Eshow v Bishop Mar Meelis Zaia
[2018] VSC 110
•19 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 02842
| SARGON ESHOW | Plaintiff |
| v | |
| BISHOP MAR MEELIS ZAIA AND OTHERS (according to the attached schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2018 |
DATE OF JUDGMENT: | 19 March 2018 |
CASE MAY BE CITED AS: | Eshow v Bishop Mar Meelis Zaia & ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 110 |
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LIMITATION OF ACTIONS – Application by plaintiff for extension of time in respect of defamation claims – Application by defendants for summary dismissal of proceeding pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) – Application by defendants to strike out statement of claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2016 (‘Rules’) – Plaintiff and his family were longstanding Church members – Plaintiff’s claims concerned twelve events in a series of disputes between plaintiff and Church leadership comprising the defendants – Plaintiff’s defamation claims out of time – Whether unreasonable in the circumstances for plaintiff to commence an action within one year limitation period – Limitations of Actions Act 1958 (‘LAA’) s 23B(2) objective test does not preclude consideration of claimant’s personal history and attributes – Casley v ABC (2013) 39 VR 526 applied – Extension of time granted but insufficient to save plaintiff’s claims from being out of time – Plaintiff refused leave to proceed with defamation claim – Summary judgment granted for defendants insofar as plaintiff’s claims relate to negligence and alleged breaches of the Telecommunications (Interception and Access) Act 1979 (Cth), Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) – Church voluntary unincorporated association – Plaintiff have leave to file claims arising out of possible alleged breaches of contract
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the First to Fifth Defendants | Mr A J Macauley | David Legal |
| No appearance for the Sixth Defendant |
HER HONOUR:
This proceeding was issued on 25 July 2017 by the plaintiff, Mr Sargon Eshow, against six defendants, all of whom are (save for the fifth defendant) ordained clergy of the Holy Apostolic Catholic Assyrian Church of the East (‘Church’).[1] The first defendant, Bishop Mar Meelis Zaia (‘Archbishop’) is the most senior clergyman in Australia, being the Metropolitan of the Diocese of Australia, New Zealand, and Lebanon. He resides in Sydney. The second to fourth defendants are priests of the Church, who reside in Melbourne. The fifth defendant is the president of the Melbourne church association, which I presume is a lay affiliate of the Church. The sixth defendant, the Patriarch (world-wide leader) of the Church, who lives in Iraq, has not filed an appearance, and, while Mr Eshow deposes that the proceeding must have come to the attention of the Patriarch, he has not been formally served in accordance with the terms of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Little turns upon that for the purposes of the current applications.
[1]For interested readers, a detailed history of the Church and its leadership since the first century CE can be found in the judgment of Young J at (1989) 37 NSWLR 293.
Mr Eshow and his family have been longstanding members of the Church, both in Iraq, and since their arrival in Australia in 2006. The ‘matters’ complained of in the statement of claim, which are said to breach anti‑discrimination legislation and give rise to claims in negligence and/or defamation, are twelve events in a series of disputes between Mr Eshow and the local Church hierarchy in the period 2012 to 2017, which culminated in Mr Eshow being suspended from the Church, at first temporarily in 2015, and then permanently in 2017. Further, in March 2016, the Archbishop brought a defamation proceeding in the Supreme Court of New South Wales against Mr Eshow (‘NSW proceeding’). On 15 November 2017, after the current applications were issued, McCallum J found in favour of the Archbishop in relation to some of his complaints in the NSW proceeding, dismissed others, awarded damages in the sum of $150,000 against Mr Eshow, and granted an injunction permanently restraining Mr Eshow from publishing the matters found by her Honour to be defamatory of the Archbishop.[2] Her Honour found that Mr Eshow had defamed the Archbishop by publishing material which conveyed that:
he has failed the Church, that he is a hypocrite, that he is unfit to hold the position he holds in the Church, that he deserves to be punished for expelling [Mr Eshow] from the Church, that he is evil and worse than ISIS, that he is violent, drunk, dishonest and incompetent and that he has made false accusations against [Mr Eshow].[3]
[2][2017] NSWSC 1540.
[3]Ibid, [101].
Based upon the matters referred to in the statement of claim, his affidavits, and the submissions he made during the course of the hearing, it is clear that Mr Eshow, who maintains he is a longstanding, faithful and devout follower of the Church (and I have no reason to doubt this), does not resile from his views concerning the failings of the Church and its leadership, or at least its local leadership. In addition to the allegations found in the NSW proceeding to have been defamatory of the Archbishop, Mr Eshow attacks the Church leadership for being corrupt, in breach of the Church’s Synod law and Australian constitution, and of having misused Church funds to persecute him.
This proceeding is the second proceeding issued by Mr Eshow in this Court. On 1 March 2017, Mr Eshow issued proceedings naming the Diocese of Australia, New Zealand and Lebanon of the Church (‘Diocese’) as the defendant (‘first proceeding’).[4] According to the solicitor for the first to fifth defendants in this proceeding (‘defendants’), the Diocese is ‘an unincorporated association formed for the purposes of advancing the spiritual and pastoral activities and objectives of the Church’. On 4 May 2017, the Diocese issued an application seeking to summarily dismiss the first proceeding, or, alternatively, strike out the statement of claim. The statement of claim in the first proceeding was in substantially similar terms to the statement of claim in this proceeding, save that two further ‘matters’ are referred to in the current statement of claim, and claims for defamation have been made in each of the twelve matters set out in the current statement of claim.
[4]S CI 2017 00715.
In its written submissions filed in support of its summary judgment application in the first proceeding, the Diocese not only took issue with its nomination as the defendant to the proceeding, the Diocese also submitted that the statement of claim was deficient in a number of respects, in that:
(a) the pleading of Mr Eshow’s negligence claims lacked the following:
(i) any pleading of the facts, matters and circumstances said to give rise to any duty to Mr Eshow;
(ii) any pleading as to the content of that duty;
(iii) any clear pleading as to how any such duty was breached;
(iv) any clear pleading as to how the alleged breaches caused the losses claimed by Mr Eshow;
(v) any pleading of why the Diocese should be directly or vicariously liable for the actions of individual church office holders; and
(vi) the absence of detailed particulars of loss and damage;[5]
[5]These submissions are repeated, with some modification and elaboration, in the defendants’ submissions in the current application.
(b) the pleading does not disclose how any breach of the Equal Opportunity Act 2010 (Vic) caused Mr Eshow any loss and damage; and
(c) in relation to Mr Eshow’s allegations of defamation, the Diocese submitted as follows:
Many of the pleaded imputations could never be proved as having been conveyed by the pleaded conduct, or ever be proved as being defamatory. Some of the pleaded imputations are merely statements of objective truth and fact.
On 9 June 2017, J Forrest J dismissed the first proceeding, and ordered Mr Eshow to pay the Diocese’s costs of the proceeding, which remain unpaid. His Honour refused to allow Mr Eshow to simply amend the statement of claim to replace the Diocese with the current defendants, saying ‘At the moment I don’t think the statement of claim could stand up in court.’[6]
[6]Transcript of hearing, 9 June 2017, 46, [3]-[4].
While his Honour did not provide written reasons for his decision to summarily dismiss the first proceeding, and his oral ruling on that day is not in evidence before me, it is apparent from the transcript of the hearing on 9 June 2017 that the identity of the defendant was not the only matter which troubled his Honour about the statement of claim in the first proceeding, despite his recognition of the latitude the Court may need to afford self‑represented litigants. In particular, his Honour stated that it was necessary for Mr Eshow to identify each of his complaints, who he says is responsible, what damage is sought for that particular action, and what is the legal basis for the claim.[7] His Honour also explained what must be pleaded in order to ground a claim for defamation,[8] and stated:
it is very difficult to determine what legal right you are saying was infringed and what damages you say flowed from the infringement of that legal right. We can tell what the facts are because you set those out, but not what legal right has been infringed.[9]
[7]T30, 13-16.
[8]T18, 29-31.
[9]T31, 20-24.
On 6 November 2017, Mr Eshow filed and served a summons seeking an extension of the limitation period prescribed by s 5(1AAA) of the Limitations of Actions Act 1958 (Vic) (‘LAA’), insofar as it applies to his claims for defamation. On 9 November 2017, the defendants filed and served a summons seeking that:
(a) the proceeding (or part of it) be summarily dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic); and/or
(b) the statement of claim be struck out pursuant to r 23.02 of the Rules, on the basis that the pleading is embarrassing.
The defendants’ application for summary judgment is based, in part, on the fact that, insofar as the matters complained of by Mr Eshow are said to give rise to an action for defamation, the majority are out of time by reason of the provisions of the LAA. As noted above, Mr Eshow’s complaints relate to events which took place over the period between April 2012 and 23 April 2017. Section 5(1AAA) of the LAA provides that: ‘An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.’
Section 23B of the LAA provides as follows:
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
Accordingly, insofar as Mr Eshow seeks to maintain an action in defamation (as he does in each of the twelve matters referred to in the statement of claim), some claims are out of time completely, in that even if leave was granted pursuant to s 23B of the LAA, they fall outside the maximum three year extension allowed by that section (matters 1, 2 and 4), some claims require leave to proceed under s 23B (matters 3, 5, 6, 7, 8 and 9), and the remainder are within time (matters 10, 11 and 12).
The defendants oppose any leave being granted to Mr Eshow under s 23B of the LAA, noting the stringent test imposed by s23B of the LAA. In any event, the defendants also argue that Mr Eshow’s claims, insofar as they involve allegations of negligence, religious vilification, and breach of privacy, are unsustainable, and ought be summarily dismissed. The same is said for Mr Eshow’s claims in defamation, regardless of any applicable limitation period, save that it was (properly) conceded that matter 11, where Mr Eshow complains of certain Facebook posts said to have been made by the Archbishop, may well be able to proceed.
A brief summary of the twelve matters referred to in the statement of claim, including the causes of action alleged, and the relevant limitation periods (insofar as the cause of action is based upon a claim of defamation) follow.
Date of Event
Summary of Complaint
Cause of Action and Limitation Date for Defamation Claim
1. April 2012 Mr Eshow told by Reverend Toma (second defendant) that he could not participate in the St Abdisho parish choir as he had also attended the Coolaroo Church. Breach of Canon law Negligence
Discrimination
Defamation
(1 year: April 2013
3 years: April 2015)
2. July 2013 Mr Eshow told by Reverend MarBehnam (third defendant) and Reverend Toma (second defendant) that he could not attend St Abdisho Church – conversation illegally recorded by Reverend MarBehnam. Breach of Canon law
Discrimination
Criminal negligence
Breach of privacy
Defamation
(1 year: July 2014
3 years: July 2016)
3. 27 November 2014 Church leadership issued new volunteers’ to ‘give authority to the [Church] leadership to remove volunteers who disagreed with their authority’. Breach of Canon law
Discrimination
Negligence
Defamation
(1 year: 2 November 2015
3 years: November 2017)
4. 8 September 2013 Mr Eshow received call from Reverend Toma stating that if Mr Eshow did not take down Facebook posts he would call police and hire security guards to prevent him from entering the church grounds. Breach of Canon law
Discrimination
Negligence
Defamation
(1 year: September 2014
3 years: September 2016)
5. 12 April 2015 Mr Eshow and family physically prevented from entering St Abdisho Church by George Haweil (fifth defendant). Mr Eshow was handed a letter dated 10 April 2015 suspending him from Church. Breach of Canon law
Discrimination
Negligence
Defamation
(1 year: April 2016
3 years: April 2018)
6. 19 April 2015
Reverend Anatwan Mikhail (fourth defendant) read Mr Eshow’s suspension letter to a 500 strong congregation at St Abdisho church. Breach of Canon law
Negligence
Discrimination
Defamation
(1 year: April 2016)
3 years: April 2018)
7. 6 November 2015 Mr Eshow and his wife’s membership payment to the parish office returned. Breach of Canon law
Negligence
Defamation
(1 year: November 2016
3 years: November 2018)
8.
1 March 2016
Mr Eshow’s wife received a telephone call from Deacon Waleed Nissan telling his wife that Mr Eshow would soon receive documents from the Court’s barrister. The message was said to be from Reverend Toma.
Misuse of church funds
Negligence
Defamation
(1 year: March 2017
3 years: March 2019)
9. 29 March 2016 Telephone call from Deacon Waleed Nissan re delivery of documents. The message was said to be from Reverend Toma. Misuse of church funds
Negligence
Defamation
(1 year: March 2017
3 years: March 2019)
10.
29 November 2016
Statement by the solicitor for the Archbishop in affidavit in NSW proceeding offering to pay Mr Eshow’s costs of travelling to NSW for the purposes of the NSW proceeding.
Misuse of church funds
Negligence
Defamation
(1 year: November 2017)
11. 26 January 2017 Publication of disparaging posts on Facebook by the Archbishop. Negligence
Breach of Canon law
Defamation
(1 year: January 2018)
12. 23 April 2017 Letter of exclusion from membership and church property signed by the Archbishop provided to Mr Eshow by Mr George Haweil. Breach of Canon law
Religious discrimination
Negligence
Defamation
(1 year: April 2018)
Before turning to Mr Eshow’s application to extend the relevant limitations period, I shall deal with the defendants’ application for summary judgment, on the basis that, if the claims for which leave is sought are unsustainable, then there is no utility in determining any application for leave to extend time.
As noted by counsel for the defendants in his written outline of submissions, Mr Eshow’s claims fall into five categories (by reference to the above table):
(a) allegations of negligence: all twelve matters;
(b) allegations of discriminatory conduct in contravention of the Equal Opportunity Act 2010 (Vic): matters 1, 2, 3, 4, 5, 6 and 12;
(c) an allegation of religious vilification pursuant to s 8 of the Racial and Religious Tolerance Act 2001 (Vic): matter 11;
(d) an allegation of conduct in breach of legislation prohibiting the covert recording of communications: matter 2; and
(e) allegations of defamation: all twelve matters.
The allegations in paragraphs (b), (c) and (d) above can be dealt with quite briefly. First, in relation to Mr Eshow’s claims that the defendants have engaged in discriminatory conduct and/or religious vilification, I agree that those claims ought to be summarily dismissed, first, because in the statement of claim, nothing flows from those allegations, and secondly, the Victorian Civil and Administrative Tribunal has exclusive jurisdiction in relation to claims under the relevant legislation, such that no claims for compensation under this legislation can be made in this Court.
Secondly, in relation to the alleged covert recording referred to in matter 2, I agree with the submissions of the defendants that the relevant legislation concerns the interception of telecommunications, not recordings of ‘in person’ conversations. Further, while a breach of s 11 of the Surveillance Devices Act 1999 (Vic) is a criminal offence, it does not found a civil cause of action.
Accordingly, insofar as Mr Eshow’s claims arise out of allegations concerning the matters in (b), (c) and (d) above, they ought to be summarily dismissed.
The defendants’ submissions in respect of Mr Eshow’s claims in negligence repeated and expanded upon the submissions made in the Diocese’s summary dismissal application in the first proceeding. Once again, it was submitted that entirely absent from the statement of claim is any pleading of the facts, matters and circumstances said to give rise to a duty of care owed by the defendants, or any one of them, to Mr Eshow, or the content of any such duty. While Mr Eshow alleges various matters amount to a breach of duty, no reference is made to the matters which need to be taken into account by reason of ss 48 and 49 of the Wrongs Act 1958 (Vic), or why some clergy members should be vicariously liable for the conduct of other clergy members.
Mr Eshow did not make any submissions specifically in response to the defendants’ criticisms of how he had framed his case in negligence. However, in his affidavit sworn on 2 November 2017, Mr Eshow, under the heading ‘Statement of Claim Deficiencies’, deposed as follows:
As for the deficiencies in my ‘Statement of Claim’ I have after careful review of the trial transcript provided by the Supreme Court of Victoria, I have closely followed the advice given by Justice J Forrest to frame each and every matter into Claim, Imputation (including what legal right has been infringed e.g. tort, defamation, breach of statutory duty etc.). I have then added a damages section for the entire case at the end with a summary table detailing which of the Defendants is responsible for which matter.
Later, under the heading ‘Damages’, Mr Eshow deposed as follows:
Damages have been pleaded based on the advice provided by Justice J Forrest in paragraphs 42 – 46 of the Statement of Claim. Once again I would like to remind the respected court that I am a Disabled Services Pensioner, having English as a third language and require a little leeway by the court to ensure that I received justice.
I agree with the defendants’ submissions that the pleading of the claims in negligence are totally unsatisfactory, and should not be permitted to proceed. However, that is not the end of the matter. While it is difficult to see how the defendants, or any of them, could owe a duty of care to Mr Eshow, that does not mean that the matters complained of in the statement of claim, or at least some of them, are not actionable under Australian law. In particular, insofar as the Church leadership is said to have engaged in conduct which is in breach of the Articles of the Constitution of the Church (‘Church Constitution’),[10] it is at least arguable that Mr Eshow might have an action for breach of contract. While each of the matters complained of in the statement of claim are probably not of themselves individual breaches, it may well be that the pattern of conduct referred to in the statement of claim, being the exclusion of Mr Eshow and his family from the Church, could be actionable. This is not to comment upon the merits of Mr Eshow’s claims, or of any defences, but rather, it could not be said that a cause of action in contract is not maintainable at law.
[10]See tab 1 of exhibit ‘FD-3’ to the affidavit of Fred David sworn 31 October 2017.
It is well established Australian law that a religious body in Australia is:
a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or consensual compact to which they are parties.[11]
[11]Macqueen v Frackelton (1909) 8 CLR 673, per Griffiths CJ.
Further, in relation to an unincorporated association (such as the Church):
Such an association is an exclusive society of persons, between whom a nexus is provided by a contract, to which they and no others are parties and by which they agree to pursue together some common purpose of their own. It is only in accordance with the contract between them, or by their common consent, that members may leave or be excluded from the society and that new members may be admitted to it. All the mutual rights and obligations of members as such depend upon the terms of their agreement …[12]
[12]Hall v Job (1952) 86 CLR 639, 649. See also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116-7; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 656-8.
This is not the occasion to determine what is the correct version of the Church Constitution, the correct version of the Rules and Regulations of the Diocese, or whether either the Church Constitution or the Rules and Regulations incorporate by reference or otherwise the Synod law relied upon by Mr Eshow, or any other implied terms. For present purposes, it is sufficient to say that, given the potential availability to Mr Eshow of a cause of action in contract against the leadership of the Church, it is not appropriate to grant summary judgment, at least in favour of the Archbishop. Of course, in order to pursue a claim of breach of contract, substantial repleading would be required, not only to remove the claims of negligence, religious discrimination, and where relevant, defamation, but also to properly plead what is required to establish a cause of action in contract. That is, it will be necessary for Mr Eshow to plead:
(a) the identity of the parties to any agreement;
(b) the term of any agreement;
(c) how it is said the agreement has been breached; and
(d) any loss and damage said to have been caused by any breach of any agreement by the parties to any agreement.
In their written outline of submissions, the defendants submitted that Mr Eshow should not be permitted to replead, on the basis that:
(a) Mr Eshow should not be permitted to replead hopeless causes of action which can never be successful; and
(b) this is the second opportunity Mr Eshow has had to plead his case, given the first proceeding: Notwithstanding the observations of J Forrest J regarding the defects in the statement of claim in the first proceeding, Mr Eshow’s statement of claim in this proceeding is largely identical to that in the first proceeding.
I have some concerns as to whether, even with the united guidance provided by these reasons, Mr Eshow will be able to prepare a properly formulated statement of claim. However, some latitude must be afforded to self-represented litigants. For the avoidance of doubt, I will grant judgment in favour of the defendants insofar as claims are brought in negligence, religious discrimination and like claims, and, with two exceptions, subject to my determination of Mr Eshow’s application for leave to extend time, defamation.
Any further pleading would also need to address the question of who are the proper defendants to any claim of breach of contract: while it is not my role to tell Mr Eshow who he may sue, I doubt very much that individual priests and lay officials, or the Patriarch, could be liable for any alleged breach of contract. Presumably, one would have to look to the members of the governing body of the Church in Australia, being the Archbishop and/or the Diocesan committee referred to in the Church Constitution.
Turning now to Mr Eshow’s claims in defamation, I agree with the submissions of the defendants that most of the claims are not maintainable, on the basis that they are communications made to Mr Eshow alone (or his immediate family members), such that there can have been no damage to Mr Eshow’s reputation (matters 1, 2, 4, 5, 7, 8, 9 and 12), or are communications or events which by their very nature can carry no defamatory imputations (matters 3, 7, 8, 9 and 10). By way of example, the issue by the Church leadership of a new standard form volunteers’ agreement (matter 3) could not in any way convey any imputation concerning Mr Eshow whatsoever. Matter 7, being the rejection of the Church membership fees tendered by Mr Eshow and his wife, was said to have carried the imputation that ‘Sargon Eshow has been suspended from the Church for breaking Synod laws.’ Mr Eshow may protest his suspension, and the asserted reason for his suspension, but he cannot dispute the fact of his suspension. Further, telephone calls informing him that he would soon be served with court documents could not possibly be defamatory.
In my view, only the communications referred to in matter 6, being the reading out by Reverend Mikhail, the fourth defendant, of the letter suspending Mr Eshow to the St Abdisho congregation, which was signed by the second defendant, Reverend Toma, and refers to Mr Eshow defaming members of the clergy, and failing to keep promises to avoid ‘any misbehaviour or disturbance in the Church’, and matter 11 (the alleged publication by the Archbishop of disparaging posts concerning Mr Eshow on Facebook) could possibly be actionable in defamation. Of these two matters, the claim in matter 6 is out of time (with time capable of being extended under s 23B of the LAA). Accordingly, it is necessary to consider Mr Eshow’s application to extend time under s 23B of the LAA.
Mr Eshow, in his affidavit in support sworn on 2 November 2017, deposes, in summary, as follows:
(a) he is a deeply religious and faithful adherent to the Church, and has been a volunteer teacher in a parish school and a voluntary member of the St Abdisho choir;
(b) he is the head of a ‘reformation faction’ within the Church which believes ‘the current leadership under [the Archbishop] and [the Patriarch] has grown corrupt and routinely violates church canon (Synod) laws’;
(c) he was a defendant in the NSW proceeding, which he was unsuccessful in seeking to transfer to Victoria;
(d) he deposed as follows:
As it is against our church canon (Synod) laws to take matters to an external court of law I originally refrained from seeking justice by attempting to contact our Patriarch Mar Gewargis III. When he ignored my letters to him and allowed his Bishop Mar Meelis Zaia to sue me without his intervention I was finally forced to – as a self represented litigant – issue a counterclaim lawsuit against the church itself in the Victorian Supreme Court.
(e) he deposed as to his belief that the Patriarch has been properly served with the writ and statement of claim in the proceeding;
(f) he deposed as follows:
My understanding of the statute of limitation is that I was unable to bring a lawsuit against a matter greater than a year. My statement of claim shows that my case involves a pattern via a series of twelve matters, which commenced in 2012, but continued well into April 2017, well within the statute of limitation. In addition to rule out any matters greater than a year will not give context to what has essentially been a pattern of intimidation, vilification and defamation by the Plaintiffs. It will also remove the cause of action and seriously jeopardise my case.
(g) alternatively, he deposed that he has been busy defending himself as a self‑represented litigant in the NSW proceeding from 30 March 2016. He intended to issue a counterclaim against the Archbishop but his time and limited resources were diverted by ‘continuous’ travel to New South Wales;
(h) he deposed as follows:
The cause of action is based on the church leadership’s breach of its duty of care enshrined in its Synod laws and registered with the ACNC to systematically initiate a campaign of intimidation, coercion and harassment against an elder in their church community.
(i) he included an extract of an English translation of Synod law to support his contention that it is impermissible for members of the Church to take their disputes to courts and tribunals outside the Church.
The matters referred to in paragraph (g) above were also repeated in Mr Eshow’s brief written outline of submissions, provided to the Court on 1 February 2018. During the course of the hearing of the application, Mr Eshow said that he travelled to Sydney on five occasions during the course of the New South Wales hearing.
Mr Fred David, the solicitor for the defendants, filed and served an affidavit in opposition to Mr Eshow’s application for an extension of time. Mr David deposed as to the procedural steps involved in the NSW proceeding, being the commencement of the proceeding on 30 March 2016, the court ordered mediation held on 11 August 2016, the making, hearing and determination of Mr Eshow’s case transfer application in the latter part of 2016, the one day trial held on 27 March 2017, and the delivery of judgment on 15 November 2017.
Prior to turning to the defendants’ submissions concerning Mr Eshow’s application for an extension of time, I should note that counsel for the defendants objected to the admissibility of Mr Eshow’s evidence referred to at paragraph 31(d) above on the basis that Mr Eshow’s subjective belief concerning the question of whether he was permitted to bring intra‑Church disputes before an external court or tribunal is, on the authorities, irrelevant to the issue of whether an extension of time ought to be granted under s 23B of the LAA.
I permitted Mr Eshow to rely upon this statement, on the basis that the relevant section of the Synod law was in evidence. I would add that Mr David, in his affidavit in response to Mr Eshow’s application for an extension of time, did not dispute either the existence or translation of the relevant portion of the Synod law, and, in his affidavit sworn on 31 October 2017 in support of the defendants’ summary judgment application, exhibits the Church Constitution, which states under the heading ‘Article Six: Government’:
The Synodical Laws (that is, the Church Canons) and this constitution shall be the governing code of the Diocese.
This is not the occasion to embark upon an exercise of interpreting canon law, or determining whether the particular prohibition applies to proceedings such as actions in defamation. However, I do not accept that the unchallenged evidence of Mr Eshow concerning this matter is irrelevant.
Counsel for the defendants relied upon the principles applicable to applications under s 23B of the LAA summarised by Beach J in Casley v Australian Broadcasting Corporation (‘Casley v ABC’), as follows:[13]
[13](2013) VSC 251, [28], as endorsed by the Court of Appeal in (2013) 39 VR 526, [43].
(a)First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.
(b)Secondly, the circumstances that might give rise to an extension are left at large.
(c)Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had a good reason not to sue.
(d)Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
(e)Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.
(f)Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.
(g)Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.
Counsel for the defendants submitted that circumstances in which a conclusion that it was unreasonable to commence proceedings within one year might be reached is where a plaintiff had engaged in non‑litigious processes to vindicate his or her rights, or where a plaintiff is unable to establish the extent of the defamation or otherwise lacks sufficient evidence to bring a proceeding.[14]
[14]See Noonan v MacLennan [2010] 2 Qd R 537, [16]-[17].
Counsel for the defendants submitted as follows:
What is clear is that the onus of proving that it was not reasonable to have commenced proceedings within one year of publication rests with the plaintiff. It is not a burden that is discharged by showing that it was not unreasonable to have not commenced within one year: Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ; see also Noonan v MacLennan at [30] per Holmes JA. In Noonan v MacLennan at [48] Chesterman JA went as far as saying that the statute required an applicant to ‘demonstrate affirmatively that he would have acted unreasonably in suing within time’ (see also at [58]: ‘To succeed… the respondent had to show that he should not have commenced proceedings in time’, and Holmes JA appeared to agree with much at [30]).
Whether what Chesterman JA stated in Noonan v MacLennan is, in fact, required may be open to question (see Jamieson v Chiropractic Board of Australia [2011] QCA 56 at [20]). However, regardless, the plaintiff must demonstrate both:
(a)Why it was not reasonable for him to have commenced with one year of publication. This question is posed in circumstances where ordinarily defamation claims are to be pursued promptly: see Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [12] per Fraser JA. Further, as Keane JA stated in Noonan v MacLennan at [15], it is ‘only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law’ (Chesterman JA in the same case at [50] described the necessary circumstances as ‘special’); and
(b)Why the court should extend the limitation period for such a duration as would permit the pleaded claims for defamation to be brought within time (with the court not obliged to extend the limitation period until the commencement of proceedings, only to when it was no longer reasonable for the plaintiff not to commence proceedings: see Noonan v MacLennan at [66] per Chesterman JA; see also Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at [71]-[73].
Applying the principles set out above to the current application, counsel for the defendants submitted that:
(a) the purported prohibition in the Synod law upon the plaintiff bringing a dispute arising in respect of Church matters in an external court is unsubstantiated, and, in any event, Mr Eshow’s subjective erroneous belief is ‘irrelevant to ascertaining whether objectively it was not reasonable for the plaintiff to have commenced proceedings within the one‑year limitation period’;
(b) Mr Eshow’s assertion that he had attempted to resolve his dispute with the Patriarch is unsubstantiated by any documents, and in any event would not have been disrupted by Mr Eshow bringing a proceeding within time; and
(c) counsel submitted as follows:
(c)The plaintiff’s efforts in defending proceedings brought by [the Archbishop] in the [NSW proceeding] purportedly prevented him from commencing these proceedings… However, that proceeding was a discrete piece of litigation, which only had a final hearing lasting one day… Further, the [NSW proceedings] should have prompted the plaintiff to counter-sue, since [the Archbishop] is the first defendant in these proceedings and is said to be responsible and liable (either directly or indirectly) for all of the matters complained of in these proceedings...
In relation to matter 6, the one year limitation period expired on 18 April 2016, three weeks after the issue of the NSW proceeding. The date on which Mr Eshow was served is not in evidence, but I can infer that he was served not long after the date of issue, being 30 March 2016. I accept that prior to the issue of the NSW proceeding, and for a reasonable (but not unlimited) period of time after the issue of the NSW proceeding, it was not unreasonable for Mr Eshow to maintain his belief that he was not entitled to bring court proceedings concerning internal Church disputes.
I make this finding having regard to the principle established by the authorities that the test posed by s 23B(2) of the LAA is an objective test, in that it is not enough for Mr Eshow to believe that he was not permitted by Synod law to bring a proceeding of this nature. But the application of an objective test does not preclude some consideration of Mr Eshow’s personal history and attributes. Mr Eshow is a long standing member of a church which, at least according to the material before me, appears to operate on fairly strict hierarchical lines, with a lack of tolerance for dissent perhaps unfamiliar to those of us who have been raised and live in a liberal Western culture. Whatever the rights and wrongs of the disputes between Mr Eshow and the Church leadership, he is clearly passionate about the affairs of the Church. So, while it might be unreasonable for members of ‘mainstream’ churches in Australia to believe that they are prohibited from resorting to the courts to ventilate their disputes, such a belief held by a member of the Church such as Mr Eshow ought be less likely to be considered unreasonable.
In Casley v ABC,[15] the Court of Appeal noted the concurrence of the trial judge (Beach J) with the statement of Fullerton J in Lakaev v Denny[16] that the existence of an objective test did not mean that an applicant’s reasons for not commencing a proceeding within time are to be ignored, and went on to note that Beach J stated:[17]
… the test of reasonableness under the section is objective in the sense that the circumstances to which the section refers are those that the court is satisfied are objectively established and not those that the plaintiff believed (however reasonably) to exist.
[15](2013) 39 VR 526.
[16][2010] NSWSC 1480, [18].
[17]Ibid, [44].
In the current case, the uncontested evidence is that Mr Eshow is a devout adherent of the Church. The Church Constitution expressly incorporates the Synod law as ‘the governing code of the Diocese’. The Church Constitution imposes an obligation upon the parishioners of the Church to be ‘obedient in the matters of faith and ecclesiastical order.’ While I shall not reproduce the relevant section relied upon by Mr Eshow here, I accept that the asserted prohibition upon resort to external judges is an available construction of the Synod law. Accordingly, I accept that Mr Eshow has established that it was unreasonable for him to have commenced an action in defamation in relation to the alleged defamation said to have been made by reason of the reading out of the letter suspending him from the Church within the twelve month period prescribed by the LAA.
Accordingly, I consider that it is appropriate to extend the time beyond the twelve month limitation period, but not to the extent sufficient to save Mr Eshow’s claims arising out of matter 6 from being out time at the time he issued this proceeding.
Mr Eshow’s belief concerning the appropriateness of involving the courts in internal Church matters must have been thrown into doubt by the Archbishop’s issue of the NSW proceeding, given the nature of the allegations said to have been made by Mr Eshow concerning the Archbishop, which concerned internal Church matters. Further, these doubts had been clearly overcome by 1 March 2017, when he issued the first proceeding.
Further, I do not accept that the demands of defending the NSW proceeding were so onerous as to prevent Mr Eshow from bringing his claim in relation to any imputations which were said to have arisen out of the letter read out to the St Abdisho congregation on 19 April 2015, being matter 6.
The question is then, if it were unreasonable to have expected Mr Eshow to have brought his defamation claim in relation to matter 6 by reason of his belief concerning the prohibition imposed by Synod law, after what time did it become unreasonable to do so? The authorities make it clear that if the operation of s 23B is engaged, it is not mandatory that time be extended to the date upon which the proceeding was commenced (that is, 25 July 2017). Rather, it is a matter for the Court’s discretion.[18] In my view, that time could be no later than a few weeks after the refusal of Mr Eshow’s application to transfer the NSW proceeding to this Court (and this is, in my view, being generous to Mr Eshow).
[18]Casley v ABC (2013) 39 VR 526, [73].
This application was heard and determined on 29 November 2016. By that time, a mediation had occurred, and Mr Eshow knew that a trial would proceed in New South Wales. A directions hearing was held on 2 December 2016. In those circumstances, it was difficult to understand why Mr Eshow did not issue a counterclaim in relation to his claims arising out of matter 6 shortly after that date at the latest. While he is a lay person, with the disadvantages that entails, it is clearly not beyond him to document his grievances in a reasonably coherent manner. Further, the claim in relation to matter 6 is substantially similar to the claim pleaded in the statement of claim in the first proceeding. This proceeding was issued on 1 March 2017, some two weeks before the trial of the NSW proceeding, so his statement of claim in the first proceeding was prepared during a period when one would have expected his attention to have been consumed by preparation for trial.
Accordingly, while I would have extended the time to bring a proceeding under s 23B of the LAA, I would have only exercised my discretion to extend time to 16 December 2016, being the date two weeks after the final directions hearing in the NSW proceeding, and being some twenty months after the alleged defamation. Accordingly, leave to bring the claim based upon matter 6 is refused.
Returning again to the statement of claim, the defendants also criticised those parts of the statement of claim which purported to confer ‘primary’ liability for certain matters upon some defendants, and ‘secondary’ liability for these matters upon other defendants, namely the Archbishop and/or the Patriarch, on the basis that the statement of claim does not satisfactorily address how some members of the Church are said to be vicariously liable for the conduct of other members of the Church.
These complaints fall away, however, given my findings that there should be summary judgment for the defendants in relation to Mr Eshow’s negligence claims, and the doctrine of vicarious liability has no role to play in any claim for breach of contract, as only parties to a contract can be liable for breach. Further, in relation to the surviving defamation claim, I cannot see how the Patriarch could be ‘secondarily’ liable for the contents of Facebook posts said to have been published by the Archbishop.
Further, in relation to Mr Eshow’s damages claim, Mr Eshow will need to have regard to the law governing damages for breach of contract, in particular, the general rule that damages are generally not available for distress and disappointment, and the rule that any loss recoverable for breach of contract must have been within the reasonable contemplation of the parties to the contract. Accordingly, I shall make the following orders:
1. Paragraphs 2 to 19, 23 to 35, 37, 39 to 41, and the table in paragraph 43 of the statement of claim filed 25 July 2017 be struck out.
2. There be judgment for the defendants, and the sixth defendant, insofar as the plaintiff claims that they are negligent, have breached the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 1999 (Vic), or have breached the Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic).
3. There be judgment for the defendants, and the sixth defendant, insofar as the plaintiff claims that they have defamed him in relation to matters 1 to 5, 7 to 10, and 12 in the statement of claim.
4. The plaintiff is refused leave to proceed with his action for defamation in relation to matter 6 in the statement of claim.
5. The plaintiff have leave to file and serve an amended statement of claim to add any claims he may have against the first defendant and any other party for any alleged breach of contract, to be filed and served by 27 April 2018.
6. The first defendant (and any other named defendant) have liberty to apply with respect to the adequacy of the amended statement of claim, such liberty to be exercised by notice in writing to the plaintiff and the Court by 11 May 2018.
7. In the event that the first defendant (and any other named defendant) does not exercise any liberty to apply with respect to the amended statement of claim, a defence be filed and served by 1 June 2018, and the proceeding be listed for directions on 29 June 2018.
ADDENDUM
1. These reasons, including the draft orders set out in the last paragraph of these reasons, were substantially complete by the time my associate was informed (on the morning of 15 March 2018) that Mr Eshow became bankrupt on 27 February 2018, about a week after the hearing of these applications. This obviously has implications for the further conduct of the proceeding. In particular, while the authorities suggest that a bankrupt may personally pursue an action in defamation (see the decision of the New South Wales Court of Appeal in Moss v Eaglestone[19]), and any damages awarded would not be available to his creditors, the position with respect to a claim in contract is much less clear cut, particularly given that this cause of action has not already been pleaded, and if Mr Eshow seeks to claim damages in addition to any injunctive and/or declaratory relief.
[19][2011] NSWCA 404.
2. Accordingly, I shall make orders 1 to 4 above, and adjourn the further hearing of the proceeding for approximately four weeks to enable Mr Eshow, the first defendant, and Mr Eshow’s trustee to consider their respective positions in relation to the future shape and conduct of this proceeding.
SCHEDULE OF PARTIES
S CI 2017 02842
SARGON ESHOW Plaintiff - and - BISHOP MAR MEELIS ZAIA First Defendant REVEREND KORKIS TOMA Second Defendant REVEREND HURMIZD MARBEHNAM Third Defendant REVEREND ANATWAN MIKHAIL Fourth Defendant GEORGE HAWEIL
PATRIARCH MAR GEWARGIS III
Fifth Defendant
Sixth Defendant
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0
2
0