M1 v R1

[2022] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:

M1 v R1 & Ors [2022] NSWDC 409

Hearing dates:

09 September 2022

Date of orders:

13 September 2022

Decision date:

13 September 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)   Summons struck out and dismissed.

(2)   Plaintiff pay defendants’ costs of this application and of the proceedings.

Catchwords:

TORT - defamation - concerns notice fails to provide particulars of serious harm or attach the matters complained of - two of the four publications produced under subpoena in proceedings in another court - plaintiff files the concerns notice (described as a “Summons”) in lieu of a statement of claim - defendants seek summary dismissal of proceedings - proceedings dismissed

Legislation Cited:

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.36

Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) rr 6.1, 6.3(b) and 6.6

Cases Cited:

Attorney-General v Butterworth [1963] 1 QB 696

Calabro v Zappia [2010] NSWDC 127

Chapman v DPP of Western Australia [2009] WASCA 66

Clarkson v The Mandarin Club (1998) 90 FCR 354

Daryanani v Ramnani [2017] EWHC 183

David v Gabriel [2016] EWHC 2799 (QB)

Denis v Sauvageau [2022] ABCA 166

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

Duncan-Tate v Strelec [2013] NSWSC 1446

Duraisamy v Sydney Trains [2019] NSWCA 269

Emanuele v Hedley (Supreme Court (ACT), Higgins J, 7 March 1997, unrep)

Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB)

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hill v Bolt (1997) 28 NSWLR 329

Johnson v McArdle [2020] EWHC 644

Lachaux v Independent Print Ltd and another [2020] AC 612

Lewandowski v Lovell (Supreme Court (WA), Kennedy J, 8 March 1993, unrep

Miller v Polk (Supreme Court (NSW), Hunt J, 4 August 1985, unrep)

Newman v Whittington [2022] NSWSC 249

Riddick v Thames Mills [1977] QB 881

Rizeq v Western Australia (2017) 262 CLR 1

Ruta v Department of Work and Pensions [2022] EWHC 1535

Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763

Stone & Rolls (in liquidation) v Moore Stephens (a firm) [2010] 1 All E R 125

Tewari v Khetarpal & Ors [2022] EWHC 2066

Wilks v Qu (Ruling) [2022] VCC 620

Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775

Category:

Procedural rulings

Parties:

Plaintiff: M1

Defendants:
First Defendant: R1
Second Defendant: W1

Representation:

Counsel:
First Defendant: Mr N Olson
Second Defendant: Ms K Boyd

Solicitors:
First Defendant: BlackBay Lawyers
Second Defendant: Moray & Agnew Lawyers

File Number(s):

2022/00189617

Publication restriction:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Judgment

The plaintiff’s claims for defamation

1. The plaintiff and the first defendant, who were formerly married, are currently parties in proceedings before the Federal Circuit and Family Court of Australia. For this reason, the names of the parties have been anonymised pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW). The second defendant is the first defendant’s solicitor in those proceedings.

2. The plaintiff, by Summons filed on 29 June 2022, seeks damages and an injunction for four alleged defamatory publications as follows:

1. An email sent by the first defendant to Ms K[redacted], a child psychologist, on 7 October 2021, in which she refers to advice given to her by the second defendant.

2. An email sent by the first defendant to Ms K on 3 December 2021, inquiring about a matter which came up in the Federal and Family Court of Australia proceedings.

3. An email sent by the second defendant, on behalf of the first defendant, to both the plaintiff and to Ms K, on 13 May 2022.

4. An email sent on 24 May 2022 by the second defendant to the plaintiff, with a copy being sent to the NSW Education Standards Authority.

3. The plaintiff served a concerns notice on 4 April 2022 for two of the matters complained of. That was withdrawn on or about 26 May 2022 and replaced by the 26 May 2022 concerns notice for all four publications. This concerns notice has now been filed as a Summons, by the simple expedient of attaching a front page calling this document a “Summons”, and defamation proceedings may accordingly be taken to have been commenced.

4. It is not permissible to commence proceedings for defamation by Summons, as a statement of claim must be filed and served: Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 6.1, r 6.3(b) and r 6.6. When the proceedings came before Levy SC DCJ on the first return date of 21 July 2022, the plaintiff consented to orders to file a statement of claim by 18 August 2022, but did not do so.

5. The plaintiff initially told the court that he had commenced defamation proceedings in this format to avoid the limitation period expiring, but that he was not in a position to prepare a statement of claim. In practical terms, however, these pleading issues are no longer an issue of significance, as the plaintiff has now conceded that, if the action is to continue, he would have to file a statement of claim.

The plaintiff’s applications

6. In submissions, dated 30 August 2022, the plaintiff initially sought a stay of proceedings until such time as:

1. Parenting proceedings between the plaintiff and the first defendant in the Federal Circuit and Family Court of Australia are resolved; and

2. The plaintiff files his statement of claim.

7. The plaintiff effectively abandoned these applications during oral submissions and instead sought an injunction to prevent the defendants from defaming him.

8. In a second submission, also dated 30 August 2022, the plaintiff responds to the defendants’ submissions about the origin of the first two matters complained of. The plaintiff responds that these were not obtained under subpoena, as claimed by the defendants, but were “part of a larger file presented to me by a third party”, adding that “the third party is prepared to make an affidavit in that regard” after her return from overseas in October 2022. This third party provided him with these documents prior to their being produced in answer to a subpoena issued in February 2022 by the Independent Children’s Lawyer (“IPL”) in the Family Law proceedings, and the plaintiff states that this entitles him to sue upon them.

9. In the third of these submissions, dated 8 September 2022, the plaintiff states that he intends to bring three causes of action:

1. “Defamation (4 October 2021 - continuing)”.

2. “Intentional infliction of economic harm (August 2017 - continuing)”.

3. “Intentional infliction of emotional distress (July 2016 - continuing)”.

10. The causes of action, subject matter and parties are greatly enlarged in these submissions. The plaintiff claims that the first defendant has “engaged in a smear campaign to damage his reputation both in the community and for the purpose of parenting proceedings”, that the second defendant (her solicitor) has “breached multiple solicitor conduct rules” and “potentially abused the evidence rules” (paragraph 10) to assist in this campaign, and that the first defendant has shown “intent to pervert the course of justice” (paragraph 19). This submission adds further information about how the plaintiff says he received a file of information from a third party prior to the issuing of a subpoena to Ms K by the Independent Children’s Lawyer.

11. However, during oral submissions, the plaintiff stated that he does not intend to bring any defamation proceedings for any further publications either by the defendants or by other proposed additional parties, and that these submissions are directed to his other two causes of action. I have accordingly focussed on the four matters complained of, in their present form in the Summons.

The defendants’ application

12. The defendants seek summary dismissal of the claim, on the following bases:

1. The Summons is defective in form and the matter must proceed by way of pleadings. In response, the plaintiff agreed that he would file an statement of claim if he was given until late October 2022 to do so. He also acknowledged that the whole of the matters complained of would need to be attached.

2. The four matters complained of postdate the 1 July 2021 amendments to the Defamation Act 2005 (NSW) and any statement of claim (and the concerns notice that must precede it) presupposes the giving of a concerns notice 28 days before proceedings are commenced (unless leave is granted to do so for a shorter period: s 12B(3)(b)) as well as for the providing of particulars of serious harm in that concerns notice. The plaintiff’s concerns notice is asserted to be defective because the requirement for particularisation of serious harm has not been met (s 12A(a)(iv)) and the matters complained of are not attached (s 12A(1)(b)).

3. The plaintiff is not entitled to bring any action for the first two matters complained of, as these were obtained from material produced by the psychologist under a subpoena issued by the Independent Children’s Lawyer in the Federal Circuit and Family Court of Australia. That psychologist has sworn an affidavit stating that she did not provide those documents, which are confidential, to any third party. It is not in dispute that the plaintiff has not sought release from his implied undertaking from that court. Mr Olson submits that the first two matters complained of should be struck out for this reason.

4. Ms Boyd, for the second defendant, adds that all four of the publications are intertwined and submits that all four of the publications should be struck out; the continued use of such documents would amount to a contempt of court and the proper course is to stay the whole of the proceedings until the contempt is purged: Chapman v DPP of Western Australia [2009] WASCA 66. It is irrelevant that contempt proceedings are not on foot; all that the defendants have to demonstrate is that there is a real risk that justice would be interfered with.

Should these applications be heard now?

13. The plaintiff expressed concern about the limitation period’s imminent expiry, in relation to defamation, in all of his submissions. Delay could result in limitation issues arising as well as pleading issues. It is in his interests for these matters to be dealt with as quickly as possible.

14. The defendants are concerned about the potential problems caused by the use of documents obtained under subpoena in other court proceedings. This is also an issue which must be dealt with at the first opportunity.

15. The first challenge to the plaintiff’s defamation action (assuming a statement of claim identifying each of these publications is filed) is the asserted invalidity of his concerns notice.

How precise should a concerns notice be?

16. Mr Olson’s main submission is that the failure to provide proper particulars of serious harm renders the concerns notice invalid.

17. Section 12A is as follows:

“12A Concerns notices

(1) For the purpose of this Act, a notice is a

"concerns notice" if--

(a) the notice--

(i) is in writing, and

(ii) specifies the location where the matter in question can be accessed (for example, a webpage address), and

(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the

"imputations of concern"), and

(iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question, and

(v) for an aggrieved person that is an excluded corporation--also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question, and

(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note : Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced.

(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice.

(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a

"further particulars notice" ) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.

(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.”

18. Mr Olson drew my attention to the use of the word “and” in relation to the concerns notice’s contents.

19. Section 12B is as follows:

“12B Defamation proceedings cannot be commenced without concerns notice

(1) An aggrieved person cannot commence defamation proceedings unless—

(a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and

(b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and

(c) the applicable period for an offer to make amends has elapsed.

(2) Subsection (1)(b) does not prevent reliance on—

(a) some, but not all, of the imputations particularised in a concerns notice, or

(b) imputations that are substantially the same as those particularised in a concerns notice.

(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or

(b) it is just and reasonable to grant leave.

(4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

(5) In this section—

limitation law means the Limitation Act 1969.”

20. The circumstances in which this legislative reform, adapted from s 1 of the Defamation Act 2013 (UK), resulted in the enactment of s 10A of the Defamation Act 2005 (NSW) are set out by Sackar J in Newman v Whittington [2022] NSWSC 249 at [30] - [46] and I gratefully borrow his Honour’s summary of it, as well as the extremely helpful analysis set out by Clayton DCJ in Wilks v Qu (Ruling) [2022] VCC 620. The first issue I will consider, adopting the approach taken in these judgements, is how concise the identification of serious harm must be, and to what extent English authorities are of assistance.

21. In the English authorities, failure to identify the serious harm in the relevant particulars of a pleading may result in summary dismissal; the relevant test is set out by Collins Rice J in Tewari v Khetarpal & Ors [2022] EWHC 2066 (see also Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (“Soriano”)). When determining whether the serious harm has been properly pleaded, it is appropriate to look at the relevant facts (including the extent of publication identified), the setting out of the contents of the serious harm as particularised and defects such as “scantiness” of particulars (Soriano at [80]).

22. However, these English authorities must not be applied uncritically. In Newman v Whittington, Sackar J, in the course of striking out inadequate particulars of serious harm, traced “seriousness” as an issue in Australian decisions (at [48] - [50]), before asking what impact the reasoning in Lachaux v Independent Print Ltd and another [2020] AC 612 has on Australian law. His Honour noted the differences in the structure of the provision were only slight, but that Australia does not have any equivalent to the Human Rights Act 1998 (UK). Having noted those differences, Sackar J then considered the absence of the particulars of serious harm set out in the pleading. Those particulars, which asserted that the plaintiff had to move out of her home as a result of the matter complained of, were described as being “rather confusing” (at [32]) and were struck out with leave to replead (at [72]).

23. There is an important difference between the pleadings in this case and Newman v Whittington, namely there was no suggestion in Newman v Whittington that the concerns notice failed to contain particulars of serious harm, or that the particulars in the concerns notice were so defective that they should be struck out. The question of entitlement to replead serious harm will be an area where there will be considerable divergence between English and Australian authorities because of the additional requirement for these to be in the concerns notice. This is because, while inadequate particulars of serious harm in a statement of claim may be remedied by seeking leave to file a further pleading, inadequate particulars of serious harm in a concerns notice, if the effect is that no such particulars have been given, may render the notice invalid, in which case proceedings cannot be commenced at all. A fresh concerns notice would have to be served which contains proper particulars of serious harm. This leads to the further question of whether this can be done nunc pro tunc or whether the statement of claim must be struck out.

24. It might be argued that the reference to “cannot commence” in s 12B(1) only requires the items identified in s 12B(1)(a) - (c) and that there is no reference to “serious harm” in those subsections. I do not regard the omission of “serious harm” from the list of factors s 12B(1)(a) - (c) as indicating that there can be multiple attempts to plead serious harm in a concerns notice. This means that the limited powers set out in s 12B(3) for revision of a defective concerns notice, relating to changes to imputations and the 28-day period, do not extend to inadequate particulars of serious harm. In other words, if the particulars of serious harm are not contained in (or are so inadequate they should be struck out of) the concerns notice, it cannot be a valid concerns notice.

25. Can leave be granted nunc pro tunc for the introduction of such particulars into the concerns notice and can the proceedings be retrospectively validated? Leaving aside the plaintiff’s failure to seek such leave in this application, comparison of s 12B(1) with other legislation such as s 48 of the Motor Accidents Act 1988 (NSW) (see Hill v Bolt (1997) 28 NSWLR 329 demonstrates that language of this “imperative nature” (at 331 per Kirby P) precludes the grant of such leave. The result is that a plaintiff really only has one chance to get his or her concerns notice particulars of serious harm over the threshold of being struck out because, without these being properly particularised, proceedings purportedly relying upon the defective concerns notice cannot be commenced.

26. In what circumstances may a court hold that particulars of serious harm have not been provided, and what test should be applied? There are other pleadings-related provisos in a concerns notice, namely the requirement to specify the imputations, but there are provisos for these to be redrafted or dropped. Taking all of the above factors into account, particulars of serious harm with a level of conciseness akin to a pleading would be desirable, in that confusing language may result in their being struck out (as occurred in Newman v Whittington).

27. The requirement for concise pleading in a statement of claim is explained in Dickens v State of New South Wales (No.3) [2018] NSWSC 485 at [36] as follows:

“The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff’s claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be “embarrassing” in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]:

“Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.””

28. The same level of care for particulars of serious harm should be expected. However, the same caution that is applied in applications to strike out pleadings or proceedings summarily must be exercised: Dickens v State of NSW (No 3) at [38]. That is a very high bar and the likelihood is that such an application would succeed would require a very clear case.

Application of these principles to the concerns notice filed in these proceedings

29. When those principles are applied to the concerns notice here, the inadequacies of the serious harm particularisation are readily apparent. I summarise these as follows:

1. There are no such particulars. There is no “particulars of serious harm” heading, or set of particulars provided, at all.

2. While it is asserted that the imputations are “serious”, the word “serious” does not otherwise appear and the word “harm” does not appear at all.

3. While the failure to provide “particulars of serious harm” as such might be overcome if the plaintiff had set out particulars of the kind attempted in Newman v Whittington, the vague generalities of the “cut and paste” particulars of reputational injury are little more than mere surmise and the harm identified (namely the risk that “society at large”, to quote the plaintiff, might read private emails sent by a mother to her child’s psychologist) is implausible.

4. There is no causative link between the publications and the plaintiff’s description (such as it is) of potential for past, present or future damage.

30. As to the first lacuna in the concerns notice, failure to set out actual “particulars of serious harm” at all is a serious deficiency. There is no heading for “particulars of serious harm”. The word “serious” (in the context of “serious defamation”) is certainly applied to the imputations (pp. 2, 3, 4 and 6 of the concerns notice) but otherwise does not appear. A mere statement that the imputations are serious does not identify the consequential serious harm. The word “harm” does not appear at all.

31. Mere use of the word “serious”, in relation to an unspecified claim of harm, would fail, because “a bare assertion of “serious harm”” is insufficient; it is “necessary to give particulars as to the nature of the harm caused, or likely to be caused, in the particular case” and “this is not a technicality which can be overcome by further amendment” (Daryanani v Ramnani [2017] EWHC 183 at [6].

32. I have only been able to discover one English authority where a plaintiff failed to particularise “serious harm” at all. In Ruta v Department of Work and Pensions [2022] EWHC 1535 at 14(iv), a self-represented litigant was noted not to have set out any of the facts and matters required to establish serious harm (see also [36](iv) and [38]). Failure to do so may result in the claim being struck out: Ruta v Department of Work and Pensions at [38], citing Johnson v McArdle [2020] EWHC 644.

33. Particulars need to be readily identifiable as such. For example, a statement of claim which failed to plead particulars of negligence would be struck out. The opposing party should not be left to guess what the particulars in question would be. The same requirement for clear particularisation should apply to serious harm.

34. However, if the concerns notice contains particulars sufficiently recognisable as serious harm, the absence of a formal heading and/or reference to “serious harm” could be overcome. For example, if a plaintiff sets out particulars of damage to reputation claiming that, as a result of the publication he or she had to leave their home to go into hiding (to cite the factual claims made in Newman v Whittington), or was sacked or refused a promotion by the recipient of the publication, this kind of particularisation could, even in the absence of the appropriate subheading or reference to serious harm, be enough to cross the threshold. In the absence of an attempt at particularisation, care should be taken to ensure that proper particulars of this kind of harm have in fact have been set out, as “[i]t should be noted that unless serious harm to reputation can be established an injury to feelings alone, however grave, will not be sufficient” (Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB) at [145]).

35. The difficulty here is that very broad particulars are provided in “cut and paste” style to each of the matters complained of. I set out the main body of each of these particulars, with the very minor differences in bold:

“1. Particulars of publication - First matter of concern

…

Since late 2016, I have been working on an education project involving government and non-government schools, universities, government departments, commercial and not for profit entities. You were aware of the general concept of my work since at least 2017. I am in the process of registering a private school in NSW and publishing a parental education book internationally. I do not yet know the full extent of your publication or whether it was repeated to other people in the industry or society at large. This statement and any republication of such in any form, may result in my work of the past 6 years being rendered useless, causing substantial losses and significant emotional distress. The statement may also cause loss of business in the future.

2. Particulars of publication - Second matter of concern

…

Since late 2016, I have been working on an education project involving government and non-government schools, universities, government departments, commercial and not for profit entities. You were aware of the general concept of my work since at least 2017. I am in the process of registering a private school in NSW and publishing a parental education book internationally. I do not yet know the full extent of your publication or whether it was repeated to other people in the industry or society at large. This statement and any republication of such in any form, may result in my work of the past 6 years being rendered useless, causing substantial losses and significant emotional distress. The statement may also cause loss of business in the future.

3. Particulars of publication – Third matter of concern

…

Since late 2016, I have been working on an education project involving government and non-government schools, universities, government departments, commercial and not for profit entities. You were aware of this since early April 2022. I am in the process of registering a private school in NSW and publishing a parental education book internationally. I do not yet know the full extent of your publication or whether it was repeated to other people in the industry or society at large. This statement and any republication of such in any form, may result in my work of the past 6 years being rendered useless, causing substantial losses and significant emotional distress. The statement may also cause loss of business in the future.

4. Particulars of publication – Fourth matter of concern

…

Since late 2016, I have been working on an education project involving government and non-government schools, universities, government departments, commercial and not for profit entities. You were aware of this since early April 2022. I am in the process of registering a private school in NSW and publishing a parental education book internationally. I do not yet know the full extent of your publication or whether it was repeated to other people in the industry or society at large. This statement and any republication of such in any form, may result in my work of the past 6 years being rendered useless, causing substantial losses and significant emotional distress. The statement may also cause loss of business in the future.”

36. The plaintiff makes other statements of this very general kind such as that “the statement is highly damaging to my good standing and reputation” and that the imputations “constitute serious defamation of me”. He makes the bald allegation that these imputations have harmed his reputation and caused him “economic loss”, identifying a “loss suffered to date” (paragraph 5). What that loss may be is not identified, not only in the concerns notice but even in the apology the plaintiff seeks, which contains terms of extraordinary generality:

“(a) You will provide an undertaking that you will not make any further false or defamatory publications concerning me in the future, except and unless as compelled by law;

(b) You will provide a signed apology and retraction, the wording to be agreed, which I am at liberty to publish as is reasonably necessary to address any known or suspected consequences of the publications of the imputations by you; and

(c) You will pay a reasonable sum to compensate me for the damage caused by the publications and republications of the matters complained of and the imputations conveyed by them.”

37. Serious harm is not assessed by considering whether, in the abstract, the imputations are likely to cause harm; to the contrary, under s 10A(1) it is the matter, and not the imputations, that must be found to be likely to cause serious harm. Not even the apology sought gives any hint of the serious harm identified to arise from the publications.

38. Mr Olson’s next point is that the complaints in the concerns notices are couched in the most nebulous language. The word “may” appears twice in each of the four extracts, and the allegations are of the most general nature. Claims that a publication “could also be distributed” or “can be shared” with other recipients are impermissible because they conflate publications which have not taken place with the need to plead and prove actual or likely serious harm: Ruta v Department for Work and Pensions at [56]. The same fatal generalised reference to the potential for future publications as was the case in Ruta may be seen here.

39. The nature and extent of publication is also relevant (Soriano at [80]). Here, each of the four publications is made to only one person (the plaintiff complains that the third and fourth publications were also made to him, but publications to himself are not actionable).

40. The claims are as extreme as they are vague. What, for example is the basis of the claim that publications between the first defendant and Ms K, the psychologist who had seen the parties’ child would be circulated to “people in the industry or society at large”, thereby rendering the plaintiff’s work over the past six years “useless”?

41. The final point taken by Mr Olson is that there is no connection drawn between any of the matters complained of and the assertions of consequential damage to reputation. There must be “visible pleading of the causation of serious harm by the publication” as any claim “which does not sufficiently identify, and particularise the causation of, serious harm by a publication is deficient” (Tewari v Khetarpal & Ors at [46] - [47]; see also Soriano at [47] - [49]).

42. The plaintiff did not address these asserted deficiencies in any detail beyond attacking the conduct of the defendants and the Independent Children’s Lawyer, which he said had damaged his professional and personal reputation. He referred to the fact that he was a litigant in person, and one who faced significant costs applications in other court proceedings, which was why he had first sought a stay and now sought an injunction. He also complained that no defence had been filed (I note that in both Wilks v Qu (at [102] and Newman v Whittington the absence of a defence was not considered a difficulty). It was not possible, from his oral submissions, any more than from his written submissions, to extract any clearer information about any harm, serious or otherwise, that his reputation had suffered from these publications.

43. The plaintiff’s failure to provide any identifiable particulars of serious harm under a heading to that effect, the vague language contained in extreme (and repetitive) assertions, the reliance on surmised future publications and the lack of causative connection between the publications and any such particulars would individually be issues of concern. Their combined effect means that no particulars of serious harm have been provided and the concerns notice is thus invalid.

Failure to attach the matters complained of

44. There is a further difficulty, in that the full texts of the matters complained of have not been provided. In David v Gabriel [2016] EWHC 2799 (QB), Sir David Eady, in the course of striking out a defective defamation claim, stated at [11]:

“This [full text] is vital in any defamation claim, since it is the publication of those words that is supposed to give rise to the cause of action: see e.g. Gatley on Libel and Slander (12th edn), at 26.11. Without those basic ingredients, it is difficult to see how a claim can reach first base. It will not suffice for a claimant to provide merely the gist.”

45. If this were the only defect, it might not be a problem of significance. However, the additional failure to attach these documents in their full form (s 12A(1)(b)), in the present circumstances, renders the concerns notice invalid. While there is no suggestion that it is not “practicable” for the plaintiff to attach these documents, in the ordinary course of events, the documents might be expected to be ascertainable by the defendants from their own records. However, as set out in more detail below, there is a more significant difficulty, namely that the source for the first two matters complained of is documentation produced under subpoena. The defendants should not be required to sanction the plaintiff’s use of these documents by making their own copies of this material from the documents produced (or, for that matter, from their own records).

The Harman principle and the first two matters complained of

46. The alternate (or additional) basis for summary dismissal is that the first and second matters complained of were obtained by the plaintiff from documents under subpoena in another court, and that his use of them is in breach of his implied Harman (Harman v Secretary of State for the Home Department [1983] 1 AC 280) obligations as well as rule 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The defendants have provided an affidavit sworn by Ms K confirming that she has not supplied the documents in question to any person or organisation other than in answer to the subpoena in question. No challenge was made to this evidence.

47. The plaintiff was put on notice of this objection by Moray & Agnew in their letter of 16 August 2022. That letter asked if he had the permission of the Federal Circuit and Family Court of Australia’s permission to do so and, if not, if he intended to seek it.

48. The plaintiff’s position is that a third party gave him the documents in question prior to the subpoena being issued in February 2022 by the Independent Children’s Lawyer in that court, and that for this reason he does not need permission. In addition, as noted above, the plaintiff submitted in a general sense that dismissal on any of these grounds was a harsh result for a litigant in person who was struggling with the complexities of defamation law. He submitted that he should be allowed time to provide an amended statement of claim and to consider retaining a solicitor he had consulted earlier in the week and stated that courts generally give a greater degree of leeway to a litigant in person.

49. A similar submission was made to Sir David Eady in David v Gabriel, but was rejected:

“20. One is sometimes inclined to give a litigant in person an opportunity to correct mistakes by amendment. Here, however, it is not a matter of mere technicality. The criticisms go to matters of substance (and of pleading practice founded in fairness and common sense). Moreover, the defects now relied upon by the Defendants were pointed out in correspondence.”

50. Ms Boyd’s submissions in reply referred to the observations of Bell P (as Bell CJ then was) in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25] on this issue. I gratefully adopt the approach taken by his Honour and the Court of Appeal in those proceedings. I consider that, if the sole problem were the absence of the matters complained of and/or or the absence of a heading “serious harm”, these are the kinds of pleading failures that a court might be willing to overlook for a litigant in person, but that the same cannot be said for a claim that defamation proceedings had been commenced for publications produced under subpoena.

Is the plaintiff entitled to sue for defamation for documents obtained under subpoena?

51. It is not in dispute that the first two matters complained of are parts of two longer emails from the first defendant to a psychologist, Ms K, dated 7 October and 3 December 2021, which were produced under subpoena issued in the Federal Circuit and Family Court of Australia by the Independent Children’s Lawyer.

52. Rule 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that documents produced in answer to a subpoena may only be used for the purpose of the court proceedings for which they were produced and must not be otherwise disclosed or used without the Court’s express permission. This regulation is in turn based on common law principles and in particular to the principle known as the Harman undertaking, which is to the effect that parties give the court an implied undertaking not to use them for a collateral purpose. Only the court in which the documents were produced can release a party from that undertaking.

53. There is a narrow exception for occasions where a party issues a subpoena to prove something that that party already knew: Miller v Polk (Supreme Court (NSW), Hunt J, 4 August 1985, unrep). However, that is a matter for the plaintiff to take up with the court issuing the subpoena. The Federal Circuit and Family Court of Australia may, after hearing this explanation from the plaintiff, excuse his use of the documents, but it is a decision for that court and not for me.

54. If I were to make a finding, I would have held that, whether these documents were obtained by the plaintiff under subpoena or from a third party who obtained them without Ms K’s knowledge, a defamation action based on confidential material from a medical professional’s file would still be impermissible, although for the reasons set out in Calabro v Zappia [2010] NSWDC 127, where the matter complained of was the first page of a statutory declaration surreptitiously removed and copied from a solicitor’s file left on a court bench during court proceedings. The evidence of Ms K makes it clear she never authorised the release of those documents.

51. In addition, as a matter of public policy no litigant, and no court, should not be put in a position where they have to countenance conduct potentially amounting to contempt of court and/or themselves act contrary to their own Harman obligations in the Federal Circuit and Family Court of Australia litigation. This court cannot release any of the parties from their undertakings in respect of those documents. There may even be a constitutional aspect to the process if a State court were to permit its processes to be used to subvert an undertaking to a Commonwealth court: Rizeq v Western Australia (2017) 262 CLR 1.

52. A party should not be able to bring proceedings in relation to a document obtained in circumstances such as the present. The courts have consistently held against parties who attempt to do so (since Riddick v Thames Mills [1977] QB 881), for reasons of public policy.

53. Until such time as the plaintiff’s breach is remedied, the concerns notice is invalid as to the first and second matters complained of, whether by reason of the Harman undertaking or, given Ms K’s evidence, for reasons of public policy on the basis of ex turpi causa non oritur actio.

54. The precise ambit of the ex turpi principle in tort law is uncertain (as opposed to contract law: see the discussion of the “two highwaymen” case in Stone & Rolls (in liquidation) v Moore Stephens (a firm) [2010] 1 All E R 125 at [187]). It has, however, been applied to defamation. For example, In Emanuele v Hedley (Supreme Court (ACT), Higgins J, 7 March 1997, unrep), Higgins J struck out a number of causes of action, including defamation, for this reason, stating (at p. 22), that “in relation to the enforcement or otherwise of tortious liability involving criminal conduct, the seriousness of the illegality and the public policy in favour of denying recovery must be weighed against the right said to be violated and the consequences of that violation.”

55. While “only in the rarest of cases can the doctrine of ex turpi causa non oritur actio be involved successfully in actions in tort”: (Lewandowski v Lovell (Supreme Court (WA), Kennedy J, 8 March 1993, unrep) at 9, citing National Coal Board v England [1954] AC 403 at 428), the welfare of a child is involved here. These are medical records concerning that child’s treatment by a health professional, produced to a Commonwealth court at the request of the Independent Children’s Lawyer. These are weighty considerations for any court.

56. Accordingly, Mr Olson’s submissions that the claims based on the first two publications should be struck out by reason of the Harman principle and the operation of rule 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules are made out.

57. Ms Boyd adds, and I agree, that the causes of action for all four publications are intertwined and that all four should be struck out for this reason. What is more, the plaintiff has acknowledged this factor, in both written and oral submissions.

58. Accordingly, the Summons should be struck out in its entirety on this basis as well.

The plaintiff’s application for injunctive relief

63. The plaintiff asks the court to injunct the defendants from what he described as “any further publication defamatory of him”.

64. The very broad scope of this request could include the conduct of the litigation in the Federal Circuit and Family Court of Australia in which the second defendant is acting for the first defendant, including any future communications with Ms K. That could make the conduct of those proceedings on behalf of the first defendant difficult, as both defendants would have the constant threat of contempt proceedings hanging over their heads. I understand, from the parties’ submissions, that the plaintiff has already unsuccessfully brought two applications for the Independent Children’s Lawyer to be dealt with for contempt.

65. The chilling of free speech by such a demand, in relation to the conduct of proceedings in another court, is a relevant reason for refusing such a request: Denis v Sauvageau [2022] ABCA 166 at [10]. Requests for relief which may impede a party's conduct of other court proceedings are objectionable in themselves: Attorney-General v Butterworth [1963] 1 QB 696 at 719; Clarkson v The Mandarin Club (1998) 90 FCR 354 at 362; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [35] - [38]; Duncan-Tate v Strelec [2013] NSWSC 1446 at [15].

66. The orders sought by the plaintiff for an injunction to prevent further statements by the defendants should, therefore, be refused.

67. The plaintiff should pay the defendants’ costs of this application and of the proceedings.

Order:

1. Summons struck out and dismissed.

2. Plaintiff pay defendants’ costs of this application and of the proceedings.

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Decision last updated: 13 September 2022