Kelly v UNSW

Case •

[2025] NSWDC 24

•

20 February 2025

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Kelly v UNSW [2025] NSWDC 24
Hearing dates: 06 February 2025
Date of orders: 20 February 2025
Decision date: 20 February 2025
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   The plaintiff’s application for an extension of the limitation period to bring proceedings for defamation for the claims in paragraphs 25 – 29, 31 – 35 and 37 – 39 of the statement of claim is refused.

(2)   The plaintiff’s claims for defamation in paragraphs 25 – 29, 31 – 35 and 37 - 39 of the statement of claim against the first and third defendants are struck out and dismissed.

(3)   The plaintiff’s notice of motion filed on 18 December 2024 for default judgment is dismissed with costs and the plaintiff is stayed from making any further application for default judgment until such time as any of the defendants have failed to comply with court orders to file a defence by a particular date.

(4)   The plaintiff’s claim for the tort of intimidation (paragraphs 30 and 36 of the statement of claim) is struck out with leave to replead.

(5) The plaintiff’s amended statement of claim deleting the defamation claims and repleading the tort of intimidation claim is to be filed within 28 days and to be accompanied by a Statement of Particulars conformably with UCPR r 15.12.

(6)   These proceedings removed from the Defamation List and placed in the General List, with a return date of 7 March 2025 before the Judicial Registrar for a timetable, such timetable to include any orders for the filing of defences.

(7) Pursuant to UCPR r 42.20, the plaintiff is to pay the first and third defendants’ costs of this application and of the defamation proceedings.

Catchwords:

TORT – claims for defamation, assault and intimidation – application for summary dismissal of the defamation claims - whether a valid concerns notice was filed for the defamation claims – whether an extension of time should be granted for the claims, all of which were commenced more than 12 months after publication – all defamation claims struck out – remaining causes of action referred to the General List

Legislation Cited:

Defamation Act 2005 (NSW), ss 12A, 12B

Limitation Act 1969 (NSW), ss 14B, 63

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.7, 15.8, 15.12, 42.20

Cases Cited:

Bewry v Reed Elsevier UK Ltd (trading as LexisNexis) and another [2014] All ER (D) 361

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583

Doueihi v State of New South Wales (No 3) [2022] NSWSC 1403

Duraisamy v Sydney Trains [2019] NSWCA 269

Galam(BY Litigation Guardian Tichonova) v Shahin [2023] SASCA 27

Galam v Shahin [2023] HCASL 88

Gallo v Dawson (1990) 93 ALR 479

Gary Leech v John Silvester [2012] NSWSC 1367

Kelly v Davis [2022] NSWDC 352

Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70

Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1; [2021] FCAFC 37

Kelly v University of New South Wales [2022] NSWDC 392

Khan v Hassan (Ruling No 3) [2023] VCC 2243

Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822

Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76

Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385

McGuirk v University of New South Wales [2010] NSWCA 104

McKay v Paule [2022] ACTCA 72

Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259

Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537

Porter v Australian Broadcasting Corporation [2021] FCA 863

Reichel v McGrath (1889) 14 App Cas 665

Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198; [2001] NSWCA 142

Rock v Henderson [2021] NSWCA 155

Russell v S3@Raw Pty Ltd [2024] FCA 991

Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 88

Storry v Parkyn (Vexatious Proceedings Order) (2024) 304 FCR 318; [2024] FCAFC 100

Styles v Clayton Utz (No 3) [2011] NSWSC 1452

Surie v MacDonald [2024] QCA 254

Teh v Woodworth [2022] NSWDC 411

Uber BV v Howarth (2017) 94 NSWLR 636; [2017] NSWSC 54

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

White v Thompson [2011] NSWCA 161

Woolf v Brandt [2023] NSWCA 290

Texts Cited:

Nil

Category:Procedural rulings
Parties: Milton Kelly (Plaintiff)
UNSW (First Defendant)
MSS (Second Defendant)
Sarah Heesom (Third Defendant)
Representation:

Counsel:
T B Senior (First Defendant)
N G Olson (Third Defendant)

Solicitors:
Banki Haddock Fiora (First Defendant)
Wotton Kearney (Third Defendant)
File Number(s): 2024/00409022
Publication restriction: Nil

Judgment

The applications before the court

  1. The plaintiff brings proceedings for the following causes of action:

  1. Claims for defamation and “defamation with malice”, consisting of twelve claims against the first defendant for publications made between July 2019 and 8 June 2022 and one claim against the third defendant for a publication made on 26 August 2022.

  2. One claim of assault, battery and deprivation of liberty brought against the second defendant, a security company, after an incident which occurred in the Chancellery of the University of New South Wales on 11 March 2022.

  3. Two claims for intimidation brought against the first defendant for statements made in an employee’s correspondence to the plaintiff.

  1. The plaintiff makes a substantial claim for damages, in the form of an unparticularised claim for “injury to health” resulting in loss of earnings for the rest of the plaintiff’s adult life, as well as for aggravated damages.

  2. The first and third defendants bring applications for summary dismissal of:

  1. All twelve claims for defamation made against the first defendant in section B of the statement of claim (at paragraphs 25 - 27, 29, 31 - 35 and 37 – 39).

  2. The defamation claim brought against the third defendant, as set out at paragraph 28 of the statement of claim.

  3. The claim for intimidation made against the first defendant, as set out at paragraphs 30 and 36 of the statement of claim.

  1. The applications for summary dismissal of the claims for defamation and intimidation are brought on the following bases:

  1. The plaintiff is asserted to have failed to comply with the concerns notice procedure set out in s 12A of the Act, in relation to those of the publications made on or after 1 July 2021.

  2. The limitation period for the publications identified in paragraphs 37 – 39 has expired irrevocably pursuant to ss 14B and 63 of the Limitation Act 1969 (NSW), as more than three years have passed since publication.

  3. Time should not be extended to permit the plaintiff to bring any of the defamation claims out of time, whether the Act applies in its current form or (as is the case with the claim for the publication on 11 November 2020) under the previous legislation).

  4. An alternative claim by the third defendant that the defamation claim brought against her (paragraph 28 of the statement of claim) is an abuse of process (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 13.4).

  5. The claim for the tort of intimidation (paragraphs 30 and 36 of the statement of claim) does not plead the elements of the tort and should be struck out (UCPR r 14.28(1)).

  1. The plaintiff opposes the defendants’ applications and seeks orders as follows:

  1. He should be granted an extension of time for each of the 13 defamation actions set out in the statement of claim.

  2. If the claims for intimidation are bad in form, he should be entitled to replead them. (Mr Senior, on behalf of the first defendant, accepted that this was the appropriate relief, so the plaintiff’s acknowledgement of the need to replead is noted as the reason for the orders made for this claim.)

  1. Before examining the issues in relation to the challenged defamation claims, I first note a preliminary matter I raised with the parties, namely the need for service of a statement of particulars and orders for service of medical evidence. As the plaintiff is self-represented, I set out a brief description of what will be required.

A preliminary issue: particulars of the claims for injury to health and economic loss

  1. There are no particulars of any kind in the statement of claim for the claim of “injury to health”, economic loss, or aggravated damages (UCPR rr 15.7 and 15.8). As the plaintiff will have to file an amended statement of claim for other reasons, I indicated, during the hearing of this application, that any amended statement of claim must be accompanied by a separate document in the form of a Statement of Particulars (UCPR r 15.12) setting out injuries, ongoing disabilities, economic loss, home care and out of pocket expenses.

  2. I drew to the parties’ attention the observations of McCallum J of the desirability of such a course where a claim for psychiatric injury is the main claim: Styles v Clayton Utz (No 3) [2011] NSWSC 1452 at [221] – [222], noting that this could be, in circumstances such as the present, desirable for claims for defamation made at the same time: Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822 at [41] (see also Doueihi v State of New South Wales (No 3) [2022] NSWSC 1403 at [31]-[34).

  3. The plaintiff has now agreed to provide those particulars in relation to the intimidation claims and such defamation claims as survive this application.

  4. Although the second defendant did not formally take part in the applications before me, it is appropriate for the particularisation of damages to apply to that part of the claim as well.

The subject matter of the plaintiff’s claims

  1. The plaintiff was admitted to candidature in the Bachelor of Science degree in 2014. By Term 2 of 2021, he had completed 120 of the 144 units of credit required to complete the degree.

  2. From about 2019 onwards, the plaintiff has been the subject of complaints about his conduct on campus which resulted in findings after inquiries. The plaintiff says the university now accepts that he never assaulted, sexually or otherwise, anyone on campus, and that he should be entitled to bring proceedings for defamation for documents he has obtained under freedom of information legislation during the complaints process, documents which he says are defamatory of him. He particularly complains of a report prepared by the third defendant on 22 August 2022.

  3. The plaintiff has brought earlier defamation claims in relation to the allegations made that he harassed students on campus:

  1. Kelly v Davis [2022] NSWDC 352 (Abadee DCJ). This was an action commenced against two students who made posts about the plaintiff. The imputations pleaded for both matters complained of were found not to have been conveyed and judgment entered for the defendants. This claim has nothing to do with the plaintiff’s complaints about the defendants in these proceedings, but the fact that it was brought and proceeded to finality is relevant to the issue of the plaintiff’s knowledge of defamation law as well as of the requirements for pleadings and particulars in such claims.

  2. Kelly v University of New South Wales [2022] NSWDC 392 – Weber SC DCJ. This was a claim for defamation for two publications brought against both UNSW and the university security service it employs, arising out of the way in which the security staff dealt with claims of misconduct on campus by the plaintiff. There is some crossover between this claim and the current one, as two of the publications sued on in those proceedings are also the eleventh and twelfth matters complained of in these proceedings. Additionally, the tenth matter complained of was tendered (apparently in relation to extent of publication).

  1. In the course of dealing with UNSW about his dissatisfaction with the resolution of complaints the plaintiff says were false, the plaintiff had many dealings with university staff in terms of requests for documents. There were proceedings in NCAT between the first defendant and the plaintiff for some years.

  2. In the course of the complaints process and these court proceedings, the university objected to the contents and tone of the plaintiff’s correspondence to its employees. On 8 February 2022 the Director of UNSW Conduct and Integrity sent an email to the Student Conduct and Integrity Unit complaining of potential breaches of the Student Code of Conduct by his “rude, disrespectful, threatening and aggressive” conduct (Court Book p. 199). The plaintiff was notified of these allegations on 5 May 2022.

  3. The principal grounds of complaint were the plaintiff’s emails to university staff. Correspondence the subject of complaint included the following:

  1. An email to an employee on 8 August 2020: “You fucking piece of vile slutty lying shit.” (Court Book p. 200)

  2. An email to a legal practitioner in the UNSW Legal and Compliance Unit on 16 September 2021: “If you want documents then ASK FOR THE FUCKING DOCUMENTS. YOU DON’T NEED 2 MONTHS FOR THAT. Stop wasting my time. This is the last time I will tell you.” (Court Book p. 200). He sent a follow up email saying “Fucking answer me!” The plaintiff later apologised for his language.

  3. After a written warning about his language was sent on 20 October 2021, the plaintiff replied that he “dared” the university to expel him as “I can easily imagine a court ordering UNSW to re-admit me” and this would be “WILDLY wildly [sic] embarrassing” to UNSW (Court book p. 201).

  4. There was further correspondence in similar terms, in the course of which the plaintiff demanded that university staff be sacked and the student who falsely accused him be expelled. Following an email to a UNSW employee on 19 January 2022 saying “Fuck [name] and fuck UNSW admin” the plaintiff was sent a warning letter on 24 January 2022. The plaintiff’s reply commenced with the words “Oh fuck off”. (Court Book p. 204). He also wrote to the Dean and other university staff. On 27 January 2022, he was sent a letter restricting communications with university staff and he responded by saying that “defamation is criminal” and that a particular person “has been reported to NSW Police” (Court Book p. 205).

  1. Other behaviour the subject of complaint included the plaintiff’s visits to the campus. After further correspondence, the plaintiff went to the Chancellery reception area where the events the subject of the claim for assault occurred. There was a further encounter on 14 March 2022. On 16 March 2022 the plaintiff sent an angry email to over 50 university employees, using the name “Homer Simpson” and not his own name.

  2. After further correspondence and a further campus visit on 31 March 2022, the investigative process for the report prepared by the third defendant was commenced. Her report was sent to the first defendant’s employee, Ms Chan, on 26 August 2022. There was some further correspondence in 2023 following the provision of this report to the plaintiff, principally in the form of concerns notices which he sent up until October 2024.

  3. On 18 October 2024 the first defendant sent a request for particulars of a concerns notice dated 4 Ocober 2024. The plaintiff, who had already posted the statement of claim to the court and sought a court fee waiver, did not reply.

The relevant statutory provisions

  1. The legislative provisions of the Defamation Act 2005 (NSW), the Limitation Act 1969 (NSW) and the UCPR are as follows:

  1. Limitation: The limitation provision applicable to the publications made in July 2019 and on 11 November 2020 is the previous version of s 56A, which was in force until the amendments which took effect for publications made from 1 July 2021. The current legislative regime for limitation issues applies to the remaining publications for the first defendant and the sole defamation claim against the third defendant.

  2. Defamation: The provision applicable for the publications made in July 2019 and on 11 November 2020 is, similarly, that which was in force until the amendments which took effect for publications made from 1 July 2021. Again, the current legislative scheme applies to the remaining publications.

  1. The principal differences between these two statutory regimes are:

  1. Limitation: The “not reasonable test” for publications made prior to 1 July 2021 is a more difficult test to satisfy than the “just and reasonable” test under the legislation in its current form.

  2. Defamation: Concerns notices must be served in accordance with ss 12A and 12B of the Act. Both the concerns notice and any subsequently filed statement of claim must provide particulars of serious harm (as to which see s 10A).

  1. The circumstances in which claims may be struck out with leave to replead or alternatively summarily dismissed (UCPR rr 13.4 and/or 14.28) where there is an assertion of abuse of process have been the subject of extensive consideration in Rock v Henderson [2021] NSWCA 155 and Woolf v Brandt [2023] NSWCA 290.

  2. The relevant legal principles in relation to the tort of intimidation are largely settled: Uber BV v Howarth (2017) 94 NSWLR 636; [2017] NSWSC 54.

  3. An issue of res judicata may apply to one or more of the 2019 publications in paragraphs 38 – 39, in that proceedings relating to these claims appear to have been finalised: Kelly v University of New South Wales [2022] NSWDC 392. In view of my findings concerning the inability to extend the limitation period for these publications beyond three years, I have not made any finding to this effect.

Case management of this application

  1. The applications brought by the defendants are supported by two affidavits affirmed on 14 and 30 January 2025 by Caitlin Watson (for the third defendant) and by an affidavit sworn by Mr Bruce Burke on 4 February 2025 (for the first defendant).

  2. The timetable for these proceedings enabled the plaintiff to bring an application for an extension of time to commence proceedings. As is noted by the first defendant (at paragraph 24 of its submissions), I drew the need to bring such an application to the plaintiff’s attention at the directions hearing on 19 December 2024, indicating that the limitation issue must be addressed at the hearing on 6 February 2025. I have treated his presentation as including an application for extension of time.

  3. The issues raised by these applications are complex. A Court Book and written submissions from both the first and third defendants were provided. The plaintiff, who is self-represented, has replied to some of the issues raised, principally by oral submissions but also in his email of 20 January 2025. The third defendant provided submissions in reply on 30 January 2025 and an affidavit containing supporting documentation. Oral submissions on 6 February 2025 occupied the whole day.

Which application should be heard first?

  1. The first issue for determination is the order in which the first and third defendants’ application should be considered. Should the limitation issues be dealt with first, or the concerns notice challenges?

  2. A similar issue arose in Teh v Woodworth [2022] NSWDC 411, where the plaintiff brought three causes of action, the first of which was for “numerous vexatious complaints to council” giving rise to slander “since 2013” (at [1.3]). The other two claims had similar limitation issues and in all three cases, the limitation period had expired under the previous legislation. Although not in the concerns notice, the statement of claim referred to a further publication, made within time and after 1 July 2021 (albeit in circumstances the equivalent to the Duke of Brunswick’s manservant (Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75]). This publication, and any publication identifiable in the “slander” campaign identified to be published after 1 July 2021, would require a concerns notice. There was very little information about the asserted publication to one person after 1 July 2021 and none at all about any similar publication in the “slander” claim but technically there could have been at least two publications. By reason of the savings provisions in the Schedule 4.2(2) to the Act, I considered I should first deal with the limitation issue before considering whether the failure to serve a concerns notice for any publication after 1 July 2021 rendered that claim invalid.

  1. No savings provisions are, however, relevant here, as the court may only extend the limitation period for up to three years, and the three claims based on 2019 publications, which could create savings provisions issues, are thus not actionable at all.

  2. In those circumstances, I propose to commence with a consideration of the s 12A issues.

Failure to comply with ss 12A and 12B of the Act

  1. Amendments to the Act coming into force on and from 1 July 2021 introduced a requirement for a plaintiff to give a concerns notice prior to the commencement of defamation proceedings.

  2. The plaintiff has attached four such documents to the statement of claim, with a handwritten note stating: “Concerns Notices x 4”.

The plaintiff’s concerns notices

  1. The first attachment to the statement of claim, dated 6 June 2023, is a text message addressed to the third defendant:

“Why was my complaint, which I made six times, that [redacted] was smoking, not investigated by you as you said you would do in an email to me?

If you refuse to answer you will get a formal complaint to the Law Society and you will be sued alongside UNSW in the districts [sic] court for defaming me as a violent criminal.

The result of your “investigation” is that I’ve been expelled and UNSW has sent out at least 180 messages stating as fact that I beat women.

What I saw that day was UNSW, yet again, letting a smoker walk away without action, after years of demanding action against smokers. I spent six months hooked up to machines in [sic] at st vincents [sic]. I fear for my life every time I have to walk through a cloud of poison. The girl wasn’t even a student. She used the computers to run internet sales scams. She’d done it for years.

You’ve destroyed my future that I struggled through decades of depression and cancer for.

I plead to you as a human being to help me.”

(Court Book p. 17).

  1. I suspect the plaintiff has attached the wrong document, so I have set out below, under the heading “Other concerns notices”, a separate consideration of other “concerns notices” he sent.

  2. The second document the plaintiff attaches, dated 18 August 2023, is headed “Concerns notice to unsw, mss [the second defendant], Sarah Heesom”:

“Immediately delete all claims and/or implications that I committed assault and/all made any threat/s. This includes emails, hardcopy documents, titles of emails, everything. EVERYTHING.

I’m not referring to just the ones I know about. I’m not referring to just the ones mentioned in the recent NCAT case. I’m referring to all of them. ALL.

You will not lead even a single file at unsw, mss or with Sara Heesoms [sic] firm or with sparke helmore [sic] that states or implies these things.

Apologise to me for the above claims which were made by unsw staff, Sarah Heesom and guards.

If you don’t, you’ll go to court.

This is your concerns notice.”

(Court Book p. 19)

  1. The third document the plaintiff attaches, dated 20 June 2023, is addressed to the first defendant only:

“If you refuse to respond I’m going to sue you.

Your advice to unsw that I committed assault and made threats (they’ve directly stated repeatedly that I “threatened staff”) and this appears to come from your statements to them, constitutes criminal defamation.

This is your concerns notice.

Apologise, reverse the UNSW decision or I will force you to appear in the District Court.

You have 6 hours.”

(Court Book p. 21)

  1. The fourth document, headed “Concerns Notice” and sent on 4 October 2024, is a text message addressed to “Paul, Penny, Sarah” and states:

“Your publication of false accusations of assault and threats against me has destroyed my future.

Immediately delete all claims and/or implications that I committed assault and/all made any threats. This includes emails, hardcopy documents, titles of emails, everything. EVERYTHING.

I’m not referring to just the ones I know about. I’m not referring to just the ones mentioned in the recent NCAT case. I’m referring to all of them, including those who managed to keep secret in the NCAT case. ALL.

Send me a copy of each one before you delete them.

You will not lead even a single document anywhere that states or implies any of these things.

Apologise to me for the above claims which were made by unsw staff, Sarah Heesom and guards.

Reinstate me as a student.

Delete all my fail grades since July 2019, which is when you started causing these problems.

You have 28 days.

If you don’t, you’ll go to court.

This is your concerns notice”

(Court Book p. 23)

Other concerns notices

  1. Although not attached to the statement of claim, the plaintiff sent a follow-up message approximately half an hour later on 4 October 2024, stating:

“Actually you’ve been informed of all these elements of a valid concerns notice many times before 28 days ago so it won’t be that long.”

  1. The plaintiff sent other concerns notices which he did not attach to the statement of claim. It was clear from the terms of his response that he would start proceedings unless his concerns notice was complied with. Nevertheless, he did not identify the publications by date, subject matter or addressee(s).

  2. One such publication is the following:

“These communications are defamatory. There was no assault and I have not made any threats, hence there was no threatening behaviour.

The rampant and continual false claims that I’ve committed assault will stop

My offer is that you sack Bronwyn Greene immediately, apologise, and pay me 10,000 dollars per offence.

This is your concerns notice.

If you don’t respond by the end of the week you’ll be sued.

I’m also asking for a review of the decisions to make these statements about me If you don’t respond by sacking Bronwyn Greene, apologising and deleting all such documents the IPC will be contacted at the end of the week and then NCAT I noticed that Bronwyn Greene even complained about my complaints which were about smoking etc. It seems to be a joke to UNSW that make legitimate complaints which get ignored and then punished.”

The further particulars notice

  1. On 18 October 2024, the first defendant sent the plaintiff a further particulars notice under s 12A(3) of the Act. That letter set out the plaintiff’s failure to particularise any of the information required by ss 12A(1)(a)(ii)-(iv) or to include copies of the matters complained of. The specific request included details of publication and of serious harm, as well as copies of the documents referred to.

  2. Not only did the plaintiff fail to supply the information sought, but he made good his threat to reduce the 28-day period by preparing a document headed “statement of claim 4 October 2024” which the District Court registry stamped as “received by mail” on 23 October. The plaintiff made a fee waiver application on 10 October 2024 which was not determined until 4 November 2024. It is unclear when the defendants were served, but it appears to have been within the 28-day period.

Asserted defects in the concerns notices

  1. Mr Senior and Mr Olson draw my attention to the following failures to comply:

  1. The notice appears to be directed to a vast array of documents, namely every document in the first and third defendants’ possession. The only publication specifically identified is the third defendant’s report. Copies of the matters complained of are not attached to the concerns notice or otherwise identified (s 12A(1)(b)).

  2. No imputations have been pleaded (s 12A(1)(iii)).

  3. No address for inspection is provided (s 12A(1)(ii)). A right to inspection presumes that the matter complained of has been identified, and the failure to do so would thus fall within this requirement.

  4. No particulars of serious harm have been pleaded (or particularised) (S 12A(1)(iv)). The email of 4 October 2024 does, however, state that the defendants’ “publications of false accusations and threats against me has destroyed my future” but the publications in question are not identified. As noted in (a) above, the plaintiff calls for the deletion of “all claims and/or implications that I committed assault” contained in “emails, hard copy documents, titles of emails, everything. EVERYTHING.”

  5. There was no answer to the first defendant’s further particulars notice (s 12A(4)). No such notice was, however, sent by the third defendant.

  1. The concerns notices seek relief which the plaintiff could not obtain from defamation proceedings. As the texts of the concerns notices confirm, while the plaintiff said he wanted an apology and at times referred to financial compensation, the relief he really wanted was:

  1. He wanted his failing grades from 2019 to be removed from his academic record.

  2. He wanted named university staff to be sacked.

  3. He wanted the student(s) whose complaints about him had been the subject of investigation to be expelled.

  4. He wanted an unspecified but comprehensive amount of documentation deleted, including the files kept by the university, as well the files created by the third defendant (which, given the third defendant’s role as the first defendant’s solicitor, could only be done with the permission of her client).

  1. Clearly the second and third defendants could not have complied with these requests; only the first defendant could do so.

  2. The second defendant was not sued for defamation, but it was nevertheless made a party to the concerns notices. Despite their inclusion as a recipient of these, it is unclear whether the settlement proposed by the plaintiff included the assault charge he brought against the second defendant.

Is there a valid concerns notice?

  1. The plaintiff sent other concerns notices, and he sent some notices more than once (one concerns notice was sent to the third defendant 61 times). None of them, however, identified the matters complained of with any precision (apart from the third defendant’s report).

  2. The manner in which concerns notices were sent by the plaintiff raise issues that have not been considered in relation to s 12A before:

  1. When a further concerns notice is sent, can the earlier notice(s) still be relied upon? For example, the plaintiff did give 28 days in his first email of 4 October 2024 (which would require a result by 28 October) but, later that same day, wrote saying that, because he had sent “valid” concerns notices before, they would not get “that long”. He then commenced proceedings in less than 28 days without further notice. Is either of these a valid notice?

  2. Can a proposal for settlement of defamation proceedings be considered a valid concerns notice if it demands the taking of steps falling outside the remedies available in defamation, such as having other students expelled, changing examination results from ‘fail’ to ‘pass’ and/or sacking employees?

  1. The offer of amends process is a statutory process, not a contractual arrangement between the parties (Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 at [86], [89] and [104] – [110]) but there may well be reasons why the interpretation of concerns notices would take into account whether an offer could be identified at all, or was invalidated by reason of its contents.

  2. I do not consider that I should address these problems here. This is because the real problem is that none of the plaintiff’s concerns notice make a coherent proposal of any kind. It is not only the identification of the publications sued on that is an issue; the remedies the plaintiff seeks are equally difficult to identify. There are generalised references of an apology (although their contents and the persons to whom these should be published are not identified) but the sole attempt to put any proposed damages sum before the defendants is to ask for $10,000 for each publication but without saying how many they are. Instead, what the plaintiff seeks is a result well outside the parameters of any defamation claim, namely changing his fails to passes, sacking of staff, expulsion of a student and the destruction of all records.

  3. Nor is there any attempt to differentiate between the defendants; obviously, the security company and third defendant cannot make changes to academic records or expunge university findings.

  4. However, looking at the situation at its highest in favour of the plaintiff, inaction by the recipient would not rob even an incoherent offer of its status in the legislative framework, particularly if the generous approach taken by McElwaine J in Cooper v Nine Entertainment Co Pty Ltd were taken. In the face of such a difficulty it would not be enough to say the request was incomprehensible and the concerns notice thereby invalid. For the reasons set out in Nationwide News Pty Ltd v Vass, a concerns notice retains its status because there is a statutory provision.

  5. There is, however, a statutory provision (s 12A(3)), for the seeking of particulars. The proper step to take was that taken by the first defendant, namely seeking clarification by sending a further particulars notice.

The request for particulars

  1. A further particulars notice under s 12A(3) of the Act extends the 28-day period. No proceedings can be commenced until the request was answered.

  2. No response was received. In fact, the statement of claim was prepared on the same day as the second and third emails, and then filed by post.

  3. I am satisfied, on the basis of the plaintiff’s failure to answer the request for further particulars, that he has not served a valid concerns notice at all, for any of the publications the first defendant is sued upon.

  4. The result is that the statement of claim has been filed in circumstances where no concerns notice has been sent, and it must be struck out on this basis.

  5. This finding does not apply to the third defendant, because the third defendant did not send a further particulars notice. The findings I propose to make about the invalidity of the concerns notice on other grounds (the principal basis of the claim brought against the third defendant) would also apply, as alternative findings, in relation to the first defendant if I have erred in holding that failure to answer the request for particulars invalidated the concerns notices. Notwithstanding the observations of McElwaine J, I consider that, where a concerns notice is so manifestly inadequate, as is the case here, a recipient should be entitled to ignore it: Russell v S3@Raw Pty Ltd [2024] FCA 991 at [70] and [76].

Failure to comply with the concerns notice procedure.

  1. The first and third defendants both submit that the concerns notices are defective for the following reasons:

  1. The publications asserted to be defamatory are simply not identified, in relation to both of these defendants. There is reference to a wide range of correspondence, verbal inquiries and the like in relation to the third defendant.

  2. None of the concerns notices identify the imputations pleaded to arise or give any indication of the asserted defamatory matter. The plaintiff does refer to what he calls “claims and/or implications”, false accusations of assault and threats, but in general terms.

  3. There is no identification of serious harm in the concerns notices. There are statements by the plaintiff that his life has been destroyed by being expelled from university, and that he can never work again because of his injury to health as a result, Causation is an important element in serious harm, and the plaintiff’s particulars need to identify, even if only in a general way, the defamatory publication and the injury caused.

  1. The complaints about the validity of the concerns notices in these proceedings are very similar to those made in Teh v Woodworth. This judgment was referred to in Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583 in relation to “technical” complaints in concerns notices and criticised on this basis in Russell v S3@Raw Pty Ltd [2024] at [70] and [76] (see also Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd [2024] QDC 88 at [38]).

  2. In Teh v Woodworth, the concerns notice not only failed to refer to any post-1 July 2021 publications at all, but failed to identify, even in the statement of claim, what publications were made during the defendants’ asserted saga of slander “since 2013”. Here, as in Teh v Woodworth, there are concerns notices which wholly fail to identify what are clearly multiple publications, no connection between those publications and serious harm, no imputations and no information about the extent of publication. I do not consider it as being unduly technical to take the view that the provisions of s 12A had not been complied with for any of the publications to which it applies.

  3. Accordingly, the claims for defamation in the statement of claim should be struck out in relation to each of the first and third defendants on the basis that there has been failure to comply with the requirements for a concerns notice under s 12A of the Act.

Whether the limitation period should be extended

  1. The plaintiff’s principal argument in relation to an extension of time is that he did not obtain the matters complained of until the limitation period expired. He asserts, in the statement of claim, that “many” of these emails were not made available to him until December 2023 and “some” not until July 2024 (paragraph 23). He does not complain that any of the matters complained of have not been provided to him at all.

  2. The first step must be to analyse when it can be established, from the evidence of all parties, that each of the matters complained of came to the plaintiff’s attention.

  3. As to the first defendant, the twelve publications dated between July 2019 and 8 February 2022 identified in the statement of claim fall into three categories: those for which no leave can be granted, those for which the “not reasonable” test applies and those for which the “just and reasonable” test applies.

  4. The sole claim against the third defendant is for the report of 26 August 2022, which requires to be considered under the current “just and reasonable” limitation provisions.

The publications in paragraphs 37, 38 and 39 of the statement of claim

  1. These three publications, made in July 2019 and thus more than three years ago, cannot come within a limitation period even if an extension were to be granted, and should be struck out on that basis alone.

  2. The additional reason for striking out these three publications is their use in proceedings the plaintiff commenced against the first and second defendants in this Court in 2021; two were the matters complained of and one was tendered on publication issues.

The publication in paragraph 31 of the statement of claim

  1. The publication made on 11 November 2020 requires consideration of the “not reasonable” test under s 56A. Previously considered to be a difficult one to satisfy, the test has been considerably watered down in Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1; [2021] FCAFC 37 at [49] – [59] and Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76 at [73].

  2. The plaintiff has not attached this matter complained of to the concerns notice or the statement of claim, but he has described it in paragraph 34 as being a statement in writing by one employee of the defendant to another stating that the plaintiff’s behaviour is “threatening”.

  3. The plaintiff’s explanation for not commencing proceedings earlier in relation to this publication, as indeed for all others, is that he had difficulty obtaining documentation and that he could not commence proceedings until he had obtained the documentation he required.

  4. Although the publication made on 11 November 2020 was not provided to him until 27 June 2023 (affidavit of Mr Burke, paragraphs 20 and 21), the plaintiff had, on 24 June 2021, commenced defamation proceedings against the first and second defendants which resulted in a judgment on 15 August 2022. Although the plaintiff received this document (as well as matters 6, 7, 8 and 9) after judgment was handed down, namely on 27 June 2023, he was well aware of his entitlement to commence proceedings for defamation for each of them.

  1. Despite his familiarity with defamation proceedings from the prior two cases he had run, the plaintiff took no steps to commence proceedings.

  2. Even on the more generous test identified by the Full Court of the Federal Court of Australia, there must be some evidentiary material upon which the court can determine whether it was not reasonable for the plaintiff not to have commenced proceedings. In the absence of such material, the test to extend the limitation period cannot be made out. No extension of time should be granted in relation to the fifth matter complained of.

The test for the remaining publications

  1. These publications require consideration of the principles for extension of time under s 56A(2) – (3) of the Limitation Act 1969 (NSW).

  2. It is now more than 20 years since the limitation period for defamation was reduced from six years to one year in certain states such as New South Wales. The one-year limitation period was extended to apply Australia-wide when the uniform legislation was enacted.

  3. As Mr Olson sets out in his submissions, the initially strict test (Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [67]) has now been liberalised to a test of what is “just and reasonable” (s 56A(2), with a checklist in s 56A(3)). Unfortunately, as Mr Olson goes on to note at paragraph 6 of his submissions, there has been little judicial consideration of s 56A. There has been prognostication in Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385 at [6] – [9], which is helpful but not conclusive. There was an application where the issue was deferred: Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70.

  4. There is as yet no appellate consideration as the issue was not considered in McKay v Paule [2022] ACTCA 72. This was also the case in Surie v MacDonald [2024] QCA 254 at [35] – [46], where the trial judge’s finding that the matter complained of did not require any extension of time was upheld There has, however, been consideration at District and County court level (see for example Khan v Hassan (Ruling No 3) [2023] VCC 2243).

  5. In summary, the new test is more liberal. The term “just and reasonable”, which also appears in s 12B(3)(b) of the Act, is one which is interpreted broadly. Under both tests, examples of conduct of concern include the nature and extent of the delay, and such delay must be viewed in the context of the one-year time period in which defamation actions must be brought. The principal change is the language of the new test. While the factors relevant to the court’s discretion are likely to remain similar to factors considered under the repealed legislation (such as ill health, criminal proceedings or unawareness of the publication), the more generous test of what is “just and reasonable” replaces a test that was often criticised as being too harsh.

  6. Extreme delay may amount to abuse of process: Galam (BY Litigation Guardian Tichonova) v Shahin [2023] SASCA 27 at [9]; application for leave to appeal dismissed: Galam v Shahin [2023] HCASL 88. The acknowledged impact of delay on serious harm may result in courts taking a stricter approach with actions to which the amending legislation applies, even though the “just and reasonable” test is more generous, but there is as yet no superior court consideration of this possibility.

The publications in question

  1. In relation to the first defendant, there are six publications made between 27 January 2022 and 29 September 2022. In relation to the third defendant, there is one publication dated 26 August 2022. All of these publications must be considered under the limitation proceedings applicable to publications after 1 July 2021.

  2. In his email of 20 January 2025, as supplemented by oral submissions, the plaintiff has put forward the following explanations:

  1. He was not able to obtain copies of the matters complained of, despite making “hundreds of demands” for these.

  2. He is not a lawyer and has not had advice from a lawyer.

  3. He has sent “literally hundreds of demands” for documents and “mentioned suing over them many times”, as well as adding the words “concerns notice” to much of this correspondence, but “almost all” were “ignored”. The documents were only produced after the first defendant was ordered to produce them in NCAT proceedings.

  4. “I did not sue before now because the DC [registry] has continually rejected my multiple attempts to lodge, including on 11 Nov 2022, which was well inside the time limit. The DC registry accepted my lodgement only recently.”

  5. He needed to wait for NCAT cases to be resolved before he could sue for defamation.

  1. Although I have made findings rejecting the claims for publications 5, 10, 11 and 12 for the reasons set out above, it is still helpful to look at when all these publications were sent to the plaintiff, as it paints a more accurate picture.

MCO

SOC

Burke Affidavit

1

[25]

A copy of this document, dated 8 February 2022, was provided to the plaintiff as Attachment 1 to the Report sent to him by email on 29 September 2022. The limitation period expired on 7 February 2023.

[13] – [15]

Tab 3 of Exhibit BNB-1

2

[26]

This document does not appear to have been provided to the plaintiff but is referred to on pp 2-3 of the Report sent to him by email on 29 September 2022. The limitation period would have expired on 16 February 2023.

[16], [17]

Tab 3

3

[27]

No record of such a publication. The limitation period would expire on 16 February 2023 if the date is correct.

[18]

4

[29]

No record of such a publication. The limitation period would expire on 28 September 2023 if the date of publication is correct.

[19]

5

[31]

A copy of this document, dated 11 November 2020, was provided to the plaintiff on 27 June 2023. Plaintiff sent a “concerns notice” the same day. The limitation period expired on 10 November 2021.

[20], [21(b)], [22]

Tab 4

6

[32]

A copy of this document, dated 27 January 2022, was provided to the plaintiff on 27 June 2023. The limitation period expired on 26 January 2023.

[20], [21(c)]

Tab 4

7

[33]

A copy of this document, dated 8 June 2022, was provided to the plaintiff on 27 June 2023. Plaintiff sent a “concerns notice” the same day.

[20], [21(d)], [22]

Tab 4

8

[34]

A copy of this document, dated 27 January 2022, was provided to the plaintiff on 27 June 2023. Plaintiff sent a “concerns notice” the same day.

[20], [21(e)], [22]

Tab 4

9

[35]

A copy was provided to the plaintiff on 27 June 2023. Same publication as MCO 1 (except redacted).

[20], [21(a)]

Tab 4

10

[37]

A copy of this document, dated 22 July 2019, was provided to the plaintiff on 27 September 2019. Tendered in 2022 Proceedings as Exhibit #P5.

[6], [7]

Tab 1

11

[38]

A copy of this document, dated 22 July 2019, was provided to the plaintiff on 19 December 2019. MCO 1 and tendered in 2022 Proceedings as Exhibit #P2.

[10] – [12]

Tab 2

12

[39]

A copy of this document, published in July 2019, was provided to the plaintiff on 27 September 2019. MCO 2 and tendered in 2022 Proceedings as Exhibit #P1.

[6], [8], [9]

Tab 1

  1. In the course of oral submissions, the precise date when each publication was provided to the plaintiff was carefully analysed and the above list, which was put before him for consideration, was agreed by him to reflect the dates on which he received these documents. Apart from documents 3 and 4, which cannot be located by the first defendant or the plaintiff, the plaintiff accepts that he has had all of these documents in his possession since the dates listed above (except document 2), which is relevant to s 56A(3)(b). No submissions were made about document 2 being sought and/or refused.

The claim against the third defendant

  1. The plaintiff has agreed, in the course of oral submissions, that he has had the matter complained of, namely the report of Ms Heesom, since 29 September 2022 (affidavit of Ms Watson affirmed 30 January 2025, pp. 4 – 118).

Conclusions concerning availability of documentation

  1. Where a party does not have documentation, that is a compelling argument for extension of time, both under the previous and current statutory regimes: Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 at [21] and [65].

  2. The plaintiff points to documents 2, 3 and 4 in the list as being documents he does not have. He never asked the first defendant to provide them. The first defendant cannot find documents 3 and 4. The plaintiff thought he might have had them at one stage but was unsure. Nevertheless, if their contents were of concern, it was open to the plaintiff to commence proceedings and to provide such information about these documents as was in his possession. He did not have to physically possess a copy of the document in order to commence defamation proceedings.

  3. The plaintiff’s explanation for not commencing proceedings once he had such documents in his possession must next be examined (s 56A(b)(ii). Essentially, that explanation is that he is not a lawyer and should be given leniency and secondly that this is the fault of the District Court, because his attempts to file a statement of claim in the registry were rejected.

No lawyer or legal advice

  1. The plaintiff’s claim that, as a layman, he did not understand how to draft imputations or pleadings or attach the matters complained of, is disingenuous. Since 2020 he has conducted a series of defamation actions in this court, two of which proceeded to judgment. Case management of those claims included referring the plaintiff for pro bono advice as well as case management judgments concerning pleadings and particulars, as Abadee DCJ noted in Kelly v Davis at [9] – [13].

  2. The plaintiff claimed his lack of legal knowledge meant that he did not understand how to plead imputations or that it was necessary to attach the matters complained of. He had had no such difficulties in the two actions which went all the way to judgment.

  3. This is not the plaintiff’s first encounter with the legal system. He is an experienced self-represented litigant who, in addition to preparing and presenting defamation actions in this court, has represented himself in other courts, such as the NCAT, over the past five years.

  4. The plaintiff’s status as a litigant in person is not a licence to ignore or flout principles of justice such as limitation rules: Gallo v Dawson (1990) 93 ALR 479 at [3]. In Duraisamy v Sydney Trains [2019] NSWCA 269 at [25], Bell P (as the Chief Justice then was) stated:

“I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

“The absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

  1. The plaintiff’s claims of being disadvantaged by his lack of legal knowledge or access to advice should not be accepted. He is well able to bring applications, draft pleadings (and imputations) and have matters listed for case management and argument, as well as to conduct not only interlocutory applications (Kelly v University of New South Wales; Kelly v Davis, District Court of NSW, Gibson DCJ, 14 October 2021) but also hearings.

  2. This explanation for delay is not accepted.

Earlier attempts to commence proceedings.

  1. The plaintiff says that the court registry “continually” rejected attempts by him to lodge documents. He refers to having had attempts to lodge a statement of claim on 11 December 2022 and again in February 2024.

  2. Screenshots provided by the third defendant confirm that documents were sent to the registry on 11 November 2022, which were sent to the Judicial Registrar to consider whether these should be accepted for filing (Exhibit CW-2 pp. 280 – 283).

  3. The plaintiff made two prior attempts to file a statement of claim, first on 11 November 2022 and then on 9 February 2024. The text of that document is not available, but there is some information in the email sent by the Judicial Registrar (Court Book p. 464), namely:

“The deficiencies include:

1. Paragraphs 7 and 8 in two sentences appear to attempt to raise a cause of action in negligence.

2. Paragraphs 9 and 10 in two sentences appear to attempt to raise a second cause of action in negligence.

Paragraphs 11 and 12 in two sentences appear to raise a cause of action in defamation, without identifying the matter complained of at all.

Paragraphs 13 and 14 in two sentences assert “bullying” which is not a recognisable cause of action.

Paragraphs 15, 16 and 17 in three sentences attempt to raise a cause of action in [the rest of this text message is cut off].”

  1. It is self-evident from this description that not only is the proposed pleading deficient, but it is clearly a very different document from the statement of claim in its current form. Only one defamation action is referred to and the matter complained of was unidentifiable from the “two sentences” setting out the cause of action.

  2. Although the rest of the Judicial Registrar’s advice to the plaintiff is not produced, I infer it contained similarly precise and helpful advice to ensure that the claim was drafted properly. The plaintiff, however, did nothing for a year. On 10 December 2023, the plaintiff contacted the Judicial Registrar and complained that he had “lodged my District Court case a while ago” (Court Book p. 463; the rest of this message is missing). The Judicial Registrar replied:

“I have asked if the Registry has received a copy of any documents you have lodged, but they are unable to confirm if that is the case.

I have not received any to review.

You may wish to re-lodge.” (Court Book p. 463)

  1. A further statement of claim was forwarded by mail to the Registry on 9 February 2024. In his reply of 19 February 2024, the Judicial Registrar stated that this document “cannot be accepted for filing”, for “a number of reasons”. He noted that paragraphs 1 – 22 were “able to be understood as raising an allegation of the intentional tort of assault and/or false imprisonment” but then stated:

“However, paragraphs 23 onwards continue, as per my previous emails to you about your previous claims lodged, to remain unable to be understood as complying with what is required by the Uniform Civil Procedure Rules 2005 (UCPR) for pleadings.” (Court Book p. 462)

  1. The rest of the Judicial Registrar’s response has not been provided, and there is no information as to whether this new claim includes a claim for defamation of any kind. The plaintiff told the court, in response to a request for these earlier drafts, that he cannot produce any earlier copy of the statement of claim which he sent to the Registry, or the missing parts of the correspondence.

  2. The plaintiff took no further action to re-lodge the claim until 4 October 2024, when the statement of claim in its current form was filed and the matter placed in the Defamation List. There is no explanation for any of the delays following the Judicial Registrar’s emails. There is no evidence that these previous versions of the statement of claim contained any of the defamation claims now pleaded, or that the same parties were sued.

  3. Courts are not obliged to accept a statement of claim which is hopeless on its face. This is because such cases put a heavy burden on the court as well as the parties: Storry v Parkyn (Vexatious Proceedings Order) (2024) 304 FCR 318; [2024] FCAFC 100 at [2] – [6].

  4. The Court Registry is entitled to reject documents that do not comply with the UCPR. Although only portions of the Judicial Registrar’s correspondence were tendered, it is clear from those portions that can be read that the statement of claim failed to comply with UCPR rr 14.30(2)(a) – (c) as well as failing to attach the matters complained of and concerns notices. This explanation for delay in commencement of these proceedings is therefore rejected.

Awaiting the outcome at NCAT

  1. The plaintiff was not advised to wait until other proceedings were over (Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76; 305 FCR 246) and there is no suggestion that the NCAT proceedings required to be concluded before he could commence proceedings. He already had the matters complained of in his possession by 27 June 2023 (and, in the case of the claim against the third defendant, by 29 September 2022).

  2. There was no need for him to wait until these proceedings were over. What is more, he had brought and prosecuted a previous claim in very similar terms against the first defendant during some of this time.

  3. This explanation for delay is rejected.

Factors under s 56A(3)(c)

  1. There is no requirement to suffer actual prejudice: Khan v Hassan at [81]. Damage of a presumptive nature may still be claimed, as delay in litigation is generally accepted as being likely to lead to evidence being unavailable (such as the two matters complained of that neither party can locate) or less cogent, as memories dim.

  2. Can a plaintiff, particularly one who is self-represented, claim lack of knowledge of there being a one-year limitation period? Some caution must be exercised when considering English authorities, but I note that in Bewry v Reed Elsevier UK Ltd (trading as LexisNexis) and another [2014] All ER (D) 361 at [36], the Court of Appeal held that a claimant was expected to pursue a defamation action promptly “irrespective of the limitation period and whether he knows about it” for the simple reason that not to do so was inconsistent with the genuine wish to pursue vindication of character promptly and vigorously, which is what was required by the law.

  3. I do not consider that it must be established that the plaintiff was aware of there being a one-year limitation period but if it were necessary, I would take into account the considerable knowledge accrued by the plaintiff of the law of defamation during the time that he has conducted two previous defamation actions to finality in this court.

Conclusions concerning limitation issues

  1. The discretion to extend the limitation period for defamation claims where the test is “just and reasonable” is broad but is nevertheless confined by the duty to act judicially and by the purposes for which the Limitation Act was enacted, including the context of legislative policy favouring the prompt resolution of defamation disputes.

  2. The onus of establishing that the extension of the limitation period is just and reasonable lies on the plaintiff. For the reasons set out above, the plaintiff has not discharged that onus.

  3. The limitation period should not therefore be extended in relation to the publications to which s 56A, in its present form, applies.

Abuse of process

  1. The third defendant brings an additional claim of abuse of process in the event that the other two bases for dismissing the proceedings against her are not made out. This is an application pursuant to UCPR r 13.4(1)(c) for the proceedings to be dismissed or permanently stayed as an abuse of process. It is brought on the basis that the plaintiff’s dominant purpose in bringing this proceeding is not to vindicate his reputation but to put pressure on the third defendant to destroy documents including her files in these proceedings as well as to reverse the University’s decision to expel the plaintiff and to have his failing grades set aside.

  2. Any finding of abuse of process is a serious matter and the party seeking a permanent stay bears a heavy onus: Rock v Henderson [2021] NSWCA 155 at [2] and [37].

  1. As is set out in the affidavit of Ms Watson (Court Book p. 75 ff), the third defendant was retained by the University of New South Wales to investigate conduct by the plaintiff that may amount to a breach of the student code of conduct and constitutes student misconduct. There had been an allegation of assault made against the plaintiff in July 2019; following this, allegations were made by other students on social media in June 2020 to the effect that the plaintiff was a “local uni predator” and a “pedo”. As the plaintiff has set out in the statement of claim, the events and issues raised in these proceedings stem from those incidents. Those are not the incidents investigated by the first defendant; she was investigating complaints about his ongoing spoken and written communications to university staff members in the course of complaints he had made and proceedings he had commenced in relation to these events in 2019. However the plaintiff says, and I accept, that the University’s subsequent investigation of his conduct does have a relation back to the initial 2019 allegations and disciplinary proceedings.

  2. The third defendant provided the plaintiff opportunities to review consider and respond to the allegations made and to the contents of the draft report. The plaintiff told her on 26 July 2022 that he would not apply because your report means nothing (Court Book p.187) and, when the first defendant indicated she would finalise the report without further information from him, replied saying:

“No point my responding. You ignore me anyway. You’ll do what you want regardless of evidence or argument.

Bronwyn Greene falsely spread claims I assaulted girls in [sic] certain staff. I have a video have [sic] the entire incidents where I supposedly made those threats.

Should be a fun trial.

I’ll call her as a witness and ask her what the threats were.

My prediction is [sic] should be sacked for repeatedly defaming a student and unsw will be forced to apologise for the campus ban.

What’s your prediction?” (Court Book p. 187).

  1. The plaintiff sent a second email saying that it was “weird how you people are such arrogant liars”, adding that “I guess that helps you get hired by other arrogant liars, huh” (Court Book p. 187). Having no further information from the plaintiff, the third defendant completed her report and provided it to the University.

  2. This was both rude and unnecessary, but it is not evidence of abuse of process. What is required is evidence of improper purpose by way of use of the proceedings. The third defendant submits that the threatening of the third defendant with defamation proceedings unless the decision that the first defendant had made to expel him was reversed, all files and documents deleted and his failing grades removed from his record going back to 2019, defamation proceedings would go ahead. These demands are set out in a series of concerns notices as follows:

  1. On 20 July 2023, before proceedings were commenced, the plaintiff demanded that the third defendant “apologise, reverse the UNSW decision or I will force you to appear in the District Court”.

  2. On 25 September 2023, the plaintiff demanded that the third defendant send all files to him “which are related in any way to the claim that I’m a criminal and/or committed a criminal act and/or had anything to do with an assault and/or made threats and/or behaved threateningly”. He went on to demand that he be re-enrolled as a student at the University and that all of his fail grades since 2019 should be nullified.

  3. On 18 August 2024, the plaintiff again demanded that all defendants, including the third defendant, immediately delete all claims that he committed an assault or made any threats.

  4. On 4 October 2024, the plaintiff repeated these demands including that he be reinstated as a student and that all of his fail grades since July 2019 be deleted.

  1. The third defendant submits that the whole claim against her, as is evidenced by the contents of these concerns notices, does not relate to vindicating the plaintiff’s reputation in relation to the report she prepared. The third defendant’s report was not concerned with any allegation that the plaintiff had committed any criminal act or assaulted anyone. It only related to complaints about the abusive language he used in emails and verbal encounters with the university staff in the circumstances in which she came onto university property when his access had been revoked.

  2. The third defendant also submits that demands for the delivery up and deletion of files as part of final relief in a defamation case is not relief that is appropriate for a defamation claim, particularly where the documentation in question was documentation belonging to a client where there were statutory obligations for its preservation. It is submitted that a court would not alter the deletion of documents as part of final relief in a defamation case.

  3. I do not accept either of these arguments. First, the concerns notices were more often than not addressed to all the defendants, in circumstances where the first defendant would have been in the position to reverse decisions about not allowing the plaintiff onto campus and/or reviewing his grades. Second, a request for the destruction of documents as part of a defamation settlement is perfectly possible: Porter v Australian Broadcasting Corporation [2021] FCA 863. Prior to the internet, orders were quite often sought for the pulping of offending books, pamphlets and the like (see, for example, Gary Leech v John Silvester [2012] NSWSC 1367). With the advent of the internet, such orders are increasingly commonly sought.

  4. One troubling issue in relation to the claim of abuse of process is what view should be taken of what is asserted to be a campaign of abuse that the plaintiff maintained against the third defendant in terms of insulting correspondence and harassing repetition of correspondence; for example, he sent her one particular concerns notice 61 times.

  5. Courts have generally not been sympathetic to parties complaining of this kind of behaviour. In McGuirk v University of New South Wales [2010] NSWCA 104, Young JA made it clear that the sending of a large volume of offensive messages by a litigant in person, while regrettable, did not constitute grounds for the making of orders to cease and desist. By analogy, I do not consider that such conduct, although distressing, is conduct warranting the dismissal of proceedings as an abuse of process.

  6. The purpose of defamation proceedings is to vindicate reputation. The loss of reputation is compensated by an award of damages. While there is evidence that the plaintiff had other hopes in terms of what he achieved from this litigation, I do not consider that the evidence of those hopes was sufficient to show that they were dominant, or that he resiled from his position that he had been defamed by the third defendant in the report he sues upon.

  7. Accordingly, the claim against the third defendant should not be struck out as an abuse of process.

  8. As to the first defendant, I note that, although not put as an abuse of process, the 10th, 11th and 12th matters complained of, which were tendered in the proceedings before Weber SC DCJ (although the 10th matter complained of seems to have been tendered on issues of publication only) could amount to abuse of process: Reichel v McGrath (1889) 14 App Cas 665 at 668. In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, Mason CJ, Deane and Dawson JJ said at 393:

"... proceedings before a court should be stayed as an abuse of process if, notwithstanding the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings."

  1. In Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198; [2001] NSWCA 142 at 201-202 [15]-[16], the Court of Appeal applied this principle in circumstances where it was held to be an abuse of process to seek to relitigate a matter which had already been the subject of proceedings (see also White v Thompson [2011] NSWCA 161). In view of my limitation and concerns notice rulings I will not make a formal finding.

  2. Nor do I consider it necessary to consider whether leave would be required under s 23 of the Act by reason of the similarity in imputations (if any had in fact been drafted) for the publications the subject of these proceedings with the imputation in the earlier defamation action between the plaintiff and first defendant.

The claim for intimidation

  1. In paragraphs 30 and 36 of the statement of claim, the plaintiff has made what appears to be a claim for the tort of intimidation, as opposed to a claim for defamation. These publications could not, of course, be the subject of a claim for defamation as they are publications to the plaintiff and not to a third party.

  2. The elements of the tort of intimidation are set out by Slattery J in Uber BV v Howarth at [123]. Both paragraphs 30 and 36 fail to comply with these pleading requirements.

  3. Mr Senior notes that these defects were pointed out to the plaintiff in the further particulars notice dated 3 December 2024, but they have not been corrected. The plaintiff has acknowledged that he wishes to revise them in order to comply with the pleading requirements identified in this letter.

  4. These paragraphs should be accordingly struck out, but with leave to the plaintiff to replead.

Concluding observations and orders

  1. The plaintiff filed a notice of motion in the Registry on 18 December 2024 seeking default judgment. He was not entitled to do so, not least because the defendants were entitled to bring this application before filing any defence and because this application was fixed for hearing on 6 February 2024.

  2. The defendants were given no notice of this application for default judgment having been made. I provided them with a copy of the notice of motion during the hearing and asked the plaintiff to address me as to why it should not be dismissed. He did not make any submissions in court but more recently has complained, in correspondence to the court which has not been copied to the defendants, that the defendants should be required to file a defence notwithstanding this application.

  3. I do not propose to require the defendants to file any defence until after this application has been determined. I have accordingly included an order striking this notice of motion out as part of the orders made below.

  4. As all the defamation claims have been struck out, these proceedings will be removed from the Defamation List and sent to the General List for case management by the Judicial Registrar.

  5. I make the following orders:

  1. The plaintiff’s application for an extension of the limitation period to bring proceedings for defamation for the claims in paragraphs 25 – 29, 31 – 35 and 37 – 39 of the statement of claim is refused.

  2. The plaintiff’s claims for defamation in paragraphs 25 – 29, 31 – 35 and 37 - 39 against the first and third defendants are struck out and dismissed.

  3. The plaintiff’s notice of motion filed on 18 December 2024 for default judgment is dismissed with costs and the plaintiff is stayed from making any further application for default judgment until such time as any of the defendants have failed to comply with court orders to file a defence by a particular date.

  4. The plaintiff’s claim for the tort of intimidation (paragraphs 30 and 36 of the statement of claim) is struck out with leave to replead.

  5. The plaintiff’s amended statement of claim deleting the defamation claims and repleading the tort of intimidation claim is to be filed within 28 days and to be accompanied by a Statement of Particulars conformably with UCPR r 15.12.

  6. These proceedings removed from the Defamation List and placed in the General List, with a return date of 7 March 2025 before the Judicial Registrar for a timetable, such timetable to include any orders for the filing of defences.

  7. Pursuant to UCPR r 42.20, the plaintiff is to pay the first and third defendants’ costs of this application and of the defamation proceedings.

Amendments

20 February 2025 - Typographical errors in paragraphs [27], [29] and [59].

25 February 2025 - Representation corrected in coversheet


Typographical errors in paragraphs 1(a), 29, 43, 44(a), 121, 122, 132

17 March 2025 - Para 34 - redaction

Decision last updated: 17 March 2025

Most Recent Citation
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