Moore v State of New South Wales

[2022] NSWSC 636

Supreme Court

New South Wales

Medium Neutral Citation:

Moore v State of New South Wales [2022] NSWSC 636

Hearing dates:

29 April 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Orders made:

(1) The plaintiff to provide responses to the request for further and better particulars issued by the defendant on 27 April 2022 by 20 May 2022.

(2) The defendant to file and serve a defence by 3 June 2022.

(3) The plaintiff to file any reply to the defence by 10 June 2022.

(4) The matter return to the list on 24 June 2022.

Directions made:

(1) The plaintiff to serve the putative defendants with the motion seeking joinder and claim for interrogatory injunctive relief, and a notice of hearing on 4 May at 11 o'clock.

(2) The plaintiff to serve, if they haven't already, the notice of motion for joinder and the application for injunction on the two putative defendants through their legal advisors or Hazelbrook Legal, by email by 5pm on 29 April 2022.

(3) The motion be listed at 11am, 4 May 2022 and the email service on Hazelbrook Legal also contain a notification that the matter is listed for 11am, 4 May 2022.

Catchwords:

CIVIL PROCEDURE – Defamation – Application to join parties – Request for particulars – injunction sought – interim payment of damages sought – directions issued.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 22.1

Civil Procedure Act 2005 (NSW), s 82

Category:

Procedural rulings

Parties:

Luke Brett Moore (Plaintiff/Applicant)
State of New South Wales (Defendant/Respondent)

Representation:

Counsel:
In person (Plaintiff/Applicant)
T Senior (Defendant/Respondent)

Solicitors:
Unrepresented (Plaintiff/Applicant)
Crown Solicitors Office (Defendant/Respondent)

File Number(s):

2022/53460

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is a motion by the plaintiff and a number of other aspects in this matter. This is the first time the matter is in the list. Ordinarily, according to the Practice Note, the defendant should be in a position to identify whether it can admit publication and should be taking any objection to the Statement of Claim.

2. The situation is that the defendant in the proceedings is sued as a consequence of the defendant's responsibility for the conduct of one or other police officers. As a consequence, the defendant is, I hesitate to use the word vicariously, but, is vicariously liable for the conduct of the police officer and, by statute, is responsible for any damages that may be awarded and is the proper defendant.

3. I do not criticise the naming of the defendant, but in so doing, the nature of the proceedings are such that the defendant as named needs to obtain instructions from the particular officers as to the nature of the allegations made. As a consequence, I am told that has caused some delay and the defendant is not, as of today, in a position, as it otherwise should be, to determine or to inform the Court as to whether publication is admitted and/or to take objection to the statement of claim as filed.

4. The foregoing affects a number of the aspects of the issues that are sought to be agitated by the plaintiff. Nevertheless, I will deal with them as best I can at this time, and give the plaintiff leave to agitate the matters at a later time if so advised, and/or to agitate other matters in replacement of that which is sought.

5. The first aspect is leave to join Region Group Pty Ltd, who is a media publisher, and Hannah Sparks as defendants in the proceedings. I have been provided by the plaintiff, it seems, with a letter sent to him from the legal representative of those two persons seeking to be heard on the joinder. The matters raised, on their face, may have some substance, but ordinarily they would be raised in circumstances where there was a motion to strike out rather than a refusal to join the parties.

6. In all of the circumstances, however, and given the correspondence that has occurred between the parties, it seems to be more efficient and to serve the overriding purpose of the Act —being facilitating the just, quick and cheap resolution of the real issues between the parties — if I were minded to set the matter down for a short directions hearing to hear the issue of the joinder, having given the two putative defendants time to deal with the matter. I do not anticipate that will be a lengthy time.

7. As a consequence of that, there will need to be an amendment to the statement of claim. I do not consider that an amendment to the statement of claim (to take into account allegations against two further defendants, if ultimately their joinder is approved) should delay any defence that would otherwise be filed by the defendant in relation to the claims that are made against it.

8. However, to the extent that an injunction is sought against one of the putative defendants, it seems to me that such injunction should be sought only after the issue of the joinder of the defendant is determined.

9. There are very good reasons for that. Historically the Courts, including this Court, have been extremely wary of issuing interlocutory injunctions in relation to defamation. The reasons for that are manifest and have been set out. Without going to the authorities, and without seeking to be exhaustive, two of the reasons associated with that is that an interlocutory injunction against publication necessarily interferes with freedom of speech. And the second is that defamation is geared in a way that damages are said to be an adequate remedy; and damages, and the judgment of the Court, acts as a vindication of the reputation of the plaintiff.

10. Having said that, in circumstances particularly relating to social media, which I understand this publication relates to, the Courts have been more liberal in the granting of interlocutory injunctions because of the continuing nature of the publication and its continued accessibility by members of the public.

11. As a consequence, however, of that competing interest, it seems to me the issue of an injunction against Region Group Pty Ltd, which is sought in the motion, should be determined after the issue of the joinder of Region Group Pty Ltd is determined.

12. I do not, as earlier stated, expect that that will involve a huge delay, and the additional damage caused by the short delay between now and the determination of that issue should not be such as to interfere with the exercise of the discretion in the way I have just outlined.

13. The next matter that is sought is summary judgment against the State of New South Wales. It seems from what has fallen from Mr Moore, who is representing himself, that the summary judgment is not at this stage pressed, given the State of New South Wales has not yet filed a defence. Nor is the State of NSW in a position to be able to admit or otherwise the publications that are alleged.

14. Next, I turn to the question of interrogatories. Without dealing with the jurisdictional power of the Court generally, interrogatories that are granted pursuant to the Uniform Civil Procedure Rules 2005 (NSW) are granted pursuant to Uniform Civil Procedure Rule Part 22, Rule 22.1 which provides that the Court may at any stage of the proceedings order any party to answer specified interrogatories. The interrogatories that have been sought are not against parties. That does not mean that the State of New South Wales cannot be asked those interrogatories at an appropriate time. Because of the position of the State of New South Wales it is likely that they will be in a position to answer the interrogatories notwithstanding that it is directed to the conduct of a person on whose behalf the State of New South Wales is sued.

15. So, it is a question of form rather than substance. I am not dealing with the substance, or any technical objection to the interrogatories at this stage. Only to the fact that, at the moment, those interrogatories, for which leave has been sought, are directed to non-parties; and, pursuant to the provisions of the Uniform Civil Procedure Rules to which I just referred, namely UCPR Part 22, Rule 22.1, interrogatories can be ordered only against parties to the proceedings, and none of the persons to whom the interrogatories are directed are at this stage parties to the proceedings and, therefore, the current request for interrogatories are struck out.

16. The next aspect is the question of mediation. It seems to me that an order for mediation, if one were to be made, ought to be made only at a point in time when issue has been joined; that is when the parties are aware of that which is denied and the material facts upon which each party relies. Otherwise, a mediation is being determined in a vacuum. As such the application for a mediation is at this stage premature. I simply stand over the prayer for relief going to mediation to a point at which it is more appropriately considered.

17. The penultimate matter is the question of interim damages. The applicant relies upon s 82 of the Civil Procedure Act 2005 (NSW) which gives to the Court the power to grant interim damages in certain circumstances, or, more accurately, to order interim payments.

18. The circumstances in which an order may not be made are circumstances that are not covered by those in sub-section 3 of s 82. It is sufficient for present purposes, as a matter of practicality, to say that the prescribed matters in sub-section 2 of s 82 are those circumstances in which the Court may make an order for an interim payment of damages. That is, in circumstances where the defendant has admitted liability (in this case that has yet to occur); the plaintiff has obtained judgment against the defendant for damages to be assessed (that also has not occurred); and, the third aspect is if the Court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

19. Leaving aside the meaning of the term substantial damages, it is difficult, if not impossible, for the Court to determine that if the matter went to trial the plaintiff would receive substantial damages before the Court has seen, or had an opportunity to examine, the defence to any such proceedings.

20. As a consequence, it seems to me that the order of interim payments pursuant to the terms of s 82, or otherwise, in advancement of the administration of justice, is not warranted at this stage, and that application is dismissed. Because it is an interlocutory application, it may of course be agitated at another time if and when the plaintiff is so advised.

21. The last matter is the question of particulars. Having read the request for particulars and the objections to it, I am not at this stage satisfied that the particulars are inappropriate or improper. The requests do not ask how certain things occurred, nor, on their face, do they seem to be asking for evidence or proof of the issues that are alleged. Rather, the circumstances and/or context in which the publication occurred and the publication, that is the terms of the conversation itself are being sought. That is true of publications 1, 2, 3 and, at least in relation to paragraph 4, the request for particulars seeks to elicit from the plaintiff that which is said to be defamatory and when the term "several other defamatory comments" are used in the statement of claim. As to publication 5, the comments as to 1 to 3 are applicable.

22. As a consequence, it seems to me, looking at it generally, and without the benefit of precise objections to form the requests for particulars requires answer.

23. As a consequence, it seems to me the following orders should be made:

1. The plaintiff to provide responses to the request for further and better particulars issued by the defendant on 27 April 2022 by 20 May 2022.

2. The defendant to file and serve a defence by 3 June 2022.

3. The plaintiff to file any reply to the defence by 10 June 2022.

4. The matter return to the list, subject to what will follow now, on 24 June 2022.

24. Further to the above, the following directions are made:

1. The plaintiff to serve the putative defendants with the motion seeking joinder and claim for interrogatory injunctive relief, and a notice of hearing on 4 May at 11 o'clock.

2. The plaintiff to serve, if they haven't already, the notice of motion for joinder and the application for injunction on the two putative defendants through their legal advisors (who are on the record now) or Hazelbrook Legal, by email by 5pm on 29 April 2022.

3. The motion be listed at 11am, 4 May 2022 and the email service on Hazelbrook Legal also contain a notification that the matter is listed for 11am, 4 May 2022.

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Decision last updated: 20 May 2022