Michail v Mount Druitt & Area Community Legal Centre (No. 2)

[2015] NSWDC 214

District Court

New South Wales

Medium Neutral Citation:	Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214
Hearing dates:	24 September 2015
Date of orders:	24 September 2015
Decision date:	24 September 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the defendant to file an Amended Notice of Motion in court (not opposed by the plaintiff). (2) Defendant’s application under r 13.4 Uniform Civil Procedure Rules 2005 (NSW) for summary dismissal of proceedings refused. (3) Defendant’s application for whole or part dismissal of the plaintiff’s Third Further Amended Statement of Claim allowed as set out in the order below (Judge Gibson to give reasons). (4) Direct the plaintiff to rename all of the persons referred to in the statement of claim by their names and not initials. (5) In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out: (a) Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 31, 34, 36, 37, the heading “3.1”, 39, 40, 42, 43, 44, 46, 47, 48, 51, 52, 56, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 101, 102, 103; (b) Paragraph 17 (except the first sentence); and, (c) Paragraphs 18, 21, 27 and 32 (as noted in Exhibit ZZ). (6) In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out with leave to replead: (a) Paragraph 35 (struck out with leave to replead the breaches with precision); and, (b) Particulars of mitigation under the heading “4” and paragraphs 75-82 (struck out on the basis that these particulars must be particularised as mitigation issues in the claim for damages). (7) In relation to the contract claim, the following clarifying words are to be added to the Third Further Amended Statement of Claim: (a) The heading “Particulars” above paragraph 38 is to be headed “Particulars of breach” and the paragraphs numbered (a)-(f) in paragraph 41 are to be headed “Particulars”; and, (b) Paragraph 49 will become particular (g), paragraph 50 will become particular (h), paragraph 53 will become particular (i), paragraph 54 will become particular (j), paragraph 54 will become particular (k), paragraph 58 will become particular (l). (8) In relation to the first matter complained of in the defamation claim: (a) Imputation (c) is struck out for imprecision of form and as failing to differ in substance to imputation (a); (b) Imputation (d) is struck out for imprecision of form and lack of defamatory meaning; and, (c) The “particulars of extrinsic facts” are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Comino (Webb v Bloch (1928) 41 CLR 331). (9) In relation to the second matter complained of in the defamation claim: (a) The words “of their unlawful and harmful termination of the plaintiff’s conditional contract of service” is struck out as surplusage in paragraph 126; (b) Paragraph 127 is struck out; (c) Paragraph 128 is struck out with leave to include any such publications in the particulars of publication which will replace the current deficient pleading of “particulars of extrinsic facts” set out in paragraphs 130-132; and, (d) Imputations (a)-(d) struck out as not conveyed; grant leave to the plaintiff to plead such further imputation as she may assert arise from the contents of the matter complained of. (10) In relation to the third matter complained of in the defamation claim: (a) Paragraphs 136 and 138 are struck out; (b) The imputations (a) and (b) in paragraph 139 struck out as deficient in form; and, (c) The “particulars of extrinsic facts” set out in paragraphs 141-143 are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Cuic (Webb v Bloch (1928) 41 CLR 331). (11) In relation to the fourth matter complained of in the defamation claim: (a) The fourth matter complained of is struck out with leave to replead the text of the matter complained of as asserted to convey defamatory meanings of and concerning the plaintiff, the imputations arising and the defendant’s liability for this “republication”. (12) In relation to the claim for damages: (a) Paragraphs 150 to 155 struck out (rolled-up claim for “non-economic loss with aggravated damages” impermissible; (b) Paragraphs 156 to 182 struck out; and, (c) Claim for special damages struck out on the basis that, as currently pleaded, this is a repetition of the claim for special damages for breach of contract; any special damages claim arising from one or more of the publications must be identified with specificity as to which publication and must be in addition to, and not a repetition of, the plaintiff’s claim for damages for breach of contract. (13) Note the plaintiff left the courtroom at 12:10pm for the reasons set out in the transcript (plaintiff called three times outside the court when the hearing resumed at 2:20pm – no appearance). (14) Plaintiff to file Fourth Further Amended Statement of Claim in 28 days from the date of receipt of Judge Gibson’s reasons for decision. (15) Defendant’s request for particulars of the Fourth Further Amended Statement of Claim to be administered 14 days after receipt of the Fourth Further Amended Statement of Claim. (16) Plaintiff’s Reply 14 days thereafter. (17) Costs reserved. (18) As the plaintiff is not present, Judge Gibson’s Associate will provide a copy of these orders and a copy of Exhibit ZZ to the plaintiff. (19) Order (4) of Judge Gibson’s orders of 3 September 2015 directing the parties not to correspond with, or telephone, the Registry, or other members of the court other than for the purpose of filing documents is to continue until further order. (20) Matter stood over to the Defamation List on Thursday 3 December 2015.
Catchwords:	PRACTICE AND PROCEDURE – litigant in person brings claim for breach of contract and defamation – successive statements of claim fail to plead and particularise the claims with precision – application for summary dismissal – whether claims are hopeless, an abuse of process or disproportionate to the relief claimed – whether proceedings should be struck out or plaintiff granted leave to amend – proceedings not sufficiently hopeless for summary dismissal – leave to amend should be granted - rulings on defendant’s objections to pleadings
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 28.2 and 29.7
Cases Cited:	Agius v State of New South Wales [2001] NSWCA 371 Bleyer v Google Inc (2014) 311 ALR 529 Bott v Carter [2012] NSWCA 89 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Coren v Master Builders Association Pty Ltd [2014] NSWCA 244 Crampton v Nugawela (1996) 41 NSWLR 176 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dank v Rothfield [2015] NSWCA 193 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gmitrovic v Department of Defence [2015] NSWSC 840 Grizonic v Suttor [2008] NSWSC 914 Gunns Ltd v Marr [2005] VSC 251 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 McGuirk v UNSW [2005] NSWSC 1424 McGuirk v UNSW [2010] NSWCA 104 Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145 R v Paine(1910) AC 4 Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Sloutsker v Romanova [2015] EWHC 2053 (QB) Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Walsh v Bennetts (No 2) [2015] WASC 122 Webb v Bloch (1928) 41 CLR 331 YZ v Amazon (No 3) [2015] NSWSC 1130
Category:	Procedural and other rulings
Parties:	Plaintiff: Nancy Michail Defendant: Mount Druitt & Area Community Legal Centre
Representation:	Counsel: Plaintiff: In person Defendant: Ms N Case   Solicitors: Plaintiff: In person Defendant: Clayton Utz
File Number(s):	2015/53739
Publication restriction:	None

Judgment

1. The defendant by amended notice of motion (initially filed on 9 April 2015 but amended with consent at the hearing) seeks orders pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 13.4 and 14.28 that these proceedings be struck out in whole or in part.

2. The plaintiff’s amended statement of claim (dated 24 August 2015) (hereafter “the statement of claim”) sets out two causes of action:

1. A claim for breach of contract; and

2. Four claims of defamation.

3. I shall briefly describe the plaintiff’s claims and the basis for the defendant’s objections.

The plaintiff’s claims

4. As is set out in paragraph 18 of the statement of claim, the plaintiff and a representative of the defendant entered into an oral agreement on or about 31 March 2014 that the plaintiff would work for the defendant as an “unpaid admitted solicitor until she completes the remaining 370 days of supervised legal practice required… to be able to obtain her unrestricted principal practicing certificate and open her own legal practice”. In consideration for this unpaid work, the defendant “agreed to provide the plaintiff with the required supervised legal practice” for the whole 375 days. In other words, this was a contract with an irrevocable period of employment.

5. The plaintiff commenced employment on 7 April 2014 and continued to perform unpaid legal work for the benefit of the defendant by performing that work in the defendant’s office until the executive management committee terminated her voluntary services from 30 January 2015 (annexure A to the statement of claim). This arose from events in October to December 2014 where the plaintiff complains she was subject to harassment, bullying, insult and defamatory remarks from two other employees, resulting in her foreshadowing on 28 January 2014 that she would finish working for the defendant in 17 March 2015, which was less than the 370 days, but still a substantial period of employment. It was in response to this information that the defendant terminated her employment on 30 January 2014. Additionally, the plaintiff complains that in breach of the obligation to provide supervision, as well as a safe workplace, the defendant failed to do so (paragraph 35).

6. The plaintiff also brings four claims for defamation:

1. A statement by an employee of the defendant in late October 2014 that “Nancy likes being abused”;

2. A letter from the defendant to the plaintiff dated 30 January 2015 terminating her services; and

3. A complaint to the police about the plaintiff by an employee of the defendant, which was republished as a COPS event in police records (the third and fourth matters complained of).

7. The statement of claim is prolix and contains a great deal of unnecessary detail. Nevertheless, for the reasons set out in more below, I am satisfied that the basic elements of a cause of action for breach of contract and four claims for defamation are able to be made out, and that what is required is for the plaintiff to prepare a further statement of claim to correct the errors of pleading identified below.

8. The defendant’s submissions were that the plaintiff’s claim should be struck out, rather than the subject of further amendment, because:

1. Despite multiple attempts by the plaintiff to plead her case, the claims set out in the latest pleading “on a number of levels are fundamentally defective and should be struck out” (defendant’s written submissions, paragraph 20);

2. The pleadings are an abuse of process and should be dismissed (paragraph 20) or alternatively substantial portions amended, repleaded or withdrawn (paragraph 27);

3. The claim is futile because:

1. There is no common law implied term of “mutual trust and confidence” (paragraph 31 of the statement of claim) and any claim on that basis is doomed to fail;

2. The plaintiff states in paragraphs 53 and 55 that “she terminated the alleged contract of service” which is inconsistent with her own pleading (see paragraphs 28, 29, 35, 36, 37 and 67 of the statement of claim) and the claim “must therefore fail” (defendant’s written submissions, paragraph 40);

3. The claim for contract seeks damages which are fanciful and there is in fact no loss as the certificate of service has been provided (defendant’s written submissions, paragraphs 44 to 45);

4. The plaintiff must fail on causation issues for the above reasons; and,

5. For allowing the claim to proceed “will impose disproportionate expense on the parties” and should be dismissed in accordance with the principles discussed in Bleyer v Google Inc (2014) 311 ALR 529; Grizonic v Suttor [2008] NSWSC 914 at [63]-[64] (paragraphs 57 – 8).

The form of the statement of claim

9. The current statement of claim (the third further amended statement of claim) is the plaintiff’s fifth attempt at a statement of claim (additionally, the plaintiff commenced proceedings by summons, which makes this the sixth pleading). These previous pleadings were as follows:

1. The plaintiff filed a Summons in the Parramatta Registry of this court on 20 February 2015;

2. The plaintiff filed a statement of claim on 5 March 2015 pursuant to orders made by the Registrar in the Parramatta Registry, who transferred these proceedings to the Sydney Registry Defamation List;

3. On 11 March 2015, pursuant to orders of this court, the plaintiff filed an amended statement of claim;

4. The plaintiff filed a further amended statement of claim on 28 May 2015 pursuant to orders I made on 16 April 2015. That statement of claim was still deficient. On 18 June 2015 I handed down a judgment setting out the major deficiencies: Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145;

5. On 28 July 2015 the plaintiff filed a further amended statement of claim which still did not cure the pleading defects. I referred the plaintiff to the NSW Bar Association Pro Bono panel for advice and assistance in relation to redrafting the statement of claim; and

6. On 28 August 2015 the plaintiff filed the statement of claim currently before the court.

10. At all relevant times the defendant’s legal representatives have sought to have the proceedings struck out if the statement of claim does not identify with clarity the causes of action and the damages claimed. They complain that despite my judgment ([2015] NSWDC 145) and the intervention of the NSW Bar Association, who provided a barrister pro bono, and the plaintiff’s own legal training (she is a law graduate and holds a practising certificate) the pleadings remain impenetrable.

11. Ms Michail’s first submission that the defendant had waived all rights to object by reason of correspondence and statements to the court in March 2015 (prior to the filing of the motion before the court). This submission is misconceived because she has misread the correspondence in question. Additionally, she has filed a series of pleadings since that time, none of which have satisfied the defendant’s requests, which is why they have continued to press this application. It is only because the defendant objects to the pleading errors in the statement of claim that I have made the orders for the filing of amended pleadings.

12. Ms Michail’s second submission is that the defendant has raised these objections before, and that the defendant should not be entitled to continue complaining. The defendant knows the case it has to meet and should be ordered to file a defence. This submission overlooks the fact that the defendant was prepared to wait while Ms Michail made attempts to correct the pleadings, and pressed this motion on when the current pleading (which Ms Michail says was drafted by the pro bono barrister) failed to address those issues.

13. Ms Michail’s third submission was that she had complied with every order, including an order to consult a pro bono barrister. If the statement of claim is not now in acceptable form, then that is the pro bono barrister’s negligence. Ms Michail stated that she is not responsible for the pleading, and that the court and her opponents were obliged either to tell her what to put in her claim or to accept her claim in its current form and let her get on with her case.

14. Ms Michail stated that she was not obliged to answer the specific complaints about her pleadings set out in paragraph 27 of the defendant’s written submissions. She acknowledged that paragraph 31 was defective but stated that this was the only flaw of significance. She concluded by saying that criticism of her drafting skills and of her pleading would amount to bias, and she saw no point remaining in the courtroom while this occurred. Accordingly she left the courtroom at this point in the proceedings (namely two and a quarter hours after the commencement of the argument), and was not present during the remaining three quarters of an hour while Ms Case presented her submissions on the issues arising from the pleadings.

Absence of a party during proceedings

15. What course should a judge take when a party (and in particular a litigant in person) leaves during proceedings?

16. UCPR r 29.7 applies when a hearing is called on and any party is absent. In those circumstances the court may proceed with the trial generally, so far as concerns any claim for relief in the proceedings, or may adjourn the trial. However, there are no rules which apply where a party walks out mid-way during the hearing.

17. What duty does the defendant owe the court in the presentation of material where the defendants are absent? In Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Barrett J has helpfully reviewed and explained the duties owed to the court by the party who is present, and the approach the judge should take in such circumstances.

18. What duty does the judge owe to the missing party? I have put questions to the defendant’s counsel and generally endeavoured to maintain a level playing field. Ultimately, however, as Barrett J notes at [64], in an adversarial system, the responsibility for conduct of a case rests with the party concerned.

19. This is one of a series of cases where the complexities of defamation litigation are compounded by the presence (or absence) of a litigant in person. In continuing to hear this application, I have taken into account the observations and approaches of other judges confronted with problems of this kind. In YZ v Amazon (No 3) [2015] NSWSC 1130 and Gmitrovic v Department of Defence [2015] NSWSC 840, McCallum J considered similar pleadings by litigants in person which required repeated amendments. In Walsh v Bennetts (No 2) [2015] WASC 122, Kenneth Martin J assisted a litigant in person by preparing a summary of issues, and I gratefully borrowed this approach in my previous judgment, as well as endeavouring to adapt his Honour’s approach to the difficulties in which I found myself after the plaintiff left the courtroom. Finally, I note that in Sloutsker v Romanova [2015] EWHC 2053 (QB) Warby J dealt with proceedings in the absence of the defendant, who lived in Russia, by not only answering the issues she raised with the court in correspondence, but by raising other issues on her behalf.

Applications for summary dismissal

20. The relevant principles must be applied in the context of the impact of s 56 Civil Procedure Act 2005 (NSW) upon the principles set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, for the reasons explained by Basten JA in Bott v Carter [2012] NSWCA 89 at [13] – [14] as follows:

“[13]According to established principle, proceedings should not be dismissed generally if there is “a real question to be tried”. As has been explained by the High Court, “great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal”: General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). However, as that case itself demonstrated, where upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course.

[14]A question has been raised as to whether that approach is affected by s 56 of the Civil Procedure Act 2005 (NSW) requiring a court, in exercising a discretionary power, to facilitate the “just, quick and cheap resolution of the real issues in the dispute or proceedings”: s 56(1) and (2). Clearly the provision imposes substantial obligations on parties and lawyers as well as the courts; it is not merely exhortatory: compare Migration Act 1958 (Cth) s 420, discussed by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (FCA, 6 May 1997, unrep) approved by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [106]–[109]. It has been suggested that s 56 might warrant courts striking out proceedings on “less substantial grounds” than those stated in General Steel: Commonwealth v Griffiths [2007] NSWCA 370, at [155] (Young CJ in Eq). In the present case, the primary judge referred to this possibility, but did not rely upon it. Another view might be that s 56 does not reduce the conditions for the engagement of the power conferred by r 13.4, but limits the circumstances in which the court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds.”

21. Applying those principles, Basten JA held that the claim (an action in negligence for the conduct of proceedings in court) was futile, and the loss was nil (at [34]). For the reasons set out in more detail below, I am satisfied that, subject to some fairly drastic amendments to the statement of claim, sufficient basis can be shown not only for the contract claim but also for the four claims for defamation.

22. The power to dismiss proceedings summarily must be exercised “only with exceptional caution and where it is clear there is no real question to be tried” (Agius v State of New South Wales [2001] NSWCA 371 at [9]. While courts have increasingly shown a willingness to dismiss claims where there has been failure to answer correspondence or attend court (Coren v Master Builders Association Pty Ltd [2014] NSWCA 244), or comply with peremptory orders, or to indulge in years of delay, it is worth noting that none of these features is present here. The problem in these proceedings is firstly that the statement of claim is poorly drafted and secondly that any attempt to convey this to the plaintiff results in her becoming angry and start shouting and crying in court, or leaving the courtroom (as happened today), or accusing the defendant and the court generally of corruption and/or bias. I appreciate that this kind of conduct is difficult for the defendant and its legal advisers to cope with, but the NSW Court of Appeal, in McGuirk v UNSW [2010] NSWCA 104 at [43], Young JA, setting aside orders restraining a litigant in person from bombarding the opponent with correspondence, stated:

“Lawyers who cannot cope with the stresses of litigation must find some other area of law in which to practise.”

23. The real issue is whether, notwithstanding the infelicities of pleading, the plaintiff can identify one or more causes of action giving rise to a potential claim for damages against the defendant.

24. What parts of the statement of claim should be struck out and, if that occurs, what parts are left standing? Is there sufficient for the plaintiff to be permitted to continue with her claim?

The defendant’s submissions as to the breach of contract claim

25. The main problem with the claim for breach of contract is its prolixity. This is easily rectified by removing passages which should be in a witness statement or in closing submissions, or is irrelevant or repetitious, or which is set out as a claim instead of as a particular.

26. Portions of the statement of claim which are irrelevant to the issues include:

1. The plaintiff’s qualifications and background (paragraphs 4 – 14);

2. The defendant’s recruitment policies and financial situation (portions of paragraphs 17, 18, 19, 27 and 31);

27. Portions of the statement of claim which should be pleaded with precision include:

1. The terms of the contract (including any which are express, as opposed to implied) and the breaches (paragraphs 35 – 37). I have struck out paragraphs 36 and 37 as repetitious. The plaintiff should replead paragraph 35 and set out paragraphs 49, 50, 53 – 55 and 58 as particulars. Paragraphs 39, 40, 42 – 44, 46 – 48, 51 – 52, 56, 59 – 74 are irrelevant, prolix and repetitious;

2. Any claims of mitigation of damage; paragraphs 75 – 82 should be pleaded as particulars of mitigation.

3. While I have trouble understanding how the plaintiff’s claim for special damages is formulated, I consider that this should be left untouched on the basis that expert evidence on such issues is likely to be called at the trial. However, paragraphs 101 – 103 are incomprehensible and should be struck out.

28. When these portions are removed or repleaded, a claim of breach of contract due to workplace bullying (which prevented the plaintiff from completing her 370 days of free work necessary for her unrestricted right of practice) emerges. The claims for damages include not only delayed entry into the profession but reputation damage. This is not a futile or misconceived cause of action; nor is it so likely to result in a claim for nominal or nil damages that it should be struck out. Taking into account the principles enunciated by Basten JA in Bott v Carter, I am satisfied that there is sufficient cause of action for the plaintiff to be permitted to continue. Nor do I consider that the plaintiff’s previous pleadings problems constitute a bar to her being permitted to amend her claim.

29. The plaintiff will be provided with a list of these paragraphs in the orders as well as with a marked-up copy of the current statement of claim which is Exhibit ZZ. Orders have been made for the filing of an amended pleading in her absence, and if the time given is insufficient, that problem can be addressed by the parties coming to an agreement to an extension of time if necessary.

30. However, the plaintiff should be under no illusions that there will be a series of further opportunities for her to redraft her pleadings if she fails to comply with these orders. She bears the responsibility, under ss 56 – 62 Civil Procedure Act 2005 (NSW) for expeditiously conducting the proceedings she has commenced, and for providing pleadings which identify with precision the causes of action, particulars and claims for damage: Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135. Unless the plaintiff can frame her cause of action with clarity, she risks an order dismissing her proceedings being made in the near future.

31. Her current pleadings bear little resemblance to the concise and organised pleadings commonly filed in this court in relation to claims of this sort; as a trained lawyer, the plaintiff has access to precedents and case law which should tell her how to plead her case properly, and she should now do so. Future requests for leave to amend may not be successful.

The claims for defamation

The first publication

32. The plaintiff brings four claims for defamation. The first of these is a statement by Mr Cuic in or about the end of October 2014 when he said “Nancy likes being abused”. The plaintiff pleads the following imputations (see paragraph 124 of the statement of claim):

1. The plaintiff is a masochist who enjoys public abuse and humiliation.

2. The plaintiff is a doormat.

3. The more the plaintiff is abused, the more she will remain with, idolise, worship and praise her abusers.

4. The plaintiff will keep her head down and put-up with ill treatment even outright abuse, humiliation, degradation, and ridicule.

33. There is then a set of “particulars of extrinsic facts” (at paragraph 125 of the statement of claim) setting out that the defendant authorised the republication. As there is no assertion of republication, this claim is misconceived.

34. The first objection taken by the defendant to this pleading is that the plaintiff’s allegations are against the individuals alleged to have published the words, and the basis upon which the defendant (as opposed to Mr Cuic) is asserted to be responsible for the publication of these words is not explained.

35. In Webb v Bloch (1928) 41 CLR 331 Isaacs J stated, citing R v Paine(1910) AC 4:

“If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.”

36. The plaintiff must provide particulars sufficiently capable of identifying the basis upon which she asserts that the defendant, as opposed to Mr Cuic (or in addition to Mr Cuic) is liable for the publication. That will require amendment to the statement of claim. It does not constitute a basis for the claim being struck out peremptorily. The plaintiff should be entitled to provide proper particulars of the facts and matters necessary to establish that the defendant is liable for the statements of Mr Cuic (or, alternatively, to join Mr Cuic as a defendant).

37. The second complaint raised by the defendant is that imputations (c) and (d) are deficient in form and imputation (d) is not capable of being defamatory.

38. Imputations (a) and (c) are both imputations of masochism and, as such, do not differ in substance. Additionally, imputation (c) does not, in its current form, identify an act or condition of the plaintiff, as well as being hard to make sense of, given its extravagant language; it is actually longer than the matter complained of. The imputation should accordingly be struck out.

39. Imputation (d) is simply not defamatory. To say of a person that he or she will put up with ill-treatment and ridicule is not capable, without more, of being disparaging of the plaintiff: Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 13. Although this imputation refers to conduct in the course of employment, it does not amount to an assertion of incapacity or incompetence; the criticism in the imputation is in fact of the person treating the plaintiff in this way. The imputation is therefore incapable of satisfying the test set out by Hodgson JA in Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [19].

40. Imputations (c) and (d) are accordingly struck out. However, the rest of the cause of action (subject to adequate pleading of the defendant’s liability) survives.

The second publication

41. The second publication is a letter from the defendant to the plaintiff. The imputations pleaded are as follows (at paragraph 129 of the statement of claim):

1. The plaintiff is a physically violent threat.

2. The plaintiff is physically violent and has been previously removed from the defendant’s premises with the assistance of police.

3. The plaintiff sends violently threatening texts and emails through electronic media communications.

4. The plaintiff is not employable.

42. The heading “Particulars of Extrinsic Facts – UCPR r 15.19(1)(c)” really are particulars of publication and this should be repleaded to identify the basis upon which the plaintiff asserts that this letter addressed to herself was in fact read by third parties. What the plaintiff appears to be attempting to plead is that this matter complained of was published to employees within the defendant as well as in circumstances where its republication by those persons was a natural and probable consequence.

43. The problem with each of imputations (a) – (c) is that the matter complained of does not accuse the plaintiff of physical violence, or violence of any kind. It warns her not to contact the defendant’s staff or enter its premises, warning that the police will be contacted if she does. This is sufficient to give rise to imputations of other kinds, but not of physical violence or other kinds of violence. Pursuant to UCPR r 28.2 I am satisfied that imputations (a) – (c) are not capable of being conveyed.

44. Imputation (d) is similarly not capable of being conveyed. The matter complained of makes it clear that the defendant does not want to employ her, but not that she would be unemployable anywhere.

45. The plaintiff should be entitled to replead the particulars of publication and new imputations. Orders to this effect are regularly made in defamation actions, and should not result in the loss of the action. The basis for striking out this claim in its entirety is not made out.

The third publication

46. The third publication consists of statements made by an employee of the defendant to the Mount Druitt Police Station of information which amounted to a complaint about the plaintiff. The text of the matter complained of is set out at paragraph 137.

47. The imputations pleaded to arise from this publication are as follows (at paragraph 139 of the statement of claim):

1. The plaintiff sent VC violent and violently threatening texts and emails.

2. The plaintiff is violent and a violent threat at her workplace, and therefore is violently hazardous.

3. The plaintiff is not employable.

48. This “extrinsic facts” pleaded in relation to this publication suffer the same defects as the previous publications. The plaintiff must plead the basis upon which she claims that the defendant is liable for the statements made by police to the employee.

49. The defendant challenges the form and (pursuant to UCPR r 28.2) capacity of the imputations. Imputations (a) and (b) suffer from repetitive use of the word “violent” (three times in imputation (b)) and should be redrafted with precision. The issue of capacity should be deferred until this occurs. I am satisfied, however, that imputation (c) is conveyed by this publication, unlike the previous publication, in that the matter complained of not only makes a general claim that the plaintiff is “violent”, but adds that she was such a threat to her fellow employees because of her violence that “we got rid of her” (paragraph 137). Despite this, the plaintiff remained a threat to her former employees, hence the complaint to police. That is sufficient, on the test in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, for me to hold that this imputation is capable of being conveyed.

50. Subject to the plaintiff providing particulars of the basis upon which it is alleged that the defendant is liable for the statements of its employee, and redrafting imputations (a) and (b), there is sufficient material for this claim to survive an application for summary dismissal.

The fourth publication

51. The fourth publication is pleaded to arise from the circumstances in which the Mount Druitt Police recorded the COPS entry following Mr Cuic’s complaint. The following imputations are pleaded to arise from this publication (at paragraph 145 of the statement of claim):

1. The plaintiff is potentially violent and violently threatening at her workplace.

2. The plaintiff is violently hazardous at her workplace.

3. The plaintiff does not get along with her co-workers, other staff and supervisors at her workplace potentially due to the plaintiff being potentially violent and violently threatening.

4. The plaintiff is not employable.

52. Particulars are provided of details of the basis upon which the defendant is asserted to be liable at paragraph 146 to 149. The problems include:

1. The claim of “republication” – the original publication should be identified;

2. The basis upon which the plaintiff asserts that the defendant is liable for this publication should be particularised;

3. What exactly is the text of the matter complained of? The defendant cannot be responsible for those parts of the text which are not the result of material it is liable for: Dank v Rothfield [2015] NSWCA 193;

4. The material giving rise to these imputations is not identified. It appears that the plaintiff has conflated the third and fourth publications to give rise to these imputations, which is impermissible;

5. The imputations suffer defects of form, including failure to differ in substance, repetitive use of the word “violent” twice in imputations (a) and (c) and use of problematic language such as “probably”.

53. There must come a time when the plaintiff should accept responsibility for her pleadings. It is not the court’s role to settle a pleading: Gunns Ltd v Marr [2005] VSC 251 at [57]; McGuirk v UNSW [2005] NSWSC 1424 at [35]. The real problem is that the plaintiff in these proceedings has made the same error as the pleader in Dank v Rothfield, namely to attach a publication made by a third party and assert that the defendant is liable for any imputations arising therefrom. That is not permissible and the whole of this claim should be repleaded.

54. However, a party should be given at least one attempt to cure a defect of this kind. I am satisfied that, while I should strike out the claim, leave to replead should be granted. Accordingly this claim, like the other three claims, should survive the application for summary dismissal.

The plaintiff’s claim for damages

55. The plaintiff has set out:

1. A prolix pleadings of her claim for “serious injury to reputation, and shame, and hurt feelings” (paragraphs 156 – 182), which is unnecessary, and damage to reputation is presumed;

2. A rolled-up plea for “non-economic loss with aggravated damages” (paragraphs 150 – 155), which is impermissible, and which contains no particulars capable of giving rise to a claim for aggravated damages;

3. A claim for special damages which mirrors the claim for damages for breach of contract (paragraphs 183 – 190).

56. I have set out in the orders the basis upon which each of these claims is struck out. It should not be difficult for the plaintiff to bring any damages claim in the forms generally used in statements of claim in defamation proceedings.

Is the claim an abuse of process?

57. On their face, each of the matters complained of is capable of conveying imputations of seriousness about a solicitor. As Mahoney A-CJ noted in Crampton v Nugawela (1996) 41 NSWLR 176, a solicitor’s reputation is his or her livelihood. The circumstances in which anyone would report a solicitor to the police would be circumstances of great seriousness. The allegations raised against the plaintiff by the defendant are allegations of criminal conduct. There is no doubt that these allegations were made.

58. The real problem is the inadequate pleading. Part of this is because of the very great state of distress of the plaintiff, who, in addition to being traumatised by the circumstances of termination of her employment, has suffered a recent family bereavement. She remains unable to accept that she is too close to these events to represent herself, and, regrettably, unless she is able to hand over the conduct of these proceedings to someone better able to represent her, that may have consequences fatal to her claim in the future. At the present time, however, I am not prepared to strike out either the breach of contract or the defamation claims where, for the reasons noted above, there is sufficient evidence of the cause of action.

59. The defendant brings the same application to strike out these proceedings on the basis of Bleyer v Google Inc, although without identifying the basis upon which the disproportionality is based. The claims for defamation in these proceedings resembled, in terms of extent of publication and subject matter (insofar as they relate to the reputation of a professional person accused of serious matters, and involved a degree of republication) as was the case in Crampton v Nugawela.

60. There is currently no appellate support for the principles in Bleyer v Google Inc being applied in this general fashion to claims of this nature. Even if there were:

1. The four matters complained of appeared to have been published to at least as many persons as the publications in Crampton v Nugawela;

1. There are four claims for defamation containing imputations of criminal conduct and a complaint to the police, in circumstances where the plaintiff’s reputation as a solicitor was impacted;

2. The plaintiff’s claim for damages for breach of contract is not merely for nominal damages for delayed entry into the legal profession, but for damage to her reputation and employability; and

3. Additionally, although this point was not raised in argument, I am satisfied that sufficient of the statement of claim survives this application for me to be satisfied that the principles enunciated in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 should not apply.

61. For these reasons I am of the view that the proportionality argument should be rejected.

Concluding remarks

62. I have set out the reasons for refusal to strike out the plaintiff’s statement of claim in some haste, in order to provide them to the parties on the same day that this application was heard. This is firstly because the limitation period for the defamation actions is close to expiry, and the plaintiff must plead her claims for defamation with precision in order to avoid being caught by limitation arguments, particularly if she proposes to add any other defendant. Secondly, although the plaintiff left the courtroom during the hearing, she has since contacted my associate to request a copy of the reasons for judgment and orders be sent to her tonight. She indicated to me, as she left the court, that she proposes to approach “the Supreme Court” for orders, and she will need these reasons as well as the orders I have made in order to do so. Thirdly, the orders I have made provide a timetable which cannot commence until I provide the parties with both the orders I have made today and the reasons for them, and it is important that I provide these at the earliest opportunity. As a result, there is a degree of informality in the terms and expressions used.

Costs

63. Due to the departure of the plaintiff in the third hour of the hearing, I have reserved the issue of costs.

Orders

1. Grant leave to the defendant to file an Amended Notice of Motion in court (not opposed by the plaintiff).

2. Defendant’s application under r 13.4 Uniform Civil Procedure Rules 2005 (NSW) for summary dismissal of proceedings refused.

3. Defendant’s application for whole or part dismissal of the plaintiff’s Third Further Amended Statement of Claim allowed as set out in the order below (Judge Gibson to give reasons).

4. Direct the plaintiff to rename all of the persons referred to in the statement of claim by their names and not initials.

5. In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out:

1. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 31, 34, 36, 37, the heading “3.1”, 39, 40, 42, 43, 44, 46, 47, 48, 51, 52, 56, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 101, 102, 103;

2. Paragraph 17 (except the first sentence); and,

3. Paragraphs 18, 21, 27 and 32 (as noted in Exhibit ZZ).

6. In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out with leave to replead:

1. Paragraph 35 (struck out with leave to replead the breaches with precision); and,

2. Particulars of mitigation under the heading “4” and paragraphs 75-82 (struck out on the basis that these particulars must be particularised as mitigation issues in the claim for damages).

7. In relation to the contract claim, the following clarifying words are to be added to the Third Further Amended Statement of Claim:

1. The heading “Particulars” above paragraph 38 is to be headed “Particulars of breach” and the paragraphs numbered (a)-(f) in paragraph 41 are to be headed “Particulars”; and,

2. Paragraph 49 will become particular (g), paragraph 50 will become particular (h), paragraph 53 will become particular (i), paragraph 54 will become particular (j), paragraph 54 will become particular (k), paragraph 58 will become particular (l).

8. In relation to the first matter complained of in the defamation claim:

1. Imputation (c) is struck out for imprecision of form and as failing to differ in substance to imputation (a);

2. Imputation (d) is struck out for imprecision of form and lack of defamatory meaning; and,

3. The “particulars of extrinsic facts” are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Comino (Webb v Bloch (1928) 41 CLR 331).

9. In relation to the second matter complained of in the defamation claim:

1. The words “of their unlawful and harmful termination of the plaintiff’s conditional contract of service” is struck out as surplusage in paragraph 126;

2. Paragraph 127 is struck out;

3. Paragraph 128 is struck out with leave to include any such publications in the particulars of publication which will replace the current deficient pleading of “particulars of extrinsic facts” set out in paragraphs 130-132; and,

4. Imputations (a)-(d) struck out as not conveyed; grant leave to the plaintiff to plead such further imputation as she may assert arise from the contents of the matter complained of.

10. In relation to the third matter complained of in the defamation claim:

1. Paragraphs 136 and 138 are struck out;

2. The imputations (a) and (b) in paragraph 139 struck out as deficient in form; and,

3. The “particulars of extrinsic facts” set out in paragraphs 141-143 are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Cuic (Webb v Bloch (1928) 41 CLR 331).

11. In relation to the fourth matter complained of in the defamation claim:

1. The fourth matter complained of is struck out with leave to replead the text of the matter complained of as asserted to convey defamatory meanings of and concerning the plaintiff, the imputations arising and the defendant’s liability for this “republication”.

12. In relation to the claim for damages:

1. Paragraphs 150 to 155 struck out (rolled-up claim for “non-economic loss with aggravated damages” impermissible;

2. Paragraphs 156 to 182 struck out; and,

3. Claim for special damages struck out on the basis that, as currently pleaded, this is a repetition of the claim for special damages for breach of contract; any special damages claim arising from one or more of the publications must be identified with specificity as to which publication and must be in addition to, and not a repetition of, the plaintiff’s claim for damages for breach of contract.

13. Note the plaintiff left the courtroom at 12:10pm for the reasons set out in the transcript (plaintiff called three times outside the court when the hearing resumed at 2:20pm – no appearance).

14. Plaintiff to file Fourth Further Amended Statement of Claim in 28 days from the date of receipt of Judge Gibson’s reasons for decision.

15. Defendant’s request for particulars of the Fourth Further Amended Statement of Claim to be administered 14 days after receipt of the Fourth Further Amended Statement of Claim.

16. Plaintiff’s Reply 14 days thereafter.

17. Costs reserved.

18. As the plaintiff is not present, Judge Gibson’s Associate will provide a copy of these orders and a copy of Exhibit ZZ to the plaintiff.

19. Order (4) of Judge Gibson’s orders of 3 September 2015 directing the parties not to correspond with, or telephone, the Registry, or other members of the court other than for the purpose of filing documents is to continue until further order.

20. Matter stood over to the Defamation List on Thursday 3 December 2015.

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Decision last updated: 24 September 2015