P101 v Cambridge University Press

[2015] NSWSC 1005

Supreme Court

New South Wales

Medium Neutral Citation:	P101 v Cambridge University Press [2015] NSWSC 1005
Hearing dates:	19 June 2015
Date of orders:	10 July 2015
Decision date:	10 July 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Proceedings dismissed with costs.
Catchwords:	DEFAMATION – procedure – summary dismissal – whether matter complained of reasonably capable of defaming the plaintiff
Legislation Cited:	Family Law Act 1975 (Cth)
Category:	Procedural and other rulings
Parties:	P101 (Plaintiff) Cambridge University Press (Defendant)
Representation:	Counsel: Plaintiff in person M Richardson (Defendant)   Solicitors: Plaintiff self-represented Corrs Chambers Westgarth (Defendant)
File Number(s):	2015/109136
Publication restriction:	The plaintiff in the proceedings is to be referred to as P101.

Judgment

1. HER HONOUR: The plaintiff in these proceedings is to be referred to as P101.

2. P101 was involved in family law proceedings with his ex-wife. Allegations were made against him in those proceedings which were ultimately found to be not substantiated. Since that time, the plaintiff has fought long and hard to remove the taint of the allegations. The present case highlights the paradox of a person in that position having to pursue his entitlement to vindicate his reputation by airing the allegations that have tarnished it in a system of justice the very hallmark of which is transparency.

3. The proceedings under the Family Law Act 1975 (Cth) were concluded in 1995. The judge who determined the proceedings was not satisfied that the allegations against P101 were substantiated. In 1997, a judge of the Court expressed the opinion that it was “totally inappropriate to leave on any departmental data base or file any record asserting as fact any matter which would be at variance with the Court's finding” about that matter. The judge raised a question as to the integrity of the government department which evidently had maintained such a record.

4. Still, the allegations remained on records of the relevant department. The plaintiff persisted in his attempts to have any record of the allegations removed. Ultimately, he brought proceedings for defamation in the Small Claims Tribunal of the relevant jurisdiction and in 2001 was awarded an amount of $2,000. The plaintiff then brought proceedings in the Supreme Court of the same jurisdiction. That court made a declaration in terms in effect determining finally that the allegations were false.

5. The present action arises from the publication of a book which includes reference to the published decision in the proceedings in the Supreme Court. The plaintiff claims he has been defamed by the book by its repetition of the matters aired in those proceedings.

6. The statement of claim was filed on 4 April 2015. In response to objections to the form of that pleading taken by the defendant, the plaintiff filed an amended statement of claim on 7 May 2015. The defendant publisher maintains its objection to that pleading.

7. At the first listing of the proceedings in accordance with the Practice Note SC CL 4, the defendant raised particular objections to the form of the statement of claim but also submitted that the book is not reasonably capable of defaming the plaintiff. On that basis, the defendant sought to have the proceedings summarily dismissed. This judgment determines the issues raised by those objections and submissions.

8. The first category of objection taken by the plaintiff relates to a part of the pleading by which the plaintiff appears to seek to plead a contempt of court. The plaintiff is unrepresented and has evidently drawn the claim himself. His apprehension that the publication of the book entails the publication of material in breach of an order of the Court (or which might in some way amount to contempt of Court) is, at one level, from a lay perspective, evidently well founded. The plaintiff asserts (and there is no reason to doubt it) that, in the proceedings in the Supreme Court, he asked the judge who determined those proceedings what would happen if there were to be a republication of the defamation and that the judge stated, "It would be held as criminal contempt." The plaintiff informed me that the judge told him if there were any republication of the defamation he should contact the judge's associate and the matter would be dealt with by the judge.

9. However, the evidence before me establishes unequivocally that no suppression order was made by that Court prohibiting the reporting of the Court’s judgment. Upon analysis, it would make no sense for there to be any such prohibition, since the very purpose of that action was once and for all to vindicate the plaintiff’s reputation against the allegation he had fought for so many years to dispute.

10. In any event, it is plain that the claim against the present publisher for contempt is not maintainable in circumstances where it is undisputed that there is no order of which the defendant could be said to be in breach. To the extent that the claim attempts to plead a cause of action based on any alleged contempt of court it is, in my view, untenable.

11. The balance of the defendant's objections fall into three categories. First, the defendants took individual objections to particular parts of the existing statement of claim on the grounds that they are irrelevant to any cause of action sought to be prosecuted. Secondly, the defendants took individual objections to each of the imputations pleaded by the plaintiff. Finally, as already indicated, the defendant submitted that, upon a fair reading of the whole of the relevant material, the book is incapable of defaming the plaintiff.

12. It is convenient to begin by dealing with some of the particular objections taken to the imputations. As already noted, the pleading was drafted by the plaintiff himself, evidently without the assistance of legal advice. Mr Richardson (who appears for the defendant) has in written submissions provided to the plaintiff in advance of the hearing set out particular objections to each of the imputations in the amended form of the pleading (at paras 23 to 44 of the submissions). I do not think it is necessary for present purposes to descend to the detail of those objections, save as to two imputations to which I will return.

13. In part, my reason for taking that approach is that I am endeavouring in these reasons not to give further circulation to the very allegations the plaintiff has sought to obliterate from any record. It is enough to say that the objections taken by Mr Richardson and argued before me are, in my view, made good and that the current form of the pleading plainly cannot stand. The amended statement of claim has failed to specify imputations that conform to the requirements for pleading a claim in defamation.

14. Two exceptions were acknowledged in argument by Mr Richardson and argued with some force by the plaintiff. In order to explain those particular imputations, it is necessary to explain something about the nature of the matter complained of. It is an academic piece directed to exploring the issue of bureaucratic failures. It is in that context that the plaintiff's proceedings in the Supreme Court (and the saga which led to his bringing those proceedings) is discussed.

15. One of the particular passages of the matter complained of relied upon by the plaintiff is the description of those proceedings as proceedings which demonstrate "how a tenacious plaintiff can prevail and conscientious workers can find themselves at odds with the law." Secondly, in the same passage, it is stated:

“It appears that departmental staff members were concerned to keep a note of the allegation on file for some reason perhaps connected with their view of the children's interests.”

16. Mr Richardson acknowledged that, unlike the balance of the plaintiff’s claim, each of those matters could arguably be put against the defendant to sustain a defamatory imputation. The plaintiff submitted that the matter complained of suggests that the reason he won his litigation was that the social workers were legally inept and that he somehow tricked the judge into finding in his favour. The plaintiff relied in particular on the reference to "conscientious workers." He submitted that those passages of the matter complained of would, to any reasonable reader, suggest the prospect of truth in the underlying allegations.

17. I have given careful attention to the relevant passages of the matter complained of. As submitted by Mr Richardson, the matter complained of must be considered as a whole and not (as it appears in the present form of the pleading) by reference to individual selected statements. In my view, reading the relevant passages of the matter complained of in the context of its whole, no reasonable reader could reasonably understand the book to be asserting any truth in the underlying allegations.

18. For those reasons, I have concluded that Mr Richardson's submission that the matter complained of is not reasonably capable of defaming the plaintiff should be accepted. It is, accordingly, not necessary to determine the individual objections as to the imputations or indeed the discrete objections to other parts of the amended statement of claim. In my view, no reasonably arguable cause of action is revealed by the pleading or could be on a repleading of it, and accordingly I have concluded that the proceedings should be dismissed.

19. In reaching that conclusion I would wish to observe, as I have already recorded, that the very purpose of the proceedings reported in the matter complained of was to, as it is sometimes put in in defamation actions, "nail the lie." The report of those proceedings is a determination of a superior court to which the plaintiff can always point when he wishes to obliterate the taint of the allegation from his name. To suggest that every reference to that action should itself be obliterated subverts the remedial purpose of defamation proceedings. For those reasons, the proceedings are dismissed with costs.

20. ADDENDUM: the foregoing reasons were published orally on 10 July 2015. The plaintiff subsequently wrote to my Associate stating that he was “not given leave to submit on costs” and providing written submissions. The plaintiff did not seek to be heard on costs at the hearing. As he was self-represented at the hearing, leave should be granted to rely on the written submissions.

21. I have considered the submissions. One matter raised is the contention that I had a conflict of interest. That contention does not appear to be directed to the issue of costs but it should be addressed. The plaintiff identified two matters alleged to give rise to a conflict of interest on my part. The first was that the case concerned social workers and my mother “is” a social worker (in fact my mother died in 2012 but it is true that she was a social worker). Secondly, the plaintiff contended that I have “feminist liaisons”, allegedly “leaving impartiality as suspect”.

22. I do not think the fact that my mother was a social worker is a ground on which I could or ought to have recused myself from hearing the present case. As to the contention that I have “feminist liaisons”, I do not know what the plaintiff is referring to. The only elaboration on that submission was the assertion that I am “a publicised feminist”. I am not aware of any basis on which I may be said to have earned that description, nor am I aware of any basis on which I could or ought to have recused myself from determining the defendant’s application.

23. The plaintiff’s submissions as to costs have not persuaded me that there is any basis in this case for departing from the usual rule that costs follow the event. Accordingly, I have determined not to vary the orders entered on 10 July 2015.

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Decision last updated: 24 July 2015