Markisic v State of New South Wales & Ors (No 2)

[2012] NSWSC 1353

Supreme Court

New South Wales

Medium Neutral Citation:	Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353
Hearing dates:	18 February 2008 to 20 February 2008 25 February 2008, 27 February 2008 2 October 2012.
Decision date:	08 November 2012
Before:	Price J
Decision:	The plaintiff's application for leave to file an amended statement of claim (defamation claim) is refused.
Catchwords:	DEFAMATION - application to re-plead defamation claims - whether publications additional to the Court of Appeal's grant of leave pleaded - whether new imputations pleaded - whether imputations are untenable - whether publications attracted absolute privilege - issue estoppel - Defamation Act 1974 - application for the return of a child under the Hague Convention - whether publications incidental to and necessary to judicial proceedings - whether communications between officers of State - necessary to effective performance of official functions - whether proposed proceedings futile.
Legislation Cited:	Defamation Act 1974 s 11, s 17-19 Family Law (Child Abduction Convention) Regulations 1986 Hague Convention on the Civil Aspects of International Child Abduction Limitation Act 1969 s 14 Uniform Civil Procedure Rules r 15.19(1)(b)
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 De L v Director-General, NSW Department of Community Services [1996] HCA 5; (1996) 187 CLR 64 Drummond - Jackson v British Medical Association [1970] 1 ALL ER 1094 FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Gibbons v Duffell (1932) 47 CLR 520 Lewis v Daily Telegraph Ltd [1964] AC 234 Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373 Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, (2009) 238 CLR 460 Rajski v Carson (1986) 4 NSWLR 735 Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Texts Cited:	Gatley on Libel and Slander, 11th ed, (2008)
Category:	Principal judgment
Parties:	Dragan Markisic (Plaintiff) State of New South Wales (Second Defendant) Commonwealth of Australia (Third Defendant)
Representation:	Mr Dragan Markisic in person (Plaintiff) Mr B McClintock SC & V Hartstein (Second Defendant) Mr D Robinson SC (Third Defendant)
File Number(s):	2000/4264

Judgment

1. HIS HONOUR: By a notice of motion filed 17 April 2007, Dragan Markisic, the plaintiff seeks leave to file an amended statement of claim. The proposed pleading is not the document annexed to the plaintiff's affidavit sworn 17 April 2007, but is the document entitled Amended Statement of Claim - Defamation Claim (Tab 1B of the State of New South Wales (the State) tender bundle). For the sake of convenience, the proposed pleading will be referred to by the acronym 'PP'.

1. In Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321, Giles JA detailed the history of the proceedings between the plaintiff, the State, the Commonwealth of Australia (the Commonwealth) and various other defendants and no further elaboration is required here. Relevantly to the present application, Giles JA (with whom Santow and Ipp JJA agreed) granted leave to the plaintiff to apply to re-plead his defamation claims.

1. In order to understand the issues in the present motion, I recite what was said by Giles JA at [88] - [90]:

"88 Without closer attention to the law and its application to the occasions of publication of the separate publications, which did not occur in the hearing of Mr Markisic's leave application in this Court, Smart AJ's disposal of the defamation claims should in my view be reviewed; but in the absence of proper submissions I do not think that this Court should decide whether, to the level of arguability appropriate to leave to apply to re-plead the defamation claims, absolute privilege attaches or does not attach to the occasions of the publications and, if the publications are in different positions, to which ones. This Court should not embark on that task without the assistance of proper submissions, nor would it be fair to the parties to do so; and the task is better undertaken by a judge at first instance, with the benefit of proper submissions.

89 The defamation claims, if they can be supported in fact and law and entitle Mr Markisic to damages for injury to his reputation, can not be regarded as trivial. They are brought against the State and the Commonwealth, on allegations that the publications were published by their officers and agents. They are not dependent on flaws in the proceedings in the Family Court or in the implementation of the orders of that Court. In my opinion, leave to appeal from Smart AJ's decision should be granted so far as his Honour refused leave to apply to re-plead the defamation claims, and the appeal should be allowed; not with a holding in this Court adverse to absolute privilege, but in order that in the application to re-plead the defamation claims there can be considered, if the State and the Commonwealth oppose the application on that basis, whether the application should be refused because the defamation claims are futile.

90 Allowing the appeal to this extent means the grant of leave to apply to re-plead the defamation claims, but the leave does not permit Mr Markisic to add to the publications on which he relies or to the imputations attributed to the publications. The re-pleading will only be to put in proper form the substance of the defamation claims in the fresh draft amended statement of claim. Nor does anything I have said restrict the State and the Commonwealth in the grounds on which they may oppose the grant of leave to re-plead." (italics added)

1. The State and the Commonwealth are the proposed defendants to the re-pleaded defamation claims. Both parties oppose leave being granted. Before venturing further, it is convenient to recount the somewhat arduous journey that the present motion has taken.

1. The motion proceeded before me for five days commencing on 18 February 2008. The plaintiff was self represented, B McClintock SC with

V Hartstein appeared for the State and D Robinson SC appeared for the Commonwealth. On 27 February 2008, the plaintiff was granted an adjournment of the motion on terms that included the following:

"...

2. That there will be no further submissions by the parties with the sole exception of submissions on the outcome of the proposed application in the Family Court referred to in the third order hereof, so far as the outcome is relevant to the defence of absolute privilege.

3. That the plaintiff files the proposed application in the Family Court to set aside the orders of the Family Court in file number SY 6727 of 1998, made on 9 September 1998, and the orders of the Full Court of the Family Court in file number SY 6727 of 1998, appeal number EA 76 of 1998, made on 29 September 1998, on or before 19 March 2008.

4. That the plaintiff prosecutes the application in the Family Court without delay.

..."

1. On the resumption of the hearing on 2 October 2012, the plaintiff informed the court that nothing had happened in the Family Court, that no judgments or orders were set aside: Tp 4 50-51 02/10/12. Further oral submissions on the motion to re-plead were concluded on that day.

Additional publications?

1. The State and the Commonwealth submitted that there are additional or new publications pleaded in the PP. Senior counsel drew my attention to the restrictions imposed by the Court of Appeal to the grant of the leave to re-plead in [90] (see [3] above) and detailed the paragraphs in the PP that were said to be beyond the grant of leave.

1. The plaintiff contended that he had taken all the relevant parts of the statement of claim that was before the Court of Appeal and had placed them in a separate document in accordance with the Court of Appeal's directions. He said that the previous pleading had been in a "roll (sic) up...form" and the PP had been drafted to plead the allegations separately and precisely to avoid the objections that had been taken by the State and the Commonwealth to the previous statement of claim: Tp 149 10-35 20/02/08. He argued that it was not the intention of the Court of Appeal "to put exactly everything how it was found in the document before them to be before your Honour": Tp 150 10-14 20/02/08.

1. The Court of Appeal's grant of leave to re-plead the defamation claims is not unfettered. Giles JA prescribed at [90] that "the leave does not permit Mr Markisic to add to the publications on which he relies or to the imputations attributed to the publications." A close comparison of the PP with the draft amended statement of claim that was before the Court of Appeal (ex 1S) is required to deal with the arguments of the parties.

1. Mr McClintock put to me that the words "and also have said through spoken words with the servants and agents of the Second and the Third Defendant" parenthesised in PP paras 12(b) and (g), and the words in para 12(d) "and also have said through spoken words with the servants and agents of the Second Defendant" were additional or new publications that were not pleaded in ex 1S and were outside the grant of leave.

1. The foundation of the plaintiff's claim in PP para 12(b) is the document in schedule "A2". The counterpart of PP para 12(b) (save for the change of date of publication) is found in para 193(b) ex 1S. The document in schedule "A4" founds the claim in PP para 12(d), the counterpart of which in ex 1S is para 193(d). The counterpart of PP para 12(g) is para 193(h) ex 1S, both pleadings being founded upon the document in schedule "A8". The words in parentheses in paras 12(b), (g) and (d) do not appear in para 193(b), (d) and (h) ex 1S. However, para 193 ex 1S commences with the following:

"In the material time between July and October 1998 the following was published of or said through spoken words concerning the Plaintiff" (italics added)

1. I do not think that the inclusion of the words in parentheses by itself adds to the publications upon which the plaintiff relies. A defect in ex 1S was, as the plaintiff submitted, the "rolled up" way in which the pleading was drafted and the plaintiff has attempted to rectify that deficiency.

1. Another submission made by Mr McClintock was that every reference in PP para 12 "to anyone else other than the recipients of letters is outside the leave given by the Court of Appeal": Tp 41 15-17 - 18/02/08. Mr Robinson supported the submissions made by senior counsel for the State. On the other hand, the plaintiff directed my attention to para 195 ex 1S which is as follows:

"The aforesaid matters complained of were circulating between officers and agents of the Second and the Third Defendant."

1. The plaintiff observed that para 195 ex 1S was not pleaded with precision but in the PP the allegations of publications "in a different media and through spoken words" are similar to the allegations pleaded in para 193 ex 1S, but are more precise: Tp 135 11-16 - 20/02/08.

1. A difficulty with that submission is that the proposed pleading embraces publications to persons who are not State and Commonwealth officers and who are not referred to in ex 1S. In PP paras 12(a)-(k), the plaintiff includes publications to "employees of Interpol in Australia and Macedonia" which is plainly beyond the grant of leave. Furthermore, paras 193 and 195 do not identify who the recipients of the pleaded publications were, other than those who may be inferred from the documents that are schedules A1-3, A5-15. The document "A4" requires separate consideration.

1. In my opinion, the identification as recipients of the publications in the PP of persons other than those that may be inferred from the documents themselves exceeds the grant of leave. Moreover, general references to "other officers of the DOCS", "officers of the Crown Solicitor's Office", "officers of the Commonwealth AGD" do not provide sufficient particulars of the publication, circulation or distribution of the matter complained of, to enable the publication, circulation or distribution to be identified: Uniform Civil Procedure Rules r 15.19(1)(b).

1. Accordingly the words "other officers of the DOCS, other officers of the Crown Solicitor's office, officers of the Commonwealth Attorney-General's Department, employees of Interpol in Australia and Macedonia, employees of the Australian Government Solicitor" (or variations thereof) that appear in PP paras 12(a)-(k) inclusive are struck out. The words "other officers of DFAT, other officers of the DOCS, officers of the Crown Solicitor's Office, other officers of the Commonwealth AGD, employees of Interpol in Australia and Macedonia, employees of the Australian Government Solicitor" that appear in PP paras 17(a)-(c) inclusive are struck out. The words "officers of the DOCS, officers of the Crown Solicitor's Office, other officers of the Commonwealth AGD, other employees of Interpol Australia and Macedonia, other employees of AFP, employees of the Australian Government Solicitor" that appear in PP para 17(d) are struck out.

1. A difficulty arises with "A4". This document is headed File Note-Markisic and appears to be a file note produced by Doreen Muirhead. There is nothing on the face of the document that suggests that the file note itself has been sent or circulated to other persons. Publication is the cornerstone of the cause of action for defamation. "A4" appears to be a record of telephone conversations that Ms Muirhead had with Lily Anthony and Helen O'Brien. It seems both from para 193(d) ex 1S and PP para 12(d) (although inelegantly drafted) that the plaintiff places some reliance on the words that were spoken in the conversations. The identification as recipients of the words that appear in "A4" of persons other than Lily Anthony and Helen O'Brien is beyond the grant of leave. Moreover, insufficient particulars are provided to enable the publication, circulation or distribution of the words in "A4" to be identified. Accordingly, the words "public servants and agents of the Second and Third Defendant and employees of Centacare and Catholic Church of Australia namely Doreen Muirhead ...and Rod Best (officers of the DOCS), officers of the Crown Solicitor's Office, officers of the Commonwealth AGD, employees of Interpol in Australia and Macedonia, employees of the Australian Government Solicitor" that appear in PP para 12(d) are beyond the grant of leave and are struck out.

New imputations?

1. Mr McClintock and Mr Robinson argued that the plaintiff had made no attempt to confine himself to the restriction imposed by the Court of Appeal against adding to the imputations upon which he relies. The plaintiff said that there were no imputations in the PP that differed in substance from the imputations before the Court of Appeal with the exception of the word "Australia" that did not appear in para 196 (n) ex 1S which he was prepared to take out of the proposed pleading. He also mentioned that he had replaced the word "police" that had been used in para 196(d) ex 1S by the "Australian Federal Police" in the PP. The plaintiff told me that he had tried to be precise in the PP so as to avoid any argument that the pleading was not in proper form or in accordance with the rules.

1. The defamatory imputations are pleaded in PP paras 23-37 and paras 198-220 ex 1S. Paragraph 23 PP pleads the imputations that are claimed to have arisen from "A1". The counterpart of this paragraph is found in paras 198-199 ex 1S. The imputations that are said in those paragraphs can be drawn from "A1" are confined to imputations 196(a)-(b). Those imputations are repeated in PP paras 23(a)-(b) and do not exceed the grant of leave. The imputations in PP paras 23(c)-(i) go beyond the imputations attributed to "A1" in ex 1S and are outside the grant of leave. Accordingly, PP paras 23(c)-(i) inclusive are struck out.

1. The imputations that are claimed to have arisen from "A2" are pleaded in PP para 24. Paragraph 200 ex 1S is the counterpart of this paragraph. The imputation that is said in para 200 can be drawn from "A2" is confined to para 196(c) ex 1S which is repeated in PP para 24(a). That imputation does not exceed the grant of leave. However, the imputations in PP paras 24(b)-(e) go beyond the imputations attributed to "A2" in ex 1S and are outside the grant of leave. Accordingly, PP paras 24(b)-(e) inclusive are struck out.

1. The imputations that are claimed to have arisen from "A3" are pleaded in PP para 25. Paragraph 201 ex 1S in the counterpart of this paragraph. The imputation that is said in para 201 to be drawn from "A3" is confined to para 196(d) ex 1S which is repeated in PP para 25(c). That imputation does not exceed the grant of leave. However, the imputations in PP paras 25(a)-(b), 25(d)-(i) go beyond the imputations attributed to "A3" in ex 1S and are outside the grant of leave. Accordingly, PP paras 25(a)-(b), 25(d)-(i) inclusive are struck out.

1. The imputations that are claimed to have arisen from "A4" are pleaded in PP para 26. Paragraph 206 ex 1S is the counterpart of this paragraph. The imputation that is said in para 206 can be drawn from "A4" is confined to para 196(e) ex 1S which is repeated in PP para 26(c). That imputation does not exceed the grant of leave. However, the imputations in PP paras 26(a)-(b), 26(d)-(i) go beyond the imputations attributed to "A4" in ex 1S and are outside the grant of leave. Accordingly PP paras 26(a)-(b), 26(d)-(i) inclusive are struck out.

1. PP para 27 pleads the imputations that are claimed to have arisen from "A5". Paragraph 207 ex 1S is the counterpart of this paragraph. The imputation that is said in para 207 can be drawn from "A5" is confined to para 196(f) ex 1S and is repeated in PP para 27(e). That imputation does not exceed the grant of leave. However, the imputations in PP paras 27(a)-(d), 27(f)-(j) go beyond the imputations attributed to "A5" in ex 1S and are outside the grant of leave. Accordingly PP paras 27(a)-(d) inclusive, 27(f)-(j) inclusive are struck out.

1. PP para 28 pleads the imputations that are claimed to have arisen from "A6". Paragraphs 202 and 208 ex 1S are the counterparts of this paragraph. The imputations that are claimed to be drawn from "A6" are found in paras 196(d) and 196(g). These imputations are repeated (although not precisely in PP paras 28(g) and (i)) in PP paras 28(g), 28(h), 28(i) and 28(j). These imputations do not exceed the grant of leave. However, the imputations in PP paras 28(a)-(f) and 28(k) go beyond the imputations attributed to "A6" in ex 1S and are outside the grant of leave. Accordingly PP paras 28(a)-(f) inclusive and 28(k) are struck out.

1. The imputations that are claimed to have arisen from "A7" and "A8" are pleaded in PP paras 29 and 30. There are no pleadings in ex 1S that identify the defamatory imputations that are to be drawn from those documents. Accordingly, the imputations in PP paras 29 (a)-(h) inclusive, 30(a)-(h) inclusive, are outside the grant of leave and are struck out.

1. PP para 31 pleads the imputations that are claimed to have arisen from "A9". Paragraphs 212-213 ex 1S are the counterparts to this paragraph. The imputations that are said in paras 212-213 can be drawn from "A9" are found in paras 196(h) and (i). These imputations are repeated in PP paras 31(e) and (f) and do not exceed the grant of leave. However, the imputations in PP paras 31(a)-(d) and 31(g)-(h) go beyond the imputations attributed to "A9" in ex 1S and are outside the grant of leave. Accordingly, PP paras 31(a)-(d) inclusive and 31(g)-(h) inclusive are struck out.

1. The imputations that are claimed to have arisen from "A10" are pleaded in PP para 32. Paragraph 217 ex 1S is the counterpart of this paragraph. The imputation that is said in para 217 can be drawn from "A10" is confined to para 196(k) ex 1S and is repeated (although not precisely in PP para 32(f)) in PP paras 32(f) and (h). Those imputations do not exceed the grant of leave. However, the imputations in PP paras 32(a)-(e), 32(g)-(i) go beyond the imputations attributed to "A10" in ex 1S and are outside the grant of leave. Accordingly, PP paras 32(a)-(e) inclusive and 32(g)-(i) are struck out.

1. PP para 33 pleads the imputations that are claimed to have arisen from "A11". Paragraphs 215 and 216 ex 1S are the counterparts of this paragraph. The imputations that are claimed to be drawn from "A11" are found in paras 196(j) and (k) ex 1S. These imputations are repeated in PP paras 33(e)-(f) and do not exceed the grant of leave. However, the imputations in PP paras 33(a)-(d) and 33(g) go beyond the imputations attributed to "A11" in ex 1S and are outside the grant of leave. Accordingly, PP paras 33(a)-(d) inclusive and 33(g) are struck out.

1. The imputations that are claimed to have arisen from "A12" are pleaded in PP para 34. Paragraphs 203 and 209 ex 1S are the counterparts of this paragraph. The imputations that are claimed in paras 203 and 209 to be drawn from "A12" are found in paras 196(d) and 196(g). These imputations are repeated (although not precisely in PP paras 34(c), 34(f)) in PP paras 34(c), 34(f), 34(g) and 34(h) and do not exceed the grant of leave. However, the imputations in PP paras 34(a)-(b), 34(d)-(e) and 34(i) go beyond the imputations attributed to "A12" in ex 1S and are outside the grant of leave. Accordingly, PP paras 34(a)-(b) inclusive, 34(d)-(e) inclusive and 34(i) are struck out.

1. PP para 35 pleads the imputations that are claimed to have arisen from "A13". Paragraphs 204 and 210 ex 1S are the counterparts of this paragraph. The imputations that are claimed in paras 204 and 210 to be drawn from "A13" are found in paras 196(d) and 196(g). The imputations are repeated (although not precisely in PP paras 35(i)-(j)) in PP paras 35(c), 35(f), 35(i) and (j) and do not exceed the grant of leave. However, the imputations in PP paras 35(a)-(b), 35(d)-(e), 35(g)-(h) and 35(k) go beyond the imputations attributed to "A13" in ex 1S and are outside the grant of leave. Accordingly, PP paras 35(a)-(b) inclusive, 35(d)-(e) inclusive, 35(g)-(h) inclusive and 35(k) are struck out.

1. The imputations that are claimed to have arisen from "A14" are pleaded in PP para 36. Paragraph 214 ex 1S is the counterpart of this paragraph. The imputation that is said in par 214 can be drawn from "A14" is confined to para 196(j) ex 1S and is repeated (although not precisely in PP para 36 (c)) in PP paras 36(c) and 36(g). Those imputations do not exceed the grant of leave. However, the imputations in PP paras 36(a)-(b), 36(d)-(f) and 36(h)-(i) go beyond the imputations attributed to "A14" in ex 1S and are outside the grant of leave. Accordingly, PP paras 36(a)-(b) inclusive, 36(d)-(f) inclusive and 36(h)-(i) are struck out.

1. PP para 37 pleads the imputations that are claimed to have arisen from "A15". Paragraphs 205, 211, 218, 219 and 220 ex 1S are the counterparts of this paragraph. The imputations that are said in these paragraphs can be drawn from "A15" and are found in paras 196(d), 196(g), 196(l), 196(m) and 196(n). These imputations are repeated in PP paras 37(c), 37(f), 37(g), 37(h), 37(i), 37(j) and 37(k) and do not exceed the grant of leave. However, the imputations in PP paras 37(a)-(b) and 37(d)-(e) go beyond the imputations attributed to "A15" in ex 1S and are outside the grant of leave. Accordingly, PP paras 37(a)-(b), 37(d)-(e) inclusive are struck out.

1. Consequent upon the strike out orders that I have made, it is unnecessary to deal with the State's argument founded upon s 14 of the Limitation Act 1969.

Are the pleaded imputations untenable?

1. Another argument advanced for the State and the Commonwealth is that the imputations pleaded in nominated paragraphs are so obviously untenable that they are groundless and cannot succeed. The contention was that the words complained of were incapable of conveying the defamatory meaning alleged. Mr Robinson cited Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 as re-stating the test to be applied of the "ordinary reasonable reader." The plaintiff responded by submitting that the correct test is that the recipient of the publication is "[the] ordinary reasonable public officer or ordinary reasonable public officer solicitor employed in certain office in public office or in the particular case reasonable public officer who is working or who is involved in Hague convention matters with a special knowledge of certain material facts or certain relevant events or certain relevant law..." Tp 152 19-26 - 20/2/08. His general contention was that each of the challenged imputations was capable of conveying the defamatory meaning that was pleaded.

1. The test as to whether the published material is capable of conveying a defamatory meaning is objective. In Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at [505]-[506], Brennan J said:

"...the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men (Capital and Counties Bank v. Henty) or Lord Atkin's right-thinking members of society generally (Sim v. Stretch or Lord Reid's ordinary men not avid for scandal (Lewis v. Daily Telegraph Ltd.)) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v. Deane, being a standard common to society generally (Miller v. David; Myroft v. Sleight; Tolley v. J.S. Fry & Sons Ltd.))."

1. The ordinary reasonable reader does not live in an ivory tower, is a layman not a lawyer, and approaches the interpretation of the words complained of in light of the reader's general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; Favell v Queensland Newspapers Pty Ltd at [10]-[11]. However, the plaintiff argues that the alleged defamatory words were not published to the community at large, but to public officers of the State and the Commonwealth who were involved in the enforcement of the Hague Convention and were in possession of special knowledge and a different test applies.

1. I do think that there is some substance in the plaintiff's argument that the question as to whether the publications are capable of conveying a defamatory meaning is to be confined to the hypothetical member of the group of persons who were likely to read them. Such an approach was adopted in Drummond - Jackson v British Medical Association [1970] 1 ALL ER 1094 at 1099 where Lord Denning MR asked the question:

"...are these words reasonably capable of being understood as being defamatory of the plaintiff? Understood, that is, by the sort of people likely to read them. These are, I take it, the medical men who read the British Medical Journal".

The material published in the British Medical Journal considered techniques of dental surgery.

1. In Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15, Merkel J treated the hypothetical referee as the hypothetical member of the medical profession in relation to a booklet circulated to medical practitioners: see also FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479.

1. The majority of the High Court (French CJ, Gummow, Kiefel and Bell JJ) in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, (2009) 238 CLR 460 at [31] appeared to approve of a "sectional approach" being taken in appropriate cases. However, the majority observed at [50]:

"The only distinctive character of the class of persons suggested as necessary to assess imputations of the kind here in question, it may be inferred, is special knowledge of the business or profession in question. The issue is not whether general community standards apply. It is whether the ordinary reasonable person has knowledge of the facts necessary to determine the meaning of an imputation in a business or professional context. It may be taken that this was the concern shared by Spigelman CJ in the court below and by Willmer J in Drummond-Jackson v British Medical Association. The technique used by the plaintiff in Drummond-Jackson v British Medical Association, which was the subject of the article in question, furnishes an example. Willmer J considered the article, which discussed the technique and its risks, to be of a highly technical nature, "barely intelligible to the ordinary layman". It was for that reason that he considered that it would be necessary to gauge the reaction of dentists to it." (italics added)

1. It seems that the confinement of the ordinary reasonable reader to a narrower section of the community depends upon the content of the publication, and not the restricted area of circulation. In the present case, the publications are not of a highly technical nature and unintelligible to the ordinary reasonable reader. I do not propose to confine the hypothetical ordinary reasonable reader to the public officers of the State and the Commonwealth.

1. I turn now to deal with those imputations in the PP that remain after the strike out orders. PP para 23(a) is said by the State to be untenable. PP para 23(a) has not been struck out and is as follows:

"The plaintiff is a bad parent in that he removed his daughter while breast- feeding"

The plaintiff pointed to the words "Elena is very young and was still being breastfed at the time of her abduction. She is apparently on medication, but I am unclear as to its nature at this stage," in "A1" as being capable of conveying the defamatory meaning pleaded.

1. In my opinion, the words in "A1" relied upon by the plaintiff are reasonably capable of conveying to the ordinary reasonable reader the imputation in PP para 23(a). I do not accede to the State's request to strike out this imputation. However, the words in "A1" are not reasonably capable of conveying to the ordinary reasonable reader the imputation pleaded in PP para 23(b) which is "[T]he plaintiff is a violent person." Accordingly, PP para 23(b) is struck out.

1. PP para 24(a) has not been struck out and is as follows:

"The plaintiff is a bad parent in that his daughter must be placed in protective custody."

Mr McClintock submitted that PP para 24(a) is untenable. He argued that the words "protective custody" were a misnomer for what had occurred, that there was nothing said in "A2" about protective custody at all. The plaintiff contended that the imputation may be inferred from the following in "A2":

"Lilly Anthony ...has found a foster carer for Elena Markisic through Centrecare."

He argued that a child is not placed in foster care unless the child is neglected or abused and the conclusion that he is not a good parent is reasonably available.

1. The natural and ordinary meaning of words may be either the literal meaning or may be implied or inferred. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL observed at 165.B:

"The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it...In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable..., and any strained or forced or utterly unreasonable interpretation must be rejected." (case citations omitted).

1. In Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Mason J with whom Wilson J agreed, referred to the distinction between the reader's understanding of what a publication says and judgment or conclusions which the reader may reach as a result of his or her own beliefs and prejudices. Mason J said at p 301:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."

1. The interpretation that the plaintiff seeks to draw from the finding of a foster carer for Elena is utterly unreasonable. The ordinary reasonable reader could not possibly conclude from "A2" that the child was to be placed in protective custody. In my opinion, the words in "A2" relied upon by the plaintiff are not reasonably capable of conveying to the ordinary reasonable reader the imputation in PP para 24(a). I accede to the State's request to strike out this imputation.

1. PP para 25(c) has not been struck out and is as follows:

"The plaintiff is a violent person in that...he must be restrained from his wife by the Australian Federal Police."

It was submitted that PP para 25 is untenable but Mr McClintock did not specifically address para 25(c). The plaintiff contended that the imputation may be inferred from the following in "A3";

"I confirm however, our concerns for the safety of Mrs Markisic if she is to collect her child.

Very careful arrangements will need to be made with the Federal Police to

ensure her safety if she is to collect the child. A collection point will need to be carefully chosen...The collection and return to Macedonia will need to be as quick as possible to avoid any problems."

1. These words in "A3", in my view, are reasonably capable of conveying to the ordinary reasonable reader the imputation in PP para 25(c). I do not strike out this imputation.

1. PP para 26(c) has not been struck out and is as follows:

"The plaintiff is a bad parent in that he abuses his daughter."

Mr McClintock contended that there is nothing that was said in "A4" that is capable of creating the imputation pleaded. In answer to the submission that PP para 26(c) is untenable, the plaintiff placed emphasis on the whole of the third paragraph on the second page of "A4" that was said to deal "with the abuse of my daughter by [the] plaintiff": Tp 179 25-44 25/02/08.

1. When read in the context of the discussions with Ms O'Brien that are referred to in the preceding paragraphs, the words "I said I found this hard to believe given the amount of literature which deals with the problems of abused children who still have strong feelings of affection for their abusers", in my view, are reasonably capable of conveying to the ordinary reasonable reader the imputation in PP para 26(c). I do not strike out this imputation.

1. PP para 27(e) has not been struck out and is as follows:

"The plaintiff is a bad parent in that ...the best interest of his daughter is not to be with the plaintiff."

Mr McClintock did not make any specific submission about this pleading other than it is untenable. The plaintiff submitted that this imputation arises "from the facts" given in "A5" that the child was taken from him by a police warrant. Furthermore, reliance was placed on the words that appear in "A5";

"The intentions of the Full Court were clearly not to have the child with the father other than through contact, and it was the Court's contention that this was in the best interests of the child."

1. The quoted passage was provided as a basis for the negative response to "Lily's question as to placing the child and father together in a detention centre like facility." When "A5" is read in its entirety, the publication is reasonably capable of conveying to the ordinary reasonable reader the imputation in PP para 27(e). I do not strike out this imputation.

1. Mr Robinson submitted that the imputations pleaded in PP para 28 cannot arise from "A6" and they should be struck out. In PP para 28, the following imputations were not beyond the Court of Appeal's grant of leave and remain to be considered:

"(g)The plaintiff is a violent person in that...he must be restrained from his wife.

(h)The plaintiff is a violent person in that...he must be restrained from his wife by police.

(i)The plaintiff is a violent person in that ...he must be restrained from his daughter.

(j)The plaintiff is a violent person in that ...he must be restrained from his daughter by police."

1. The plaintiff put to me that the imputation that he is a violent person could be found in the whole of "A6". He referred in particular to the passage in "A6" that commences "[W]e know the mother is afraid of the father but please tell her..." The plaintiff said that the imputations pleaded in PP paras 28 (h) and (j) were explained by the "involvement of police and restraint of daughter, and daughter to be taken secretly to protect the life of both wife and child." Tp 186 36-37 25/02/08.

1. The passage in "A6" that commences with the words "[W]e know the mother is afraid of the father...", to which the plaintiff directed my attention is reasonably capable of conveying to the ordinary reasonable reader the imputation in PP paras 28 (g) and (h) but these sub-paragraphs are repetitive and give rise to the same imputation. Only one will be permitted to remain. The imputations in PP paras 28 (i) and (j) are another matter. None of the words in "A6" read as a whole or in part are reasonably capable of conveying to the ordinary reasonable reader the imputations in PP paras 28 (i) and (j). Accordingly, PP paras 28(g), (i) and (j) are struck out.

1. PP paras 31(e) and (f) have not been struck out and are as follows:

"(e) The plaintiff is a bad parent in that he distresses his daughter.

(f)The plaintiff is a bad parent in that he causes anxiety and distress to his daughter.

Mr McClintock argued that "A9" could not be taken to say any of the imputations pleaded in PP para 31. He said that the second last paragraph of the letter did not necessarily reflect on the plaintiff. Mr McClintock submitted that in the circumstances to say that a child would suffer stress did not reflect upon the person, but was a statement of the obvious. On the other hand, the plaintiff contended that "A9" intended to present him as a bad parent and as a source of abuse, distress and anxiety for the child. He referred in particular to the following passage in "A9":

"It is the belief of the legal services unit that, this child must be returned to FYROM immediately to avoid any further complications. Returning to [sic] the child temporarily to the father, will only cause the child further anxiety and distress."

1. There is nothing in "A9" from which the ordinary reasonable reader could capably conclude that the plaintiff causes anxiety and distress to his daughter. Imputations PP paras 31(e) and (f) are struck out.

1. PP paras 32 (f) and 32 (h) have not been struck out and are as follows:

"32(f) The plaintiff is a violent person in that...he must be restrained from his daughter by the Australian federal Police.

32(h) The plaintiff is violent person in that ...he must be restrained from his daughter."

Mr McClintock submitted that "A10" was not capable of giving rise to the imputations pleaded. He argued that it was impossible to see "A10" in any way other than "innocuously" reflecting upon the plaintiff. The plaintiff did not make a specific submission as to PP paras 32(f), 32(h) but referred to the query in the second paragraph of "A10" about the involvement of the Federal Police and to the words in the penultimate paragraph "as his behavior is unpredictable your instructions are required."

1. I do not think that "A10" read as a whole or in part is reasonably capable of conveying to the ordinary reasonable reader the imputations in PP paras 32(f) and 32(h). I strike out these imputations.

1. The remaining imputations in PP para 33 are:

"(e)The plaintiff is a violent person in that...he must be restrained from his wife.

(f)The plaintiff is a violent person in that... he must be restrained from his daughter."

Mr McClintock put to me that none of these things are said in "A11" and the imputations pleaded are untenable. The plaintiff argued that the imputations can arise from the plaintiff not being told of the mother's arrival in Australia or of the child's departure. The plaintiff was referring to the following in "A11":

"We have instructions from Canberra that the father is not to be informed of the mother's arrival, nor is he to be informed of the child's departure. He cannot therefore be told of when the last visit will be."

1. I do not think that the interpretation that the plaintiff seeks to place on PP para 33(e) is so strained that it is unreasonable. However, I am not satisfied that "A11" read as a whole or in part is reasonably capable of conveying to the ordinary reasonable reader the imputation in PP par 33(f). Accordingly I strike out PP para 33(f).

1. The imputations that remain in PP para 34 are:

"(c)The plaintiff is a violent person in that...he must be restrained from his wife by the Australian federal Police.

...

(f)The plaintiff is a violent person in that...he must be restrained from his daughter by the Australian federal Police.

(g)The plaintiff is a violent person in that ...he must be restrained from his wife."

(h)The plaintiff is a violent person in that ...he must be restrained from his daughter."

1. Mr Robinson submitted that there was no suggestion of any restraint by any person in "A12" and the imputations were untenable. The plaintiff referred to the references in "A12" to the Australian Federal Police and drew my attention to the following paragraph in the facsimile from John McGinness to Gina Vizza:

"Given the concerns your Department has expressed about the mother's safety and the father's behaviour, it would be inappropriate to alert the father that the mother is arriving or the child is leaving."

1. These words in "A12", in my view, are reasonably capable of conveying to the ordinary reasonable reader the imputation pleaded in paras 34(c) and (g), but these sub-paragraphs are repetitive and give rise to the same imputation. Only one will be permitted to remain. I do not consider that "A12" read as a whole or in part is reasonably capable of conveying to the ordinary reasonable reader the imputations in PP paras 34 (f) and (h). Accordingly, I strike out PP paras 34(f)¸34(g) and 34(h).

1. The remaining imputations in PP para 35 are:

"(c)The plaintiff is a violent person in that...he must be restrained from his wife by police.

...

(f)The plaintiff is a violent person in that...he must be restrained from his daughter by police.

...

(i)The plaintiff is a violent person in that...he must be restrained from his wife.

(j)The plaintiff is a violent person in that ...he must be restrained from his daughter."

1. In responding to Mr Robinson's submission that the whole of PP para 35 should be struck out, the plaintiff referred in particular to the words in "A13":

"We know the mother Katarina Markisic fears the father of the child but we have advised that

(1)The child is no longer with the father (the child has been taken into care by the Australian Government Authorities)..."

1. He also referred to the words in "A13" that "the father will not know that the mother is traveling to Sydney" and "the mother will be met at the airport by police and DOCS officers..."

1. I am satisfied that these words in "A13" are reasonably capable of conveying to the ordinary reasonable reader the imputation pleaded in PP para 35(c) and (i), but these sub-paragraphs are repetitive and give rise to the same imputation. Only one will be permitted to remain. I do not consider that "A13" read as a whole or in part is reasonably capable of conveying to the ordinary reasonable reader the imputations in PP paras 35(f) and (j). Accordingly, I strike out PP paras 35(c), 35 (f) and 35(j).

1. The remaining imputations in PP para 36 are:

"(c) The plaintiff is a violent person in that...he must be restrained from his wife by police.

...

(g)The plaintiff is a violent person in that...he must be restrained from his wife."

1. Mr Robinson contended that there was nothing in "A14" that gave rise to the imputation. The plaintiff, however, placed reliance upon the following in "A14":

"Mr Markisic does not know the mother is in Australia and, as she is terrified of him and fears for her life, we prefer he not know at this stage."

1. I am satisfied that these words in "A14" are reasonably capable of conveying to the ordinary reasonable reader the imputation pleaded. However, PP paras 36(c) and (g) are capable of giving rise to the same imputation and are repetitive. Only one sub-paragraph will be permitted to remain. Accordingly, I strike out PP para 36(c).

1. PP paras 37(c), 37(f), 37(g), 37(h), 37(i), 37(j) and 37(k) have not been struck out and are as follows:

"(c)The plaintiff is a violent person in that ...he must be

restrained from his wife by the Australian federal Police.

(f)The plaintiff is a violent person in that...he must be restrained from his daughter by the Australian Federal Police.

(g)The plaintiff is a violent person in that...he must be restrained from his wife.

(h)The plaintiff is a violent person in that ...he must be restrained from his daughter.

(i)The plaintiff is a dangerous person in that he might impede the departure of the plane.

(j)The plaintiff is a dangerous person in that he might endanger the security of the plane."

(k)The plaintiff has no custody rights in Australia in relation to his child."

1. Mr McClintock argued that "A15" did not say any of the matters pleaded as imputations and the imputations were untenable. In response, the plaintiff submitted that all of the imputations could arise from "A15". He placed particular emphasis upon the following passages in the facsimile:

"We have genuine concerns Mr Markisic may try to impede the departure" and;

"I would appreciate it if some check could be made to ensure that neither Mr Dragan Markisic or Mr Oliver Markisic are on the same flight."

1. In my view, the interpretations that the plaintiff seeks to obtain from "A15" are utterly unreasonable. I am not satisfied that "A15" read as a whole or in part is reasonably capable of conveying to the ordinary reasonable reader the imputations in the sub-paragraphs that remain in PP para 37. Accordingly, PP paras 37(c), 37(f), 37(g), 37(h), 37(i), 37(j) and 37(k) are struck out.

Absolute Privilege?

1. Mr McClintock submitted that it was apparent from the face of "A1" to "A15" that these documents dealt with different aspects of the litigation process and were absolutely privileged. He said that the defence of absolute privilege applied as:

(i)each of the documents were properly incidental to the legal proceedings and necessary to them, being intimately connected with the court proceedings and the carrying out of or enforcement of court orders; and

(ii)upon the wider basis referred to by Giles JA in Markisic v Department of Community Services of New South Wales (No 2) 2006 NSWCA 321 at [87] where his Honour said:

"It may also be that there is a wider basis for absolute privilege within which the publications fall, that referred to in Gibbons v Duffell (1932) 47 CLR 520 at 528 and noted in the reasons of Brennan CJ, and Dawson, Toohey and Gaudron JJ, that absolute privilege for communications between officers of State in the course of their official duties is "indispensable to the effective performance of ... official functions..."

1. Mr Robinson supported these contentions and referred to the operation in September 1998 of the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 ('the Hague Convention"). He submitted that there was no possibility of any reply by the plaintiff such as malice that might defeat the defence of absolute privilege.

1. The plaintiff submitted that in about May, June 1998 certain Commonwealth officers, to whom he referred as "child predators" decided to take his child into their control for their sexual gratification by the fraudulent use of the Hague Convention. He asserted that the delegations of the New South Wales Central Authority, and the request from Macedonia were fabricated. The plaintiff said that the Commonwealth and State public officers used the Family Court proceedings as a means of fraudulently taking possession of the child so that she could be given to the "child predators". He argued that the Commonwealth and State public officers at the time of the institution of the Family Law proceedings did not have any lawful justification for the institution and conduct of the proceedings against him.

1. The plaintiff was repeating an argument that had been previously advanced and had been dealt with by Giles JA in Markisic v Department of Community Services of New South Wales (No 2) at [42]-[45]. His Honour said at [45]:

"The orders of the Family Court were valid unless and until set aside, and if what was done was authorised by the orders Mr Markisic could not collaterally attack them by complaining of conduct whereby they were obtained, or say that any harm he suffered was caused by wrongfulness in the conduct leading to the making of the orders."

1. During the hearing of the motion, the plaintiff sought to set aside the orders of the Family Court but I declined, as I do not have the power to do so. An adjournment was subsequently sought by the plaintiff to enable an application in the Family Court to be made: see [5] above. The orders of the Family Court remain and are valid.

1. Another matter that was argued by the plaintiff was that neither Carmel Niland, the Director-General of the Department of Community Services of New South Wales (DOCS) or Tony Blunn, the Secretary of the Commonwealth Attorney-General were involved in the Family Court proceedings. The plaintiff made detailed reference to the Family Law (Child Abduction Convention) Regulations 1986 and argued that none of the DOCS officers or officers of the State and Commonwealth Departments' of Attorney-General could exercise the functions or powers of the State Central Authority that was vested at all material times in Ms Niland.

1. In response, Mr McClintock contended that this issue had been determined adversely to the plaintiff by the Court of Appeal and the plaintiff was estopped from attempting to re-litigate it. The plaintiff, however, submitted that the present argument was never put to the Court. In seeking to clarify his argument, the plaintiff said: (Tp 234 41-50; Tp 235 1-2 27/02/08)

"The issue before your Honour is not a question of the delegation, as Justice Giles correctly put in his judgment, the issue is the central authority, whether the central authority initiated proceedings either directly or through any intermediary, that is the main issue between us, that is first issue, whether the proceedings were initiated lawfully and in accordance with the declarations.

And secondly, whether the Court of the proceedings including the end of the proceedings, returning of the child, was done with involvement either directly or Carmen Niland or whether she has done any act through intermediary. That is the main point in the judgment, but Mr McClintock on behalf of state just is ignoring the intention of his Honour Justice Giles."

1. The Court of Appeal decided these issues. Giles JA relevantly said at [5]:

"The person holding the office or position of Director-General of DOCS ("the Director-General") was the State Central Authority appointed under the Family Law (Child Abduction Convention) Regulations 1986 ("the Regulations"), authorised by s 111B of the Family Law Act 1975 (C'th) and giving effect to Australia's accession to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 ("the Convention"). The Convention is the Hague Convention to which Smart AJ referred, and the Regulations provided for application by a Central Authority for a judicial order for the return of an abducted child. The application to the Family Court was made in the name of the Director-General, and a number of officers of DOCS and of the Commonwealth Central Authority were involved in the application and the return of Elena to Macedonia."

1. And at [42]-[43]:

"42 As I have indicated, under the Regulations the appointed State Central Authority was the person for the time being holding the office or position of Director-General of DOCS. The Regulations provided for applications to a court by the responsible Central Authority. The flaw in the proceedings, in Mr Markisic's contention, was that the proceedings in the Family Court should have been brought by the Director-General as the appointed State Central Authority, but they were brought by a person or persons other than the Director-General herself. The fresh draft amended statement of claim referred in that respect to the Australian Government Solicitor, the (Commonwealth) Attorney-General's Department, DOCS, the (State) Crown Solicitor and a number of solicitors, all alleged to be following the orders of the (Commonwealth) Attorney-General, but also specifically to Mr David Wells. The allegations included that all these persons fraudulently misrepresented themselves as the Commonwealth Central Authority and the State Central Authority, although the requisite particulars of fraud were not given.

43 The Director-General was named as the applicant in the proceedings in the Family Court. Her solicitor was identified as the (State) Crown Solicitor. The body of the application expressed that Mr Wells of DOCS "whose occupation is solicitor and who represents the Responsible Central Authority" applied for orders. It is plain that the Director-General was acting through Mr Wells, an officer of her Department, and solicitors. She was not required to do everything personally (see for example O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 31 per Wilson J). The Regulations themselves, giving the Director-General all the powers of a Central Authority under the Convention (reg 5(2), 9), gave her the power stated in the Convention to initiate judicial proceedings with a view to obtaining the return of a child either directly or "through any intermediary" (Article 7). The evidence before Smart AJ included a written delegation by the Director-General to Mr Wells and others of her function under the Regulation to take all appropriate steps to secure the return of children to whom the Convention applied, but quite apart from that document the proceedings could be brought by the Director-General acting through Mr Wells and solicitors. The proceedings were not flawed in their initiation, and there is no basis for the misrepresentation alleged."

1. The plaintiff's endeavour to re-open these issues is estopped by the Court of Appeal's judgment: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

1. The task for this court is encapsulated in Giles JA's judgment at [88]. It is for me to decide "whether, to the level of arguability appropriate to leave to apply to re-plead the defamation claims, absolute privilege attaches or does not attach to the occasions of the publications and, if the publications are in different positions, to which ones."

1. The onus of proof lies on the State and the Commonwealth to prove the necessary facts that the allegedly defamatory matter was published on an occasion of absolute privilege. Where the defence of absolute privilege is relied upon "it is for the defendant to allege and prove all such facts as are necessary to bring the words complained of within the privilege, unless such facts are disclosed in the statement of case, or otherwise admitted before or at the trial of the action": Gatley on Libel and Slander, 11th ed, (2008) at para 13.4.

1. One of the plaintiff's criticisms was that neither of the opposing parties had filed defences or put on evidence and their argument that each of the documents was absolutely privileged should fail. The State and the Commonwealth were content to rely on the face of the documents themselves when viewed in conjunction with the application made under the Hague Convention for the return of Elena Markisic to Macedonia.

1. The findings of fact made by Smart AJ in Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373 were not overturned by the Court of Appeal and Giles JA set out at [2], the history of the proceedings as stated in the reasons of Smart AJ. There is also in evidence the orders made by Rowlands J on 9 September 1998 (ex G), Reasons for Judgment of Rowland J (ex F), Application (ex D), and Orders and Judgment of the Full Court of the Family Court of Australia (ex A - B).

1. Shortly stated, after a court in Macedonia made an ex parte order, that Elena should remain with Mrs Markisic, who was living in Macedonia, the Macedonian Authorities sought the assistance of the Australian Authorities under arrangements akin to those under the Hague Convention. The plaintiff had left Macedonia in April 1998 and had brought Elena who was 11 months old, to Australia.

1. On 17 August 1998 Judicial Registrar Johnston in the Family Court of Australia ordered Elena's return to Macedonia. The plaintiff's application for review of the Judicial Registrar's order was dismissed by Rowlands J on 9 September 1998. The Full Court of the Family Court dismissed the plaintiff's appeal against the decision of Rowlands J on 29 September 1998 and made an order that a warrant issue authorising "the Marshal and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all officers of the Police Forces in the Commonwealth of Australia to take possession of the child ELENA MARKISIC born 3 May 1997 and deliver such child to TIM McDONALD, MANAGER ST GEORGE CSC DEPARTMENT OF COMMUNITY SERVICES..."

1. The Full Court of the Family Court granted a stay for seven days of the order that the child be returned to Macedonia to enable an application for a stay to be made to a single Justice of the High Court. Such an application was made and refused on 13 October 1998. An application for special leave to appeal was also filed. On 14 October 1998, Elena left Australia in the company of her mother who had travelled to Australia to collect her. The special leave application was subsequently withdrawn.

1. The Defamation Act 1974 made specific provision for a number of public bodies and for the circumstances in which a publication to those bodies or by those bodies was subject to the defence of absolute privilege. The publications "A1" to "A15" are not specifically provided for and do not fall within ss 17 - 19 of the Act. Section 11 made clear that common law defences continued unless excluded expressly or by necessary implication.

1. It has long been recognised that no action in defamation may be taken for statements made in the course of judicial proceedings. The scope of absolute privilege extends not only to the judicial proceedings themselves but to any publications necessary for the conduct of the judicial proceedings and properly incidental and necessary for them. In Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204, the plurality (Brennan CJ, Dawson, Toohey and Gaudron JJ) in their judgment said at 211-212:

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an 'occasion properly incidental [to judicial proceedings], and necessary for [them]'." (footnotes omitted)

1. When considering the duration of the privilege, Kirby J remarked at 260 that "so far as I have been able to discover, no cases have defined with exactness the point at which the absolute privilege or immunity attaching to judicial or quasi-judicial proceedings terminates."

1. In Markisic v Department of Community Services of New South Wales (No 2) Giles JA stated at [82]:

"In the current edition of Gatley on Libel and Slander, the 10th ed (2004), it is said at para 13.6 that the privilege will attach "to any matter incidental to the proceedings 'practically necessary for the administration of justice'", referring to Lincoln v Daniels (1962) 1 QB 237 at 263 where Devlin LJ said -

'I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech [in Watson v McEwan (1905) AC 480] is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called.'"

1. Absolute privilege may also attach to certain communications between officers of state acting in an official capacity. In Mann v O'Neill, the plurality noted at 212-213:

"It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is 'indispensable to the effective performance of ...official functions.'" (footnotes omitted)

1. In Gibbons v Duffell (1932) 47 CLR 520, the High Court determined that a report made in the course of his duty by an inspector of police to his superior officer, which contained defamatory references to a subordinate officer, was not the subject of absolute privilege. Gavan Duffy CJ, Rich and Dixon JJ said at 528:

"The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured. Its application should end where its necessity ceases to be evident." (footnotes omitted)

1. It does not appear that the position or status of the officials involved is determinative of the application of absolute privilege. In Gatley on Libel and Slander, 11th ed, (2008) at para 13.26, it is said that "the fact that the report relates to a commercial rather than to a political, diplomatic or military matter does not take the case outside the area of absolute privilege, nor does the fact that the communication is made from the senior to the junior official or vice versa." (footnotes omitted)

1. It is clear, however, that the categories of absolute privilege are limited and there is a reluctance to extend the defence. The plurality in Mann v O'Neill observed at 213:

"It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion and resisted, unless its necessity is demonstrated.'" (footnotes omitted)

1. The face of a publication will usually demonstrate the purpose for which the publication is made: Rajski v Carson (1986) 4 NSWLR 735 at 742-743. Purpose is distinct from motive. As Hunt J observed in Rajski at 742:

"Someone's purpose is the result which he seeks to achieve. His motive is the reason why he seeks to achieve that result. If a defendant has used a privileged occasion to publish for a reason other than that for which the privilege is given (which is usually described as an indirect motive), he is said to have acted maliciously ... Malice (if established) destroys a defence of qualified privilege, but it does not destroy a defence of absolute privilege. It is irrelevant to such a defence. Motive and purpose are quite different concepts." (footnotes omitted)

1. The face of "A1" reveals that the publication is a letter dated 13 July 1998 from Gina Vizza, a solicitor with DOC's legal branch to Denise McOnie, a senior solicitor with the Crown Solicitor's Community Law Section providing instructions to commence proceedings for the return of Elena to Macedonia. The commencement of the letter is as follows:

"Re: Markisic - Application for the return, Hague Convention

I refer to the above and advise that we have received a request from the Central Authority in Macedonia for the return of Elena Markisic born 3 March 1997.

I enclose for your attention the following:

1. Application signed by Doreen Muirhead

2.Affidavit by Doreen Muirhead

3.Application under the Hague Convention

4.Copies of relevant Orders made in Macedonia

You are instructed to commence proceedings in this matter."

1. The purpose of the publication that is obvious on its face was to have the Crown Solicitor commence the proceedings in the Family Court that resulted in orders being made for the child's return to Macedonia. This was a necessary first step in the institution of judicial proceedings and was properly incidental to them. It follows that the defence of absolute privilege upon which the State relies is plainly made out.

1. Before embarking upon the remaining publications, it is helpful to give a brief consideration to the objects of the Hague Convention. Article 1 states that its objects are:

"(a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

1. In De L v Director-General, NSW Department of Community Services [1996] HCA 5; (1996) 187 CLR 640, Kirby J observed at 678-679:

"Central to those purposes is the intention that, save in the most exceptional of cases, a child should ordinarily be returned quickly to the jurisdiction of habitual residence from which the child was abducted."

1. It is almost invariable that concomitant with a Family Court application for the return of a child under the Hague Convention, arrangements will need to be made by officers of the State and Commonwealth for the child's prompt and safe return to the Contracting State and for the child's care before departure. It is not uncommon that such proceedings will involve high emotions on the part of the parents and relatives of the child and assessments must necessarily be made about the conduct of the abducting partner. In my view, it is necessary that officers who are charged with such a responsibility, are able to do so freely and without fear of civil action for anything said by them in the course of discharging their duties.

1. I propose to deal briefly with "A2" as this publication could not at any stretch of one's imagination be considered capable of defaming the plaintiff: see [47] above. The purpose that is obvious on the face of the document is to advise Ms Vizza of the foster care arrangements for Elena. A date that appears on the document is 17 August 1998 which coincides with the making of the orders by the Judicial Registrar.

1. The face of "A3" discloses that the publication is a facsimile from Gina Vizza to Nan Levett, who it is clear from PP para 12 (c) and "A14" is an officer in the Commonwealth Attorney-General's Department. The date of the facsimile is 27 August 1998 and the communication is plainly about the application for the return of Elena Markisic to Macedonia. The first two paragraphs of the facsimile are as follows:

"I refer to your most recent fax which states that the Affidavit material has been requested from Macedonia.

I note your instructions as to the escort for the child and will pass this on to our Counsel."

1. Judicial Registrar Johnston had made an order for the return of the child on 17 August 1998. The purpose that is obvious on the face of the facsimile is to put in place appropriate arrangements for Elena's return in accordance with the Family Court orders.

1. It is clear from the face of the file note "A4" that its purpose is to record Doreen Muirhead's conversation with Lily Anthony and Helen O'Brien concerning the arrangements that had been put in place for Elena's care prior to her departure from Australia. Ms Muirhead is a DOCS officer, Ms Anthony, a district officer with the Department of Community Services and Ms O'Brien a "Centrecare worker." The file note bears the date "30 September 1998 - 3.00pm." The Full Court of the Family Court had made an order that a warrant issue for the possession of the child on the previous day.

1. The face of "A5" discloses that it is a facsimile from Gina Vizza to Tim McDonald who, it is clear from PP para 12 (e) is an officer of DOCS and to Lily Anthony. The date of the facsimile is 30 September 1998 and the communication is plainly about the application under the Hague Convention for the return of Elena Markisic to Macedonia. The facsimile is headed Markisic - Application under the Hague Convention. The content of the communication includes references to the orders that were made placing Elena "in the care of the Director-General pending her return to FYROM", the stay of the order to "allow the father to seek an extension of his stay before a single Judge of the High Court" and that the recipients would be advised of any further developments. The purpose that is obvious on the face of the document is to keep Mr McDonald and Ms Anthony apprised of the court orders and the reasons for the child's care arrangements.

1. The face of "A6" discloses that it is a facsimile from John McGinness, Principal Counsel, International Civil Procedures Section of the Commonwealth Attorney-General's Department to Sheila Maloparac, of the Australian Embassy in Belgrade. The facsimile is dated 7 October 1998 and is headed Australian Central Authority - Hague Convention on Civil Aspects of International Child Abduction. The content of the communication includes Elena's travel arrangements to "Skope" (sic) and the conclusion that "it is better that the mother travel to Australia herself as soon as possible to collect the child." Skopje is the capital city of the Republic of Macedonia.

1. "A9" and "A10" evidently are facsimiles dated 8 and 9 October 1998 respectively from Gina Vizza to John McGinness (although the recipient's name is misspelt). The content of the first facsimile includes allegations concerning Elena made by the plaintiff, present arrangements for the child and the belief of DOCS legal services unit that the child be returned to Macedonia immediately. The second facsimile includes discussion concerning arrangements for Mrs Markisic and a request for urgent instructions as to "whether [the plaintiff] is to be advised of when his last access visit will be."

1. As the whole of PP paras 29 and 30 have been struck out, I do not propose to deal at any length with "A7" and "A8". "A7" discloses on its face that the document is a file note made by Ms Vizza of a conversation with Jenny Karney on 8 October 1998 during which the arrangements for Elena were discussed. It is evident that "A8" and "A11" are emails from Gina Vizza to Charlie White, notwithstanding the misspelling "Vizzi." The emails are dated 8 and 9 October 1998 respectively and Charlie White is a DOCS officer: see PP paras 12(g) and 12(j). The content of the first email includes discussion about the plaintiff's access to Elena and the child's medical condition. The content of the second email includes the mother's arrival in Sydney, the handing over of the child to her and their departure from Australia.

1. The face of "A12" discloses two communications firstly an email from Sheila Maloparac to John McGinness that responds to "A6" and secondly, a facsimile from Mr McGinness to Ms Vizza, both communications being made on 9 October 1998. Ms Maloparac advises Mr McGinness in the email of Mrs Markisic's bookings into and out of Sydney, which are then passed on by facsimile to Ms Vizza with advice that it would be inappropriate to alert the plaintiff of the mother's arrival or the child's departure.

1. The face of "A13" reveals that it is a telex message sent on behalf of Mr McGinness to the Australian Embassy in Belgrade on about 9 October 1998. The purpose of the telex was to emphasise the importance of Mrs Markisic travelling to Sydney to collect the child so as to enable the Family Court Orders for the return of the child to be complied with.

1. "A14" is a facsimile dated 13 October 1998 from Nan Levett to Tim Gulliver of Interpol in Canberra headed Application under the Hague Convention - Markisic. The principal purpose of the communication is to apprise Interpol of the Family Court orders, the arrival of Mrs Markisic in Australia and the likely departure date of the child and her mother. In a case involving the wrongful removal of a young child from a Contracting State and the return of that child in accordance with orders made by the Family Court, it is hardly surprising that Interpol was informed of these matters as a necessary step in ensuring the prompt and safe execution of the court's orders.

1. "A15" is a facsimile dated 13 October 1998 from Ms Vizza to Alison Barrett, an employee of the Australian Federal Police: see PP 12 (k). The communication is entitled Assistance at airport for the departure of both Katerina Markisic and Elena Markisic. The content of the facsimile concerns further assistance being provided by the Australian Federal Police at Sydney Airport on 14 October 1998 when Mrs Markisic and Elena were scheduled to leave Australia. Ms Vizza attaches "the Orders which allow the child to be returned to Macedonia for your records."

1. The publications "A2" to "A15" deal with matters that arose in the implementation of the orders of the Family Court. In accordance with their functions and duties as officers of the State and the Commonwealth, the authors of the publications were obliged to make arrangements for the child's care before her departure and to ensure her prompt and safe return to Macedonia. I conclude that absolute privilege attaches to all of the publications, as they were properly incidental and necessary to the proceedings for the return of Elena. Furthermore, complete freedom from suit was indispensable to the effective performance of the officers charged with the responsibility imposed upon them by the application under the Hague Convention and the Court's orders. It is undesirable and clearly against the public interest that the independence necessary for these officers to carry out their functions, be endangered by the possibility of an action in defamation.

1. In the result, I have arrived at the conclusion that if the plaintiff's application to re-plead his defamation claims was granted, the action is "so obviously untenable that it cannot possibly succeed": General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. Accordingly, it would be wrong to grant the plaintiff the leave that he seeks.

Orders

1. The plaintiff's application for leave to file an amended statement of claim (defamation claim) is refused.

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Decision last updated: 08 November 2012