Imielska v Morgan

[2017] NSWDC 329

District Court

New South Wales

Medium Neutral Citation:	Imielska v Morgan [2017] NSWDC 329
Hearing dates:	22 November 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to ss 60 and 67 Civil Procedure Act 2005 (NSW) and rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW), the plaintiff’s statement of claim is dismissed. (2) Plaintiff to pay defendant’s costs. (3) Liberty to apply in relation to costs.
Catchwords:	TORT – defamation – plaintiff brings proceedings for defamation in relation to letters sent by the defendant in the course of determination of her complaint to the Financial Ombudsman Service – plaintiff seeks extension of time to commence proceedings against a second defendant and to amend her claim – defendant seeks dismissal of claim on the basis of abuse of process – whether the proceedings should be dismissed on the proportionality principles discussed in Bleyer v Google – whether the claim was an abuse of process by reason of the terms of contract the plaintiff had signed with the FOS or at common law by reason of her consent to the complaint process – whether the claim was an abuse of process by reason of seeking to go behind court and complaint findings – whether the defective pleading and content of the claim should disentitle the plaintiff to replead – claim struck out as an abuse of process
Legislation Cited:	Civil Liability Act 2002 (NSW), Part 5, ss 41 and 43A Civil Procedure Act 2005 (NSW), ss 56-62 and 67 Defamation Act 2005 (NSW), s 33 Limitation Act 1969 (NSW), ss 14B and 56A Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 13.4, 14.28 and 19.2
Cases Cited:	Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412 Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403 Bleyer v Google Inc (2014) 88 NSWLR 670 Calabro v Zappia (2010) 11 DCLR (NSW) 12 Carey v Australian Broadcasting Corporation [2012] NSWCA 176 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 Dillon v Cush; Dillon v Boland [2010] NSWCA 165 Dudzinski v Kellow [1999] FCA 1264 Dudzinski v Kellow (1999) 59 ALD 625 Enders v Erbas Pty Ltd [2014] NSWCA 170 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Google Inc v Duffy [2017] SASCFC 130 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Hatfield v TCN Channel Nine Pty Ltd (No 2) [2011] NSWSC 737 Imielska v Tregillis (Local Court of Blacktown, 30 May 2017) Irving v Lipstadt [2000] EWHC QB 115 Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 Manefield v Association of Quality Child Care Centres of NSW Inc (t/as Child Care NSW) [2010] NSWSC 1420 Mickovski v Financial Ombudsman Services Ltd [2012] VSCA 185 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rayney v State of Western Australia (No 3) [2010] WASC 83 Ridgeway v The Queen (1995) 184 CLR 19 Schellenberg v British Broadcasting Commission [2000] EMLR 296 Smith v Lucht [2014] QDC 302 Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639 Trantum v McDowell [2007] NSWCA 138 Wallis v Valentine [2002] All ER (D) 275 (Jul) Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1991) 174 CLR 509 Wookey v Quigley (No 2) [2010] WASC 209 YZ v Amazon (No 7) [2016] NSWSC 637 Zarth v Williamson [2007] NSWCA 246
Texts Cited:	Brown, R E, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Carswell) Gould, K, “Locating a 'Threshold of Seriousness' in the Australian Tests of Defamation” (2017) 39(3) Sydney Law Review 333
Category:	Principal judgment
Parties:	First Plaintiff: Grazyna Imielska Second Plaintiff: Michal Imielska Defendant: Sam Morgan
Representation:	Counsel: First Plaintiff: In person Second Plaintiff: No appearance Defendant: Ms S Chrysanthou   Solicitors: Defendant: Dentons
File Number(s):	2017/64786
Publication restriction:	None

Judgment

The proceedings the subject of this claim

1. The plaintiffs, Mrs Imielska and her son, commenced proceedings for damages for defamation by statement of claim in the Parramatta Registry of the District Court on 28 February 2017. On 27 July 2017, the second plaintiff was granted leave to withdraw from the proceedings. Mrs Imielska (hereafter “the plaintiff”) then sought leave to amend the statement of claim and to join an additional defendant. The proceedings were transferred to the Defamation List in the Sydney Registry for case management.

2. The cause of action pleaded is “multiple” defamatory publications by the defendant to the Financial Ombudsman Service to the effect that the first plaintiff and her son “do not cooperate with Westpac General Insurance Ltd” (paragraph 1 of the statement of claim).

The parties’ applications for interlocutory orders

3. The plaintiff seeks the following relief:

1. An extension of time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) to bring proceedings against Westpac General Insurance Limited (“Westpac”).

2. Leave pursuant to rr 6.24 and 19.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to join Westpac as the second defendant in these proceedings.

3. Leave to amend the statement of claim to replead the claims against the existing defendant and Westpac (the current draft does not include these amendments, but the nature of them is, as the plaintiff says, quite clear.

4. Mediation of all the plaintiff’s claims, including her claim for damages for defamation, the claim the subject of the Financial Ombudsman conciliation proceedings and the costs order made by Magistrate Hiatt LCM in Imielska v Tregillis (Local Court of Blacktown, 30 May 2017) (“Imielska v Tregillis”).

4. In her submissions this morning that plaintiff said that, if mediation occurred, she prepared to discontinue these proceedings. Ms Chrysanthou stated that her clients would agree to the plaintiff discontinuing these proceedings (subject to appropriate releases) without any costs orders if the plaintiff was prepared to abandon her defamation claim. I asked the plaintiff if she was prepared to discontinue on that basis, but she has firmly indicated that any discontinuance was predicated upon all these matters going to mediation. Upon further inquiry, it appears that the plaintiff expects the mediation to result in most, if not all, of the payments that she seeks. In those circumstances, the plaintiff is not offering to discontinue now, but only if she is successful at mediation.

5. The defendant seeks summary dismissal of the proceedings as an abuse of process on four bases:

1. The principles of proportionality: The defendant relies upon the Jameel principle (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 (“Jameel”)) as explained in Bleyer v Google Inc (2014) 88 NSWLR 670 (“Bleyer v Google”) and as recently approved by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5] (obiter), although conceding that this doctrine had met with a hostile reception up until then.

2. The subject matter of the defamation claim (a publication made in the course of a complaint to the Financial Ombudsman): The defendant relies upon the principles of abuse of process generally (Walton v Gardiner (1993) 177 CLR 378; Ridgeway v The Queen (1995) 184 CLR 19; Williams v Spautz (1991) 174 CLR 509 at 519- 520), but more particularly to the summary dismissal of claims arising from complaint processes (Dudzinski v Kellow [1999] FCA 1264 and Dudzinski v Kellow (1999) 59 ALD 625 (“Drummond v Kellow”)), particularly where, as here, the parties have signed a contract in relation to the terms of handling of the complaint, the terms of which would be breached by commencing defamation proceedings.

3. The asserted improper purpose of the claim (to go behind concluded court or complaint proceedings): The defendant relies upon the explanation of this form of abuse of process in Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639.

4. The continued defective pleading of the claim and its inability to meet defences such as qualified privilege: The defendant relies upon general principles concerning the striking out of hopeless pleadings.

The circumstances leading to the defamation action

6. The plaintiff’s home was damaged by fire. On 21 February 2014 the plaintiff made a claim against her Quality Care Building Insurance policy for fire damage which was declined by Westpac on the grounds that she had refused to be interviewed or to allow a property inspection. The plaintiff lodged a complaint with the Financial Ombudsman Service (“FOS”), a body established to provide an independent forum for such complaints, which is governed by terms of reference of an arbitral nature. She signed a tripartite contract with the financial service provider (“WGIL”) and the FOS the terms of which meant she was “bound by contract to observe the rules of the process” (Mickovski v Financial Ombudsman Services Ltd [2012] VSCA 185 at [35]). One of those terms was:

“FOS operates on a “without prejudice” basis. This means that information obtained through FOS may not be used in any subsequent court proceedings unless required by an appropriate court process.” (affidavit of Louise Massey, paragraph 23).

7. The FOS rejected those complaints and on 26 January 2016 denied the remainder of the plaintiff’s claim (some issues having been agreed upon in the interim). On 16 March 2016, the FOS rejected a further request by the plaintiff to reconsider its decision (Exhibit E). The plaintiff then brought a complaint against the defendant to his employer, which was dismissed. In December 2016, the plaintiff brought proceedings in the NSW Civil and Administrative Tribunal (the status of which is unknown) and in the Local Court at Blacktown.

8. The plaintiff’s claim against the Chief Ombudsman of FOS was dismissed by Magistrate Hiatt LCM pursuant to Uniform Civil Procedure Rules (“UCPR”) r 13.4. (That claim included rejection of a submission by the plaintiff that the decision of the FOS fell within Part 5, Civil Liability Act 2002 (NSW) by reason of s 41(e1) referring to “public official functions”, on the basis that s 43A only applied to a public official’s exercise of a special statutory power, but that is not relevant to the application before me today.) The plaintiff was ordered to pay costs, and one of the issues she wishes to mediate is her demand that the defendant pay those costs.

9. I shall first consider the plaintiff’s application for leave to commence proceedings out of time, to amend and to join Westpac.

Application for extension of time

10. The requirement to bring defamation actions expeditiously against all relevant parties is an essential part of defamation legislation. Even prior to the enactment of the uniform legislation (Defamation Act 2005 (NSW)), the limitation period in New South Wales was one year. What that legislation added was the “not reasonable” test, where court must be satisfied that it was not reasonable to have commenced the action within one year from the date of publication of the defamatory matter: Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [55].

11. The harshness of the test for an extension of time has been remarked upon in Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209. The principles applicable are summarised by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16], as Ms Chrysanthou notes at paragraph 79 of her submissions, and I do not propose to repeat them.

12. The plaintiff has set out her reasons for wishing to add Westpac as a defendant in her written submissions. These are:

1. Westpac had played an active role in her complaints process, in that it was the employer of the current defendant, Mr Morgan (who signed the matter complained of, which is on Westpac letterhead), as well as the relevant insurer.

2. “Additional evidence has become available” following applications by the plaintiff under freedom of information provisions (paragraph 11 of the plaintiff’s written submissions). The plaintiff has referred to some of that evidence in her oral submissions, but it is not evidence which goes to the discovery of a cause of action against Westpac which was previously unknown.

3. “Some [additional] evidence has become available recently” (paragraph 15 of the plaintiff’s written submissions). It is unclear what this is, but it appears to include the discovery that Mr Morgan is no longer employed by Westpac. That is irrelevant to any issue of joinder of Westpac.

4. The plaintiff was seeking other forms of redress, such as proceedings against the Financial Ombudsman Service.

13. As to (d), making investigations, conducting settlement negotiations and/or seeking redress against other parties do not constitute acceptable grounds for failing to commence proceedings within time: Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175.

14. While the test does involve the exercise of discretion in the sense of requiring the formation of a normative judgment, the test does not ask whether it was reasonable not to have commenced proceedings, but the reverse.

15. The plaintiff has known at all relevant times that Westpac was the defendant’s employer when he wrote the matter complained of; it is on Westpac letterhead. She was aware of the limitation period because she commenced these proceedings one day prior to its expiry. While she submits that she should be given special assistance because she is a litigant in person, that does not amount to an entitlement to an extension contrary to both the language and the spirit of the legislation.

16. The plaintiff’s reasons for failing to join Westpac within time remain unexplained. In addition, for the reasons set out more fully below, her claim against Westpac is as hopeless as her claim against the current defendant, in light of the terms of the tripartite agreement the plaintiff signed for the purpose of her complaint to the FOS.

17. The plaintiff’s application to extend time to join Westpac as a second defendant fails because she cannot demonstrate that it was not reasonable to have commenced proceedings against Westpac within one year.

Application for leave to amend the statement of claim

18. I set out Ms Chrysanthou’s complaints about the defects in the pleading:

1. The prolix pleadings are full of irrelevant material and there are no properly framed particulars of publication. In particular, there are no imputations pleaded for either publication, although there are references to the correspondence giving rise to a rolled-up implication (as opposed to an imputation) that the plaintiff had not acted in good faith. While these complaints are well-founded, they could be cured by repleading. I also reject Ms Chrysanthou’s submission that imputations of failure to cooperate or to act without good faith are so incapable of being defamatory that they should be struck out without even a capacity argument.

2. Ms Chrysanthou submits that the second publication is not actionable because it is a publication made only to the plaintiff, in that it is addressed to her. In fact, it is addressed to her and to her son, and publication is therefore made to her son, for the reasons explained in Trantum v McDowell [2007] NSWCA 138 at [45]-[59] and in Zarth v Williamson [2007] NSWCA 246. Those principles would apply whether the plaintiff’s son were a party or not.

3. The claims of economic loss are without basis and contain impermissible claims, such as the costs of other proceedings (Hatfield v TCN Channel Nine Pty Ltd (No 2) [2011] NSWSC 737). These claims as currently pleaded are indeed hopeless and, if not repleaded in proper form, could be struck out entirely or amount to a basis for striking out the whole claim (Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595). However, this is not warranted at the present time.

4. The amendments which will join the second defendant have not yet been provided. In her oral submissions, the plaintiff described these as “a mere formality”, but leave should not be considered until those amendments are provided.

5. The contents of the publications are such that the defences of justification and qualified privilege could not be defeated. This submission effectively overlaps with Ms Chrysanthou’s submissions as to abuse of process, and are best considered in that light.

19. While the many defects in pleading are unacceptable, as a litigant in person, the plaintiff would be entitled to another chance to replead her claim against the current defendant. The real question is whether she should be given that opportunity or whether the claim should be struck out now as an abuse of process.

Are the proceedings an abuse of process?

20. As noted above, the defendant seeks summary dismissal of these proceedings on the following bases:

1. The principles of proportionality;

2. The nature of the publication, namely a publication to a complaints investigation body;

3. The asserted improper purpose of the claim; and

4. The weakness and defective pleading of the claim.

The principles of proportionality

21. The District Court is a creature of statute and possesses the powers set out in ss 56-62 Civil Procedure Act 2005 (NSW) and regulations. This includes the power to stay proceedings on a permanent basis under s 67 or to strike out proceedings (UCPR rr 13.4 and 14.28). Sections 56-62 Civil Procedure Act 2005 (NSW) require the court, in the course of all aspects of the conduct of civil proceedings, to take into account a number of factors relevant to the issue of proportionality, which is specifically mentioned as a factor in s 60 as to costs.

22. The Jameel principle grew out of a series of cases in the United Kingdom where a party argued that summary dismissal of proceedings may be warranted where the likely costs complexity and duration of the proceedings was not warranted: Schellenberg v British Broadcasting Commission [2000] EMLR 296; Wallis v Valentine [2002] All ER (D) 275 (Jul). These principles were crystallised in Jameel (at 67-76), but were not identified as raising issues of relevance to Australian proceedings, notwithstanding the similarity in case management legislation between the United Kingdom and jurisdictions in Australia. A typical example is the view taken by McGill SC DCJ in Smith v Lucht [2014] QDC 302 at [25], namely that if the plaintiff has a cause of action he is entitled to pursue it. A similar view was expressed by Kirby J in Manefield v Association of Quality Child Care Centres of NSW Inc (t/as Child Care NSW) [2010] NSWSC 1420 where the Jameel principle was raised at the trial.

23. The Jameel principle was also raised unsuccessfully in a series of decisions at appellate level, the first of which was Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231. It was not until Basten JA’s very recent obiter observations in Farrow v Nationwide News Pty Ltd at [5] that any support for the doctrine was indicated at appellate level.

24. The first occasion that the Jameel principle was raised successfully at first instance occurred in Calabro v Zappia (2010) 11 DCLR (NSW) 12. The matter complained of was the first page of a statutory declaration given by a potential witness in domestic violence proceedings; this first page, part of a longer document, had been obtained surreptitiously from a bundle of legal documents left by the opposing party in the courtroom foyer. However, the principal reason the claim was dismissed was the failure of the plaintiffs’ applications for an extension of time.

25. The first time proceedings were dismissed on the Jameel principle in a superior court of record occurred in Bleyer v Google, where the plaintiff brought proceedings in relation to seven search results published by Google to three people, in circumstances where publication to only one person had occurred in a period after which Google had been notified of the defamatory nature of the material. Google had removed three of the matters complained of after receiving information from the plaintiff’s solicitor and proceedings were commenced before it had the opportunity to remove the remaining four.

21. The reasons for the application succeeding in Bleyer v Google included not only the limited nature of the publication but also a submission that Google was not a publisher of its search engine results page (which may no longer be successful having regard to the decision of the Full Court of the Supreme Court of South Australia in Google Inc v Duffy [2017] SASCFC 130). That factor has no relevance here, and neither does the third basis upon which Google argued the litigation was disproportionate, namely the unenforceability of any judgment by the plaintiff against Google, a corporation based in the United States, where the First Amendment would render enforcement nugatory. However, the absence of those additional grounds does not mean that an application is doomed to fail.

22. McCallum J explains disproportionality as a species of abuse of process at [62]:

“[62] I am satisfied that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the Court and the parties that will have to be expended to determine the claim are out of proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.”

28. Her Honour went on to note the rarity with which such a finding would be made at [63]:

“[63] It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation.”

29. The principal bases upon which applications of this nature have been brought since Bleyer v Google include:

1. The extent of publication is very limited (i.e. or one or to a handful of persons).

2. The subject of the claim is essentially an apology, or likely to be nominal damages (Farrow v Nationwide News Pty Ltd at [5] per Basten JA).

3. Gross misconduct of the litigation, such as repeated failures to comply with timetables, which results in costs disproportionate to the litigation (see the obiter comments of Macfarlan JA in Ghosh v Ninemsn Pty Ltd at [41])

30. There have been few applications, and a significant lack of success, suggesting that the requirement for “exceptional circumstances” as identified by Macfarlan JA in Ghosh v Ninemsn Pty Ltd will be difficult to satisfy.

31. One of the difficulties with the consideration of the defence in Australia is the overlap between publication of imputations of limited seriousness to very small audiences, in circumstances which might attract the provisions of s 33, and the Jameel principle, as Kim Gould notes in her discussion of this issue (“Locating a 'Threshold of Seriousness' in the Australian Tests of Defamation” (2017) 39(3) Sydney Law Review 333). This was the vice identified by McGill SC DCJ in Smith v Lucht, where an interlocutory application to dismiss the proceedings for lack of proportionality failed, requiring the defendant to go to trial, where he was successful in the s 33 defence.

32. While the defence of unlikelihood of harm ultimately succeeded in Smith v Lucht, it has been unsuccessful in all but a very few case, even where the imputations are of limited seriousness and published to a very small audience (Enders v Erbas Pty Ltd [2014] NSWCA 170: inter-office memo about absenteeism).

33. In the present case, the audience consists of the plaintiff’s son and employees in the FOS and Westpac dealing with the plaintiff’s complaint. The Financial Ombudsman Service and its staff are obliged to carry out their duties of investigation in an objective fashion regardless of what information, defamatory or otherwise, is put before them. The defendant was obliged, by reason of the nature of the complaint, to respond to the plaintiff’s complaint in terms, in a manner not dissimilar to a form of compelled republication (as to which, see Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364) and to respond to it accordingly. There is no suggestion of publication to any third party outside these parameters.

34. In addition, the imputations would be at the bottom of the range in terms of seriousness.

35. There are other, perhaps more compelling, reasons why the plaintiff’s claim amounts to an abuse of process, which are discussed below. However, in terms of proportionality, given the very limited extent of the publication and its circumstances, I am satisfied that the plaintiff also falls within the very narrow “exceptional” category identified by Macfarlan JA, where the proceedings are wholly disproportionate to the likely costs, complexity and duration of the proceedings.

The publications were made as part of the FOS complaint process

36. The second basis upon which these proceedings are asserted to be an abuse of process arises from the nature of the matters complained of as part of the FOS complaint process.

37. There are many judgments arising out of publications made for the purposes of carrying out an inquiry into a complaint where courts have not considered whether the understanding of the parties as to their obligations under the complaint procedure, including any contractual obligations, could limit or deny a claim for defamation. On one occasion, claims were brought against the person charged with conducting such a complaint for publication to another person with this role: Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; Dillon v Cush; Dillon v Boland [2010] NSWCA 165, where the statement in question was, as Heydon JA noted at [54], one sentence in the course of “a long conversation” between two persons tasked with resolving a complaint concerning one of the plaintiffs.

38. However, applications for dismissal on such a basis have been brought where the court has then held, at common law, that a defence of consent may apply, in certain circumstances to publications made in the course of a complaint or conciliation process. The most significant are the decisions of Drummond J and the Full Court of the Federal Court in Dudzinski v Kellow, where publications made in the course of a complaint to a university were struck out on such a process. Similarly, the applicant’s claim for defamation in Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403 was struck out by reason of his consent to provision of the information (see also Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412).

39. The relevant principles are set out by Drummond J in Dudzinski v Kellow at [40]-[43]:

“[40] It is a defence at common law to the publication of defamatory matter that the plaintiff, in an unequivocal way, expressly or impliedly consented to the particular publication. Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369 and Abbott v National Coursing Association of South Australia [1941] SASR 140 at 144. In my opinion, even if consent is not an excuse for the publication of defamatory matter for the purposes of s 6 Defamation Act, it will constitute a good defence in circumstances like the present under s 16(1)(f) of that Act, unless the publication was not made in good faith.

[41] The applicant has the burden of proving absence of good faith: s 17 Defamation Act. He alleges that Chu’s comments were malicious. He has pleaded absence of good faith prematurely. See Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13. But since he has pleaded it, it is open to the Court, in the context of an application under O 20 r 2(1)(a), to see what is the case he intends to make out on absence of good faith for Chu’s publication.

[42] He has pleaded no facts sufficient to show that he may be able to make out his allegation of malice. He is obliged to do that: Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 at 392. There is no suggestion by the applicant that Chu’s comments, of which he complains, were more extensive or were published more widely than the applicant himself required by invoking the University appeal procedures and by complaining about her determination to Hulsman as the relevant subject convenor. As I have mentioned, the applicant has had more than ample opportunity to say everything he wishes to say in support of his various complaints, including the complaints made in this part of the pleading that Chu defamed him on two occasions.

[43] The defamation complaints against Chu are so unlikely to succeed that they should be struck out now.”

40. Professor Brown in Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Carswell) notes at Chapter 11 that the defence of consent is commonly applied in relation to conciliation proceedings in the United States.

41. In the present case, there are additional factors arising from the plaintiff’s contractual obligations. As set out above, the plaintiff signed a tripartite agreement with the FOS and WGIL to the effect that information obtained “through FOS” (i.e. correspondence sent to the FOS, which includes the matters complained of) “may not be used” in court other than as “required by an appropriate court process”. Ms Chrysanthou submitted that the effect of the whole of the terms of the agreement, which included provisions for frank and without prejudice exchange of information, precludes the bringing of this defamation claim.

42. The binding terms of the agreement with FOS means that the plaintiff is obliged to observe the rules of the process as a matter of contract (Mickovski v Financial Ombudsman Service Pty Ltd at [35]). By reason of her contractual obligations, she is precluded by those terms from bringing proceedings, including defamation proceedings, in relation to correspondence of the defendant generated for the purpose of responding to her complaint in that “without prejudice” exchange of information.

43. I also note my finding that, independent of the terms of the FOS contract, by initiating the complaints process, the plaintiff was consenting to the publications which followed, for the reasons explained in Austen v Ansett Transport Industries (Operations) Pty Ltd, and the claim would be able to be dismissed summarily on that basis.

44. There are many complaints procedures of this kind in use in Australia, ranging from disputes over goods and services (such as eBay’s complaints procedure), to professional oversight bodies such as the Press Council, to the right to participate in online complaints forums. Whether the same protection applies in relation to such organisations would depend upon the facts in each case. Nevertheless, the adoption of a contractual agreement of the kind used by the FOS would be a wise consideration for such bodies or organisations.

The asserted improper purpose of the claim

45. Ms Chrysanthou submits (written submissions, paragraph 66-69) that the claim has not been brought for the purpose of vindicating the plaintiff’s reputation, but to re-litigate issues already determined against her in the Local Court at Blacktown (including the costs she was ordered to pay) and the complaint determined against her by the Financial Ombudsman Service.

46. In Toben v Nationwide News Pty Ltd, the New South Wales Court of Appeal affirmed the decision by the first instance judge, McCallum J, to dismiss proceedings as an abuse of process which were not brought for the purposes of vindicating the plaintiff’s reputation, but to create a platform to record the plaintiff’s views about the Holocaust. The difference between an application to dismiss on the basis of abuse of process for this reason, as opposed to grounds of proportionality, can be demonstrated by the rejection by McCallum J at first instance (at [106]-[109]) of an application on the grounds of proportionality based on Bleyer v Google.

47. Where proceedings are commenced to re-litigate proceedings, that is clearly an improper purpose, for the reasons explained by McCallum J in YZ v Amazon (No 7) [2016] NSWSC 637 at [38]-[55]. Similarly, proceedings for defamation which are brought to stifle other litigation may amount to abuse of process, for the reasons explained by Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370.

48. The decision in Hanrahan v Ainsworth was a significant development in the law of abuse of process. While decisions such as Toben v Nationwide News Pty Ltd now create little impact and are generally seen as reflecting modern views on the entitlement to litigate, it is worth noting that no such application was even contemplated a mere 20 years ago when David Irving commenced similarly-based proceedings against Penguin Books Ltd. The principal case management order was that the very lengthy trial be heard without a jury: Irving v Lipstadt [2000] EWHC QB 115.

49. The degree to which the plaintiff is effectively re-running her claim for payment of her insurance claim and her Local Court costs is clear from her request of the court for a mediation about all these issues, “to resolve all matters at the same time and do not waste any more court time” (written submissions, paragraph 61).

50. I am satisfied that the plaintiff brings these defamation proceedings not for the purpose of vindication of reputation but to re-litigate a complaint and costs orders which have been determined adversely to her.

The weakness and defective pleading of the claim

51. While I acknowledge the plaintiff’s pleading of her claim is hopeless, that does not of itself warrant the striking out of these proceedings.

52. The first issue is whether the plaintiff would be able to meet a defence such as qualified privilege or justification. The plaintiff asserts that neither defence can be met on a summary basis and that the proceedings cannot therefore be stuck out.

53. The reluctance that a court would have to strike out a defamation claim where a defence of qualified privilege may be pleaded is well known, although Dudzinski v Kellow points to an exception to this general rule if the publication is made as part of a conciliation process. The plaintiff asserts there is evidence of malice, but her assertions are of an ipse dixit nature. Nevertheless, I accept that a court should not strike out a claim on the basis of likely success of the defence other than in the most exceptional of cases, of which this is not one.

54. I have set out above my reasons for holding that, notwithstanding the many pleading errors, the plaintiff would be entitled to a further opportunity to replead her claim.

55. Accordingly, while the defects in the statement of claim (including the proposed amended statement of claim) are substantial and serious, they would not warrant, without more, the permanent dismissal of these proceedings. While the first three grounds for dismissal succeed, this ground fails.

Conclusions

56. The plaintiff has been unsuccessful in her application for an extension of time to join an additional defendant. Her statement of claim against the existing defendant, as currently pleaded, is so deficient that it should not be permitted to be filed.

57. While I would have been prepared to grant her a further attempt to plead her case, the defendant has been successful in the application for summary dismissal of the proceedings on three of the four grounds put forward.

58. Accordingly, I strike out the plaintiff’s statement of claim with costs.

Orders

1. Pursuant to ss 60 and 67 Civil Procedure Act 2005 (NSW) and rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW), the plaintiff’s statement of claim is dismissed.

2. Plaintiff to pay defendant’s costs.

3. Liberty to apply in relation to costs.

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Decision last updated: 22 November 2017