Howell v O'Brien - [2009] NSWSC 538

CITATION: Howell v O'Brien [2009] NSWSC 538

HEARING DATE(S): 25/05/09; 26/05/09;27/05/09

JUDGMENT DATE :
15 June 2009

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 95

LEGISLATION CITED: Uniform Civil Procedure Rules;
Macquarie University Act 1989
Freedom of Information Act 1989;
Administrative Decisions Tribunal Act 1997
Superannuation (Resolution of Complaints) Act (Cwth) 1993;
Interpretation Act 1987;
Defamation Act 2005;
Ombudsman Act 1974

CASES CITED: AWB Ltd v Cole (No. 5) [2006] 155 FCR 30;
Blair v Curran ([1939] 62 CLR 464 at 53;
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198;
State Bank of NSW v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,077 at 64,089);
Attorney General for the Commonwealth v Breckler (1999) 197 CLR 83;
General Steel Industries Inc v Commissioner of Railways (1964 112 CLR 125 at 129;
Jago v District Court of NSW (1989) 168 CLR 23;
Kaplan v Go Daddy Group Inc [2006] NSWSC 250

TEXTS CITED: D C Pearce and R S Geddes, Statutory Interpretation in Australia 6th Edition:
Spencer Bowen Turner and Handley, The Doctrine of Res Judicata 3rd Edition;

PARTIES: Sally Clare Howell - Plaintiff
Jennifer Jane O'Brien - Defendant

FILE NUMBER(S): SC 020014 of 2009

COUNSEL: Mr P Howell - Plaintiff
Mr B McClintock with Mr A Dawson - Defendant

SOLICITORS: P Howell - Plaintiff
Ebsworth Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Patten AJ

15 June 2009

No: 020014 of 2009

Sally Clare Howell
v
Jennifer Jane O’Brien
JUDGMENT

INTRODUCTION:

1 Before the Court are 2 motions by the Defendant, the first (the summary dismissal motion) seeks an order that the proceedings be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules (UCPR), alternatively that the Amended Statement of Claim be struck out pursuant to rule 14.28 UCPR, alternatively that the proceedings be permanently stayed.

2 The second motion (the subpoena motion) seeks an order pursuant to Rule 33.4 UCPR that the subpoena issued to Macquarie University on 17 February 2009 (the University Subpoena) at the request of the Plaintiff be set aside. The subpoena sought production of the following documents:

“1. The originals of the following documents which were sought by the plaintiff under Freedom of Information Act request 05/90 and which were the subject of proceedings 053320 between the plaintiff and the university in the Administrative Decisions Tribunal, namely:

Description Date No. of docs in Schedule in
ADT proceedings 053320

1.1 Email to Jennifer O’Brien - 28.02.05 – Document 8
1.2 Email from Jennifer O’Brien
to Tim Sprague -02/03/05 – Document 9

1.3 Memorandum from Jennifer
O’Brien to Professor E More
and Professor Yerbury -16/03/05 – Document 10

1.4 Memorandum from Jennifer
O’Brien to Professor E More -16/03/05 – Document 11

1.5 Handwritten notes of Jennifer
O’Brien -16/03/05 – Document 12

2. A legible photocopy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 538
Decision Date: 15 June 2009

CaseChat Overview and Summary

Sally Clare Howell (Plaintiff) commenced defamation proceedings against Jennifer Jane O'Brien (Defendant), who was employed by the Macquarie University (University) as its internal solicitor. The Plaintiff, at relevant times, was employed by the University as a lecturer and as Deputy Principal of the Macquarie University Special Education Centre School. The Plaintiff brought her action relying on 5 alleged defamatory publications, which occurred while the Defendant was acting for the University in respect of an inquiry conducted by Mr Geoffrey Kelly (Mr Kelly), who had been appointed by the University to investigate a complaint made by a parent of a child at the school about the school's treatment of the child. The inquiry was monitored by the Ombudsman. The Defendant filed two motions, the first (the summary dismissal motion) sought an order that the proceedings be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules (UCPR), alternatively that the Amended Statement of Claim be struck out pursuant to rule 14.28 UCPR, alternatively that the proceedings be permanently stayed. The second motion (the subpoena motion) sought an order pursuant to Rule 33.4 UCPR that the subpoena issued to the University on 17 February 2009 (the University Subpoena) be set aside. The subpoena sought production of 6 documents, which were the subject of proceedings in the Administrative Decisions Tribunal (ADT). The Defendant and the University argued that the subpoena should be set aside, either because the Plaintiff was prevented by an issue estoppel from challenging the claim of legal professional privilege or because the subpoena constituted an abuse of the court's process. The Plaintiff, through her husband and solicitor, Mr Philip Howell, had made 6 applications to the University under the Freedom of Information Act. The University refused to release the documents sought by the Plaintiff, claiming legal professional privilege. The Plaintiff instituted review applications in the ADT. The ADT found that the documents were subject to legal professional privilege and declined to release them. The Plaintiff appealed to the Appeal Panel of the ADT, which affirmed the decision of the ADT and declined to release the documents. The Plaintiff appealed to the Court of Appeal, which dismissed her appeal. The Plaintiff argued that the Defendant was the source of all Mr Kelly's information about her and that the direction given to her on 30 March 2005, a draft of which being one of the publications relied upon by the Plaintiff, resulted from the Defendant's allegations against her, not because of anything Mr Kelly observed himself. The Court disagreed, finding that there was nothing, which came to the Plaintiff's notice after the hearing before Mr Wilson, evidenced improper motive on the part of the Defendant. The Court found that it would be an abuse of the court's process to permit the issue of whether the documents listed in the subpoena under challenge were subject to legal professional privilege to be relitigated. The Court held that the issue was decided adversely to the Plaintiff by the ADT. The Court further found that the Plaintiff's action was bound to fail on the basis that the Defendant's alleged publications were protected by section 25H(2) of the Ombudsman Act. The Court dismissed the proceedings, ordering the Plaintiff to pay the costs of the motions and of the proceedings.

Orders