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Imielska v Morgan

Imielska v Morgan

Case [2017] NSWDC 329 22 November 2017

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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…

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.

Continue reading Imielska v Morgan

Details

AGLC: Imielska v Morgan [2017] NSWDC 329
Case: [2017] NSWDC 329
Decision Date: 22 November 2017

CaseChat Overview and Summary

The plaintiff, Imielska, initiated proceedings against the defendant, Morgan, for defamation related to letters sent during the course of her complaint to the Financial Ombudsman Service. The plaintiff sought an extension of time to commence proceedings against a second defendant and to amend her claim. Morgan opposed the application on the grounds of abuse of process. The court was required to determine whether the proceedings should be dismissed under the proportionality principles outlined in Bleyer v Google, whether the claim was an abuse of process due to the terms of the contract the plaintiff had signed with the FOS or by reason of her consent to the complaint process, and whether the claim was an abuse of process due to the plaintiff seeking to go behind court and complaint findings. Additionally, the court had to consider whether the defective pleading and content of the claim should prevent the plaintiff from repleading.

The court held that the proceedings were an abuse of process. It found that the plaintiff had signed a contract with the FOS that included an arbitration clause, which indicated her consent to the complaint process. The court noted that the plaintiff was attempting to circumvent the findings of the FOS and the court. The defective pleading and content of the claim also contributed to the decision to dismiss the proceedings. The court concluded that the plaintiff's actions were an abuse of the legal process and therefore dismissed the claim, ordered the plaintiff to pay the defendant's costs, and granted liberty to apply in relation to costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Imielska v Morgan [2017] NSWDC 329

Cases Citing This Decision

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Cases Cited

Google Inc v Duffy [2017] SASCFC 130
Citation 1 (Para 21)

…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 unenfo…
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Citation 2 (Para 1)

…ed 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.…
Toben v Nationwide News Pty Ltd [2016] NSWCA 296
Citation 3 (Para 3)

…luded 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.…
YZ v Amazon (No 7) [2016] NSWSC 637
Citation 4 (Para 47)

…ceedings 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 expl…
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Citation 5 (Para 3)

…ss 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.…
Smith v Lucht [2014] QDC 302
Citation 6 (Para 22)

…nagement 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 Assoc…
Bleyer v Google Inc [2014] NSWSC 897
Citation 7 (Para 1)

…dant 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…
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Citation 8 (Para 32)

…ful 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).…
Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185
Citation 9 (Para 6)

…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:…
Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Citation 10 (Para 11)

…10] 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.…
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
Citation 11 (Para 10)

…e 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].…
Cush v Dillon [2011] HCA 30
Citation 12 (Para 37)

…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 l…
Hatfield v TCN Channel Nine Pty Ltd (No 2) [2011] NSWSC 737
Citation 13 (Para 3)

…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 s…
Manefield v Child Care NSW [2010] NSWSC 1420
Citation 14 (Para 22)

…itled 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.…
Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412
Citation 15 (Para 38)

…ions) 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).…
Wookey v Quigley (No 2) [2010] WASC 209
Citation 16 (Para 11)

…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…
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Citation 17 (Para 13)

…ess against other parties do not constitute acceptable grounds for failing to commence proceedings within time: Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175.…
Dillon v Cush; Dillon v Boland [2010] NSWCA 165
Citation 18 (Para 37)

…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…
Calabro v Zappia [2010] NSWDC 127
Citation 19 (Para 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…
Rayney v State of Western Australia (No 3) [2010] WASC 83
Citation 20 (Para 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 Chrysanth…
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Citation 21 (Para 23)

…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 indica…
Canon Australia Pty Ltd v Patton [2007] NSWCA 246
Citation 22 (Para 2)

…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.…
Trantum v McDowell [2007] NSWCA 138
Citation 23 (Para 2)

…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.…
Dudzinski v Kellow [1999] FCA 1665
Citation 24 (Para 2)

…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 comp…
Dudzinski v Kellow [1999] FCA 1264
Citation 25 (Para 2)

…pautz (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…
Mann v Board of Health (ACT) [1996] FCA 492
Citation 26

…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 appl…
Ridgeway v the Queen [1995] HCA 66
Citation 27 (Para 2)

…cial 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 ( Dudzi…
Carr, P.J. v McDonalds Australia Ltd [1993] FCA 403
Citation 28 (Para 38)

…ity 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).…
Walton v Gardiner [1993] HCA 77
Citation 29 (Para 2)

…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 dismissa…
Williams v Spautz [1993] HCA 9
Citation 30 (Para 2)

…s 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 Dudz…
Hanrahan v Ainsworth [1991] NSWCA 141
Citation 31 (Para 47)

…r 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.…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 13.4, 14.28, 19.2, 6.24
5 mentions (from Para 2)
Limitation Act 1969 (NSW) 14B, 56A
3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 21)
Defamation Act 2005 (TAS) 33
2 mentions (from Para 10)
Civil Liability Act 2002 (TAS)
1 mention (from Para 8)

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…