Foley v Radford

[2006] NSWDC 56

CITATION:	Foley v Radford [2006] NSWDC 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 September 2006
JUDGMENT DATE:	20 October 2006
JUDGMENT OF:	Gibson DCJ
DECISION:	(1)Pursuant to s.7A Defamation Act 1974, imputations 4(a)-(f), 7(a)-(e) and 10(a)-(g) are conveyed and defamatory.; (2)Defendant's application for proceedings to be struck out as an abuse of process are dismissed.; (3)Defendant to pay plaintiff's costs.; (4)The defendant is to file a Defence (including full particulars of any defence of truth) in 28 days.; (5)Matter stood over for further directions, including a further Timetable, to Monday, 4 December 2006.
CATCHWORDS:	Tort - Defamation - s.7A trial - abuse of process - application to dismiss defamation proceedings as abuse of process
LEGISLATION CITED:	Defamation Act 1974.
CASES CITED:	Ford v Nagle & Ors [2004] NSWCA 33; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Flower & Hart v White Ind (Qld) Pty Limited (1999) 87 FCR 134; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 Goldsmith v Sperrings Limited [1977] 2 All ER 566; Grovit v Doctor [1997] 1 WLR 640; Packer v Meagher [1984] 3 NSWLR 486;
PARTIES:	Michael David Foley (Plaintiff) David Gregory Radford (Defendant)
FILE NUMBER(S):	636/04
COUNSEL:	M Foley (Plaintiff) D Radford (Defendant)
SOLICITORS:	Foleys Solicitors (Plaintiff) D Radford (Defendant)

JUDGMENT

1. The plaintiff, a solicitor, brings proceedings against the defendant, a litigant who appeared in proceedings where the plaintiff (Mr Foley) acted for the other side, concerning the following publications.

(i) The first matter complained of

2. On 4 February 2002 the defendant sent a letter to Ms P.J. Staunton AM, who was then the Chief Magistrate of the Local Court. The plaintiff pleads that the matter complained of conveyed the following imputations:

(a) The plaintiff abused the process of the Court.

(b) The plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.

(c) The plaintiff was unfit to be an officer of the Court.

(d) The plaintiff lied to a judicial officer.

(e) The plaintiff was deceitful.

(f) The plaintiff conducted himself unethically in his practise of law.

(g) The plaintiff unduly delayed and frustrated the efficient administration of justice.

(h) The plaintiff abused the trust reposed in members of the legal profession by judicial officers.

(ii) The second matter complained of

3. On 29 January 2002 the defendant sent a letter to Mr Brook Burke, who was a solicitor at Bartercard Legal Services, which the plaintiff pleads conveyed the following imputations:

(a) The plaintiff unduly delayed and frustrated the efficient administration of justice.

(b) The plaintiff lied to a judicial officer.

(c) The plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.

(d) The plaintiff was a dishonest person generally.

(e) The plaintiff is not to be believed.

(iii) The third matter complained of

4. On 18 September 2002 the defendant published a letter to Ms Kim Cull who was the then President of the Law Society of New South Wales, which the plaintiff pleads conveyed the following imputations:

(a) The plaintiff was a liar.

(b) The plaintiff abused the process of the Court.

(c) The plaintiff was deceitful.

(d) The plaintiff unduly delayed and frustrated the course of legal proceedings.

(e) The plaintiff acted in a manner contrary to his duties and responsibilities as a legal practitioner.

(f) The plaintiff was not a fit and proper person to be a legal practitioner.

(g) The plaintiff conspired with his client to pervert the course of justice.

5. These proceedings have had a long interlocutory history, principally by reason of requests by the defendant for adjournments to seek legal advice and by reason of his bankruptcy.

6. The parties agreed that a s.7A trial would be conducted by a jury.

7. The defendant has brought a number of applications, including an application for summary dismissal which was set down for hearing on 21 September 2006. When he did not appear, I made orders to the effect that in the absence of any submissions to the contrary, I proposed to conduct the s.7A hearing on the basis of written submissions, which I directed the plaintiff to prepare and to serve on the defendant. The plaintiff has now served those written submissions and the defendant has indicated that he has no submissions to make concerning the capacity of the imputations and their defamatory meaning. The defendant has, however, brought a fresh application for these proceedings to be struck out as an abuse of process, which I will deal with separately.

8. Where a party does not take objection to the form or capacity of the imputations, or make any submissions concerning the issues in a s.7A trial, what supervisory capacity should the Court exercise when determining whether imputations are conveyed and defamatory?

9. Section 7A(2) Defamation Act 1974 provides that if the Court determines that the matter is not reasonably capable of carrying the imputation, or that it is not reasonably capable of bearing a defamatory meaning, then the Court is to enter a verdict for the defendant in relation to the imputation pleaded. I have, on occasion, been asked by parties to make formal rulings to the effect that all of the imputations will go to the jury, even when they are not challenged, and other than in circumstances where the parties agree to waive the requirement for a separate s.7A jury trial (an extremely rare occurrence) some form of finding would appear to need to be made.

10. However, it is my view that where a party elects to make no submissions at a s.7A trial, and has consented to waive any right to a jury, I should intervene to strike out imputations only in a clear case.

11. Fortunately, the present case is one where the imputations all clearly arise. I have read the schedule prepared by Mr Foley for each of the passages of the matters complained of from which the imputations can be distilled. I am satisfied, having regard to the contents of that schedule, which was served upon the defendant, that each of the imputations is conveyed and I am further satisfied that each of the imputations for each of the three publications would cause ordinary right-thinking persons to think less of the plaintiff and is therefore defamatory.

12. I now turn to a consideration of the submissions filed on 24 August 2006 and 10 October 2006 and the plaintiff’s submissions in reply dated 17 October 2006.

13. The defendant submits:

"Mr Foley and Mr Huxley's action in making false accusations to the police and then in the North Sydney Local Court in the form of private prosecutions, has defamed me and caused me massive financial and character damage. They were an abuse of process, they were oppressive and improper use of the Court's jurisdiction. Mr Foley has maintained proceedings that will clearly fail, they were unjustifiably oppressive, vexatious in relation to me and were generally unfair.

... I seek your Honour's appraisal of the evidence offered and favourable consideration to ending this matter which has been another massive waste of time, money and Court resources."

What the defendant is saying is that his case against the plaintiff is so strong that the plaintiff's case is hopeless.

15. In determining whether to strike out proceedings caution must be exercised, including applications for the court to strike out proceedings as an abuse of process: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 per Barwick CJ.

14. In Ford v Nagle and Ors [2004] NSWCA 33 the New South Wales Court of Appeal considered the position of a trial judge to whom submissions had been made that in the light of the evidence that had been filed the likely success of the plaintiff's proceedings was so weak that the proceedings should be dismissed. The proposition put to the Court was that the proceedings should be summarily dismissed because there could be no prima facie case as to the central allegations. Clyne v New South Wales Bar Association (1960) 104 CLR 186 was cited as authority for the proposition that it is an abuse of process to make or maintain an allegation of serious misconduct, fraud or akin to fraud, or which may have ruinous consequences for the person against whom the allegation is made, if the person making the allegation does not have the evidentiary foundation for the allegation at the time that it is made.

15. In the present case, the defendant has submitted that he does in fact face ruin in that not only has he had to go bankrupt but he has lost the one job he did have and has lost most of his clients as a result of proceedings which he describes as being part of an ongoing vendetta and which has included private prosecutions.

16. The filing of a Statement of Claim which appears legitimate on its face may be an abuse of process where the case is so unmeritorious it is untenable. Legal practitioners have a range of professional obligations concerning their role in the preparation of Court proceedings, including circumstances where they act for themselves (as is the case here).

17. The proceedings in Ford v Nagle were a claim for damages for abuse of process, itself a notoriously difficult basis on which to claim damages. That is not the case here. This is a straightforward action for defamation, where all of the elements of publication of defamatory imputation are in place, and the question is whether a defence (such a defence of justification) can be made out.

18. These are not proceedings which appear on their face to be frivolous and vexatious and there is no basis for them to be struck out pursuant to r 13.4 UCPR. Nor is the evidence put before me by the defendant evidence so conclusive that the plaintiff’s claim is doomed to fail. This question is whether these proceedings could amount to abuse of process if the proceedings are used for an ancillary dominant improper purpose. The question is whether or not the proceedings, or the particular claims made in them, are genuinely intended to be determined in the proceedings: Flower and Hart (a Firm) v White Industries (Queensland) Pty Limited (1999) 87 FCR 134.

19. The courts have been particularly cautious about bringing defamation proceedings to an end as an abuse of process. In Goldsmith v Sperrings Limited [1977] 2 All ER 566, the court refused to strike out defamation proceedings where the defendant joined a number of newsagencies on the basis that he would settle the action with the newsagencies if they agreed no longer to sell the satirical magazine "Private Eye", the publisher of defamatory material about the plaintiff. This was because the plaintiff’s principal aim was vindication of reputation.

20. A rare case where defamation proceedings were struck out as an abuse of process is Grovit v Doctor [1997] 1 WLR 640, where the plaintiff commenced proceedings without any intention of bringing them to a conclusion, which was held to be an abuse of process. Similarly, in Packer v Meagher [1984] 3 NSWLR 486 a plaintiff filed proceedings for defamation just prior to the Christmas law vacation and then filed a Notice of Discontinuance shortly afterwards in circumstances which Hunt J described as "poisoning the well of justice". No such claim of delay or failure to prosecute the action is made here.

21. Whether or not the defendant's plea of justification will succeed or fail is a disputed issue of fact for the trial. It may be that the defendant succeeds in relation to some, or even most, of the imputations, and it may well be that by reason of the operation of the defence of contextual truth (s.16 Defamation Act 1974) a verdict for the defendant results even in relation to those imputations for which truth cannot be proved by reason of the plaintiff's reputation suffering no further harm. However, disputed issues of fact must be resolved at a hearing. It would be an exceptional case where the mere tender of documentary evidence to assert a defence of justification was such as to warrant a plaintiff not being permitted to have his or her day in Court.

23. I accordingly dismiss the defendant’s application for these proceedings to be dismissed as an abuse of process.

(1) Pursuant to s.7A Defamation Act 1974 , imputations 4(a)-(f), 7(a)-(e) and 10(a)-(g) are conveyed and defamatory.

(2) Defendant's application for proceedings to be struck out as an abuse of process are dismissed.

(3) Defendant to pay plaintiff's costs.

(4) The defendant is to file a Defence (including full particulars of any defence of truth) in 28 days.

(5) Matter stood over for further directions, including a further Timetable, to Monday, 4 December 2006.

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04/12/2006 - Amended paragraph to read "plaintiff not being permitted ..." - Paragraph(s) 21