Hooper v Catholic Family Services trading as Centacare Catholic Family Services
[2023] FedCFamC2G 323
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323
File number(s): ADG 252 of 2022 Judgment of: JUDGE BROWN Date of judgment: 1 May 2023 Catchwords: HUMAN RIGHTS – Proceedings commenced in Federal Circuit and Family Court of Australia pursuant to provisions of the Sex Discrimination Act 1984 (Cth) and Defamation Act 2005 (SA) – whether the applicant complied with mandatory pre-filing defamation procedures – respondents seek defamatory sections of the relevant application be summarily dismissed – whether this Court has jurisdiction to determine defamation proceedings – matters to be considered Legislation: Constitution Ch III, ss 76, 77
Australian Human Rights Commission Act 1984 (Cth) ss 46PH(1B), 46PO
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 131, 134, 143, 190
Federal Court of Australia Act 1976 (Cth) ss 31A, 32
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)
Sex Discrimination Act 1984 (Cth) ss 7, 14, 94
Defamation Act 2005 (SA) Pt 3, ss 10A, 12A. 12B, 13, 14, 15
Limitation of Actions Act 1936 (SA) s 37
Cases cited: Clayton v Heffron (1960) 105 CLR 214
Collins v James [1955] 1 QB 564
Crosby & Textor v Kelly [2012] FCAFC 96
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
M1 v R1 & Ors [2022] NSWDC 409
Newman v Whittington [2022] NSWSC 1725
Rana v Google Incorporated [2017] FCAFC 156
Re Wakims: Ex parte McNally (1999) 198 CLR 511
Roberts v Bass (2002) 212 CLR 1
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Teh v Woodworth & Anor [2022] NSWDC 411
Webster v Lampard (1993) 177 CLR 598
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 14 April 2023 Place: Adelaide Counsel for the Applicant: Ms Mackie Solicitor for the Applicant: Norman Waterhouse Counsel for the Respondents: Mr Ward Solicitor for the Respondents: Piper Alderman ORDERS
ADG 252 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAURA HOOPER
Applicant
AND: CATHOLIC FAMILY SERVICES TRADING AS CENTACARE CATHOLIC FAMILY SERVICES
First Respondent
AMALIE MANNIK
Second Respondent
MEGAN JONES
Third Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
1 May 2023
THE COURT ORDERS THAT:
1.Pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) paragraphs 4 and 5 in Part A and paragraphs 11, 12, 12.a., 12.b., 13, 14, 14.a., 14.b., 14.c., 14.d., 15, 16, and 17 of Part B of the Application filed on 26 September 2022 are struck out.
2.The Application in a Proceeding filed 10 November 2022 is dismissed.
3.Further consideration of the matter is adjourned to 29 May 2023 at 9:30am for directions NOTING the proceedings will be conducted face to face at Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to issues arising under the provisions of the Sex Discrimination Act 1984 (Cth)[1] and the Defamation Act 2005 (SA),[2] in a court of lower level federal jurisdiction, namely Division 2 of the Federal Circuit and Family Court of Australia.
[1] Hereinafter referred to as “the SDA”.
[2] Hereinafter referred to as “the DA”.
It is the applicant’s position that the two issues are inextricably linked and it makes pragmatic sense for this Court to deal with both of them in the same set of proceedings. The respondents do not agree. In addition, they contend that the applicant has failed to comply with mandatory pre-filing provisions stipulated by the DA and therefore the sections of the relevant application, dealing with defamation, should be summarily dismissed.
BACKGROUND
The applicant in the proceedings, Laura Hooper, commenced the proceedings against an organisation which she described as Catholic Family Services trading as Centacare Catholic Family Services[3] and two of its employees, Amalie Mannik[4] and Megan Jones.[5] I assume the First Respondent is incorporated and can be sued.
[3] It is convenient to refer to the First Respondent as Centacare. In general terms, Centacare is a benevolent organisation founded by the Catholic Church in the 1940’s, in Adelaide. It provides services directed towards the welfare of children and families and offers programs in a range of sectors, including family and relationship counselling and the health and support of children who are already engaged with or at risk of engaging with the child protection system. It is also involved in adoptions and foster care.
[4] Hereinafter referred to as the “Second Respondent” or “Ms Mannik”.
[5] Hereinafter referred to as the “Third Respondent” or “Ms Jones”.
Ms Hooper began her employment with Centacare on 29 June 2009. Initially she was employed as a Playgroup Support Worker but has subsequently worked, with Centacare, in a variety of roles, with disadvantaged families, particularly in the field of child protection.
Most recently, on 1 July 2019, Ms Hooper executed a contract of employment, with Centacare, pursuant to which she was employed as a Senior Practitioner in Centacare’s Family Preservation Service, Children’s Services Unit, on a full time basis.
This contract was subsequently amended with Ms Hooper’s role being described as Acting Senior Placement Practitioner. The employment contract was one of a fixed term, ending in August of 2021.
In October 2020, Ms Hooper became pregnant. She informed the appropriate officer within Centacare’s HR Department of her pregnancy in December 2020 and subsequently, on 9 February 2021, applied for maternity leave, which was approved for the period between 4 June 2021 and 28 August 2021.
However, prior to Ms Hooper’s maternity leave, Centacare was in the process of re-organising its Targeted Intervention and Preservation Services, which dealt with the provision of specialised programs, directed towards assisting children, assessed at being at imminent risk, avoiding being placed in care, through the provision of an intensive in-home community-based program. Centacare referred to this program as the Restore Program.
From Ms Hooper’s perspective, she had significant professional experience in the area, to which the Restore Program was directed. As such, on 11 March 2021, Ms Hooper filed an expression of interest in being appointed to the role of Case Manager for the Restore Program.
On 16 March 2021, Ms Hooper was advised by Leanne Haddad, who is the Executive Manager of the Children’s Services Unit at Centacare that her application to be appointed to the position of Case Manager, in the Restore Program, had been unsuccessful. Given the correlation of this decision with her pregnancy, this decision is the focus of Ms Hooper’s complaint under the SDA.
In the relevant letter, Ms Haddad indicated that Ms Hooper could contact her to discuss the outcome of [her] application if she wished to do so. Ms Hooper took up this invitation and a meeting was convened for a short time later, which was attended by both Ms Hooper and Ms Haddad.
The Second Respondent, Ms Mannik at relevant times was employed by Centacare as the manager of its Foster Care Service. In March of 2021, she was Ms Hooper’s line manager. On 12 March 2021, Ms Mannik conducted an annual professional review of Ms Hooper’s role as Acting Senior Placement Practitioner in Centacare’s Foster Care Unit.
Ms Mannik’s assessment of Ms Hooper was positive in its terms. Ms Hooper was described as being passionate and determined in her work. The only concern noted was in respect of Ms Hooper being at risk of burn out. In each of the performance measures, Ms Hooper was assessed as being either very good or excellent. It is the tenor of Ms Hooper’s evidence that the subsequent decision of Centacare not to accept her expression of interest in the Restore Case Manager position is not congruent with this performance review.
As I understand Ms Hooper’s case (and it must be pointed out she has not as yet filed any affidavit of evidence in support of it) she asserts that Ms Haddad told her, at the meeting between them, that Ms Hooper’s skill set was not the reason she had not been successful in her application for the Restore Case Manager position. Rather, Centacare needed someone who could hit the job running, not someone who would be away for 6 months, 8 months or 12 months and who would not return to work until June next year.
In these circumstances, Ms Hooper contends, on the basis of Ms Haddad’s alleged statements that she has been directly discriminated against, on the basis of her pregnancy or alternatively treated less favourably than another similar employee to her, with her experience and qualifications, who was not pregnant. The applicable provisions of the SDA are contained in sections 7 and 14.
As a consequence of this decision, on 16 September 2021 Ms Hooper filed a complaint to the Australian Human Rights Commission[6] alleging the she had been subject to discrimination on the basis of her pregnancy and family responsibilities. The date specified for this discrimination was 17 March 2021.
[6] Hereinafter referred to as the AHRC.
In her complaint to AHRC Ms Hooper provided other details of the discussion which she alleged took place between her and Ms Haddad. These can be summarised as follows:
·Centacare did not want to offer the role to a person who was able to fill it for one year when it could be offered to someone else who could perform it for two years;
·Had Ms Hooper considered stepping down from her then current role;
·Centacare would provide Ms Hooper with employment references for other organisations such as the Benevolent Society; Headspace; and DV Services;
·Ms Hooper should contact Ms Haddad three months prior to returning from maternity leave to discuss whether there was a position available for her; and
·Ms Haddad would keep the details of why Ms Hooper had not been offered the position as Case Manager of the Restore Program confidential.
In addition, Ms Hooper alleges that the person who was offered the relevant position was also pregnant and was scheduled to be on maternity leave until January 2022 – a period only two months shorter than Ms Hooper’s own maternity leave.
On 29 April 2022, Ms Hooper’s solicitor wrote to the officer of the AHRC who had been tasked with investigating and conciliating her complaint to add further grounds to it. It would appear to be the case that Ms Hooper left the employee of Centacare at some stage after the meeting with Ms Haddad.
In these circumstances, she approached Ms Mannik and Ms Jones, who was the manager at Centacare of Restore North and asked them if they would agree to be her referees for any future positions for which she (Ms Hooper) applied. Both Ms Mannik and Ms Jones apparently indicated their willingness to do so.
In December of 2021 Goodstart Early Learning Centre[7] advertised an employment vacancy for a part-time Child and Family Practitioner. Ms Hooper was interested and asked Ms Mannik and Ms Jones to be her referees. The person at Goodstart who was responsible for the recruitment was Alma-Jane O’Donnell.
[7] Hereinafter referred to as “Goodstart”. Goodstart is the operator of a number of childcare centres throughout Australia.
On 16 December 2021 Ms Hooper was interviewed by Ms O’Donnell. Ms Hooper thought her interview went well and later that day, she was advised that she (Ms Hooper) was the preferred candidate but other documentation was required in the form of her identification; qualifications; working with children clearance; police check; and from her referees.
On 23 December 2021, Ms Hooper was advised by a representative of Goodstart that it had been determined that she was not suitable for the relevant position. On 11 January 2022, Ms Hooper contacted Ms O’Donnell in order to inquire why she had been deemed unsuitable. Ms Hooper’s understanding of this conversation can be summarised as follows:
·Ms O’Donnell told her Ms Mannik and Ms Jones had not provided her with positive references in respect of Ms Hooper;
·Both Ms Mannik and Ms Jones indicated that Ms Hooper had a criminal record history.
As a consequence of this information, Ms Hooper amended her complaint to AHRC, on 29 April 2022, to include a claim that she had been subject to victimisation by Centacare in contravention of section 94 of the SDA on the basis that she had been subject to further adverse action by Centacare as a consequence of her initial complaint of sex/pregnancy discrimination.
Ms Hooper has provided her own National Police Certificate dated 17 March 2022 which indicates that she has no disclosable history so far as the Police are concerned and is therefore able to work with vulnerable groups in the disability sector.
The matter proceeded to conciliation at AHRC on 13 May 2022. On 28 July 2022, a delegate of the President of the AHRC terminated Ms Hooper’s complaint pursuant to the provisions of section 46PH(1B)(b) of the Australian Human Rights Commission Act 1984 (Cth)[8] on the basis that there were no reasonable prospects of the matter being resolved through a process of conciliation.
[8] Hereinafter referred to as the AHRC Act.
As a consequence of this termination Ms Hooper was entitled to institute proceedings in respect of her complaint in either the Federal Court or in Division 2 of the Federal Circuit & Family Court of Australia pursuant to the provisions of section 46PO of the AHRC Act, which she did on 27 September 2022. The time limit prescribed for such an application is sixty days.
The jurisdiction of Division 2 of the Court is conferred by section 131 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).[9] It reads as follows:
[9] Hereinafter referred to as the FCFCOA Act.
(1)The Federal Circuit and Family Court of Australia (Division 2) has such original jurisdiction as is vested in it:
(a) by laws made by the Parliament:
(i) by express provision; or
(ii)by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit and Family Court of Australia (Division 2) in relation to a matter; or
(b) by a legislative instrument made under section 133.
(2)The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
In addition to section 131, in the context of this matter, it is important to note the contents of section 134 of the FCFCOA Act which creates the concept of jurisdiction in associated matters. The section reads as follows:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
Accordingly, given the terms of the AHRC Act, there can be doubt that this Court has jurisdiction to deal with matters terminated by the Commission pursuant to section 46PH. In my view, the situation is more problematic in respect of issues arising under the DA. There must be an association between the federally based matter and one based in state originating legislation or the matter can be characterised as arising in an accrued jurisdiction.
In her application, in addition to raising allegations of discrimination and victimisation against pursuant to the provisions of the SDA, Ms Hooper also alleged that she had been defamed by Ms Mannik and Ms Jones in contravention of the provisions of the Defamation Act by virtue of what was described as the negative reference which had been provided by them to Goodstart in respect of Ms Hooper.
It is these sections of her application that are the major focus of these reasons for judgment. As previously indicated, in an Application in a Proceeding filed on 10 November 2022, Centacare seek the summary dismissal of this portion of Ms Hooper’s application pursuant to the provisions of section 143 of the FCFCOA Act, which endows the Court with a discretion to grant summary judgment (either allowing a defence or dismissing a claim without hearing evidence) if it is:
[S]atisfied that the other party has no reasonable prospects of successfully defending or prosecuting the proceedings concerned.
In this context, it is the position of the respondents that Ms Hooper has failed to comply with mandatory provisions of the DA in respect of the provision of a concerns notice as required by section 12B(1)(a) of the Act to each of them and therefore Ms Hooper has no reasonable prospects, if any at all, of prosecuting the defamation aspects of her claim.
The concept of a concerns notice is created by Part 3 of the DA, which is headed Resolution of civil disputes without litigation. It is part of comparatively recent amendments to defamation law in Australia pursuant to what is usually referred to as the Uniform Defamation Laws.
In this context, it is important to note that there is not a federal defamation law per se, rather each of the states and territories of the Commonwealth have agreed to adopt uniform legislation in respect of issues of defamation in Australia. It being obviously sensible, in an era in which publications can be disseminated instantaneously throughout the country that the same law should apply throughout Australia to any alleged defamatory publications.
However, prior to the commencement of the various Uniform Defamation Law, the Full Court of the Federal Court, in Crosby & Textor v Kelly[10] determined that the Federal Court had jurisdiction to deal with applications relating to material asserted to be defamatory, which had been published in the Australian Capital Territory and the Northern Territory pursuant to the provisions of section 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). In the current matter, as I understand it, it is not asserted by Ms Hooper that she was defamed anywhere other than South Australia.
[10] Crosby & Textor v Kelly [2012] FCAFC 96.
The Uniform Defamation Laws, which include the South Australian provisions, provided a number of significant amendments to the laws of defamation, which can be summarised as follows:
·Before a plaintiff can bring an application for defamation he/she must be in a position to establish that the alleged defamatory material is such that it would cause him/her serious harm [section 10A];
·It is a requirement before an action for defamation is commenced that the person who claims to have been defamed provides a concerns notice to the publisher of the allegedly defamatory material setting out the imputations of concerns alleged to have been defamatory; specifies the serious harm alleged to have been caused; and attaches a copy of the allegedly defamatory material to the notice [section 12A];
·In the context of providing speedy and non-litigious methods of resolving disputes about the publication of defamatory matters, the concept of offers to make amends was introduced. In effect, in response to a concerns notice, the publisher of defamatory material may make an offer to make amends by publishing a retraction or correction or pay relevant expenses [sections 13, 14 & 15].
In general terms, section 37 of the Limitation of Actions Act 1936 (SA) provides a time limit of one year for the bringing of defamation actions pursuant to the South Australian legislation.
As indicated above, central to the respondents’ application to summarily dismiss the aspect of Ms Hooper’s case relating to defamation, are the provisions contained in section 12B(1) of the DA, which read as follows:
12B—Defamation proceedings cannot be commenced without concerns notice
(1)An aggrieved person cannot commence defamation proceedings unless—
(a)the person has given the proposed defendant a concerns notice in respect of the matter concerned; and
(b)the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and
(c) the applicable period for an offer to make amends has elapsed.
THE CURRENT PROCEEDINGS
As indicated above, in light of the termination of her complaint to the AHRC, Ms Hooper commenced these proceedings on 27 September 2022. The allegations of defamation apply only to the second and third respondents. The relevant portions of her application which are sought to be struck out are as follows:
On 11 January 2022, Goodstart advised the Applicant that that she had not secured the role. Goodstart advised that the Second Respondent and the Third Respondent had not provided positive references and had ticked "yes" in response to a question if the Applicant "had a criminal record history or any pending civil matters?".
The Applicant does not have a criminal record.
The Second Respondent and the Third Respondent were aware that the Applicant had made (or proposed to make) or had brought (or had proposed to bring) a complaint pursuant to the AHRC Act.[11]
[11] See Application filed 27 September 2022 at paragraph 10(e)-(g).
In this context, it is further alleged that:
The Second Respondent and Third Respondent have made the following publications:
a. Providing negative references to Goodstart in relation to the Applicant; and
b. Indicating to Goodstart that the Applicant had a criminal record history.
The Publications each constitute serious defamation of the Applicant. The Second Respondent and Third Respondent’s representations by virtue of the Publications indicate that the Applicant was not a good employee and had a criminal record history.
The natural and ordinary meaning of the Publications include that the Applicant:
a. Was not a good employee for the First Respondent;
b. Was a criminal;
c. Had a criminal records; and
d. Was a poor candidate for the position of Child and Family Practitioner at Goodstart.
The Publications were made with the malicious intention of causing the Applicant serious harm, severe reputational damage and to injure her prospects of obtaining future employment.
The Publication caused the Applicant serious harm, namely by perverting her securement of employment with a prospective employer and, by virtue of that conduct, barring the Applicant from earning future financial income.[12]
[12] See Application filed 27 September 2022 at paragraphs 12 – 16.
As is clear from these paragraphs, at the time the application was lodged, Ms Hooper was not able to specify what exactly, if anything, either Ms Mannik or Ms Jones had said or written about her in the impugned reference provided to Goodstart.
As indicated above, the respondents filed their application for summary dismissal of the defamation aspects of the application. The application was supported by an affidavit of the respondents’ solicitor, Emily Slaytor.
Ms Slaytor deposed that she received what were described as Concerns Notices addressed to Ms Mannik and Ms Jones, which were dated 13 October 2022 on that date. In addition, the applicant purported to service Ms Hooper’s application which had been filed in the Court on 27 September 2022 – that is some sixteen days before the date of each concerns notice.
In this context, Ms Slaytor has provided a copy of a letter her firm wrote in response to what it saw as significant deficiencies in each of the relevant concerns notices. These can be summarised as follows:
·Each had been issued subsequent to the commencement of the relevant proceedings;
·The notices did not attach a copy of the allegedly defamatory material;
·In this context, Ms Hooper was requested to provide the exact words complained of by her and which were attributed to Ms Mannik and which to Ms Jones;
·In addition, if the allegedly defamatory statement had been made orally, where had the words been uttered and to whom;
·The notices did not provide sufficient particularity of the serious harm said to have accrued to Ms Hooper; and
·The proceedings had been filed prior to the applicable period in which an offer to make amends could be made pursuant to the provisions of section 14(2) of the DA.
The respondents’ solicitors also requested that those advising Ms Hooper identify the basis on which it was asserted that this Court has jurisdiction to determine a claim for defamation, particularly whether it was asserted that this Court had accrued jurisdiction in some way and, if so, on what basis.
In response to the request for particulars of the relevant defamatory publication, the solicitors for Ms Hooper indicated that any relevant comments had been made online in writing on an electronic site maintained by Goodstart which was utilised by referees on behalf of potential candidates for employment by it. Hence Ms Hooper did not herself possess any copy of the allegedly defamatory material, as it was published on the Goodstart online system.
In these circumstances, on 16 February 2023, those advising Ms Hooper issued a subpoena to the relevant officer at Goodstart requiring production to the Court of all documents relevant to Ms Hooper’s application to be employed by Goodstart and in particular any written comments or representation which had been provided by Ms Hooper’s referees. Documents were apparently produced and a resulting notice to inspect filed.
The Court has not been provided with any documents provided by Goodstart. However, on 11 April 2023, Ms Hooper’s solicitor filed an affidavit to which was attached text messages sent to Ms Hooper by Ms O’Donnell in response to the former’s requests for information regarding the references provided to the latter. The relevant messages were in the following terms:
Hi Alma, thank you for your time this morning. Could you please send me an email confirming that both references ticked criminal history and also provided negative references which resulted in me not being successful in the job application?
To which Ms O’Donnell replied as follows:
Hi Laura,
I will need to check how and if I can do this – I’ll loop back. It is important to say the references feedback is only part of the decision process – the combination of experience, interview and reference checks are all considered. The other candidate was very strong in experience. I just felt it would be good for you touch base with your references to get further feedback on their thoughts of your work and if they made an error on ticking criminal history.[13]
[13] See Annexure TT12 to affidavit of Thomas Tagirara filed 11 April 2023.
Those advising Ms Hooper take the latter text message as being a tacit acknowledgement that it was indicated that one of or both of Ms Mannik or Ms Jones had indicated that Ms Hooper had a criminal history. These issues are elaborated upon in the written submissions of the applicant filed in opposition to the strike out application.[14] From these submissions, I gather the following:
·Goodstart’s online template questionnaire for references contained the following question:
To the best of your knowledge, does (candidate’s name) have a criminal record or are they currently involved in any criminal, civil or police action? (If yes, please give further information).
·The applicant asserts that both Ms Mannik and Ms Jones ticked yes to this question.
·This was tacitly acknowledged by Ms O’Donnell.
·Goodstart no longer has the custody or control of the form and therefore it cannot be produced by Ms Hooper.
[14] Amended submissions of the applicant filed 14 April 2023 at [27] – [30].
CENTACARE’S SUBMISSION IN SUPPORT OF STRIKE OUT
The primary submission of Mr Ward, counsel for Centacare, is based on the strict wording of section 12B(1) of the DA particularly the use of the phrase cannot commence defamation proceedings unless a concerns notice has been given together with the exact nature of the imputations to be relied upon.
It is his contention that neither such condition precedent has been satisfied by Ms Hooper and each is to be regarded as mandatory in nature, rather than directory and, as a consequences, she has no prospects of successfully prosecuting the impugned portions of her application dealing with defamation and these aspects of it should be summarily dismissed.
The High Court in Clayton v Heffron[15] distinguished between what it termed a statutory provisions with an imperative basis and those with a directory basis. In respect of the former, strict compliance with the relevant terms was required otherwise any resulting action null and void. Whilst directory provisions, although requiring compliance with some condition, non-compliance of itself did not result in the absolute voiding of the action taken.
[15] Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor & Windeyer JJ.
In this context, Mr Ward submits that from the use of the word cannot in section 12B(1), it could not be clearer that the relevant provision is imperative or mandatory in nature. This was the view taken by Gibson DCJ in Teh v Woodworth & Anor.[16] Her Honour said as follows, in respect of the same provision of the New South Wales defamation legislation:
Section 12B(1) is a “mandatory” provision. Non-compliance with the requirement for service of a concerns notice for the specific publication sued on invalidates the proceedings commenced in spite of it. It is not a “directory” provision which does not have such fatal consequences (although generally there should be substantial compliance).
[16] Teh v Woodworth & Anor [2022] NSWDC 411 at [26] – [27].
Mr Ward also relies on what was said by Rothman J in Newman v Whittington.[17] The legislative purpose of concerns notice and the imperative for them being provided prior to litigation being instituted was to bring forward and to encourage early resolution and settlement of issues between the parties concerned as an alternative to litigation.
[17] Newman v Whittington [2022] NSWSC 1725 at [26].
The other aspect of Mr Ward’s complaint in respect of the defamation claim as presently pleaded is that his clients have no idea of the exact wording of the defamatory imputation alleged against them. At best it is asserted they have ticked a box indicating yes to a potentially inchoate question regarding the existence or otherwise of Ms Hooper having a criminal record or being involved in criminal, civil or police action.
In particular, neither Ms Mannik nor Ms Jones has been provided with the words allegedly either said or written by them in support of the alleged tick. In addition, the use of the tick, depending on the circumstances, may not necessarily be defamatory as at the time it was provided it was the case that Ms Hooper was arguably involved in some species of civil action with Centacare relating to her complaint under the SDA.
In this context, Mr Ward complains that it is impossible for his clients to consider what defences are presently open to them in respect of defending the matter, particularly whether they could plead one or all of truth, fair comment or particularly qualified privilege. The High Court described the defence of qualified privilege in Roberts v Bass[18] in the following terms:
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.
[18] Roberts v Bass (2002) 212 CLR 1, at page 26 [62].
In Mr Ward’s submission it is an essential element of any action for defamation that all the material facts relating the alleged defamation are pleaded and in a libel or slander claim the words used are such material facts and therefore should be provided verbatim. In this context, it is not sufficient to describe their substance, purpose or effect. In this context, he relies on the following passage from Collins v James:[19]
A plaintiff is not entitled to bring a libel action on a letter of which he is unaware. He must in his pleadings set out the words with reasonable certainty and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it. A suspicion that it is defamatory is not sufficient.
[19] Collins v James [1955] 1 QB 564 at 571 – 572.
Essentially, it is submitted that it is impossible for the second and third respondents to plead a defence to the allegations of defamation as they currently stand and, in addition, the mandatory pre-filing procedures applicable to defamation proceedings have not been adhered to.
In this context, Mr Ward also submits that the relevant concern notices do not comply with the provisions of section 12A(1)(a)(iii) in that his clients have not been informed of the actual imputations said to have been made by them.
THE APPLICANT’S SUBMISSIONS IN OPPOSITION
Ms Mackie, counsel for the applicant, asserts that the striking out of the provisions of the application dealing with defamation would not be consistent with the principle contained in section 190 of the FCFCOA Act, which creates the concept of the Court’s overarching purpose, which directs the Court, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible.
Ms Mackie submits that the applicant has, in effect, complied with the requirements that the respondent been given notice of the actions for defamation. If the defamation aspects of the case are struck out, she asserts that the applicant will merely re-file them and because they are now out of time, this will lead to a further application for an extension, which is likely to be granted.
Essentially, it is her case that this will only lead to each party incurring more expense and the inevitable proceedings being unnecessarily protracted in direct contravention of the aspirations enshrined in section 190 and the overarching purpose. In addition, she contends that it would be a significant thing for the Court to deprive Ms Hooper of a cause of action, on a summary basis, without taking evidence from her.
In essence, it is submitted that the striking out of the defamation aspects of the claim, at this stage, is not an efficient use of the Court’s resources and so should not be countenanced at this stage of proceedings.
Ms Mackie also points to the provisions of section 12B(3) of the DA which authorise the Court to grant permission for an applicant to proceed despite non-compliance with the concerns notice provision. In this context, Mr Ward points out, in my view correctly, that the provision in question only applies in respect of proceedings commenced within the period provided for the making of amends.
Mr Ward relies on another decision of Gibson DCJ in support of this contention, M1 v R1 & Ors[20] in which Her Honour asked herself the question of whether leave could be granted nunc pro tunc in respect of defective concern notices under the Uniform Defamation Laws and the proceedings concerned be retrospectively validated. After considering New South Wales Authority, she answered her own question in the negative characterising the language used in the section as being of an imperative nature with the effect that:
The result is that a plaintiff really only has one chance to get his or her concerns notice particulars of serious harm over the threshold of being struck out because, without these being properly particularised, proceedings purportedly relying upon the defective concerns notice cannot be commenced.
[20] M1 v R1 & Ors [2022] NSWDC 409 at [25].
In my view, this principle has equal application to the provision of notice of the exact matters said to be the subject of defamatory imputation. If those matters are not delineated in the relevant concerns notice, no subsequent proceedings can be validly commenced.
CONCLUSIONS
The parties have prudently elected not to invoke controversies regarding the nature of this Court’s jurisdiction to determine proceedings under the South Australian state based DA. As indicated above, the jurisdiction conferred on this Court depends on what is vested to it by the Federal Legislature. This, in turn, depends on the application of Chapter III of the Constitution, particularly sections 76 & 77.
This Court does not have general jurisdiction to entertain claims arising under the legislation of the State of South Australia, including under the DA. It does, however, have jurisdiction to entertain a non-federal claim for relief for which it does not otherwise have jurisdiction if such claim for relief forms part of the “matter” in relation to which the Court does have jurisdiction. Lawyers invariably refer to this authority as being an accrued jurisdiction.
I have already referred to the provisions of section 134 of the FCFCOA Act. It is equivalent in its terms to section 32 of the Federal Court of Australia Act 1976 (Cth). In Rana v Google Incorporated[21] the Full Federal Court said as follows:
[T]he “associated jurisdiction” conferred under s 32 of the Federal Court of Australia Act is not concerned with the conferral of jurisdiction to determine non-federal matters that are said to be associated with a federal matter . . . It is not a synonym for “accrued” jurisdiction. The effect of s 32 is to confer jurisdiction to deal with a federal matter for which jurisdiction has not been conferred upon the Court where it is associated with another federal matter for which jurisdiction has been so conferred . . .
[21] Rana v Google Incorporated [2017] FCAFC 156 at [23].
In these circumstances, it would seem to me that this Court’s authority to determine any defamation matters must depend whether they arise out of the same matter which contains a controversy falling to be determined pursuant to federally conferred jurisdiction.
The most influential and often quoted expression of what is a matter for the purpose of determining whether an accrued jurisdiction is invoked is Re Wakims: Ex parte McNally.[22] In the case the High Court endorsed early authority with indicated that it was a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the scope of one controversy and thus within the ambit of a matter. However, notwithstanding such considerations, the High Court indicated as follows:
The references to "impression" and "practical judgment" cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts. Notwithstanding that the facts upon which the claims depend "do not wholly coincide”. So too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other as for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate", "completely separate and distinct" or "distinct and unrelated" are not part of the same matter.[23]
[22] Re Wakims: Ex parte McNally (1999) 198 CLR 511 at 585 [140] per Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing).
[23] Re Wakims: Ex parte McNally (1999) 198 CLR 511 at 585 [140].
In Rana the Full Federal Court provided the following concise summary of authority relating to the expression matter in the context of accrued jurisdiction:
The matter is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction.[24]
[24] Rana v Google Incorporated [2017] FCAFC 156 at [17].
Ms Hooper’s claim for defamation arose, on her case, because she was told to apply for other positions and told she would be given a positive reference. At this stage, it is not necessary for me to determine whether this aspect of the case is one arising within the same substratum of facts concerning her claim that Centacare subjected her to illegal discrimination because of her pregnancy.
As I understand the evidence, it is not said that Ms Mannik or Ms Jones were the decision-maker in respect of Centacare’s decision not to award Ms Hooper the relevant position. In these circumstances, it is perhaps arguable that the reference issue is a distinct factual issue. In addition, I do not know definitively whether it is essential for a court to determine the discrimination issue in order to determine the reference issue. The central issue being whether the two claims are disparate in nature although both involving personnel of Centacare. However, I have not heard any submissions in respect of the issue and, in my view, it is not necessary for me to determine the issue because the case can be determined on the basis of the matters argued before me.
As indicated above, pursuant to the provisions of section 143 of the FCFCOA Act the Court is endowed with a discretion to grant summary judgment (either allowing a defence or dismissing a claim without hearing evidence) if it is;
Satisfied that the other party has no reasonable prospects of successfully defending or prosecuting the proceedings concerned.
However, in this context, section 143(3) provides the admonition that a case need not be hopeless or bound to fail to have no reasonable prospects of success. Section 143 is in similar terms to section 31A of the Federal Court Act 1976 (Cth).
The power to dismiss an application summarily has been frequently described as being one which is to be invoked sparingly even in cases which can be characterised as being inherently weak.
The provision of section 143 of the FCFCOA Act is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and court resources. However, laudable those aims are, the Court must be careful to avoid becoming a slave to expediency.
In Spencer v Commonwealth of Australia, French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[25]
[25] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J).
In Webster v Lampard, the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[26]
[26] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In Lindon v Commonwealth of Australia (No 2),[27] Kirby J provided a list of principles applicable to summary judgment:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.
[27] See Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
Kirby J said further in Lindon:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[28]
[28] See Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256.
In my view, the various deficiencies identified by Mr Ward, which can be summarised as follows:
·The failure to serve a concerns notice prior to institution of proceedings; and
·The failure to provide specifics of the actual defamatory imputations made against Ms Mannik and Ms Jones;
are of such fatal moment to Ms Hooper’s defamation action that the only conclusion which is open to the Court is that these aspects of her claim have no prospects of success because of their incurable deficiencies.
As is clear from the relevant New South Wales authorities of Gibson DCJ, which although not strictly binding on this Court, must be regarded as highly persuasive, the defects in the concerns notice cannot be retrospectively remedied by amendment. Rather they render the application without jurisdiction from the date of its initiation. For these reasons, I propose to make the striking out orders as sought by the respondents.
I note Ms Mackie’s submission that her client will reiterate her defamation proceedings notwithstanding any striking out and this will inevitably lead to the duplication of costs. That, of course, is a matter for her prerogative. Whether she will choose to do so in this Court or in another one is also a matter for her. However, appealing as it is to adopt a pragmatic approach to litigation, in my view, such a course would be contrary to the express legislative provisions contained within section 12B(1)(a) of the DA and so is not an outcome available to the Court.
I will list the matter for further directions on 29 May 2023 at 9:30am. At this stage, I will determine what should be the next procedural matter in the case, particularly whether it should be referred to some process of mediation.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 1 May 2023
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