Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling)
[2022] VCC 2213
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-22-02847
| RAYMOND TERRENCE HOSER | Plaintiff |
| v | |
| HERALD AND WEEKLY TIMES PTY LIMITED (ACN 004 113 937) | First Defendant |
| and | |
| PAUL SHAPIRO | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2022 | |
DATE OF RULING: | 14 December 2022 | |
CASE MAY BE CITED AS: | Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2213 | |
RULING
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Subject:CIVIL PROCEUDRE – DEFAMATION
Catchwords: Summary judgment – defendants seek summary judgment against plaintiff on basis proceeding is abuse of process – abuse of process as proceeding irregularly commenced – failure to comply with concerns notice requirements – Court’s discretion to allow improperly commenced proceedings if “just and reasonable” not enlivened.
Legislation Cited: Defamation Act 2005; County Court Civil Procedure Rules 2018; Limitation of Actions Act 1958
Cases Cited:Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; Agar v Hyde (2000) 201 CLR 552; Randell v McLachlain [2022] NSWDC 506; Rader v Haines [2021] NSWDC 610; M1 v R1 [2022] NSWDC 409; Georges v Georges; Georges v Georges [2022] NSWDC 558; Roman Catholic Trusts Corporation for the Diocese of (Sale) v WCB (2020) 62 VR 234
Ruling: Defendants’ application for summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendants | Mr S Mukerjea | Thomson Geer |
HER HONOUR:
1The plaintiff, Mr Raymond Hoser, has sued the defendants for defamation arising from seven publications of an article written by the second defendant in the first defendant’s newspapers and related websites posted on 3 September 2021.
2The matters complained of all relate to a report of proceedings in the Magistrates’ Court of Victoria. The article was headed “Snake Man’s venomous court rant”. It went on, “A Melbourne snake catcher charged with a minor driving offence clogged up valuable court time with a police corruption rant”, and went on to detail that Mr Hoser had been charged with use of a mobile phone will driving and that Mr Hoser “drained valuable court time with allegations he was being unfairly targeted by police”. Mr Hoser was convicted and fined. He successfully appealed to the County Court in March 2022.
3Mr Hoser commenced this proceeding on 11 July 2022.
4The defendants seek to enter summary judgment against Mr Hoser on the basis that the proceeding is an abuse of proceeding, as it was irregularly commenced in breach of s12A and s12B of the Defamation Act 2005 (“the Act”).
5These provisions are relatively new, having come into effect on 1 July 2021.
Summary judgment in cases where there has been non-compliance with legislative provisions
6The County Court Civil Procedure Rules 2018 (“the Rules”) provide, at r 23.01 that, where a proceeding is an abuse of the process of the Court, the Court may stay the proceeding generally or in relation to any claim, or give judgment in the proceeding generally or in relation to any claim.
7It is well established that a court can enter summary judgment where there is an abuse of process. The Court is entitled to protect itself from abuse of its processes, thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation.[1]
[1]Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at paragraph [12]
8The relevant question which the Court must consider is, what is the objective of the provision said to have been breached?
9The Court must not exercise its discretion to enter summary judgment “except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way”.[2]
[2]Agar v Hyde (2000) 201 CLR 552 at 575-576 at paragraph [57]
10Parliament has amended the Act to impose a number of additional requirements on plaintiffs.
11The changes relevant to this application are found in ss10A, 12A and 12B of the Act.
12The legislation inserts a new element in the tort of defamation – the “serious harm” element. No longer is harm to reputation assumed. This element is intended to reduce the number of cases that come before the Court, by weeding out claims where serious harm cannot be established.
13The Act sets out the requirements for a valid concerns notice and imposes a restriction on the commencement of proceedings – a plaintiff must not commence proceedings until a concerns notice has been sent and the “applicable period”, defined in the legislation, has passed.
14The legislative intent in imposing this mandatory bar to commencing proceedings was two-fold – to promote the non-litigious resolution of matters, and to force a prospective plaintiff to carefully consider the element of serious harm before issuing proceedings.[3]
[3]See Parliamentary Hansard, Victorian Parliament,14 October 2020 and Hansard, NSW Parliament, 29 July 2020
15In this case, the defendants say the plaintiff has failed to comply with a mandatory step imposed by Parliament. This failure constitutes not just a procedural failure but is a matter of substance.
16I am satisfied that the imposition of the requirements under s12A and s12B are matters of substance that go to the very heart of the changes made by the legislature. Commencing proceedings in breach of those provisions could amount to an abuse of process rendering the proceedings liable to be struck out or warranting summary judgment.
Have the provisions of the Act been complied with?
Background
17On 8 July 2022, Mr Hoser sent a letter to News Corp Australia (“News Corp”) with the subject heading “Notice of Concern”.
18In his letter, Mr Hoser says he had found, via Google, an article on the domain which he considered defamatory. He said he had written to the second defendant on 29 March 2022 seeking that a correction be published. He proposed a “solution to the problem”, which was effectively an offer of settlement.
19On 21 July 2022, Antonia Rosen, legal counsel for News Corp, responded to Mr Hoser’s letter of 8 July 2022.
20She noted the letter did not clearly identify any article, but she assumed Mr Hoser was referring to an article available at a particular URL which she cited, and asked Mr Hoser to identify if this was incorrect. She informed Mr Hoser that an Editor’s Note would be attached to the article, providing an update to readers with the outcome of the County Court appeal, in which Mr Hoser was successful.
21She said the letter did not constitute a concerns notice for the purposes of s12A of the Act, as it did not:
(a) specify the location where the article can be accessed;
(b) specify the defamatory imputations Mr Hoser considered are, or may be, carried by the article;
(c) specify the harm, alleged to be serious harm to reputation caused, or likely to be caused, by the article.
22Ms Rosen informed Mr Hoser that her letter constituted a request for further particulars for the purposes of ss(3) of the Act.
23On 21 July 2022, Mr Hoser sent a letter with the subject heading, “Second Notice of Concern”. In that letter, he advised that the location of the article had been adequately specified and News Corp’s reply had confirmed they had “these obvious details”.
24He said the imputations conveyed were obvious and did not need elaboration, and the serious harm to his reputation was obvious, as he has been held up for public hatred and ridicule.
25Despite these remarks, he provided URL addresses for six publications and identified the seventh article as having appeared in the print version of the Herald Sun newspaper on 3 September 2021, on page 23, under a headline “Snake Man claims he’s the Victim” with the by-line of the second defendant.
26For each publication complained of, Mr Hoser set out the imputations he alleged were conveyed. He then made a further settlement proposal.
27On 5 August 2022, Grant McAvaney, head of litigation at News Corp, responded to Mr Hoser making an offer of amends. The offer was open for acceptance for twenty-eight days.
28On 24 August 2022, Mr Hoser responded to Mr McAvaney. Although he did not explicitly reject the offer, it is implicit within his letter that he did not accept the terms offered.
29On the same day, Mr Hoser emailed, to News Corp, a copy of the Writ and Statement of Claim he had filed on 11 July 2022.
30On 15 September 2022, the defendants filed a conditional appearance. On 16 September 2022, Thomson Geer, solicitors for the first and second defendants, wrote to Mr Hoser informing him of their clients’ position that his claim was liable to be dismissed immediately, as it had not been commenced in accordance with the provisions of s12B of the Act, and he was now statute barred from proceeding.
The Defendants’ submission
31The defendants say the proceeding has been impermissibly issued in breach of the legislation and must be struck out as an abuse of process.
32They say Mr Hoser has not given the particulars sought prior to issuing proceedings and, pursuant to s12A(5), is taken not to have given a concerns notice for the purposes of s12A.
33Pursuant to s12B, Mr Hoser was not entitled to commence defamation proceedings unless he had given a concerns notice, which particularised the imputations to be relied upon, and the applicable period for an offer to make amends had elapsed.
34A plaintiff does not have to rely on all the imputations particularised in a concerns notice, and can rely on imputations that are substantially the same as those particularised in the Concerns Notice. However, it is not open to a plaintiff to rely on additional imputations that are not included in the Concerns Notice. The intention is clear – this is so a defendant can understand the scope of the case the plaintiff alleges against them and make an informed decision about whether to make an offer of amends and what that offer should be.
35Section 12B(3) provides the Court discretion to grant leave for a proceeding to be commenced where there has been non-compliance with s12B(1)(c) – that is, the discretion is enlivened only if there has been a concerns notice which particularises the imputations to be relied upon, but the applicable period has not expired. In those circumstances, and only those circumstances, the defendants submit the Court can grant leave if satisfied either that the commencement period of a proceeding after the applicable period would contravene the limitation law, or that it is just and reasonable to grant leave.
36The defendants say s12B(3) is not enlivened in this case as a valid concerns notice was not served. However if, contrary to their submissions, the Court determines that a valid concerns notice was served, the Court should not exercise its discretion.
Mr Hoser’s submissions
37Mr Hoser did not file any affidavit in the proceeding and statements he has made were from the bar table. There was no significant dispute as to the chronology of events. Mr Hoser’s own state of mind in relation to the steps he took is not relevant to the considerations I must have regard to, however for the sake of completeness, I include his explanations for why he took the steps he took, and the order in which he took them.
38Mr Hoser says despite having had his attention drawn to the provisions of the Act and the specific provisions relating to concerns notices, he did not read those provisions as he did not have time, and found the amended legislation difficult to locate online.
39He says his past experience with News Corp was that they had refused to accept service of proceedings. He had a court date in an unrelated proceeding that involved News Corp on 18 July. He says on 11 July 2022, he sent an email attaching the Writ and other documents to the Court. He did this in the expectation that the documents would be filed by the Court, and he would receive a sealed copy of the Writ and Statement of Claim, which he could serve on News Corp in person at the court hearing on 18 July 2022. In this way, he would avoid the problem of News Corp refusing to accept service.
40The Writ was sealed by the Court on 12 July 2022, but Mr Hoser says he did not receive the sealed copy until later and missed the opportunity to serve News Corp on 18 July 2022.
41He then received a letter from News Corp dated 21 July 2022 and sent his second purported concerns notice on the same date.
42However, he says that, prior to the first Notice of Concern, dated 8 July 2022, he had already contacted the defendants by email and served on them what he now says is a concerns notice.
29 March 2022 email
43He says he sent an email to the defendants on 29 March 2022 and this email constitutes a concerns notice in compliance with the requirements of s12A of the Act because it:
(a) Was in writing;
(b) Specified the location where it could be located. In this email, Mr Hoser says “you ran a very disparaging report about me contesting a traffic charge last year”. He says Mr Shapiro had only written one article about him. He says reference to the “disparaging report” is sufficient to establish the specific location where the matter in question can be accessed. He did not provide a URL, because URL addresses change from time to time. The fact that Mr Shapiro, or the Herald Sun, did not write back and say they did not know what publication Mr Hoser was referring to “proves” they knew what story he was referring to;
(c) Informs the publisher of the defamatory imputations, because it says Mr Hoser was accused of having a rant. The central defamatory allegation he makes is that the article conveyed a message that he had a rant. The Court can infer that, if he is having a rant, he is wasting court time. The imputation that he wasted court time can inferred from what he has written;
(d) Identifies the serious harm, because he invites Mr Shapiro to publish a “more accurate” article to correct the “rubbish” previously published. Mr Hoser says the serious harm is implied because “rubbish” clearly causes harm. By using the word “rubbish”, it can be inferred that Mr Hoser is now known for ranting, rather than for his work as a snake catcher, and in wildlife conservation. He says the damage to his reputation can be inferred, because being labelled as a person who rants in court would inevitably cause damage to reputation.
44He says there was no need to provide a copy of the article, as it was easily identifiable and was in the possession of the defendants. He says the terms of s12B(1)(b) are not mandatory and says that a copy of the matter only has to be provided if it is practicable. Mr Hoser says it was not practicable to provide a copy of the matter complained of, because he did not have a copy of the article readily available. Furthermore, the article is located behind a paywall. He sent the email in circumstances of some urgency, as a court decision relevant to the article had just been handed down, and it was important that he inform the newspaper as soon as possible so a correction could be published by the next “news cycle”. Mr Hoser wanted to ensure a correction of misinformation in the article that had been published in September 2021.
45Mr Hoser says the email contained all the elements of the Concerns Notice and should consequently be considered by the Court to be a concerns notice.
46He received no response to this email from the defendants.
47He then filed his writ on 12 July 2022, which was after the expiration of the applicable period, and therefore cannot be considered an abuse of process, and ought not be struck out.
First notice of concern
48However, Mr Hoser says, if he is wrong about the email of 29 March 2022 constituting a concerns notice, the “Notice of Concern” sent on 8 July 2022 was a concerns notice for the purpose of the Act.
49He says the document complies with the requirements of s12A because :
(a) It is in writing;
(b) There is “overwhelming” information to locate the matter in question. It includes a website address for the Herald Sun, it notes that the publication can be found by doing a Google search, and it quotes a portion of the matter, it refers to Mr Hoser and the second defendant by name, and refers to the date of publication;
(c) It informs the publisher of the following defamatory imputations: That he was guilty of an offence; that he was seeking to avoid punishment for an offence; that he had a “rant”, which carries an imputation that he was talking in a noisy, excited or declamatory manner which, self-evidently, would not be appropriate in a court. It can be inferred that this carries a defamatory meaning. He says the quote “the allegation I was wasting time was inherently false”, tells the publisher that there is an imputation that he was wasting time;
(d) It identifies the serious harm, because he says he has been held up for hatred and ridicule by others.
(e) It was not practicable to provide copies of the documents complained of because of difficulty emailing them, and in any event the defendant already had copies and could easily access the documents, as shown by the letter sent by Ms Rosen on 21 July 2022.
Second notice of concern
50Although Mr Hoser says the first Concerns Notice complied with the requirements of s12A, he responded to the request for further and better particulars of the Concerns Notice by sending a further letter with the heading “Second Notice of Concern” on 21 July 2022.
51Mr Hoser says the second notice of concern complies with the requirements because:
(a) It is in writing;
(b) It contains the URL addresses for the publications complained of;
(c) It informs the publisher of the defamatory imputations said to be conveyed;
(d) It sets out serious harm. He says the reports carry an inference that he is not a serious person because he rants in court, and this would tend to cause people to think less of him, which causes damage to him and his business. Damage to his business caused by harm to his reputation amounts to serious harm;
(e) It was not practicable to provide copies, because the document was sent by email and attaching copies of the publications would have taken up additional bandwidth, risking the email being rejected due to file size. However, because he included links, and the document was emailed, the links could be cut and pasted into a browser which would have brought up the document located at that URL so, essentially, a “copy” of the document was in fact attached.
52Mr Hoser says that, if the Court finds the email of 29 March 2022 does not constitute a concerns notice, he accepts that the proceeding was issued in breach of s12B(1)(c) of the Act.
Just and reasonable to grant leave
53Mr Hoser says that, although he issued proceedings on 12 July 2022, his documents were only served after “all attempts” to resolve the case had been exhausted. If News Corp had settled the matter, he never would have served the proceeding.
54He says he did not rush to court, and has not deprived the defendants of an opportunity to settle the matter. If he had filed the proceeding after 5 August 2022, this application would not have arisen.
55He says, therefore, it is just and reasonable to grant leave nunc pro tunc for the proceeding to be commenced, despite non-compliance with s12B(1)(c).
56Mr Hoser says the defendants subsequently published an article in July 2022 that publishes the same allegations in altered form, including an addition to the article noting the outcome of his appeal. He says that this would comprise a new publication upon which he could sue.
57There would be no purpose in striking out these proceedings, because he would have an entitlement to bring new proceedings. This would not be an appropriate use of court resources.
58Further, Mr Hoser says the defamatory publications remain online and will not be removed without a court order requiring the defendants to remove them. This makes it fair and reasonable to grant leave so he is not denied a remedy.
59Finally, Mr Hoser says if he is in breach of any of the requirements of the Act, such breaches were inadvertent and as a result of his lack of knowledge of the changes in the Act. His inadvertent breach ought not result in his claim being struck out, as this would be a disproportionate response. He is a self-represented litigant, doing his best to bring a significant matter before the Court without the assistance of a lawyer.
Analysis
Did the email of 29 March 2022 constitute a concerns notice?
60Section 12A of the Act relevantly provides:
“(1) For the purposes of this Act a notice is a concerns notice if—
(a)The notice—
(i) is in writing; and
(ii)specifies the location where the matter in question can be accessed (for example the webpage address); and
(iii)informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern); and
(iv)informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question.”
61The legislation provides a mechanism for a publisher to seek further and better particulars of the Concerns Notice by giving that person written notice (a “further particulars notice”) requesting further particulars about the information concerned. An aggrieved person must provide the reasonable further particulars within fourteen days after being given the Notice. An aggrieved person who fails to provide the reasonable Further Particulars specified in the Further Particulars Notice within the applicable period, is taken not to have given the publisher a concerns notice.
62The email of 29 March 2022 did not purport to be a concerns notice. The defendants were not on notice that was a concerns notice pursuant to the Act and, therefore, could not have been aware that the plaintiff intended to trigger the provisions of s13 and s14 of the Act.
63To determine that, notwithstanding the plaintiff did not notify the defendants that the email of March 2022 was a concerns notice, that it nevertheless constitutes a concerns notice for the purposes of the Act would frustrate the purposes of the section.
64The intent of the compulsory Concerns Notice is to facilitate the resolution of matters without litigation and to provide for the “offer of amends” process to occur. It would be an injustice to the defendant to be denied the opportunity to make an offer of amends within the applicable period because an email was subsequently found by a court to constitute a concerns notice. If the process set out under Part 3 of the Act is to be triggered, both parties must be aware that the clock is running.
65However, even if such a document could be considered a concerns notice because it fulfills all the statutory requirements, this document cannot.
66It simply does not comply with the terms of s12A:
(a) It is in writing, which is required, but is not identified as being a concerns notice. The lack of identification would not necessarily be fatal if it was otherwise clear to a publisher that the email was intended to be a concerns notice. This might, for example, occur where someone has verbally identified that a concerns notice will shortly be sent, or sends through a letter which does not identify itself as “concerns notice”, but which is accompanied by a covering email which identifies a concerns notice in the subject line. The requirement that a concerns notice be in writing must logically carry with it a requirement that there be written notification to the publisher that the document purports to be a concerns notice pursuant to the legislation;
(b) It does not inform the publisher of the location of the defamatory matter and it is an insufficient answer to say the publisher knows where to find it. The legislation is in mandatory form. A reference to “a very disparaging report about me contesting a traffic charge last year”, does not identify the location where the document might be found. It does not provide the date the matter was published, nor the location of the publication. A publisher would not know whether the matter complained of was a single article, or included comments or re-publications;
(c) The email does not inform the publisher of the defamatory imputations that the aggrieved person considers are, or may be, carried by the matter in question. The imputation Mr Hoser says is particularised is that he was “falsely accused of a rant, ramble or similar”. This does not specify what the imputation is said to be. A rant is something very different from a ramble. Something “similar” leaves open both the question of what was actually said in the article, and what the imputation said to be conveyed is. This does not comply with the requirement to particularise the imputation;
(d) It identifies no serious harm. This element is dealt with further below;
(e) No copy of the document complained of is provided.
67For the reasons set out above, the email of 29 March 2022 is not a concerns notice.
Did the first “notice of concern” comply with statutory requirements?
68The Act requires the Concerns Notice do a number of things:
(a) It must be in writing. Mr Hoser’s letter headed “Notice of Concerns” was in writing, so complies with this element;
(b) It must specify the location where the matter in question can be accessed. Mr Hoser’s letter did not comply with this requirement. Instead, it specified the website for the Herald Sun, but did not set out the link to the relevant article. Mr Hoser’s explanation that the website address is sufficient to locate the document cannot be accepted. While I accept that the URL might change, a defendant is entitled to be informed of (at least) one URL where the particular matter complained of can be located;
(c) It must inform the publisher of the defamatory imputations that the aggrieved person considers are conveyed. Mr Hoser’s letter did not do so. Mr Hoser has attempted to retrospectively construct the imputations he says are conveyed by the first Concerns Notice, but no defamatory imputation is articulated. To come close to identifying a defamatory imputation requires the publisher to perform some mental gymnastics, for example, to infer that ranting in court carries the imputation of wasting court time which, itself, is defamatory;
(d) It must inform the publisher of the serious harm to reputation the aggrieved person alleges has been caused, or is likely to be caused, by the publication of the matter in question. Mr Hoser’s letter said the matter had caused him harm and damage to himself and his businesses, and has caused him to be held up for hatred and ridicule by others.
69In Randell v McLachlain,[4] Gibson J held that:
“If adequate particulars of serious harm are not provided in the concerns notice, then it has failed to comply with s 12A of the Act and the whole action must be struck out and the plaintiff would have to start again, as the language of the statute does not favour nunc pro tunc amendment.”[5]
[4][2022] NSWDC 506
[5]Ibid at paragraph [15]
70She goes on to note that the plaintiff must particularise the facts from which the requisite causation can be inferred. The English decisions emphasise that causation between harm and the publication must be established. A lack of specificity as to what the harm is makes it difficult for a defendant to properly assess the case against them and to make an appropriate offer of amends. An inability to make an appropriate offer of amends defeats the intention of s12A, which is to promote early resolution of matters. Section 3(d) of the Act provides the objects of the Act include promoting speedy and non-litigious methods of resolving disputes.
71Pointing to the seriousness of imputations is does not particularise the serious harm alleged. Mere assertions that the publication has caused damage to reputation, is not sufficient to inform the publisher of the harm to reputation the person considers to be serious harm. Asserting that he has been held up to hatred and ridicule does nothing more than assert that he has been defamed. What is required is evidence that he is in fact “hated” or “ridiculed” by members of the community, or, alternatively, that he has suffered some other harm. Mr Hoser has not provided any particulars of serious harm he says he has, or is likely to, suffer as a result of the publications.
72The concerns notice must attach copies of the documents unless it is not practicable to do so. Mr Hoser says it was not practicable to attach documents in this case due to the size of the email and bandwidth available. I have reservations as to whether that would render the requirement to provide a copy impracticable. Whether a hyperlink to a document could be considered provision of a “copy” of a document is unclear. However, as I have determined that the first Notice of Concern did not comply with the other statutory requirements, for the reasons set out above, it is not necessary to determine whether it was impracticable to provide a copy of the complained of documents.
Did the second Concerns Notice comply with the statutory requirements?
73On 21 July 2022, Mr Hoser served what purports to be a second concerns notice in response to a request for further and better particulars made by the defendants pursuant to s12A(3).
74In this, he identifies the location of each of the publications about which he complains.
75He sets out the imputations he says are conveyed by the publications.
76Although there is no specific identification of “serious harm”, he identifies the following as harm he has suffered:
(a) the news reports held him up for public hatred and ridicule;
(b) his feelings are damaged;
(c) his business is permanently disabled by damage to his reputation;
(d) all other things he engages in, or that others engage in under his name, trademarks or businesses, are disabled by damage to his reputation;
(e) his reputation as an honest person and scientist is irreparably harmed;
(f) his reputation as a person with a record as a safe handler of reptiles and venomous snakes is irreparably harmed;
(g) other damage is self-evident.
77I take all of these matters to be the plaintiff informing the defendants of the harm he considers to be serious harm to his reputation. I do not consider the lack of identification of these matters as “serious harm”, for example by a heading, to be fatal to the plaintiff’s case that those particulars are particulars of serious harm.
Does the provision of these particulars rectify the Concerns Notice and render it compliant?
78I am not persuaded the information provided is sufficient to comply with the terms of s12A(1)(A)(iv). In my view, there are insufficient particulars for a potential defendant to know what serious harm to reputation is alleged, and how it is said that harm has been caused by the publications. I adopt the reasoning of Gibson J in Randell v McLachlain[6] who noted that, to make an offer of amends, the defendant is entitled to particulars of how, where, and when the plaintiff suffered serious harm.[7]
[6]Supra
[7]Ibid at paragraph [33]
79The Particulars provided amount to no more than generalised statements of harm. Hurt to feelings is not relevant for the purposes of serious harm to reputation.[8] The Particulars are no more than repeated assertions of harm, without informing a defendant what the harm is in real terms, and how it is said to have been caused by the publication.
[8]Rader v Haines [2021] NSWDC 610.
80The purported second Concerns Notice is not a compliant concerns notice, nor does it rectify the deficiencies in the first Concerns Notice.
81As the provision of the Further Particulars did not rectify the Concerns Notice, pursuant to s12A(5), Mr Hoser is taken not to have given the publishers a concerns notice.
Has the proceeding been improperly commenced?
82Section 12B of the Act provides:
“(1)An aggrieved person cannot commence a defamation proceeding 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 proceeding were particularised in the concerns notice; and
(c)the applicable period for an offer to make amends has elapsed.
(2) …
(3)The court may grant leave for a proceeding to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—
(a)the commencement of a proceeding after the end of the applicable period for an offer to make amends contravenes the limitation law; or
(b)it is just and reasonable to grant leave
(4)The commencement of a proceeding contravenes the limitation law for the purposes of subsection (3)(a) if the proceeding could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.”
83I have found that the Mr Hoser has not given the publisher a concerns notice for the purposes of this section. This means that the plaintiff was not entitled to commence proceedings and accordingly, the proceeding is improperly commenced.
Should the Court exercise its discretion pursuant to s12B(3)?
84If I am wrong, and the first or second notice of concern is a valid concerns notice pursuant to s12A, I turn now to consider whether the proceedings have been properly commenced, or whether there is capacity for the Court to extend its discretion to allow proceedings improperly commenced to continue, where it is “just and reasonable” to do so.
85In this case, the proceeding was commenced on 11 July 2022. Mr Hoser submits that, although he filed the originating documents on that date, in fact, the proceedings did not commence until he sent the document by email on 24 August 2022. I do not accept that proposition. Proceedings are commenced in this Court on the date they are filed, pursuant to Rule 4.01 and Rule 5.11.
86Under the Act, a proceeding cannot be commenced unless the provisions of s12B have been complied with.
87A proceeding cannot be commenced if the applicable period for an offer to make amends has not elapsed. The applicable period is twenty-eight days. The proceeding was commenced four days after the first Concerns Notice was sent. This is clearly in breach of s12B(1)(c), which Mr Hoser concedes.
88Section 12B(3) provides the Court can grant leave to a plaintiff to commence a proceeding prior to the expiration of the applicable period if the plaintiff satisfies the Court that the commencement of a proceeding after the end of the applicable period for an offer to make amends, contravenes the limitation law. That is not the case. Mr Hoser’s applicable period expired on 5 August 2022 and his primary limitation period expired on 3 September 2022.
89Section 23B of the Limitation of Actions Act 1958 provides that a court can extend the limitation period for a period of three years from the date of publication, if it is just and reasonable to do so. This means that the potential exists for the Court, on application, to extend the limitation period to 3 September 2024 and, therefore, the Court has not ceased to have power to extend the limitation period. Section12B(3)(a) does not apply to this case.
90Accordingly, the Court’s power to grant leave on the basis that the commencement after the expiration of the applicable period would contravene the limitation law, is not enlivened.
91Section 12B(3)(b) provides the Court can also grant leave for a proceeding to be commenced, despite non-compliance with 12B(1)(c), where it is “just and reasonable” to grant leave.
92I note here that the Court’s discretion to grant leave to commence proceedings where it is just and reasonable, extends only to circumstances where there is a breach of s12B(1)(c) – that is, that the proceedings were commenced prior to the expiration of the applicable period.
93There is no provision to grant such leave where s12B(1)(a) and s12B(1)(b) have not been satisfied. There is no discretion envisaged by the legislation for the Court to grant leave to retrospectively insert particulars that would make a deficient concerns notice compliant. A plaintiff really only has one chance to get the Concerns Notice particulars of serious harm right. If they are not properly particularised the concerns notice is defective and proceedings cannot be commenced.[9]
[9]M1 v R1 [2022] NSWDC 409 at paragraphs [23]-[25]
94Abadee J concurred with this reasoning in his ruling in Georges v Georges; Georges v Georges:[10]
“In summary, by these provisions, proceedings may not be commenced without a concerns notice (s 12B), the contents of which are set out in s 12A and include, relevantly for these proceedings, a requirement to attach a notice featuring the matter(s) complained of and to provide particulars of the serious harm the plaintiff considers has been caused. If adequate particulars of serious harm are not provided in the concerns notice, so that the concerns notice does not comply with s 12A of the Act, the effect is that no such particulars have been given, and this may render the notice invalid; in which case proceedings cannot be commenced at all. The statement of claim is liable to be struck out and the plaintiff would have to commence a fresh action.”[11]
[10][2022] NSWDC 558, citing MI v R1 (ibid) at paragraphs [23]-[28]
[11]Georges v Georges; Georges v Georges (ibid) at paragraph [55]
95The plaintiff submits it is “just and reasonable” to allow the proceeding to continue, or to allow him to commence proceedings nunc pro tunc, even if his concerns notice does not comply with s12A because “all are equal before the law” and, as a self-represented litigant facing a large and well-funded defendant, he is at a disadvantage. He says he was not aware of the changes to the legislation, and any non-compliance was inadvertent, that he has a strong claim against the defendants and it is in the interests of justice for his claim to be allowed to proceed.
96Mr Hoser necessarily seeks an order nunc pro tunc as he has filed his writ. He is not, as the legislation envisages, seeking leave to commence proceedings but, rather, is seeking an order that that leave be granted now, for then to enable the proceedings to continue.
97I am required to consider whether, having regard to the circumstances of this case, and in the event that I am wrong that the Concerns Notice is non-compliant, it is just and reasonable to allow Mr Hoser to commence proceedings nunc pro tunc.
98In exercising the discretion to make an order nunc pro tunc, I must be satisfied that I am only doing, now, what I would have done, had the application been made prior to the issue of proceedings.
99The phrase “just and reasonable” has recently been considered in the case of Roman Catholic Trusts Corporation for the Diocese of (Sale) v WCB,[12] in which it was held the phrase was of broad ambit and should not be understood in isolation, divorced from the legal context in which it was enacted. It was necessary to examine the historical context in which a provision was enacted to properly understand its purpose and effect.
[12](2020) 62 VR 234
100In this case, the context in which the provisions of s12B were enacted were to reduce the burden on courts of defamation claims where the costs outweighed the award of damages, and specifically to require the plaintiff to delay commencing proceedings to enable the Offer of Amends process to occur. Further, the provisions of s10A, and s12A require a plaintiff to grapple with the actual serious harm alleged to reputation prior to commencing proceedings.
101The fact that a plaintiff may not be aware of the requirements of the legislation, does not mean the Court should not consider the requirements of the legislation in the exercise of its discretion.
102In determining whether an application for leave to commence proceedings prior to the expiration of the applicable period would have been successful if made prior to 12 July 2022, it is necessary to consider any prejudice to the plaintiff that would have existed had the application, at that time, not been granted. The plaintiff did not submit there was any prejudice and I am unable to identify any. There was no reason for the proceeding to be commenced prior to the expiry of the applicable period. Mr Hoser was not out of time. His submission that News Corp might have attempted to resist service does not assist him. He would have had twelve months from the date the Writ was issued in which to serve it, ample time to bring an application for substituted service if, in fact, News Corp had attempted to avoid service.
103It appears the reason the Writ was issued on 12 July 2022 was for Mr Hoser’s convenience, so that he could have it available on 18 July 2022, when he had an unrelated court hearing.
104The defendant identifies some prejudice to it if the application had been made prior to 12 July 2022, which is the loss of the opportunity to engage in the offer of amends process.
105I cannot see any reason why an application for leave to commence proceedings prior to the expiration of the applicable period, had it been made at the time, would have succeeded.
106For this reason, I am not satisfied that it is just and reasonable to grant the plaintiff leave, nunc pro tunc, to maintain his proceedings commenced prior to the expiration of the applicable period.
107I do not accept that the exercise of my discretion to grant leave extends beyond a breach of s12B(1)(c); however, for the sake of completeness, I note the following matters raised by the Mr Hoser:
(a) Mr Hoser says he was not aware of the provisions of the new legislation. This might have been correct at the time he sent his first notice of concern and filed his writ. However, by her letter dated 21 July 2022, Ms Rosen drew his attention to the provisions of s12A and informed him that his notice of concern did not comply, and set out the subsections of the legislation she alleged he had not complied with;
(b) Mr Hoser’s decision not to look at the Act was his own choice. He says he had difficulty finding the Act, however legislation is readily available on a number of free websites and Mr Hoser made mention, during the hearing of this application, of two of them. He is clearly aware of how to locate legislation. He also said he had been too busy to look at the Act. This is a choice he made. He has brought this claim and, even as a self-represented litigant, is required to comply with the relevant statutory provisions that govern his claim. Had he looked at the legislation he could have rectified his concerns notice by particularising serious harm. He would also have bene award of the provisions of the legislation that prevented him from commencing proceedings prior to the expiry of the applicable period;
(c) Mr Hoser submits that the Court did not bring to his attention the new legislative requirements, and could have rejected his Writ at the time he sought to file it. It is not a matter for the registry staff to inform a litigant about the operation of legislation. The Court had no way of knowing if and when the applicable period expired. There is no requirement in Victoria, and it is not the usual practice, for a statement of claim to exhibit the concerns notice;
(d) Mr Hoser says there would be no utility in entering judgment against him in this case, as he would have an entitlement to bring new proceedings in relation to a new publication. He may have that entitlement. If he does have an entitlement to bring proceedings relating to a new publication, that is a separate matter and does not have a bearing on whether this matter should proceed;
(e) Mr Hoser says he is at a disadvantage in this case as a self-represented litigant and it is in the interests of justice to allow the case to proceed. Courts have recognised that they owe a particular duty to provide appropriate assistance to a self-represented litigant to ensure a fair trial. However, there is nothing in the context of this case that demonstrates that the defendants’ relative advantages are responsible for the position the plaintiff finds himself in. He made a decision not to inform himself about the legislation when it was brought to his attention. He could easily have done so and remedied the situation at that time. The interests of justice are concerned, not only with the interests of one party, but in safeguarding the administration of justice. Part of that responsibility is to ensure the intention of the legislature is adhered to, even at the cost of the interests of a party.
108As set out above, I do not consider I have power to exercise discretion to allow proceedings to continue other than where there is a breach of s12B(1)(c). The discretion to grant leave to commence a proceedings where it is “just and reasonable” is not “at large”. However even if it were, I am not persuaded in the circumstances of this case that it is just and reasonable to do so. Accordingly I will not grant leave nunc pro tunc for the plaintiff to commence proceedings prior to the expiry of the applicable period.
109The proceeding has not been properly commenced and as such is an abuse of process.
110For the reasons set out above, summary judgment in the proceeding is entered in favour of the defendants.
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