Ogbonna v CTI Logistics Ltd

[2021] WASCA 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 25

CORAM:   QUINLAN CJ

MURPHY JA

MITCHELL JA

HEARD:   2 FEBRUARY 2021

DELIVERED          :   12 FEBRUARY 2021

FILE NO/S:   CACV 149 of 2019

BETWEEN:   CELESTINE OGBONNA

Appellant

AND

CTI LOGISTICS LTD

First Respondent

NEIL RASPA

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STAVRIANOU DCJ

File Number            :   CIV 744 of 2018

Catchwords:

Practice and procedure - Summary judgment - Defamation - Appellant commenced proceedings for defamation against respondents - Summary judgment awarded in favour of respondents - Where alleged defamatory material contained in an email admitted as evidence in Federal Circuit Court proceedings and reproduced in the reasons for decision of the Federal Circuit Court - Where reasons for decision of the Federal Circuit Court were subsequently published on website - Where appellant sued alleging a cause of action based on the republication on the website rather than the original publication of the email - Whether arguable case existed that respondents were liable for republication of alleged defamatory imputations on the website - Whether it is arguable that publication of the email in a judgment on the website was a natural and probable consequence of the original publication of the email

Legislation:

Defamation Act 2005 (WA), s 28
Limitation Act 2005 (WA), s 15, s 40

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	T P Wilson
Second Respondent	:	T P Wilson

Solicitors:

Appellant	:	In person
First Respondent	:	Jackson McDonald
Second Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Belbin v McLean [2004] QCA 181

Charisteas v Charisteas [2020] FamCAFC 162; (2020) 354 FLR 167

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577

Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Jorgensen v Fair Work Commission [2019] FCAFC 113; (2019) 271 FCR 461

KWLD v The State of Western Australia [2020] WASCA 94

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2

Ogbonna v CTI Logistics Ltd [2016] FCA 239

Ogbonna v CTI Logistics Ltd [2019] WADC 111

Ogbonna v CTI Logistics Ltd [No 2] [2015] FCCA 2318

R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

Sims v Wran [1984] 1 NSWLR 317

Slipper v British Broadcasting Corporation [1990] 1 QB 283

Smits v Roach [2006] HCA 36; (2006) 227 CLR 423

Speight v Gosnay [1891] 60 LJQB 231

Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118

State Bank of NSW Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; (2001) 51 NSWLR 399

Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

Webb v Bloch (1928) 41 CLR 331

Williams v John Fairfax Group Ltd (1991) A Def R 51-035

JUDGMENT OF THE COURT:

1. The appellant appeals against the award of summary judgment for the respondents in his defamation action, commenced against the respondents in the District Court of Western Australia.  For the following reasons, in our view, the appeal should be dismissed.

Factual and procedural background

1. The appellant is a former casual employee of the first respondent (CTI).  On 1 May 2012, he was engaged by CTI as a warehouse storeperson.  On 21 July 2012, the second respondent (Mr Raspa) sent an email to four other employees of CTI, in effect proposing the termination of the appellant's employment with CTI.  The email contained statements that, at least arguably, carried defamatory imputations concerning the appellant.  Subsequently, the email was copied to another employee of CTI, Mr Vanderlist, in the course of a chain email discussion between managers of CTI.  The appellant's employment with CTI was terminated on 23 July 2012. 

2. On 19 April 2013, the appellant commenced proceedings against CTI, Mr Vanderlist and another CTI employee in the Federal Circuit Court of Australia.  In those proceedings, the appellant claimed damages for alleged breaches of the Racial Discrimination Act 1975 (Cth) in the termination of his employment, and unpaid allowances. On 28 August 2015, Judge Lucev dismissed the appellant's Federal Circuit Court action. In the course of his Honour's written reasons, Judge Lucev quoted an extract from the 21 July 2012 email. That email, together with other emails in the chain, had been annexed to an affidavit sworn by Mr Vanderlist which was filed in the Federal Circuit Court on 24 October 2013.[1]  Mr Raspa was not a party to, and was not called as a witness in, the Federal Circuit Court proceedings.

   [1] Ogbonna v CTI Logistics Ltd [No 2] [2015] FCCA 2318 [10], [68].

3. A subsequent appeal by the appellant from Judge Lucev's orders was dismissed by Barker J in the Federal Court of Australia on 11 March 2016.  One of the grounds of appeal to the Federal Court was that Judge Lucev erred in relying on hearsay statements in the 21 July 2012 email.  In dealing with this ground, Barker J said that the fact Judge Lucev set out the extracts was 'troublesome'.  This was because it 'undoubtedly leads to a concern that his Honour placed some measure of significance on the opinion of this person who was not called as a witness'.  The extracts of the email were hearsay and the appellant had no opportunity to cross-examine Mr Raspa.[2]  The ground was dismissed however, on the basis that, while it was 'unfortunate that this material found its way into evidence and was then referred to in the way that it was in the judgment in the Court below', the error did not affect the relevant findings made by Judge Lucev.[3]

   [2] Ogbonna v CTI Logistics Ltd [2016] FCA 239 [42] - [43].

   [3] Ogbonna v CTI Logistics Ltd [2016] FCA 239 [44] - [47].

4. The appellant's proceedings in the District Court were commenced on 28 February 2018.  By that time, the one year limitation period for commencing an action relating to the publication of defamatory matter had expired in relation to the original publication of the 21 July 2012 email.[4]  The appellant's statement of claim identified the publication, which was the subject of the defamation action, to be the publication of Judge Lucev's reasons for decision by the Australasian Legal Information Institute on 24 February 2018.[5]  Mr Raspa was alleged to be responsible for the publication of the reasons for decision by on the basis that it was the natural and probable consequence of Mr Raspa's original publication of the 21 July 2012 email.[6]  CTI was alleged to be vicariously liable for the conduct of Mr Raspa, who was its employee.[7]

   [4] Section 15 of the Limitation Act 2005 (WA).

   [5] Amended Statement of Claim, par 4 (Blue AB 39).

   [6] Amended Statement of Claim, par 13 - 14 (Blue AB 41).

   [7] Amended Statement of Claim, par 10 (Blue AB 40).

5. The appellant and the respondents respectively made applications by chamber summons seeking summary judgment in their favour.  Both applications were heard on 30 July 2019 by Deputy Registrar Hewitt.  The Deputy Registrar delivered his decision on 15 August 2019.  The appellant's application for summary judgment was dismissed, and the respondents' application for summary judgment was granted.[8]

   [8] Ogbonna v CTI Logistics Ltd [2019] WADC 111.

6. On 16 August 2019, the appellant appealed against the Deputy Registrar's decision.  The appeal proceeded, by way of rehearing,[9] before Stavrianou DCJ on 21 October 2019.  At the conclusion of that hearing, at which the appellant was self-represented, Stavrianou DCJ reserved his decision.  On 18 November 2019, his Honour received further written and oral submissions from both parties, following a letter from the court to the parties inviting further submissions in relation to three authorities referred to the parties by the court.  Following the conclusion of submissions on 18 November 2019, after a short adjournment, his Honour delivered judgment extemporaneously, dismissing the appellant's appeal against the Deputy Registrar's decision.

   [9] District Court Rules 2005 (WA) r 15.

Primary judge's approach

1. Stavrianou DCJ identified the two primary issues which arose on the appeal to him as being:

   (1)whether CTI and Mr Raspa were responsible for the republication of the email by on 24 February 2018; and

   (2)whether the original publisher of defamatory matter, which is republished by another, could rely upon a defence open to the republisher (in this case arising under s 28 of the Defamation Act 2005 (WA)).

2. Stavrianou DCJ approached the appeal on the basis that the power to grant summary judgment is to be exercised with great care, especially in the case of a self-represented litigant.[10]

Whether respondents are responsible for publication on 24 February 2018

[10] Primary ts 157 - 159.

1. As to the first issue, Stavrianou DCJ noted that the pleaded publication on 24 February 2018 was by and not the respondents. His Honour referred to a number of authorities to the general effect that an original publisher is not normally liable for a republication of the defamatory matter because of the voluntary act of a person over whom the original publisher has no control. Those authorities are discussed at [44] - [47] below. His Honour referred to four classes of case, identified by Lopez LJ in Speight v Gosnay,[11] where an original publisher may be liable for a republication by a person over whom the original publisher has no control:[12]

   (1) repetition under the direct authority of the defendant;

   (2) an intention on the defendant's part that there be such a repetition;

   (3) where the repetition is the natural consequence of the defendant uttering the words; and

   (4)where there is a moral obligation on the hearer to communicate the substance of the words to another.

   [11] Speight v Gosnay [1891] 60 LJQB 231, 232.

   [12] Primary ts 163.

2. Stavrianou DCJ said that it was common ground that CTI and Mr Raspa did not authorise republication by and there was no evidence that they intended the republication to occur.  The appellant relied on the third and fourth classes identified in Speight.  The judge found that there was no reasonably arguable case for liability on either basis.  First, his Honour rejected the submission that the republication was a natural consequence of the original publication, in that it was 'far-fetched and fanciful' to suggest that Mr Raspa would have reasonably expected that his email would appear in a judgment published in proceedings which had not been commenced when the email was sent.  Secondly, his Honour held that there was no legal or moral obligation on the recipients of the 21 July 2012 email to repeat its contents in an affidavit filed in the Federal Circuit Court proceedings.  Stavrianou DCJ therefore held that neither CTI nor Mr Raspa were responsible for the publication of Judge Lucev's reasons by on 24 February 2018.[13]

Whether respondents can rely on defence under s 28

[13] Primary ts 160 - 167.

1. Stavrianou DCJ then proceeded to consider the second issue referred to at [8] above, while recognising that it was not necessary to do so, given the way that the first issue had been resolved.[14]

   [14] Primary ts 167.

2. The second issue arose in a context where it was common ground that the publication by on 24 February 2018 was protected by s 28 of the Defamation Act. Section 28(1) relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a public document. The term 'public document' is defined in s 28(4), relevantly to include a judgment of a court including any report of the court of the reasons for its judgment.

3. The appellant in effect contended that, while the defence was available to it was not available to CTI and Mr Raspa by reason of s 28(3) of the Defamation Act, which provides:

   A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

4. The appellant contended that he had an arguable case that the respondents' defence under s 28(1) was defeated, as Mr Raspa did not publish the information honestly for the information of the public or the advancement of education.

5. Stavrianou DCJ referred to a passage from Gatley on Libel and Slander and dicta of Muir J (Williams JA and Mullins J agreeing) in Belbin v McLean,[15] to the effect that an original publisher may rely on the protection which privilege affords to a republisher.[16]  Stavrianou DCJ said:[17]

   The publication of the judgment by has the protection provided by section 28 of the Act. The Federal Circuit Court judgment is a public document. defence to any claim for publication of a defamatory matter could only be defeated if the [appellant] proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

   In my view the provision of section 28(3) in the context of this case is directed to and not as the [respondents] submitted to the position of Raspa. That in my view is a reasonable interpretation of the legislation and accords with the legislative purpose in relation to that particular matter.

   [15] Belbin v McLean [2004] QCA 181 [39].

   [16] Primary ts 168 - 169.

   [17] Primary ts 169.

6. Stavrianou DCJ said that the judgment of Muir J in Belbin is persuasive and supported by the authors of Gatley, and then quoted the following passages of Deputy Registrar Hewitt's reasons for decision:[18]

   The [appellant] is therefore claiming that a judgment which was published in circumstances of absolute privilege and reproduced by in circumstances which clearly attract the protection of s 28(1), should be regarded by this court as a republication of the original defamatory material, thereby exposing [CTI] and its employee to a claim for damages for defamation.

   In my view the proposition is not sustainable.  Were the position to be otherwise, no successful defamation action would ever be concluded, the publication of the decision being a republication of the original defamation giving rise to a further claim and so on and so on.

   It is my view that publication of a judgment which attracts absolute privilege and republication of that judgment, in circumstances where s 28(1) of the Defamation Act applies, are not capable of being regarded as a republication of the original defamation giving rise to a viable claim by the [appellant] against the [respondents].

   [18] Ogbonna v CTI Logistics Ltd [2019] WADC 111 [6] - [8], quoted by Stavrianou DCJ at primary ts 169 - 170.

7. Stavrianou DCJ indicated his acceptance of the Deputy Registrar's view expressed in the last paragraph quoted above, and said that he considered the provisions of the Defamation Act provided a complete defence in this case.[19]

   [19] Primary ts 170.

Grounds of appeal to this court

1. The appellant appeals against the decision of Stavrianou DCJ on seven grounds.  The grounds of appeal are expressed in the following terms:

   1. First, whether jurisdictional error (an error of law) occurred 'in the circumstances I consider that the provisions of the Act do provide the defendants with a complete defence in this case. The plaintiff's action must be dismissed'?

   2. Second, whether the provision of section 28(3) in the context of this case is directed to and not as the defendant submitted to the position of [Mr Raspa]. That in my view is a reasonable interpretation of the legislation in relation to the statutory provisions of section 28 of the Defamation Act 2005 was an error of law?

   3. Third, whether no reasonable defamation action would ever be concluded, the publication of the decision being a republication of the original defamation giving rise to a further claim and so on and so on was an error of law?

   4. Fourth, whether the publication of a judgment which attracts absolute privilege and republication of that judgment, in circumstances where s 28(1) of the Defamation Act applies, are not capable of being regarded as a republication of the original defamation giving rise to a viable claim was an error of law?

   5. Fifth, whether the considerations such as these and dicta of Hunt J in Toomey v Mirror Newspapers [(1985) 1 NSWLR 173] support the conclusion that a defence of absolute privilege open to a republisher may be availed of by the original publisher in relation' to the statutory provisions of section 27 of the Defamation Act 2005 was an error of law?

   6. Sixth, whether the factors identified are first the email was produced in the Federal Court proceedings by a person who was not a recipient of the email, was an error of fact?

   7. Seventh, whether actual bias in the conduct of the trial judge was an error of law?

2. Having regard to the appellant's written and oral submissions and the terms in which the grounds are expressed, it appears that:

   (1)Grounds 1 - 3 challenge Stavrianou DCJ's conclusion as to the second issue identified by his Honour, concerning the availability of the defence in s 28 of the Defamation Act to the respondents.

   (2)Ground 4, although referring to s 28, seeks to challenge Stavrianou DCJ's conclusion as to the first issue identified by his Honour, concerning the respondents' responsibility for publication on 24 February 2018.

   (3)Ground 5 contends that Stavrianou DCJ made an error in relation to the application of s 27 of the Defamation Act, which provides a defence of absolute privilege for the publication of a matter in the course of the proceedings of an Australian court.

   (4)Ground 6 alleges a factual error as to whether Mr Vanderlist was a recipient of the 21 July 2012 email.

   (5)Ground 7 contends that Stavrianou DCJ's decision is infected by actual bias.

Ground 7:  Bias

1. Ground 7 alleges actual bias on the part of Stavrianou DCJ.  In written submissions, the appellant submits bias was indicated by:

   (1)the judge unfairly intervening and adopting a hostile manner in the way he approached the appellant during the hearing;

   (2)the judge deciding to ignore the facts and deliberately avoid applying the law. 

2. It is generally appropriate for an appellate court to deal with allegations of bias by a primary judge before dealing with other substantive issues in the appeal.  This is because actual or apprehended bias strikes at the validity of the hearing and its outcome.[20]  We will therefore deal with the allegation of bias in ground 7 before turning to deal with the other grounds.

   [20] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] - [3], [117], recently applied in Jorgensen v Fair Work Commission [2019] FCAFC 113; (2019) 271 FCR 461 [93] and Charisteas v Charisteas [2020] FamCAFC 162; (2020) 354 FLR 167 [4], [123].

3. A judge will be disqualified from hearing a matter on the basis of bias by prejudgment if it is established that the judge was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.[21]  However, it is unnecessary for the appellant to satisfy the heavy burden of proving actual bias on the part of the judge.  It will suffice if there was a reasonable apprehension of bias, which will be established if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[22]  The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[23]

   [21] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72] (Gleeson CJ and Gummow J).

   [22] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].

   [23] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

1. An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[24]  As French J noted in Jia v Minister for Immigration and Multicultural Affairs:[25]

   The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus.  The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.

   That is, as Kirby J noted in Jia,[26] an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and, as in the case of allegations of reasonable apprehension of bias,[27] where it is 'firmly established'.

   [24] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427[33].

   [25] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 106, a judgment approved by members of the High Court in Jia [72], [82].

   [26] Jia [127].

   [27] See R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 553 - 554.

2. The appellant's submissions are misconceived so far as they rest on his disagreement with the content or outcome of Stavrianou DCJ's reasoning, which the appellant contends ignored the facts and deliberately avoided applying the law.  If the judge made an error of fact or law then that error can be corrected on appeal in dealing with the appellant's substantive grounds.  However, establishing that a judge made errors of fact or law does not establish either actual or ostensible bias. 

3. As this court recently noted in KWLD v The State of Western Australia,[28] the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power.  The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise.  The focus of attention must therefore be on the position as it stood before the impugned decision is taken.  Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.[29]  

   [28] KWLD v The State of Western Australia [2020] WASCA 94 [104].

   [29] Michael Wilson & Partners [33], [67] - [68].

4. There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision.  The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.[30]  However, there is a difference between apprehending bias in the decision making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process.  The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.[31]

   [30] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271 [77] - [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case.

   [31] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (per Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegation of actual bias by a judge.

5. There is no reasonable basis for inferring actual bias, or apprehending bias, from the content of Stavrianou DCJ's reasons for decision.  Those reasons indicate that the judge applied the law as he perceived it to the facts as he understood them.  Even if the judge were shown to have erred in some respect or respects, there is no basis for inferring actual bias or reasonably apprehending bias from the judge's reasoning process.

6. The appellant's assertion in written submissions that the primary judge acted in a 'hostile manner' during the hearing is also without merit.  Contrary to the appellant's submission, the transcript of the hearing before Stavrianou DCJ demonstrates that his Honour was patient and respectful towards the appellant during the hearing.  He indicated to the appellant that he was under no time pressure.[32]  The judge gave the appellant the opportunity to make oral submissions which he wished to advance in support of his case.  His Honour gave the appellant a further opportunity to make submissions on cases which the court had identified, and did not confine the appellant's supplementary submissions to dealing with those cases.  Where the judge interrupted the appellant's submissions it was generally to:

   (1)clarify what the appellant was saying, in an attempt to ensure the judge understood the submission being advanced;[33]

   (2)explain legal or procedural matters which the appellant may not have appreciated;[34] or

   (3)bring the appellant back on track when his submissions digressed onto clearly irrelevant topics.[35]

   [32] Primary ts 74, 97 - 98.

   [33] See, for example, primary ts 48 - 49, 53 - 55, 56, 70 - 72.

   [34] See, for example, primary ts 50 - 51, 62, 110, 134 - 137.

   [35] See, for example, primary ts 142, 146 - 147.

7. The transcript reveals that Stavrianou DCJ conducted the hearing of the appellant's appeal with impeccable fairness.  There is no basis for this court to infer actual bias.  Nor is there any basis on which a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues he was required to decide. 

8. Actual or reasonably apprehended bias on the part of Stavrianou DCJ has not even arguably been demonstrated.  Ground 7 is entirely without merit.

Ground 6: alleged factual error

1. It is convenient to turn to the factual error alleged by ground 6.  The factual error is alleged to be contained in the following passage of his Honour's reasons for decision:[36]

   The [respondents have in their] submissions identified a number of factors which are said to demonstrate the plea as to republication is not reasonably arguable.  The factors identified are first the email was produced in the Federal Court proceedings by a person who was not a recipient of the email, Mr Ogbonna made detailed submissions in that respect … (emphasis added)

   [36] Primary ts 166, referred to at par 6.1 of the appellant's submissions (White AB 21).

2. In our view, the judge was not making any finding as to whether Mr Vanderlist was a recipient of the 21 July 2012 email.  Rather, as the emphasised words in the passage just quoted indicate, the judge was referring to the competing submissions made by the parties in relation to that issue.

3. Further, this passage of the judge's ex tempore reasons must be read in light of the evidence and the submissions which had been advanced.  The documentary evidence made it clear that the 21 July 2012 email had been forwarded to Mr Vanderlist, as part of a chain email discussion, on 23 July 2012.[37]  The respondents' submissions did not contend to the contrary.  In his oral submissions before the trial judge, counsel for the respondent had observed:[38]

   I think there are a couple of matters to be noted from that email. The first is that Mr Vanderlist wasn't a recipient of that email.  He has - he has subsequently received it but not received it from Mr Raspa. (emphasis added)

   [37] Annexure CICO 5 to the affidavit of the appellant sworn 16 May 2019 (Green AB 216 - 217).

   [38] Primary ts 80, see also 85.

4. Counsel for the respondents took the judge to the email chain and indicated, in the course of his submissions, that it had subsequently been forwarded to Mr Vanderlist.[39]  The overall effect of the submissions was that Mr Vanderlist was not a person to whom Mr Raspa directed the email on 21 July 2012.  The appellant had made submissions that the email had been sent to Mr Vanderlist.[40]

   [39] Primary ts 126 - 129.

   [40] Primary ts 52, 94, 99, 114, 132, 147.

5. Against that background, we do not read the impugned passage of Stavrianou DCJ's reasons as doing any more than noting the competing submissions which had been advanced by the parties on a factual issue.  His Honour did not, here or elsewhere in his reasons, attempt to resolve that issue.  It is evident that his Honour did not find it necessary to make any findings in order to resolve the question of whether summary judgment should be granted.

6. Therefore, we are not satisfied that Stavrianou DCJ actually made the factual finding sought to be impugned by ground 6.  For that reason, ground 6 is not established.

Ground 4: Respondents' liability for 24 February 2018 publication

1. The question of an original publisher's responsibility for the republication of defamatory imputations by a third person who the original publisher does not control may arise in two different contexts.[41]  First, a plaintiff in such a case may advance a cause of action based on the republication, either alone or in addition to the cause of action based on the original publication.  In this first class of case, the plaintiff must attribute the republication to the defendant in order to establish a cause of action based on the republication.  Secondly, the plaintiff may sue on the original publication only, but seek to recover as a consequence of that original publication the damage which he or she has suffered as a result of its repetition on republication.  In this second class of case, the court is concerned not with the existence of the cause of action but the extent of damages to be awarded in respect of the original publication. 

   [41] See, for example, Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, 181 - 182.

2. The authors of Gatley note that the cases do not always distinguish clearly between the two situations.  While in many cases it will make no practical difference whether the defendant's liability is based on one rather than the other, there may be differences for some purposes which include limitation periods.[42]

   [42] Gatley on Libel and Slander (10^th edition, Sweet & Maxwell), par 6.35.

3. The present appeal concerns the first class of case.  The appellant has not, and because of the one year limitation period could not have,[43] asserted a cause of action based on the original publication of the email on 21 July 2012 in the current proceedings. Nor does he seek to assert a cause of action based on the republication of the email in Mr Vanderlist's affidavit in 2013 or Judge Lucev's reasons in 2015. Section 27 of the Defamation Act would have presented an insurmountable hurdle to the appellant attempting to do so, in addition to the limitation period.  The appellant's cause of action in the current proceedings is based only on the republication of Judge Lucev's reasons for decision (containing the quoted extract of the 21 July 2012 email) on website on 24 February 2018.  In order to establish that cause of action, the appellant must attribute responsibility for republication to Mr Raspa (directly) and CTI (vicariously).

   [43] When the primary proceedings were commenced, it was also too late to seek an exercise of the court's power in s 40 of the Limitation Act to extend the time in which a defamation action can be commenced up to 3 years from the date of publication.

4. It is clear that neither respondent had any control over the content of Judge Lucev's reasons for decision particularly where, as in Mr Raspa's case, he was not a party to the Federal Circuit Court proceedings.  Nor do the respondents have any control over conduct in publishing reasons for decision of the Federal Circuit Court.  There is no evidence or suggestion that the respondents authorised or directed the publication of Judge Lucev's reasons for decision on website, or subjectively intended that to occur in 2012.  There is no evidence to suggest that the respondents were accessories to publication in the sense discussed by Isaacs J in Webb v Bloch.[44]

   [44] Webb v Bloch (1928) 41 CLR 331, 363 - 366; see also Knox CJ at 347 agreeing with the trial judge, Starke J, at 340.

5. The appellant's primary argument is that responsibility for the 24 February 2018 republication should be attributed to the respondents on the basis that it was the natural and probable consequence of the original publication of the 21 July 2012 email.  That is, the appellant seeks to bring this case within the third classes of case identified by Lopez LJ in Speight, referred to at [10] above.[45] 

   [45] See appellant's submissions, par  4.5, 4.7 - 4.9, 4.12, 4.14 (White AB 14 - 17).

6. There are a number of cases which have considered how an original publisher may be held responsible in this manner.

7. In Sims v Wran,[46] a State premier responded to a question by a journalist at a press conference in a way alleged to be defamatory of the journalist.  The journalist did not sue on the republication of the premier's comments by other news organisations.  However, dicta of Hunt J indicated that the plaintiff could have pleaded such a cause of action on the basis that:[47]

   Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: Speight v Gosnay (1891) 60 LJQB 231 at 232; and usually in whatever form in which that republication takes place: Webb v Bloch (1928) 41 CLR 331 at 363-366.

   [46] Sims v Wran [1984] 1 NSWLR 317.

   [47] Sims (320).

8. In Williams v John Fairfax Group Ltd,[48] the defendants had published a review of a restaurant in their newspaper, which was said to be defamatory of the plaintiffs.  The defendants sought to strike out pleadings of a cause of action based on republication of excerpts of the review on a radio program, which was critical of the review.  In that case Hunt J held it was arguable that, given the prominence of the reviewer, the republication in the radio program was the natural and probable consequence of the original publication.

   [48] Williams v John Fairfax Group Ltd (1991) A Def R 51,035.

9. Slipper v British Broadcasting Corporation is a decision of the Court of Appeal of England and Wales, which concerned the publication of a film containing allegedly defamatory imputations about the plaintiff.[49] The film was shown to a group of journalists in a press screening and to the general public. The question was whether a paragraph of the pleading, which referred to republication of the defamatory imputations in press reviews of the film, should be struck out. The case was in the second category referred to at [38] above. The court treated the question as one of remoteness of damage, addressed by asking whether the republication in press reviews was a 'foreseeable' or a 'natural and probable consequence' of the publication at the press screening (appearing to regard the concepts as equivalent).[50]  Stressing the fact sensitive nature of the inquiry, the court declined to strike out the pleading.

   [49] Slipper v British Broadcasting Corporation [1990] 1 QB 283.

   [50] See Slipper (296), (301 - 302).

10. McColl JA has stated the general principles applicable in a case of the second class identified at [38] above in two judgments of the New South Wales Court of Appeal (in each case, other members of the court agreeing). Her Honour stated the following general principles in Habib v Radio 2UE Sydney Pty Ltd (which involved republication of extracts of a newspaper report in radio broadcasts):[51]

    Liability as a principal for publication of defamatory material depends upon participation: see Gatley (at [6.16]). All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected: Webb v Bloch (at 364) per Isaacs J. Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ. …

    However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused: Ward v Weeks (1830) 7 Bing 211. The voluntary act of the third party publisher breaks the chain of causation: McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [15] – [26]) per Waller LJ.

    Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: Speight v Gosnay (at 232) per Lopes LJ; Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 (at [5]) per Handley JA (Hodgson JA and Grove J agreeing). In those circumstances, a plaintiff is entitled to complain [not] only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 (at 298 – 299) per Salmon J; Sims v Wran[1984] 1 NSWLR 317 (at 320) per Hunt J; Ainsworth v Burden (at [5]).

    The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in 'any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person': Gatley (at [6.36]); A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell (London) (at [23-217] – [23-219]).

    Thus, because a plaintiff seeking to recover damages from an original publisher of defamatory matter is seeking to establish that the republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens, it is appropriate when pleading such a case to plead that the original publication 'caused' the republication ….

    [51] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 [121] - [125].

11. That statement of principles was applied in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd.[52]  In that case it was held that the publisher of a mainstream newspaper was not liable in respect of damages for republication by other news organisations (in breach of copyright).  This was on the basis that, at the time of the original publication, republication was 'objectively unlikely' and there was no 'significant risk' of republication.

    [52] Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173 [187] - [196]. See also the similar statement of general principle in State Bank of NSW Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; (2001) 51 NSWLR 399 [106].

1. The above cases reflect a reluctance to resolve in a summary manner questions of whether an original publisher is liable on the basis that republication is an ordinary and natural, or foreseeable, consequence of the original publication.  That approach reflects the fact-sensitive nature of the inquiry, and the established principle that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[53]

   [53] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] - [55].

2. However, the present appeal is a case where it can be confidently concluded that the appellant has no reasonable prospect of establishing the respondents' liability for the publication by on 24 February 2018.  It would not have been in the reasonable contemplation of a person in the respondents' position in 2012, when the internal email was published, that the appellant would commence court proceedings which would lead to the email being reproduced in a judgment of a court which would in turn be published on the internet.  The conclusion that the appellant's action is doomed to fail does not depend on which of the various formulations of the relevant principle is to be preferred.  The republication of Mr Raspa's email in a judgment on the website was not a natural and probable consequence of the original publication of the 21 July 2012 email, nor was it a reasonably foreseeable consequence of sending that email.  On the causation analysis in March v E & MH Stramare Pty Ltd,[54] it cannot be said, applying common sense to the facts of the case, that Mr Raspa sending his email on 21 July 2012 was a cause of the publication of Judge Lucev's reasons reproducing that email on the website.

   [54] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

3. The appellant also contends that, once Mr Vanderlist received the email, he had a moral obligation to republish it in subsequent proceedings brought against him in the discharge of his discovery obligations.  In our view, there is no reasonable basis for contending that the respondents were liable on the basis that Mr Raspa published his email to a person who had a moral or legal duty to republish its contents.  Assuming for present purposes that Mr Vanderlist was a recipient of the 21 July 2012 email, as contended by the appellant, he was under no moral or legal duty to annex the email to an affidavit in the Federal Circuit Court proceedings, particularly when those proceedings had not been commenced at the time of the original publication.

4. In our view, Stavrianou DCJ was correct to conclude that summary judgment should be entered for the respondents on the basis that they were clearly not liable for the publication by of Judge Lucev's reasons on 24 February 2018.

Grounds 1, 2 and 3: application of s 28 of the Defamation Act

1. Grounds 1, 2 and 3, in substance, challenge the proposition that the respondents were entitled to rely upon the defence under s 28 of the Defamation Act.  This was the second basis on which Stavrianou DCJ found the grant of summary judgment in the respondent's favour to be appropriate.

2. It is unnecessary for this court to resolve those grounds, as the first basis for entering summary judgment has been sustained. Success of the grounds challenging his Honour's conclusion that the respondents had a defence under s 28 of the Defamation Act could not therefore lead to the appeal being allowed.

3. Further, it seems to us to be undesirable for this court to express any concluded view in relation to the issue when it is not necessary to do so.  The question is not one which is the subject of any significant prior judicial consideration.  The fact that the appellant is self-represented means that the court does not have the benefit of submissions in support of the grounds which are as sophisticated as might be expected from a represented party. 

4. In any event, consideration of the application of s 28 would have a hypothetical and artificial aspect to it in the present circumstances. The question of the availability of a defence under s 28 only arises in a case where the defendant would otherwise be liable for the publication which is the subject of the cause of action. In the present appeal, we have concluded that the respondents are not liable for the publication on website on 24 February 2018. There is a degree of artificiality in considering the application of s 28 to circumstances where the respondents are not liable for the publication in any event.

5. Different questions may arise in a case where responsibility for republication is established. We see no reason to doubt Stavrianou DCJ's conclusion that the reference in s 28(3) to material being published is to the publication which is the subject of the cause of action and to which the defence is to apply. That is, in this case the question would be whether the publication on 24 February 2018 was not a publication honestly for the information of the public or the advancement of education. The appellant's argument based on the purposes for which the original publication was made on 21 July 2010 is without merit. However, in a case (unlike the present) where more than one party was responsible for the republication, questions may arise as to whose purpose is relevant under s 28(3) of the Defamation Act. It is undesirable for this court to attempt to deal with those questions of construction in a case where the application of s 28 does not arise because the respondents are not liable for the republication in any event.

6. Therefore, we do not express any concluded view in relation to the construction of s 28 of the Defamation Act or these grounds of appeal.

Ground 5: s 27 of the Defamation Act

1. Ground 5 seeks to raise questions as to the operation of s 27 of the Defamation Act. Section 27 provided for a defence of absolute privilege in respect of the publication of the defamatory matter in Mr Vanderlist's affidavit and Judge Lucev's reasons. However, as noted above, those publications are not the subject of the current proceedings. It is not contended that s 27 provides a defence to the publication on 24 February 2018. Therefore, the operation of s 27 does not arise in this case, and it is unnecessary to deal further with this ground.

Orders

1. For the above reasons, in our view the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MT

Associate to the Honourable Justice Mitchell

12 FEBRUARY 2021