Gabriella Piscioneri v Malcolmson
[2017] ACTSC 278
•22 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gabriella Piscioneri v Malcolmson |
Citation: | [2017] ACTSC 278 |
Hearing Date: | 22 August 2017 |
DecisionDate: | 22 September 2017 |
Before: | McWilliam AsJ |
Decision: | 1. Judgment is entered for the defendant. 2. The plaintiff is to pay the defendant’s costs. 3. Liberty is granted to the parties to apply within 7 days of the making of these orders to vary order 2. |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 1147 – Limitation Act (1985) s 21B – application for summary judgment – whether limitation period prevents claim from being pursued – summary judgment entered for defendant |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 137 Limitation Act 1985 (ACT) s 21B Court Procedure Rules 2006 (ACT) r 1147 |
Cases Cited: | Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 Brisciani v Piscioneri [2016] ACTCA 32 Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 |
Parties: | Gabriella Piscioneri (Plaintiff) Scott David Malcolmson (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) M Walsh SC (Defendant) |
| Solicitors Self-represented (Plaintiff) Mills Oakley (Defendant) | |
File Number(s): | SC 150 of 2017 |
McWilliam AsJ:
By statement of claim filed 11 May 2017 (Claim), the plaintiff has commenced proceedings in defamation against the defendant.
The Claim in defamation
The circumstances giving rise to the Claim find their genesis in previous appeal proceedings before the Court of Appeal (also involving a defamation suit), where the plaintiff was the appellant and the defendant was briefed as counsel for the respondent. Those proceedings ultimately resulted in a judgment delivered on 10 August 2016: Piscioneri v Reardon [2016] ACTCA 33.
However, in the course of those proceedings, on 4 April 2016, the defendant sent an email to the Clerk of the Court of Appeal, the contents of which were as follows:
The Appellant has still not served her submissions in this matter upon the Respondent and his advisors despite the directions made by the Chief Justice.
Although she knows I am in the matter, she did not send me the submissions by way of courtesy. My solicitor has not received anything either.
In any event, despite her non service, could we please be provided with the Appellant’s submissions? I note our submissions in reply need to be filed by 14 April.
On the same day, the Clerk of the Court of Appeal responded to the defendant, this time copying the plaintiff in to her response:
Thank you for alerting me to the non compliance on behalf of the appellant, I have raised the issue with Chief Justice Murrell’s associate, and will contact the appellant to ensure that a copy is served. To prevent any further delay in the matter, I have attached the Court’s copy of the appellant’s submissions.
The Claim alleges the defendant’s email was a publication which conveyed imputations that:
(a)the plaintiff did not display professional (or any) courtesy; and
(b)she did not comply with the orders of the Court.
As it transpired, the defendant was mistaken, in that the plaintiff had emailed her submissions directly to the defendant on 17 March 2016. Evidence before the Court reveals that on 25 August 2016 (notably, after judgment had been delivered in those proceedings), the defendant sent a further email to the Court, seeking to correct the record and to withdraw any suggestion he had made to the Court that the appellant in those proceedings was either in default of Court orders or had failed to observe the usual courtesies.
One can well understand the plaintiff being much aggrieved by the defendant sending the first unilateral communication to the Clerk of the Court of Appeal. She was plainly not included as a recipient to the email, had no prior notice that it would be sent, and therefore was deprived of any opportunity to correct the defendant’s misunderstanding.
In R v Fisher [2009] VSCA 100; 22 VR 343, Redlich and Dodds-Streeton JJA stated at [38]-[39] (with emphasis added):
It is "important to bear in mind the characteristics of modern litigation" as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Development Pty Ltd. It is common-place for judges, whether in the course of case management or otherwise, to be provided with bundles of materials, documents for tender, affidavits, and emails not all of which will be tendered or read. But in all such cases the party providing them is bound to simultaneously provide them to the other side. The circumstances in which direct communications may be made to the judge's associate are subject to important qualifications. Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application).
Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case.
Justice Kunc applied those principles in Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) (No 2) [2013] NSWSC 1971 at [14], and went on to set out the correct approach for communications with the Court at [19]-[22]:
Email has done away with what might be thought to have been the last practical barriers to quick and easy communication with a judge's chambers. There are many types of communication, including by email, with a judge's chambers which can assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005 (NSW)). This can include the advance provision of material proposed to be relied upon in court.
However, the natural and well intentioned desire on the part of legal practitioners to send a communication to a judge's chambers copied to all the parties, which, at first blush, might appear to promote the efficient conduct of proceedings must always be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties. As I have said in paragraph [17] above, sending such a communication with a disclosure of the other parties' lack of knowledge or lack of consent does not cure any impropriety.
As a practical matter, and consistently with the principles and rules to which I have referred, I summarise the position as follows. There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:
(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);
(2) ex parte matters;
(3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and
(4) exceptional circumstances.
There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.
Those principles have also been given regulatory expression, including for example, through rr 53 and 54 of the 2011 Barristers’ Rules as amended in Queensland, the relevant rules applying to the defendant.
This case is therefore a timely reminder of the very sound reasons for the established protocol for communications with the Court. Had it been followed, it is unlikely the parties would now be before the Court at all.
The present application
The application presently for determination by the Court, filed on 23 June 2017, seeks summary judgment for the defendant pursuant to r 1147 of the Court Procedure Rules 2006 (ACT) (Rules), and a further order that the plaintiff pay the defendant’s costs on a full indemnity basis.
In Piscioneri v Brisciani & Reardon [2017] ACTSC 237, I summarised the relevant principles at [63]-[64] as follows:
The defendants seek summary judgment, which is a discretionary remedy. The Court ought grant summary relief (of part or all of the proceedings) with the utmost caution and only in very clear cases: O’Brien v Bank of Western Australia Ltd[2013] NSWCA 71 at [66]; Young v Hones[2014] NSWCA 337 at [163], citing General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125 (General Steel) at 128-129.
In this Court, the applicable principles to applications for summary judgment are contained in Galovac Pty Ltd v Australian Capital Territory[2010] ACTSC 132 at [5], cited with approval in McColley v Commonwealth of Australia [2012] ACTSC 154 and Bolas v Calvary Health Care Limited [2016] ACTSC 58 at [1]:
(1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Farmer[2009] ACTSC 143 at 12).
(2) The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125 at 129).
(3) The procedure calls for “exceptional caution” (General Steel at 129).
(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners[1949] HCA 1; (1949) 78 CLR 62 at 91).
(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4)(2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2)[1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).
(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v State of New South Wales [2007] ACTSC 43 at [9]).
(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group [supra] at [15]).
Those principles apply to the present application.
The application was brought on three independent grounds:
(a)The proceedings are statutorily barred under s 21B of the Limitation Act 1985 (ACT) (Limitation Act).
(b)The defence of absolute privilege applies pursuant to s 137(2)(b)(i) of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act).
(c)The proceedings are frivolous or vexatious pursuant to rule 1147(2)(a) of the Court Procedures Rules 2006 (ACT).
The Claim is barred by the Limitation Act
Dealing with the first of the three grounds, s 21B of the Limitation Act provides:
Defamation proceedings generally to be commenced within 1 year
(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2) However, a court 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 subsection (1) to a period of up to 3 years running from the date of the publication.
The section does not extinguish the cause of action; it merely bars the remedy: Commonwealth of Australia v Mewett [1997] HCA 29; 191 CLR 471; Brisciani v Piscioneri [2016] ACTCA 32 at [12]; Piscioneri v Reardon[2016] ACTCA 33 at [46]; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon[2015] ACTSC 61 at [54] and the cases there-cited.
No defence has been filed in these proceedings, however a notice of intention to respond has been filed by the defendant and r 1147(1) of the Rules is thus enlivened. Further, the issue of the application of the limitation period set out in s 21B is expressly raised by the bringing of the present application. In Riches v Director of Public Prosecutions[1973] 1 WLR 1019 (Riches), Lawton LJ explained at 1027:
One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statute barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act ... In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence.
Riches was cited with apparent approval by Refshauge J in Piscioneri v Reardon [2015] ACTSC 61 at [63]. His Honour went on (at [64]) to cite the following extract from the judgment of Stephenson LJ, with whom Sir Sebag Shaw agreed, in Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 at 408:
There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v Director of Public Prosecutions [1973] 1 WLR 1019: strike out the claim and dismiss the action.
Accordingly, when the facts relevant to the question of a limitation period expiring are uncontested, then that will be a clear case when it is likely to be appropriate to decide the issue in advance of a substantive hearing and even before a defence is filed, but only upon an application brought by an opponent (as opposed to the Court’s own motion). Cases to similar effect include Hillebrand v Penrith Council [2000] NSWSC 1058, cited in Egan-Green v McLean [2017] ACTSC 48 at [37].
In the present case, the uncontested facts are that the publication occurred on 4 April 2016 and that the plaintiff was aware of the publication on the same day. The Claim was filed on 11 May 2017. The Claim is therefore outside the one year period stipulated in s 21B of the Limitation Act.
Although the Claim is only a matter of weeks outside the period, the authorities are clear that the Court does not have the discretion to extend the limitation period (see, for example, Piscioneri v Reardon [2016] ACTCA 33 at [43]-[45]).
The only possibility for a statutory extension of time in the circumstances of the present case is sub-s 21B(2) of the Limitation Act, set out above. Again, that sub-section does not give the Court discretion to extend (see Carey v Australian Broadcasting Corporation [2012] NSWCA 176; 84 NSWLR 90 at [55] which considered a similar provision). It is in mandatory terms and operates when the Court is satisfied that it was not reasonable for the plaintiff to commence the action within one year.
The test under s 21B(2) of the Limitation Act is a difficult one to satisfy (see Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [42], again in the context of a provision similar to the legislative provision here under consideration). Notwithstanding an asserted reliance on that part of the section in previous correspondence from the plaintiff to the defendant, no arguable case has been put forward that it was not reasonable for the plaintiff to commence the action five weeks earlier.
The plaintiff’s arguments were first, no defence had been filed and so the issue of the statutory bar has not yet been properly joined. I have dealt with that argument above and find that the filing of a defence is not a necessary pre-requisite in this case.
Second, the plaintiff argued that she did not know whether the email had been republished, that she was currently making enquiries to that end, and that each republication would form a separate cause of action.
The Claim is specifically pleaded on the basis of the single publication dated 4 April 2016. If the plaintiff subsequently discovers a republication by someone of the earlier email, it may well be that sub-section 21B(2) would operate, as the plaintiff could not plead a publication that she did not, with reasonable diligence, know existed.
However, it is unnecessary to consider the argument further. The issue before the Court is whether the present proceedings can be maintained, not whether any future proceedings based on a hypothetical republication can be brought. There is no evidence of any republication, and the plaintiff’s suggested further claim rises no higher than speculation. On the uncontested chronology above, the plaintiff has not commenced her present action against the defendant within the time permitted and the action must be resolved in favour of the defendant.
The defence of absolute privilege
Section 137 of the Wrongs Act is relevantly in the following terms (and with emphasis added):
Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if—
(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—
...
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and
(ii) the publication of matter while giving evidence before the court or tribunal; and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal; or
(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section.
The defendant contends that s 137 of the Wrongs Act applies, in that the 4 April 2016 email from the defendant was published on an occasion of absolute privilege, because it was a ‘document’ ‘otherwise submitted’ to ‘the court’.
The plaintiff’s submission was that because the email was to the Clerk of the Court of Appeal and not the chambers of a judicial officer, the publication was not a document submitted to the ‘court’ as encapsulated in s 137(2)(b)(i) of the Wrongs Act. The word ‘court’ has a number of definitions in the Dictionary located at the end of the Wrongs Act, which cross-references other sections in the statute. None of the cross-references were relevant to the section under present consideration. There was certainly no issue that the Supreme Court of the ACT was an Australian court.
It is important to have regard to the words of the section and to emphasise that sub-s 137(1) is a stand-alone provision. It is not limited by sub-s 137(2). Further, the words in the chapeau to sub-s 137(2) are expressly words without limitation.
It cannot be seriously argued that an email to the Clerk of the Court of Appeal about submissions for a hearing in the Court of Appeal does not constitute a publication ‘in the course of the proceedings of an Australian court’.
For the wide words emphasised above, it does not matter who in the Court received the email. The email was published in the course of the proceedings of an Australian court.
Accordingly, I am satisfied to the relevant high threshold on an application for summary judgment that there is no question to be tried and judgment would also be entered for the defendant on the basis that he has a complete defence of absolute privilege to the Claim.
The Claim is frivolous or vexatious
As there are already two independent grounds upon which the defendant has succeeded, it is unnecessary to consider the third ground relied upon by the defendant in any detail.
The basis for the ground was that the plaintiff had asserted she would not press her defamation Claim against the defendant, should the defendant not pursue, on behalf of his clients, any costs orders made against the plaintiff in other, unrelated proceedings involving his clients (that is, not involving him as a party directly).
The plaintiff explained at the hearing that the adverse costs order against her in the other proceedings constituted her opponent’s legal costs, such costs being incurred by her opponent in briefing the defendant. Her belief was that any damages she received in these proceedings against the defendant directly would ultimately offset the amount he received indirectly from the plaintiff by way of her satisfying the adverse costs order in other proceedings and she was genuinely attempting to achieve that result without recourse to the Courts.
While the plaintiff may have been mistaken in her belief as to her claim being a basis for an off-setting claim in respect of an award of costs in other proceedings involving a different party, and particularly having regard to the lack of any specified quantum of damages in the Claim, I accept the explanation and do not find the proceedings were commenced for an improper or ulterior (strategic) purpose of avoiding the previous costs order.
Costs
Costs are in the discretion of the Court and where a party has been successful, it is usual to order that costs follow the event. As the defendant has been successful in these proceedings, I see no reason to depart from an order that he be entitled to an order for costs on the ordinary basis.
The defendant has previously submitted that he wishes to be heard on an application for indemnity costs if successful. In the event that any party wishes to apply for a variation of the order as to costs, they are to contact my associate within seven days of the making of the orders below, seeking directions for submissions and any evidence on the question, which will be determined on the papers unless either party seeks an oral hearing.
Orders
The orders of the Court will be as follows:
1.Judgment is entered for the defendant.
2.The plaintiff is to pay the defendant’s costs.
3.Liberty is granted to the parties to apply within 7 days of the making of these orders to vary order 2.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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