JE v Central Coast Local Health District

[2022] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:

JE v Central Coast Local Health District & Ors [2022] NSWDC 31

Hearing dates:

23 February 2022

Date of orders:

23 February 2022

Decision date:

23 February 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)   Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8, the name of the plaintiff is suppressed and replaced with the pseudonym adopted in this judgment.

(2) Defendants’ notices of motion granted; pursuant to UCPR r 13.4 and r 14.28, these proceedings are struck out and dismissed.

(3)   Plaintiff pay first, second and fourth defendants’ costs.

Catchwords:

TORT – defamation – application for summary dismissal of proceedings pursuant to UCPR r 13.4 and r 14.28 – no issue of principle

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 91

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8

Defamation Act 2005 (NSW) s 23

Federal Court of Australia Act 1976 (Cth) s 31A

Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 4.5, 6.29, 13.4, 14.28, 15.19(2)

Cases Cited:

Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51

Ajok v Mares [2010] NSWDC 62

Bleyer v Google Inc (2014) 88 NSWLR 670

Chandrasekaram v Commonwealth of Australia [2016] NSWSC 1149

Chandrasekaram v Commonwealth of Australia [2016] NSWSC 1149

Culleton v Kershaw (No 2) [2018] WASC 236

Cumberland v Clarke (1995 – 6) 39 NSWLR 514 at 529

Dickens v State of New South Wales (No 3) [2018] NSWSC 485

General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125

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

JE v Secretary, Department of Family and Community Services [2020] NSWCA 123

JE v Secretary, Department of Family and Community Services [2020] NSWCA 243

Kalsbeek v Commonwealth [2018] WADC 79

Knorr v CSIRO (No 3) [2012] VSC 529

Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7

Lazarus v Azize [2015] ACTSC 344

Massarani v Kriz [2003] FCA 2020

Massarani v Kriz [2020] NSWCA 252

Merrett v Marinakos & Anor [2019] FCCA 541

Morris v IMF Bentham Ltd [2018] FCA 1009

Nyoni v Pharmacy Board (No 6) [2018] FCA 526

Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32

Sheen v Burke [1993] 1 VR 584

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Thomson v Luxford [2014] FCA 342

Tjiong v Tjiong [2021] NSWSC 1389

Troiano v Voci [2019] VSC 859

Category:

Procedural rulings

Parties:

Plaintiff:
JE (Self-represented)

Defendants:
First defendant:
Central Coast Local Health District
Second defendant:
State of New South Wales
Third defendant:
Australian Communications and Media Authority
Fourth defendant:
Nationwide News Pty Ltd

Representation:

Counsel:
First and second defendants: Mr T Senior
Third Defendant: Ms K Morris
Fourth Defendant: Mr G McAvaney (In-house Solicitor)

Solicitors:
First and second defendant:
Crown Solicitor
Third defendant:
Australian Government Solicitor
Fourth defendant:
Nationwide News Pty Limited

File Number(s):

2021/00191945

Publication restriction:

See orders made

Judgment

The applications before the court

1. The plaintiff brings proceedings for defamation, including a claim for injunctive relief, by statement of claim filed on 5 July 2021. She seeks leave to amend the pleading conformably with a draft provided on 5 November 2021.

2. Each of the defendants brings an application pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 13.4 for the dismissal of these proceedings as an abuse of process or, in the alternative, pursuant to UCPR r 14.28. These applications are as follows:

1. The first and second defendants, now correctly named as the Central Coast Local Health District and the State of New South Wales, seeks summary dismissal of the proceedings in a Notice of Motion filed on 25 November 2021. The application is supported by the affidavits of Bruce Cantrill sworn on 27 January 2022.

2. The Australian Communications and Media Authority (“ACMA”), by Notice of Motion filed on 25 November 2021, bring a similar application dismissing the claims made against it or, in the alternative, removing its name as a party pursuant to UCPR r 6.29. The application is supported by the affidavit of Ms Deniz Kayis affirmed on 25 November 2021.

3. Nationwide News Pty Ltd brings a similar application by Notice of Motion filed on 29 November 2021, supported by the affidavit of Grant Michael McAvaney sworn on 29 November 2021.

3. The plaintiff, who opposes the applications, seeks orders for leave to file the amended statement of claim, a wide variety of interlocutory orders and an early hearing date.

The names of the parties

4. As is set out in more detail below, the background to these proceedings relates to publications occurring over a period where there were care proceedings in relation to the plaintiff’s children (see JE v Secretary, Department of Family and Community Services [2019] NSWCA 162). Having regard to the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act), I propose to adopt the same pseudonym as that used by the Court of Appeal, namely “JE”.

5. Accordingly, pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8, the name of the plaintiff is suppressed and replaced with the pseudonym adopted in this judgment. It is not, however, necessary for the defendants to have their identities replaced by pseudonyms.

The circumstances leading to the defendants’ applications

6. As is set out in the careful and sympathetic judgment of Gleeson JA in JE v Secretary, Department of Family and Community Services, the plaintiff is the mother of two children who were removed from her care by officers of the Department of Family and Community Services in May 2012. The plaintiff then brought proceedings for damages against the Department, which were dismissed, as well as an application for judicial review of the decision of this court in relation to the two children being removed from her care. Those children, who were aged 8 and 2 years respectively in 2012, remained in care from that time and the elder child is now an adult.

7. There is a strong overlap between these proceedings and the claim the plaintiff earlier brought in this court in 2016, in which she claimed $500,000 damages against the Department and Gosford Hospital. Those proceedings were dismissed by Judge Gibb on 9 November 2016 after an application pursuant to UCPR rr 13.4 and 14.28 was brought. Leave to appeal was refused by the Court of Appeal (JE v Secretary, Department of Family and Community Services at [58]). The appeal pursuant to s 91 of the Care Act was remitted to the District Court for hearing.

8. Bell P commented in JE v Secretary, Department of Family and Community Services (at [9]) that it was “sad for all of the affected parties … that seven years after the removal of the two children from the applicant’s care in 2012, there remains a dispute with respect to what care orders are in the best interests of the children.”

9. The plaintiff’s litigation of these issues continued. The remitted appeal was dismissed on 22 October 2019 by Robison DCJ, who also commented that “[t]his is a very sad case.” The plaintiff brought a fresh application in the Court of Appeal in May 2020 which was dismissed: JE v Secretary, Department of Family and Community Services [2020] NSWCA 123. She brought a further amended summons in September 2020 which was also dismissed: JE v Secretary, Department of Family and Community Services [2020] NSWCA 243. She commenced these proceedings in the following year, on 5 July 2021. In her oral submissions, the plaintiff expressed concern that she has been in Court seeking a fair hearing for a decade but without success.

The deficiencies in the pleadings

10. The applications brought by the defendants were made following earlier correspondence to the plaintiff drawing attention to substantial deficiencies in the statement of claim filed on 5 July 2021. These deficiencies included:

1. Failure to identify the defendants by their correct names.

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

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

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

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

11. There is an additional pleading issue which is of concern to the court. The plaintiff has refused to supply her address. Although this may be considered a minor matter by some, failure to provide an address for service is a breach of UCPR r 4.5. This requirement for an address, which has been considered significant in litigation in other States and Territories of Australia as well as in New South Wales, is to ensure litigants cannot misuse the court’s process by hiding their true place of residence: Troiano v Voci [2019] VSC 859; Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7; Aboriginal Group Training (WA) v PEEDAC Pty Ltd [2004] WASC 51; Sheen v Burke [1993] 1 VR 584. It is no answer to assert (without evidence) that the plaintiff feels in danger of some kind of retribution. Courts should not permit use of the court process by persons seeking to hide their whereabouts other than for the most compelling reasons. While I do not propose to take any steps about this omission, given the orders I propose to make, I still note my concerns.

12. The plaintiff failed to rectify the errors pointed out by the defendants in their correspondence and these applications were accordingly brought.

The plaintiff’s submissions

13. The defendants complied with the timetable for affidavits and for written submissions. The plaintiff’s submissions were not provided by her to the court, although they were made available in the Court Book provided by the defendant.

14. The plaintiff’s failure to provide the written submissions to the court appears to be part of a wider suspicion of the court process in general. In response to an inquiry as to compliance with the timetable, she sent an email to my associate (although not to the defendants, and addressed to the wrong judge) in the following terms:

“Attention to District Court

To Dear Associate to Your Honour Gibb.

I am in contact with you regards to my email account where both have been hacked whereas I couldn't log in and not permitted to access my information to both accounts.

I am in the middle of a court matter and I need to access the emails from the parties, this is becoming a common occurrence on my devices and my phone's internet and emails social media apps whereas I continually need to fix them and obviously this has to do with media free to air and including government sectors.

This is why the matter is at District Court and been to High Court on these factors in the defamation case.

I have to bother the District court by call and it also involved calling police for advise on what they can do, Wednesday 5/1/22: and previous to this the Attorney General.

The risk of me not retrieving submissions can cause problems to procedure and this is a concern and I am informing I have only just fixed this email so I can use it again as, [redacted], and the other to follow that is [redacted] and Microsoft Google...etc

I am truly fed up with dealing with this situation on the lead up to court appearances and obviously this is why it's happening and I am informing the District Court, this is not just invasion of privacy it's contempt and bridging to concerns of fraudulent enactments.

I am following directions of the District court on my claim and I have given the right information to the court on verification, so how does this keep happening?

The Attorney General Mark Speakman has the names of people who have caused dramas while in court matters.

I am also having to look into, my super, taxation and any other avenues that may be interfered into, to also put me at risk.

The situation complys to the parties in the matter by the jurisdiction, to apply to the procedure of the court.” (Original spelling and grammar retained)

15. My associate sent a reply correcting the name of the judge hearing this application and giving her advice about posting, hand-delivering or faxing her submissions if there were concerns about the security of her email, but this did not result in compliance with the timetable, nor has it resulted in a lessening of the claims of conspiracy, computer hacking and other acts of misconduct attributed in a general way not only to one or more of the defendants, but also to the legal system generally. The plaintiff repeated these allegations in the course of her oral submissions.

16. In the hope of obtaining submissions from the plaintiff, and in order to assist the plaintiff with her response, I invited all parties to refer to the judgment of Katzmann J in Massarani v Kriz [2003] FCA 2020, as this very recent judgment deals with challenges to “same or like matter”, abuse of process, summary dismissal and limitation issues. I was then provided with two sets of submissions from the plaintiff, which I summarise as follows:

1. I have read the plaintiff’s “Statement of Issues” of 10 February 2022 and note that it does not address any of the issues raised in correspondence or written submissions from the defendants; it merely repeats earlier submissions and attaches a number of documents, many of them illegible.

2. I have also read the plaintiff’s “Statement of Issues” of 22 February 2022, in which the plaintiff asks the court for relief in relation to allegations of contempt (paragraph 3), the need for law reform to outlaw absolute privilege (paragraph 4), setting aside the orders made in relation to the plaintiff’s children (paragraph 5), land entitlement and inheritance (paragraph 6), suppression orders (paragraph 7), mediation (paragraph 8), help with a claim against her grandparents’ estate (paragraph 9), disciplining of the FACS clinician (paragraph 10) and assistance with a complaint to the office of an MP (paragraph 11). Paragraph 12 sums up her position as follows:

“The plaintiff has illustrated that my reach purpose was to resolve where it has sort to destroy the plaintiff rights without anything to situate a case over the years it has and stating the plaintiff would like my position status financially restored fair response and her statutory right returned to what was before renowned problem forced into this pursuit for justice.” (original spelling and grammar retained)

17. Neither of these submissions takes the plaintiff’s case any further, in terms of responding to the issues raised by the defendants, none of which are even mentioned.

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”. This does not augur well for the likelihood of the many problems with the plaintiff’s pleading being addressed in the next iteration of the statement of claim.

The first and second defendants’ submissions

21. The first and second defendants complain that the pleading in its current form contains the following substantial defects:

1. No cause of action identifying the basis upon which either of them is sued is identified. The headings “Type of Claim” and “Constitutional Matter” and “Defamation Claim” appear but these set out legislative provisions and not the cause of action.

2. Little or no change has been made to the pleading following the defendants’ complaint about the failure to identify the causes of action; for example, paragraphs 1 – 15 (the first six pages of the pleading) are in substantially the same terms. Where changes have been made (for example, pages 7 – 9 of the proposed amended pleading) the nature of these changes (which are not underlined) are impossible to follow and understand and are, if anything, less relevant or comprehensible than the material it replaces.

3. The content of the whole of the pleading is “largely incomprehensible” (submissions, paragraph 14(ii)).

4. Significant sums of money are claimed (for example, one of the paragraphs on page 6 claims $500,000), but without any explanation as to its method of computation.

5. Documents are attached to the statement of claim without explanation. These are not defamatory publications asserted to have been made by any of the defendants.

6. To the extent that there is any claim for defamation, there is no identifiable publication or imputations arising therefrom pleaded: UCPR r 15.19(2).

7. Although the precise date of any such publication is difficult to ascertain, the relevant events all appear to have occurred over a decade ago.

22. In the course of oral submissions, the plaintiff effectively conceded that there are no identifiable publications and that the pleading issues raised in the written submissions have not been addressed by her.

23. I also note the overlap in subject matter between these proceedings and the proceedings for damages (which appear to have been for some form of personal injury) which the Court of Appeal struck out in 2016. Whether or not that claim was also for damage to reputation, there is no submission that leave would be required under s 23 of the Defamation Act 2005 (NSW). However, the bringing of a fresh claim reviving claims made against one or both of the defendants in 2016 raises other abuse of process issues.

The submissions by Nationwide News Pty Ltd

24. While the claim as formulated against the first and second defendants has significant problems, these pale into insignificance when compared to the lack of merit of the claims brought against the ACMA and Nationwide News Pty Ltd.

25. Md McAvaney, in addition to identifying the same pleading and limitation problems as those set out above, points out that none of the publications referred to by the plaintiff are in fact publications made by Nationwide News Pty Ltd, or indeed by any News publication. The publishers referred to in the pleading are identified by the plaintiff as Nine News, Ten, 2GB and 2Day FM. More recently, in her Statement of Issues, the plaintiff has added references to Google, Ray Hadley, Facebook and Microsoft, none of which are News-related. She has also provided a letter which she sent on 26 April 2018 to 2CHR 96.5, a community radio network, but it relates to her activities on their volunteers’ roster and is a publication by the plaintiff, not the radio station. Moreover, there is no defamatory sting ascertainable.

24. Mr McAvaney also points out, in his affidavit in support, that none of these publications by these other media organisations refer to the plaintiff (affidavit, paragraph 8). For these reasons alone, it is submitted that there are ample grounds for determining that the proceedings should be struck out.

The submissions by ACMA

27. The claim against ACMA does not identify any publication actually made by ACMA. What the plaintiff appears to be asserting is that ACMA has some kind of duty of care to prevent defamatory publications occurring, which is contrary to the principles explained by Levine J in Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32.

28. Leaving to one side the significant obstacle that there do not appear to be any such publications by organisations falling within the purview of ACMA, the claim appears to be that the information published was contained in court documents, in which case a defence of absolute privilege would apply to any such publisher. ACMA’s well-formulated concerns on this issue are confirmed by the references, in the plaintiff’s “Statement of Issues” of 22 February 2022, to an asserted “recommendation” by the NSW Law Reform Commission that the defence of absolute privilege be replaced by the defence of qualified privilege for court proceedings and court reports. These concerns were confirmed by the plaintiff’s oral submissions on the application, where the documents she identified as being defamatory were the submissions and pleadings in the Court of Appeal in the 2019 proceedings concerning her children.

29. ACMA complains that what the plaintiff is seeking to do is to reopen or otherwise challenge decisions made and claims raised in some or all of the previous proceedings. If so, ACMA submits that this would amount to an abuse of process (Chandrasekaram v Commonwealth of Australia [2016] NSWSC 1149 at [75] – [84]), not merely by reason of action or issue estoppel, but also having regard to the principles underlying the need for finality of court proceedings (Tjiong v Tjiong [2021] NSWSC 1389).

The relevant principles of law

30. The defendants seek orders that no further leave to amend be granted and for summary dismissal on the basis of abuse of process. The relevant principles to apply will depend on the nature of the abuse and the rules (or statutory provisions) under which the dismissal is sought. These may be summarised as follows:

1. Applications for summary dismissal on the basis of no cause of action, based on common law principles as set out in the General Steel test (General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125). Such applications are generally brought under UCPR r 14.28.

2. Applications for summary dismissal where the abuse is of the kind caught by UCPR r 13.4, namely on grounds other than there being no identifiable cause of action.

3. Applications for summary dismissal brought under provisions such as s 31A of the Federal Court of Australia Act 1976 (Cth), where the proceedings “need not” be hopeless or bound to fail. Although s 31A would appear, by its contents, to permit consideration of issues such as proportionality, that is not how it has been interpreted by the Federal Court. While its applicability is limited to Federal Court proceedings, the issues raised in decisions discussing s 31A may be of assistance when determining applications under UCPR r 13.4, where the General Steel test does not apply.

31. UCPR r 13.4 provides:

“13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

32. The General Steel test does not apply to applications under UCPR r 13.4, for the reasons explained by Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [46] – [47]:

“[46] The second, and alternative, basis on which the State sought to have the proceedings dismissed, is UCPR r 13.4, on the grounds that they constitute an abuse of process. This ground is, in my view, also enlivened in the present case. By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court’s function to provide a litigant with legal advice. Nor is the Court to “settle” a defective pleading so as to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence.

[47] I note for completeness that the State did not seek summary dismissal of the proceedings on the ground that they disclosed no reasonable cause of action: UCPR r 13.4(1)(b). Thus, the General Steels test, even were it otherwise relevant, is not germane to the first defendant’s application. The State’s submission, which I have accepted, is that the pleading is so deficient that it is not possible to discern whether there is any reasonable cause of action.”

33. UCPR r 14. 28 provides:

“14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

34. As Adamson J notes in Dickens v State of New South Wales (No 3) at [47], the General Steel test applies to applications under this rule.

35. The third and fourth defendants also seek to be removed from the proceedings. UCPR r 6.29 provides:

“6.29 Removal of parties by order

The court may order that a person—

(a) who has been improperly or unnecessarily joined, or

(b) who has ceased to be a proper or necessary party,

be removed as a party.”

36. As noted above, I asked the parties to include, in their submissions concerning the principles underlying summary dismissal, the recent decision of Massarani v Kriz. This was in part because the applicant was successful, despite significant limitation, identification and extent of publication problems, and in part because the generous judicial interpretation of the statutory regime which applies in the Federal Court (but not in this court) demonstrates the difficulties facing an application for summary dismissal even where there are statutory provisions that would appear to support a lower bar. If the existence of such provisions is not of assistance, then that does not augur well for applications of this kind made in this court under the more restrictive UCPR rules.

37. In Massarani v Kriz, Katzmann J sets out the relevant provisions for summary dismissal in the Federal Court, where the General Steel test does not apply by reason of s 31A of the Federal Court of Australia Act 1976 (Cth). Section 31A puts a much lower hurdle in front of a respondent, namely that the court is satisfied that the other party “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceedings”, specifically adding that it such a claim “need not” be hopeless or bound to fail.

38. By way of general observation, applications for summary dismissal are not uncommon where a party complaining of defamation in relation to earlier court proceedings has in fact lost (or at least done very badly) in the litigation the subject of discussion in the matter complained of, in circumstances where the publication purports to describe that earlier litigation. As the plaintiff made clear in her oral submissions to the court, the main issue she is complaining about is the way she was treated in the care proceedings; she hopes that a defamation action will demonstrate the injustice of this earlier litigation.

39. This is not dissimilar to the circumstances in Thomson v Luxford [2014] FCA 342, where the publication in question was a case summary prepared by Mr Luxford, a solicitor, for publication in his firm’s newsletter (“Hicksons Transport Trade and Energy E-Bulletin”). The matter complained of reported the successful conclusion of proceedings brought by Mr Luxford’s client, which resulted in a default judgment for USD 2,483,296.25, with costs. The respondent company subsequently went into administration. Mr Luxford’s client also recovered judgment against Mr Thomson for $509,771.10 and 80% of its costs. It was a substantial win for Mr Luxford’s client, based upon compelling evidence. However, notwithstanding having lost the case so comprehensively, Mr Thomson brought proceedings for defamation and for misleading or deceptive conduct for asserted discrepancies in terms of the reporting of the proceedings.

40. The respondent brought an application for summary dismissal under s 31A of the Federal Court Act, asserting, inter alia, that the case summary accurately reported the facts of the case. Mr A Morris QC, for the applicant, submitted that allegations of fraud and forgery did not accurately match the contents of the judgment.

41. Dowsett J granted the application to strike out for all but one of the claims, citing and applying the same passages from Spencer v Commonwealth of Australia (2010) 241 CLR 118 as those cited by Katzmann J in Massarani v Kriz at [102] – [104]. There were, however, sufficient facts in dispute for the one remaining claim to proceed (at [39]). Notwithstanding the lack of merit of the rest of the claim, there was no consideration by the court of issues of proportionality arising from the otherwise overwhelming material adverse to the applicant, or of the need for finality in litigation, or of the unlikelihood that the plaintiff would achieve the costs threshold of $100,000 for actions brought in the Federal Court.

42. However, Dowsett J’s careful analysis of s 31A shows that it is possible to strike out claims under s 31A. As to proportionality issues, his Honour did not have the advantage of having the decision in Bleyer v Google Inc (2014) 88 NSWLR 670, which was not handed down until some months later.

43. The facts in Massarani v Kriz were similar. After the plaintiff unsuccessfully appealed the striking out of his proceedings for defamation (Massarani v Kriz [2020] NSWCA 252), he commenced proceedings against one of the defendants in those proceedings as well as a funding site which advertised that defendant’s donation site for the legal costs of “facing a court battle for an article she wrote 5 years ago sharing the story of a survivor of alleged sexual assault”. The applicant was not named and the extent of publication was very narrow. The respondents brought a summary dismissal application on the basis that there was no publication within time in any jurisdiction (including the jurisdiction necessary to found a cause of action), that the claim was brought for the dominant improper purpose of finding out who the “survivor” was, and that the claim was time-barred. In addition, it was argued, the very limited nature of the publication was such that proportionality principles should apply, not least because of the low likelihood of damages at a level appropriate for a claim in the Federal Court.

44. There is no reference by Katzmann J to Thomson v Luxford or to its more generous interpretation of s 31A but her Honour declined to dismiss the proceedings (this time, accepting them in their entirety). It was sufficient that there was publication to one person (albeit not in a jurisdiction giving the Federal Court power: cf Merrett v Marinakos & Anor [2019] FCCA 541) on the last day of the limitation period; it was reasonable for the applicant to want to know the identity of the source as it was relevant to aggravated damages; and there was a real prospect (given the applicant’s mental health problems) that the damages to be awarded would be more than trivial. The claim that leave was required was dismissed on the basis that the publication on which the original claim was based was not the “same, or like” (s 23 of the Defamation Act 2005 (NSW)). The proportionality argument was dismissed out of hand.

45. There are, however, other factors in these proceedings which may be relevant to a claim of abuse of process under UCPR r 13.4. First, while the plaintiff is entitled to act for herself, she has failed to comply with timetables and pleading rules and responded to reminders with allegations of conspiracy. The court should not disadvantage the other litigants by giving preferential treatment to such persons even though, in practical terms, this is often what happens where a litigant in person needs extra help. Recent decisions in courts around Australia have referred to the difficulties for the fairness of individual results where there is repeated failure to plead properly or to comply with timetables, particularly in defamation actions: Kalsbeek v Commonwealth [2018] WADC 79 at [11], Culleton v Kershaw (No 2) [2018] WASC 236 (passim); Morris v IMF Bentham Ltd [2018] FCA 1009 at [53] – [58], [106] and [127]. The court’s patience is not infinite. Any plaintiff, including a litigant in person, who fails to continue to comply with pleading rules does so at his or her peril, particularly where there is a pattern of repeated unsuccessful applications and proceedings.

46. Second, the increasing cost of defamation litigation means that, as Katzmann J acknowledged, costs regularly dwarf the damages awarded and have for some time been at a level which would financially destroy the average Australian adult; for an early example, see the comparative damages awards and legal costs cited in Lazarus v Azize [2015] ACTSC 344, where Mossop AsJ also noted the almost total absence of insurance. More recently, in the Federal Court, an interlocutory application in one defamation action resulted in assessed costs of $430,000, according to newspaper reports (it is hard to tell how common this is, as costs assessments results are rarely available online).

47. Then there is the strain placed on court costs and resources, which means that actions may take years to complete, even though it was always obvious they were hopeless. In Nyoni v Pharmacy Board (No 6) [2018] FCA 526, a comparatively minor defamation action, the claim took three years to complete and required a five-day trial; the litigant in person became bankrupt. There are unseen difficulties for courts as well, such as other litigants having their cases deferred and valuable but limited resources having to be diverted. Mr Senior draws my attention to the statement by Beach J in Knorr v CSIRO (No 3) [2012] VSC 529 at [28] to proceedings which “add pointlessly to the load on the Court’s already limited resources”.

48. Finally, there is the human factor. There will be children involved in this litigation, however tangentially, if leave to amend is granted, as the plaintiff herself acknowledged. The careful and wise words of Bell P (at [9]) in JE v Secretary, Department of Family and Community Services should be borne in mind.

49. The human cost of defamation litigation is significant, and not only in proceedings such as the present. For example, in Ajok v Mares [2010] NSWDC 62 a defendant in defamation proceedings (which also arose from care proceedings), when faced with an application for adjournment by an unready plaintiff, made a moving and tearful appeal to the court about the impact of that litigation on her life. There is little consideration of the human factor in defamation judgments in these modern times, although the judgments of distinguished defamation jurists of an earlier era (such as Levine J’s observations in Cumberland v Clarke (1995 – 6) 39 NSWLR 514 at 529) did include such issues. Levine J’s concern in Cumberland v Clarke about the need for protection of witnesses from subsequent defamation proceedings are, in the context of the apparent intentions of the plaintiff in these proceedings, particularly apt.

50. This kind of factor may not be considered important in large commercial matters, such as the defamation arising out of the Federal Court proceedings involving Mr Thomson and the corporation with which he was involved. However, in proceedings where the lives of ordinary Australians (such as the FACS clinician, the children of the plaintiff, or the family referred to in the estate claim) are likely to be impacted, factors of this kind, in my view, carry weight that should not be ignored.

Conclusions

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.

54. I invited submissions on costs. The first and second defendants submit that the plaintiff’s impecuniosity should not be a shield against costs orders. The fourth defendant also sought a costs order. The third defendant did not seek a costs order.

55. I agree that costs should follow the event. I will, however, not make any order for costs for the third defendant.

Order:

1. Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8, the name of the plaintiff is suppressed and replaced with the pseudonym adopted in this judgment.

2. Defendants’ notices of motion granted; pursuant to UCPR r 13.4 and r 14.28, these proceedings are struck out and dismissed.

3. Plaintiff pay first, second and fourth defendants’ costs.

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Decision last updated: 23 February 2022