JE v Central Coast Local Health District

[2022] NSWCA 125

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JE v Central Coast Local Health District [2022] NSWCA 125

Hearing dates:

12 July 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Before:

Meagher JA; Leeming JA

Decision:

(1) Dismiss the summons seeking leave to appeal filed on 24 March 2022.

(2) Order the applicant, JE, pay the costs of the first and second respondents.

Catchwords:

CIVIL PROCEDURE — appeal — where primary judge summarily dismissed proceedings for defamation — where no alleged defamatory publication identified in statement of claim — where no error identified in primary judge’s reasons

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Supreme Court Act 1970 (NSW), s 101(2)(e)

Uniform Civil Procedure Rules 2005, rr 6.29, 13.4, 14.28, 15.1(1), 15.19(1), 51.15

Cases Cited:

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162

Category:

Principal judgment

Parties:

JE (a pseudonym) (Applicant)
Central Coast Local Health District (First Respondent)
State of New South Wales (Second Respondent)
Nationwide News Pty Ltd (Third Respondent)
Australian Communications and Media Authority (Fourth Respondent)

Representation:

Counsel:
Applicant self-represented
T B Senior (First and Second Respondents)
G McAvaney (solicitor) (Third Respondent)
K A Morris (Fourth Respondent)

Solicitors:
Crown Solicitor’s Office (First and Second Respondents)
G McAvaney (Third Respondent)
Australian Government Solicitor (Fourth Respondent)

File Number(s):

2022/98829

Publication restriction:

The applicant is referred to using the pseudonym “JE” in order to preserve the anonymity of her children in accordance with Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2022] NSWDC 31

Date of Decision:

23 February 2022

Before:

Gibson DCJ

File Number(s):

2021/00191945

Judgment

1. THE COURT: The applicant, who is unrepresented, seeks to appeal from orders of the District Court (Gibson DCJ) striking out and dismissing proceedings she commenced against the respondent defendants, respectively Central Coast Local Health District (Local Health District), the State of New South Wales (State), Australian Communications and Media Authority (ACMA) and Nationwide News Pty Ltd (Nationwide News): JE v Central Coast Local Health District and Others [2022] NSWDC 31. The applicant requires leave to appeal because those orders were interlocutory (Supreme Court Act 1970 (NSW), s 101(2)(e)).

2. The applicant has been a party to a number of other proceedings in this court. Most have related to disputes concerning the care and protection of two of her daughters. In those proceedings she has been referred to by the pseudonym “JE” to preserve their anonymity in accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act). We will continue to use that pseudonym in these reasons.

3. As the primary judge records at [4] the events which JE maintains justify her claim in defamation have their beginning in or before May 2012 with the removal of two of her daughters from her care. For present purposes, those events and the various proceedings which followed are sufficiently summarised in the judgment of this Court in JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 at [11]-[42].

4. The decision to remove the children was made because the Director-General of the Department of Community Services suspected that they “are in need of care and protection, and are not subject to the supervision or control of a responsible adult, and are living in or frequenting a public place” ([2019] NSWCA 162 at [13]-[14]).

5. The relevant removal order also stated:

The children had been homeless for 11 months living in a car or motel rooms. The mother has an untreated medical condition which results in the symptomology of mental illness. Summary of other considerations leading to action is included in the warrant application.

6. That removal was followed (as required by s 45 of the Care and Protection Act) by an application for a care order made by the Director-General to the Children’s Court at Wyong. That Court made final orders in August 2013 allocating parental responsibility for each daughter to her maternal grandparents until she reached the age of 18 years. The applicant appealed to the District Court from those orders. Although that appeal was allowed it did not result in JE having any responsibility for the care and protection of either daughter: [2019] NSWCA 162 at [18].

7. In June 2016, JE commenced proceedings against the “Department of Community Services” in the District Court claiming damages. Her statement of claim did not identify the basis for that claim. It merely announced that the claim was for: “(1)Medical negligence (trauma) – Gosford Hospital” and “(2)Medical discrimination – Department of Community Services”. Gibb DCJ dismissed those proceedings on 9 November 2016 and a very late application for leave to appeal to this Court was also dismissed: [2019] NSWCA 162 at [19]-[20], [23] and [64]-[66].

8. In April 2018 the Children’s Court made an order allocating parental responsibility for the older daughter to her father. She had previously been in the care and protection of her maternal grandparents. The applicant appealed to the District Court from that order. The defendants included the Local Health District. Relevantly, for present purposes, as was noted in [2019] NSWCA 162 at [37], the relief sought against that defendant included orders directed to JE’s complaint “that the children were removed in 2012 because the Area Health Service and the Gosford Hospital gave false information to the Department”. It would appear that information related to JE’s “medical condition” as referred to at [4] above.

9. Returning to the underlying proceedings, they were commenced by a statement of claim filed on 5 July 2021. As the primary judge noted at [10], the defendants’ applications to strike out or dismiss the proceedings were made following correspondence drawing JE’s attention to substantial deficiencies in the original statement of claim. At [10] the primary judge also identified those deficiencies as including:

a)    Failure to identify the defendants by their correct names.

b)    Failure to plead particulars of any specific publication or imputations arising therefrom and failure to attach or otherwise provide copies of these publications.

c)    Failure to identify any recognisable cause of action against any of the defendants.

d)    As the relevant events appear to have occurred about a decade ago, any defamation proceedings are now time-barred.

e)    The plaintiff’s failure to deal with the pleading issues raised with her in correspondence from the defendants.

10. It followed that the statement of claim did not comply with the requirements of Uniform Civil Procedure Rules 2005 (UCPR), r 15.1(1) that a pleading “give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”. In an action for defamation, particulars answering that description necessarily include the identification of the alleged defamatory publication and the defamatory imputations said to arise.

11. It also followed that the pleading did not contain any of the particulars specifically required by UCPR r 15.19(1) when pleading an action for damages for the publication of defamatory material, including –

(a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,

(b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,

…

(e) particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation,

(f) particulars of the serious harm that the publication has caused, or is likely to cause, to the reputation of the plaintiff.

12. In early November 2021, JE produced an amended form of statement of claim. It was not filed and the primary judge treated it as being the subject of an application to amend (at [1]).

13. Whilst that draft pleading is more extensive in its narrative of the “facts and assertions” relied on, it is no more informative in identifying a cause of action in defamation against any of the named defendants. It suffers from the same deficiencies identified in relation to the filed pleading and does not comply in any respect with either of UCPR rr 15.1(1) or 15.19(1).

14. In the course of argument the primary judge addressed with JE the identification of any defamatory publication upon which her claim was said to be based:

[18]    When the application came before me for argument, I asked the plaintiff to identify one or more of the defamatory publications upon which her claim for defamation was based. It transpires that the media publications in question are telephone conversations the plaintiff has had with “60 Minutes” and Mr Ray Hadley about obtaining publicity for her ongoing health problems. The plaintiff said she was told by these persons that they could not cover the story. She attributes this to the first and second defendants’ interference with justice.

[19]    The plaintiff acknowledged that she would have to identify one or more of the publications which had defamed her and that, until this was done, she could not ask the court for leave to file the statement of claim in its current form. She sought leave to reformulate her claim in order to identify these publications. However, when asked to identify at least one of the publications upon which she intended to sue, she identified the pleadings and submissions in the 2019 Court of Appeal proceedings involving her application for judicial review in relation to removal of her children from her care in 2012, asserting that the defence of absolute privilege was restricted to affidavit evidence and did not apply to submissions or pleadings, and confirming that she wanted to sue for defamation in relation to these publications.

[20]    In addition, in terms of liability for the publications to be sued on, the plaintiff remained adamant that Nationwide News was the relevant publisher, not only for any media publications but also for members of parliament’s electoral offices and government publications. She assured me that she had checked this “on Google”.

15. In recording the submissions of each of the defendants (at [21]-[29]) the primary judge noted that although “the precise date of any… publication is difficult to ascertain, the relevant events all appear to have occurred over a decade ago” (at [21(f)]); that none of the publications referred to by JE were publications made by Nationwide News (at [25]); and that the claim against ACMA did not identify any publication actually made by ACMA (at [27]).

16. At [2] and [35] the primary judge identified the provisions under which the defendants’ strike out and summary dismissal applications were made as being, in the case of each defendant, UCPR rr 13.4 and 14.28. Nationwide News and ACMA also sought orders that they be removed as parties to the proceedings under UCPR r 6.29. Those rules are extracted by the primary judge at [31], [33] and [35] and need not be repeated here.

17. Having done so, the primary judge concluded:

[51]    Each of the defendants raises compelling reasons why these proceedings should be struck out now. I particularly note, as to the first and second defendants, that the plaintiff’s prolific litigation history includes a prior claim for damages of a somewhat similar kind, which was struck out in 2016, and for which her appeal was dismissed. The third defendant very reasonably points out that it has never published anything about the plaintiff, and the fourth defendant additionally raises finality and abuse of process issues in relation to earlier completed proceedings. All defendants point to the total failure to identify any publication at all, and add that I should not overlook the limitation issues if any such publication were now produced.

[52]    The statement of claim in its current form is hopeless. The plaintiff has been given opportunities to amend but has failed to identify any cause of action for defamation against any of the defendants. The closest she comes to identifying a cause of action is to make the general assertion that, over an unspecified period of time, she has suffered “demeaning characterisation affecting her good reputation” through medical bullying, harassment, employment problems and financial difficulties (submissions, 22 February 2022). However, the disentangling of those claims into any recognisable cause of action is impossible and no further leave to amend should be granted.

[53] Taking all of the above into account, the defendants’ applications for the proceedings to be dismissed under both UCPR r 13.4 and r 14.28 should be granted.

18. JE’s application for leave to appeal was opposed and could not on its face be dealt with by the court in the absence of the public and without the attendance of any person (see UCPR r 51.15) because neither JE nor Nationwide News consented to that course.

19. In addition to relying on her written submissions dated 27 June 2022, JE addressed the court orally. In those written submissions and her oral argument JE does not identify any arguable error in the primary judge’s analysis and conclusions. Nor does she identify any defamatory publication upon which her claim, if repleaded, might be based.

20. At one point in her oral argument, JE seemed to be suggesting that there were reasons why she could not identify any alleged defamatory publication, including because the publications may contain reference to the names, dates of birth and addresses of her children (who were minors and whose identities were protected from publication under the Care and Protection Act). JE gave as a reason for why she could not “present” those publications that she “didn’t have a previous approval from the Court to do so. From the Supreme Court, not the District Court”. That was plainly not a good reason for JE not identifying any such publication, and no material which answered that description was identified.

21. Ultimately, as we understood JE’s argument, it was, as she contended before the primary judge, that notwithstanding that she had not identified any publications in either pleading (as the primary judge records at [22]) she nevertheless regarded the existing pleading as sufficiently identifying information which was the subject of unidentified publications:

“I think I have done it in a form that is actually understandable to a point until – I, I do apologise to the other solicitors that it is very difficult for them and, and it’s very hard to understand and it’s a very complex matter but previous to the fact I have been through so many different court cases in regards to my children, in regards to an appeal, in regards to – and it has been every year, that it actually attracted so many different people in the association of the cases and it’s very hard to define and the only way I can come to a point where this is resolved is that my initial problem started from the Hospital [a reference to her having been diagnosed with a thyroid problem in 2009].”

22. In the result the primary judge undoubtedly concluded correctly that the existing pleading should be struck out and the proceedings dismissed. There is no arguable error in her Honour’s analysis or conclusions. It follows that the summons seeking leave to appeal should be dismissed.

23. There remains the question of costs. After we reserved, Nationwide News and ACMA indicated that they do not seek any order for costs. There is no reason why JE should not be ordered to pay the costs of the State and Local Health District who were represented by the Crown Solicitor and counsel. Those parties consented to the appeal being dealt with in chambers. JE did not. And in conducting their response to JE’s application there is no suggestion that they did more than was necessary in the interests of those parties.

24. For these reasons, the Court makes the following orders:

1. Dismiss the summons seeking leave to appeal filed on 24 March 2022.

2. Order the applicant, JE, pay the costs of the first and second respondents.

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Decision last updated: 15 July 2022