in terms, provide for an entitlement to damages arising from a breach of s 121. It follows that no statutory cause of action is created. Whether an action for a breach of statutory duty could arise is considered separately below. In circumstances where it is not at all clear that the statement of claim pleads a statutory cause of action and when the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.

(3) BREACH OF THE PRIVACY ACT 1988 (CTH)

35. This action is also not adopted by the plaintiff in oral submissions.

36. The plaintiff does, however, plead in her statement of claim a breach of the National Privacy Principles and the Privacy Act. Section 25 of the Privacy Act 1988 (Cth) provides for the Federal Court or the Federal Circuit Court to order compensation if either a civil penalty order has been made or a finding of guilty in respect of an offence has been made. Both the limitation as to the courts that can order compensation and the unsatisfied precondition of a civil penalty order or a finding of guilt separately preclude an action under s 25 being maintained in this Court.

37. Apart from the related provision in s 25A, no reference was made to any other right to damages or compensation created by the Privacy Act. However, Pt VIII of the Act imposes obligations on an agency of the Commonwealth and a Commonwealth officer in respect of an obligation of confidence "however the obligation arose" (see s 89). A person subject to an obligation of confidence is called a “confidant” (see s 90).

38. Section 93(3) of the Privacy Act 1988 (Cth) gives a person to whom personal information relates an entitlement to recover damages from a confidant. Whether this provision has any application in respect of the privacy created by s 121 of the Family Law Act 1975 (Cth), given the criminal sanctions in s 121 and the operation of s 90(2) of the Privacy Act 1988, might be doubted.  As these provisions were not the subject of submissions and are not referred to in the pleadings, I am reluctant to make any findings in respect of them.

39. I was referred to a number of authorities supporting the proposition that the Federal Court has no jurisdiction to hear directly actions for breach of the Privacy Act 1988 (see Gao v Federal Privacy Commissioner [2002] FCA 823 at [22], Day v Lynn [2003] FCA 879 at [50], Ibarcena v Templar [1999] FCA 900 at [8]-[9]). Those authorities do not deal directly with the jurisdiction of this Court or with an action under s 93.

40. Where it is not at all clear that the plaintiff pleads a statutory cause of action under the Privacy Act, and when the plaintiff does not rely on such a cause of action, I do not propose to make any order for judgment on such a cause of action or strike it out.

(4) NEGLIGENCE

41. The plaintiff did not rely on this cause of action in oral submissions. However, there are references in the pleadings to breach of a duty of care and carelessness and the plaintiff pleads, "If the Defendants had not acted negligently and breached their duty of care…"

42. The defendants’ resistance to a claim in negligence is narrow. They rely upon ss 31 and 32 of the Civil Liability Act 2002 which state, relevantly:

“31 Pure mental harm—liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

32 Mental harm—duty of care

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.”

43. The defendants’ resistance to the claim in negligence for the purpose of this application is twofold. 

44. First, they assert that the plaintiff must establish a recognised psychiatric illness, that she has been invited to provide evidence of this and that she has declined to do so and evinced an intention not to do so.

45. Secondly, the defendants assert that it cannot be found (under s 32) that the defendants:

"ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognisable psychiatric illness if reasonable care were not taken". 

46. Both of these reasons rely on the plaintiff not having a recognised psychiatric illness.  Although the plaintiff has not, on this application, established that she suffered from a recognised psychiatric illness, that is not an obligation she bears on a summary dismissal application. However, the defendants have written seeking particulars of any psychiatric illness of the plaintiff and, although she has responded to the correspondence, she has not provided those particulars, or evidence, and has somewhat obliquely indicated either that she does not have such an illness or will not provide such evidence.

47. The Court has not previously required the plaintiff, in direct terms, to supply details of any psychiatric illness.  For this reason at least, it would be premature to strike out the proceedings for failure to provide particulars.  The circumstance that the plaintiff is self‑represented in the context of a possible psychiatric illness case also raises complications. 

48. In my view, because the plaintiff may intend to proceed with a negligence claim, and in any event, for the expeditious advancement of the proceedings, it would be appropriate that there be a direction that she provide full particulars of her damages, and that may require service of any medical reports of alleged psychiatric damage.

49. The second aspect of the defendants’ opposition to a negligence claim is that, they assert, it could not be said that a person of normal fortitude would suffer a recognised psychiatric illness if reasonable care were not taken or that the defendants ought to have foreseen that such a person would suffer that illness.  However, these matters depend upon "the circumstances of the case".  All of those circumstances are not yet apparent in detail, even if some or all of them are summarised in the pleadings.  Further, no evidence has been filed on the subject by the parties.  There is no expert psychiatric evidence about whether a person might suffer such an illness from what has occurred, including from the disclosure of the plaintiff’s identity in association with the matters in the judgment. These matters cause me to be reluctant to decide, on a summary judgment application, the question of whether a person of normal fortitude would suffer a recognised psychiatric illness if reasonable care were not taken or whether the defendants ought to have realised that matter.  I would suppose that the prospect of causing psychiatric illness to the plaintiff by revealing details of a judgment might be small but it would likely depend on the gravity of the material in that judgment and also perhaps whether continued wrongful publication occurred, despite an asserted proper request to remove the contravening material. Wrongful revelations of grave conduct made persistently despite requests to desist might be supposed to potentially offend a person's sense of justice to such a degree as to cause such an illness.

50. The words of the judgment indicated in the statement of claim to be of particular concern to the plaintiff include, "the wife sought to thwart the interests of the Official Trustee by joining with the husband in having the consent property orders made”. I make no adverse comment about those remarks in the judgment but suffice it to say that on one construction of those words, the plaintiff has been involved in potentially grievous conduct offensive to the interests of justice.  She disputes that this occurred.

51. Leaving aside any possible issue estoppel, a matter which was not raised, it is not inconceivable that a person could feel a real sense of injustice, perhaps to a high level, because a grievous finding is continually wrongly being publicised notwithstanding that she has notified the publisher of the restriction on publication. In the absence of relevant psychiatric evidence tendered by the defendants, I am not satisfied that the plaintiff must fail to satisfy the requirements of s 32, even assuming (which I do not decide) that the burden of proving the elements of s 32 lie upon the plaintiff.

52. No other reason for summary dismissal of negligence was advanced.

(5) BREACH OF CONFIDENCE

53. The defendants contend that the linking of the plaintiff's name to the reasons for judgment does not have the "necessary quality of confidence". It was submitted that the information linking the plaintiff with the Family Court judgment is in the public domain and that therefore the action for breach of confidence cannot be maintained.

54. Evidence on the application included a search earlier this year of the public register of NSW Land and Property Information.  That search produced a copy of orders disclosing the plaintiff's name and evidence that those orders had been on the register since 2011.  It may be readily accepted that information which is relevantly in the public domain, such as what is referred to as “common knowledge”, cannot have the necessary quality of confidence to satisfy a breach of confidence action (see Marshall v Prescott [2015] NSWCA 110 at [53]-[55]). It is not so straightforward that because someone with information can, perhaps on the payment of a fee, locate that information on some public register, that the information is then relevantly "in the public domain". Whether information is in the public domain is a matter that depends not only on how readily accessible the information is but how widely known it is.  Where a court has determined that the identity of the plaintiff should be suppressed by the use of a pseudonym, I do not accept that the ability of another party to obtain by some public search information revealing the identity of the plaintiff requires a finding that the information is relevantly beyond the protection of a duty of confidence.  For that reason, I do not propose to summarily dismiss the action.

(6) BREACH OF PRIVACY

55. The authorities have not unequivocally recognised the tort of breach of privacy, although the Court of Appeal in Maynes v Casey [2011] NSWCA 156 referred to some of the authorities and stated at [35]: "These cases may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence".  It may be that such a right might depend on "undue or serious invasion" or one that is "highly offensive to a reasonable person" as the defendants submit.  But whether these matters are requirements for the action and, more significantly, whether they exist in the present case are matters that should be determined at trial.  The uncertainty of the tort of breach of privacy or its elements is not a proper basis to summarily dismiss an action for breach of privacy.

(7) DEFAMATION

56. No imputations have been pleaded as required under r 14.30(2) of the Uniform Civil Procedure Rules 2005. The defendants rely upon this failure of pleading and upon a Limitation Act defence to seek a strike out or summary dismissal of a defamation claim.

57. As to the limitation defence, the defendants accepted in submissions that a republication by them would effectively bring forward the date of the defamation and, depending upon the date of that republication, may operate to remove a limitation defence. There is in the statement of claim allegations of republication of the internet publications in the papers and the blog, although not of the inclusion of the orders in the draft contract. Further, in respect of the draft contract, in view of the caution expressed by the High Court in Wardley Australia Ltd v State of Western Australia (Rothwells Loan case) (1992) 109 ALR 247 at 259 about determining limitation questions in advance of a final hearing, I would be disinclined to decide on this application the limited matter of a limitation period applying to one item only of conduct.

56. However, I do not propose to allow any claim for defamation to proceed in its current form.  The rules require a pleading of the imputations relied upon and whether the imputation alleged is defamatory. Until that is done it is difficult to ascertain whether there are any possible defamatory imputations made by the defendants in the publications set out in the items of conduct.  The only reference to defamation is that referred to on the first page of the amended statement of claim under the heading "TYPE OF CLAIM".  I propose to strike that out.  If the plaintiff can identify any defamatory imputations, which she alleges were published by the defendants, then this strike out order is not intended to preclude her from seeking leave to amend her claim accordingly.

(8) BREACH OF STATUTORY DUTY FOR CONTRAVENTION OF S 121 OF THE FAMILY LAW ACT

59. The defendants submitted that s 121 cannot give rise to an action for breach of statutory duty. Reference was made to the dissenting judgment of Gummow J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [158], where his Honour referred to three factors: an absence of a sanction, an absence of a right to have the duty performed and the absence of clear words creating a right. But in the present case there is a sanction for breach of s 121, namely a criminal one. As to the right to have s 121 performed, it was not submitted that a party never has a right to have s 121 enforced. On the contrary it seems to be recognised that an injunction may be issued in some circumstances. Thus, the first and second factors referred to by Gummow J in Crimmins might be satisfied in this case.

60. The third factor, namely a clearly created right in the Act is, as I have already indicated, absent although I have earlier referred to provisions in the Privacy Act 1988 (Cth) which may create such an entitlement.

61. In any event, with the greatest respect to his Honour, the passage in Crimmins is not the reasoning for any binding decision of the High Court. Further, the matters in the passage are not listed as essential conditions.  The text of the passage speaks of legislation that will "rarely" yield a right or what is to be "expected".  These words underline that that passage does not constitute a proper basis to summarily dismiss a claim. 

G. CONCLUSION

62. For these reasons, I propose to strike out para 4 of the amended statement of claim and the reference to defamation but otherwise decline to make the orders sought in the defendants’ notices of motion.

H. COSTS

63. As the plaintiff has been largely successful, but not entirely, I am inclined to order that the plaintiff's costs, to the extent that they are recoverable since she is a self‑represented litigant and is not entitled to recover time-based costs for conducting proceedings (see Everett v Neale [2012] NSWDC 73 at [147], Preston v Commissioner for Fair Trading [2011] NSWCA 40 at [183]), be costs in the proceedings and to stay that order for two weeks in case the parties wish to make submissions in respect of the appropriate costs order.

I. NON-PUBLICATION ORDER

64. I also propose to make a non‑publication order as the Family Court has done. Otherwise publication of this decision would operate to remove the protections intended by the Family Court orders. That circumstance constitutes a ground under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010: the order is necessary to prevent prejudice to the proper administration of justice. The grounds for the order include that the Family Court has sought by such orders to preserve the identity of parties to the earlier proceedings and also the grounds which justified the Family Court doing so (including the policy behind s 121 of the Family Law Act 1975 (Cth).

65. Although this non-publication order is not an order under s 121 of the Family Law Act 1975, the non‑publication should extend to the names of the parties or anything that identifies the names of the parties. The publication of this judgment may use the same pseudonyms as was adopted by both the Family Court and the Federal Circuit Court in the publication of the earlier judgments.

66. I also grant liberty to any party to apply in case a different form of the non‑publication order is thought to be more appropriate.

J. ORDERS

67. The orders of the Court are as follows:

1. Strike out paragraph 4 of the Amended Statement of Claim.

2. Strike out the reference to defamation on page 1 of the Amended Statement of Claim under the heading “TYPE OF CLAIM”.

3. Order the plaintiff to provide particulars of any damage including any mental or psychiatric damage by a date to be fixed by the Judicial Registrar.

4. Otherwise dismiss the defendants’ notices of motion.

5. Order the recoverable costs of the plaintiff as a self-represented litigant, not including any time-based costs, be the plaintiff’s costs in the proceedings.

6. Stay the entry of the costs order for 2 weeks.

7. Make a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 by ordering that there be no publication of any matter that would lead to the identification of any party in the proceedings on the grounds that it is necessary to prevent prejudice to the proper administration of justice because the Family Court of Australia and Federal Circuit Court of Australia have preserved the confidentiality of the parties’ names under s 121 of the Family Law Act 1975 by using pseudonyms in published judgments involving the plaintiff, and to do otherwise would operate to defeat the purpose of s 121, the use by those courts of pseudonyms and the purpose of these proceedings.

8. Grant liberty to any party to apply to me in respect of the costs order and the non-publication order within 14 days.

9. List the matter for directions on Monday, 30 May 2016 at 9.30am before the Judicial Registrar.

10. Note that the defendants have no objection to the plaintiff appearing by phone on 30 May 2016.

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