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Debrossard v AB Commission

Debrossard v AB Commission

Case [2016] NSWDC 109 16 May 2016

Civil Litigation & Procedure

Privacy Law

Defamation

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Debrossard v AB Commission

Details

AGLC: Debrossard v AB Commission [2016] NSWDC 109
Case: [2016] NSWDC 109
Decision Date: 16 May 2016

CaseChat Overview and Summary

The plaintiff, in this case, was represented without legal counsel and sought damages from the defendants for breach of privacy, negligence, breach of confidence, breach of statutory duty and defamation. The defendants filed motions to dismiss the plaintiff’s claim. The Federal Circuit Court considered the motions and the plaintiff’s response. The court was required to determine whether to strike out certain parts of the plaintiff’s amended statement of claim and whether to dismiss the defendants’ motions. The court also needed to decide on the appropriate costs order and whether to grant a non-publication order to maintain the confidentiality of the parties involved.

The court found that certain parts of the plaintiff’s amended statement of claim were either vague or not legally tenable, such as the claim of defamation which was not supported by the facts presented. The court ruled that these parts should be struck out and that the plaintiff needed to provide more specific details about any claimed damages. The court also decided that the plaintiff, as a self-represented litigant, should only be responsible for their own costs in the proceedings, excluding any time-based costs. Additionally, to protect the identities of the parties, the court issued a non-publication order to prevent any potentially identifying information from being published. The court granted liberty to any party to apply to revise the costs order and non-publication order within a specified timeframe.

The court dismissed the defendants’ motions to strike out parts of the amended statement of claim and to dismiss the case. It ordered the plaintiff to provide further details about the claimed damages and mandated that the plaintiff’s costs in the proceedings, excluding time-based costs, be borne by the plaintiff. The court also issued a non-publication order to ensure the confidentiality of the parties, staying the entry of the costs order for two weeks to allow for potential applications regarding these orders. The matter was listed for further directions to be held on 30 May 2016. The court noted that the defendants had no objections to the plaintiff appearing by phone for the directions hearing.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Debrossard v AB Commission [2016] NSWDC 109

Cases Citing This Decision

No citing cases yet.

Cases Cited

New South Wales Land and Housing Corporation v Quinn [2016] NSWDC 27
Citation 1 (Para 31)

…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 c…
Marshall v Prescott [2015] NSWCA 110
Citation 2 (Para 54)

…red 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 p…
Debrossard and Carey and Ors [2014] FCCA 2915
Citation 3 (Para 29)

…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.…
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Citation 4 (Para 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):…
Everett v Neale [2012] NSWDC 73
Citation 5 (Para 63)

…ecoverable 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 t…
Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455
Citation 6 (Para 3)

…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…
Maynes v Casey [2011] NSWCA 156
Citation 7 (Para 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, wh…
Preston v Commissioner for Fair Trading [2011] NSWCA 40
Citation 8 (Para 63)

…itled 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…
Day v Lynn [2003] FCA 879
Citation 9 (Para 39)

…o 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…
Repatriation Commission v Hendy [2002] FCA 823
Citation 10 (Para 39)

…sition 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 jurisdicti…
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59
Citation 11 (Para 59)

…h 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 c…
Ibarcena v Templar [1999] FCA 900
Citation 12 (Para 39)

…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.…
Wardley Australia Ltd v Western Australia [1992] HCA 55
Citation 13 (Para 57)

…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…
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Citation 14 (Para 5)

…ressed 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):…

Legislation Cited

Civil Liability Act 2002 (TAS) 31
2 mentions (from Para 42)
Court Suppression and Non-publication Orders Act 2010 (NSW) 7
2 mentions (from Para 64)
Family Law Act 1975 (Cth) 121
2 mentions (from Para 2)
Privacy Act 1988 (Cth) 25
2 mentions (from Para 3)
Uniform Civil Procedure Rules 2005 (NSW) 13.4
2 mentions (from Para 31)
Family Law Amendment Act 1983 (Cth)
1 mention

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…