Peter P v Clarence C (No. 2)

[2020] NSWDC 465

District Court

New South Wales

Medium Neutral Citation:

Peter P v Clarence C (No. 2) [2020] NSWDC 465

Hearing dates:

4 June 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Application for summary dismissal of proceedings is refused: at [51].

Catchwords:

TORT — defamation — application for summary dismissal as an abuse of process and/or pursuant to Bleyer v Google Inc principles of proportionality — application refused

Legislation Cited:

Family Law Act 1975 (Cth),

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Agar v Hyde (2000) 201 CLR 552

Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno Di Pietro Ostali SNC [1971] 1 WLR 1128

Bata v Bata [1948] WN 366

Bleyer v Google Inc (2014) 88 NSWLR 670

Commonwealth Bank of Australia v Clune [2008] NSWSC 1125

Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17

Cumberland v Clark (1996) 39 NSWLR 514

Desfosses v Martinson [2018] WASC 114

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433

El Chami v Mackie [2019] NSWSC 821

Ewing v Times Newspapers Ltd [2011] NIQB 63

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Farrow v Nationwide News Pty Ltd [2017] NSWCA246

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

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

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946

Nationwide News Pty Ltd v Hibbert [2014] NSWCA 13

O'Dwyer v Chief Constable of the RUC [1997] NI 403

Palmer v Turnbull [2018] QCA 11

Peter P v Clarence C [2020] NSWDC 240

Poland v Hedley (No 2) 2020 WASC 203

Ramsey & Ors v Vogler [2000] NSWCA 260

Tajjour v New South Wales [2014] HCA 35

Toben v Nationwide News Pty Ltd [2016] NSWCA 296

Trkulja v Google LLC (2018) 263 CLR 149

Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8

Un v Chow [2018] NSWCA 287

Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284

Wallis v Valentine [2002] EWCA Civ 1034

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM of Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Australia)

Category:

Procedural and other rulings

Parties:

Plaintiff: Peter P
Defendant: Clarence C

Representation:

Counsel:
Plaintiff: Mr T Senior
Defendant: Mr J Cohen

Solicitors:
Plaintiff: Mark O’Brien Legal
Defendant: Elamrousy Solicitors

File Number(s):

2018/335721

Publication restriction:

None

Judgment

Introduction

1. These are proceedings for defamation commenced in the Supreme Court of New South Wales on 1 November 2018. As is set out in Peter P v Clarence C [2020] NSWDC 240 (hereafter referred to as “my previous judgment”), the defendant (“Clarence C”) sent two emails dated 4 and 16 November 2018, principally to his former wife (“Clorinda”), who is now the partner of the plaintiff (“Peter P”) but also to other persons. The defendant and his former wife are engaged in Family Court proceedings which have a significant overlap and are still before the court; as required by s 121 of the Family Law Act 1975 (Cth), the true names of the parties and other identifying factors have therefore been replaced or withheld.

2. These proceedings were transferred from the Supreme Court to this court during 2019. The defendant then filed a notice of motion seeking summary dismissal of the claim as an abuse of process and/or pursuant to r 11.6(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). As is set out in the introduction of my previous judgment, the hearing of this application had to be adjourned in February 2020, due to the defendant’s application to cross-examine the plaintiff, an application which I refused.

3. The background to this application is set out in Peter P v Clarence C and, wherever possible, I have refrained from repeating that material.

The issues before the court

4. The claim for dismissal pursuant to UCPR r 11.6(1) has been abandoned.

5. The sole issue for determination is whether the claim should be dismissed as an abuse of process and/or pursuant to principles of proportionality (Bleyer v Google Inc (2014) 88 NSWLR 670, hereafter “Bleyer”).

The parties’ affidavit evidence

6. I have already set out the contents of the correspondence between the parties leading to and following the matters complained of in my previous judgment, and will not do so again.

7. The defendant’s affidavit in support of this application does no more than attach that correspondence.

8. The plaintiff has set out a fuller bundle of correspondence as well as providing a narrative of the relevant events both before and after publication of the matters complained of.

9. I set out Mr Senior’s summary of the contents of the plaintiff’s affidavit, which is as follows:

1. The plaintiff considered that the first matter complained of contained serious allegations against him (affidavit at [17]). These allegations were untrue and caused him to feel extremely upset, angry and embarrassed (affidavit at [18]).

2. As a result, on 16 November 2017, the plaintiff sent an email to the defendant, setting out his response to the first matter complained of. In that letter he referred to the allegation made in the first matter complained of as being the most extreme and serious allegations that had ever been made about him, adding that he denied the allegations and told the defendant to stop making them. He expressed how disgusted he was that the defendant had been so careless with the truth and asked why he had not contacted him to find out all the facts. He referred to his reputation and reserved his right to spend whatever time and money necessary to achieve justice, put the record straight and have the defendant publicly apologise (affidavit at [20]).

3. The second matter complained of purported to be a response to the plaintiff’s letter dated 15 November 2017. It made no apology but instead repeated the allegations made in the first matter complained of and concluded by telling the plaintiff to “fuck off” (affidavit at [23]).

4. Although the plaintiff was extremely distressed by the allegations, he decided not to commence proceedings at the time, principally because he was concerned about the impact such proceedings would have on Clorinda and her daughter (affidavit at [24]).

5. The defendant then repeated the substance of the allegations in the matters complained of in a statement of claim issued in the overseas Family Court proceedings, which were served on Clorinda in August 2018. The defendant and the other child of his marriage to Clorinda resided overseas and Clorinda’s right to have access to that child could be impacted by the nature of the allegations the defendant made about the plaintiff. The plaintiff felt angry and embarrassed that the allegations had been repeated in a court document, despite having told the defendant that they were false (affidavit at [27]-[30]).

6. On or about 30 August 2018, the plaintiff sent an email to the defendant attaching a letter which set out his response to the allegations made in the statement of claim and referred to his letter of 15 November 2017 (affidavit at [31]-[32]).

7. The defendant then repeated the substance of the allegations made in the matters complained of in Family Court proceedings commenced by Clorinda in Australia (affidavit at [34]).

8. In February and March 2018, the plaintiff heard that the allegations made in the matters complained of were being spread around his community and, around that time, friends stopped speaking to him (affidavit at [35]-[36]).

9. By October 2018, the plaintiff had formed the view that the defendant was not going to stop repeating the allegations made in the matters complained of, and determined that he had no choice but to commence these proceedings (Affidavit at [38]). By doing so, the plaintiff intended to stop the harm the defendant was doing to his reputation by repeating the allegations, to repair the harm that the defendant had caused and to vindicate his reputation among those who had become aware of the allegations (affidavit at [40]).

10. The plaintiff accepted financial support to commence and fund these proceedings from family friends (described in the email as “angels”, a show business slang term), who were already providing financial assistance to Clarence in relation to the Family Court proceedings.

11. The plaintiff was increasingly concerned at the financial and emotional costs suffered by the family as a whole as a result of so much litigation, and hoped that these proceedings and the Family Court proceedings might both be resolved at a mediation (affidavit at [41]-[44]). As everything else had failed, he then proposed to all concerned that he should try to negotiate directly with the defendant.

12. The defendant agreed to this, but with one important additional proposal, namely that the settlement should include the defamation action as well as the Family Court proceedings in Australia and in the overseas country. In other words, it was the defendant, not the plaintiff, who sent an email to the plaintiff stating that “we should include” (exhibits to the plaintiff’s affidavit, p. 47) the defamation claim in that settlement as well. Mr Senior points out that this email has been omitted from the defendant’s bundle of correspondence.

The defendant’s submissions

10. In the course of oral submissions, Mr Cohen acknowledged that the matters complained of were defamatory and that the commencement of the proceedings may not of itself amount to an abuse of process. The conduct he principally points to as an abuse is the acknowledgements the plaintiff made in the course of the emails reflecting the settlement negotiations (where both parties have waived any claim for privilege) following the breakdown of the settlement that the plaintiff and defendant had arrived at on 16 March in the defendant’s office.

11. These statements were to the effect that the defamation case was being financed (as was the Family Court litigation) by “angels” who would not permit him to settle the defamation case unless the Family Court litigation was settled at the same time. This was despite the plaintiff wishing to do so, on the basis that the defamation case was “a strategy by [the defendant’s former wife]’s financiers”, who “to keep financial pressure” (email 6 May 2019) on the defendant and that if the plaintiff stopped his defamation action the plaintiff would have to pay the defamation litigation costs (email 7 May 2019). This was despite the defamation case being, according to the plaintiff, “futile” (email 6 May 2019).

12. In his oral submissions, Mr Cohen repeatedly characterised the contents of this correspondence as being “overwhelming” proof that these proceedings, whether initially brought for vindication of reputation or not, were brought solely (or at least predominantly) for the purpose of putting financial pressure on the defendant to settle the Family Court proceedings. If the plaintiff really wanted to vindicate his reputation, he would never have included any settlement of the defamation claim in the discussions about settling the Family Court proceedings. It was clear from his attempt to include the defamation proceedings in that settlement that he was not pursuing vindication or damages.

13. Mr Cohen specifically identified the following passages in the emails in question (the page numbers of the annexures to the defendant’s affidavit are given, rather than the dates):

1. Page 4: the fact that the plaintiff does not seek an apology or damages as vindication, but is prepared to include the defamation being “cancelled” as part of the Family Court settlement.

2. Page 7: The sentence commencing “To be radically honest it was a strategy by Bella’s financiers to get you to spend money you don’t have on litigation that was indefensible” and the reference further down to “financial pressure”. Even if the plaintiff’s purpose in commencing proceedings were legitimate, these emails, Mr Cohen submits, “stand on their own” (to use his words) as evidence of the true purpose of continuing the litigation.

3. Page 9: The plaintiff’s acknowledgement that he asked the “angels” to stop the case but that they had refused to do so and his apology to the defendant for not being able to call it off.

4. Page 12: The plaintiff’s linkage of the defamation to the Family Court proceedings and the explanation by the “angels” for the “sudden change in direction”, namely the defendant’s 40-year history of debt, failed businesses, broken agreements and current failure to pay child maintenance as ordered.

14. Some of the grounds given in relation to the proportionality claim (set out below) are also relied upon as being evidence of abuse of process.

15. Essentially, what Mr Cohen contends is that the purpose of damages in defamation actions is compensation for hurt feelings and vindication of reputation (submissions, paragraph 7) and that “upon analyses [sic] of the evidence before the court, it is apparent the purpose of these proceedings are [sic] for a collateral purpose and have nothing to do with [these]” (submissions, paragraph 8).

The plaintiff’s submissions

16. Mr Senior submits that the evidence before the court demonstrates the plaintiff was extremely hurt and upset by the defendant’s serious allegations and promptly wrote to him, both to express that upset and to set out the true position. The plaintiff only commenced these proceedings after the defendant, rather than apologise, had not only told him to “fuck off” but had repeated the allegations to a wider audience, including members of the local community, in circumstances where it appeared to the plaintiff that the defendant would continue to damage his reputation unless defamation proceedings were commenced.

17. As to the continuation of the proceedings, Mr Senior points out that it was the defendant who first proposed to include the defamation proceedings in the settlement of the Family Court proceedings and that the plaintiff had been willing to do so. (I note, in oral submissions, Mr Cohen acknowledged this to be the case). The plaintiff had in fact negotiated an agreement with the defendant which included all litigation between the parties. After the subsequent breakdown of those negotiations, he had continued with the defamation action, just as the defendant and his former wife had continued with the Family Court proceedings.

18. Mr Senior submits that the language in the emails is the language of negotiation, in that the plaintiff’s hope was that all proceedings would be able to be resolved, and his reference to the defamation proceedings as being “futile” and something he “honestly wanted to terminate” (email 21 May 2019) should be read in the light of the ongoing family relationship where each parent had the principal custody of one of the two children of the marriage and where both were in serious financial difficulties after expensive litigation in two jurisdictions.

19. I note the parties agree that, although there was an agreement between the relevant parties for the Family Court proceedings in Australia and in another country as well as for the defamation proceedings, the plaintiff’s continuation of the defamation proceedings does not amount to a breach of agreement, despite claims to the contrary by the defendant in his correspondence.

The test for summary dismissal

20. A court should not decide an issue, particularly where that issue is one of fact or credit of a witness, in a summary way except in the clearest of cases, even in defamation actions, where such applications are more common: Cumberland v Clark (1996) 39 NSWLR 514 at 518E – 519E and 524. Whether the party against whom such summary dismissal is sought is a plaintiff or a defendant, no party should be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.

21. The test to be applied is that it must be established, to a high degree of certainty, the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552 (Gaudron, McHugh, Gummow & Hayne JJ) at [57], citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 (Dixon J) and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130 (Barwick CJ).

22. In Poland v Hedley (No 2) 2020 WASC 203, Le Miere J added, although in the context of granting leave to amend:

“16.The court should not decide an issue raised in the proceeding in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

17. The court should take into account that summary disposal of cases may inhibit developments in the law. A summary disposition application, or refusal to give leave to amend to raise an issue, may include arguments on unsettled law. If a party's case relies on a development of the law in these circumstances, that may be significant in deciding whether a claim has no real prospect of success or whether the discretion should be exercised in favour of granting the amendment and allowing the matter to proceed to trial. That consideration applies in this case, as will be seen later in these reasons.”

23. The following principles are relevant to the burden of proof and to the evidence permissible on such applications:

1. The burden of proof lies on the moving party, and the averments in the statement of claim must be taken at their highest: Cumberland v Clark at 524E; see also Ewing v Times Newspapers Ltd [2011] NIQB 63 at [32], citing O'Dwyer v Chief Constable of the RUC [1997] NI 403 at 406C.

2. In approaching such applications, the courts should be particularly cautious in any developing field of law where the court is asked to determine such points on an assumed or inferred basis of what the evidence might be, or upon scanty facts pleaded in the statement of claim: Poland v Headley at [17]; Trkulja v Google LLC (2018) 263 CLR 149.

3. While evidence by affidavit may be admissible (Ewing v Times Newspapers Ltd at [35]; Cumberland v Clark at 528), the facts must be construed in the plaintiff's favour.

4. There would have to be compelling reasons why a party bringing such an application would be entitled to cross-examine the opposing party: see the judgments referred to in Peter P v Clarence C [2020] NSWDC 240 at [68] – [74].

24. As noted in my previous judgment, I asked Mr Cohen whether this application was brought as a separate trial pursuant to UCPR r 28.2 or for summary dismissal. The need for such an issue to be delineated with care in proceedings is well-established, not only in defamation proceedings (Nationwide News Pty Ltd v Hibbert [2014] NSWCA 13) but generally (Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8). As the learned authors P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM of Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Australia) make clear in their footnotes to this rule, separate trials under UCPR r 28.2 are granted only in “exceptional” cases, as it is “ordinarily appropriate that all issues in proceedings should be disposed of at the one time” (Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5]); El Chami v Mackie [2019] NSWSC 821 at [9]-[14].

25. It is hard to imagine how any separate question for determination could be determined in a case such as the present, where the factual evidence not only leaves “much too much open to disputation” (Tyrrell v The Owners Corporation Strata Scheme 40022 at [16] per Spigelman CJ), but where the making of such a finding goes against many decades of authority in relation to summary dismissal of defamation proceedings on factual grounds of this kind. The issues the defendant asks me to determine are trial issues, such as the credit of the plaintiff, and disputed issues of fact as to what occurred. I am asked to do so without the benefit of even hearing, let alone making findings on issues of credit, from other witnesses. It would amount to a subversion of the trial process even under the provisions for separate trial of issues.

24. While I note that Mr Cohen has at all relevant times confirmed that this is an application for summary dismissal, a party should not be able to go behind the UCPR regulations, carefully crafted to limit applications of this nature by raising such issues on a summary basis. Accordingly I do not consider that this is an appropriate case for an application for summary dismissal to have been brought in the first place.

25. There is, however, another more compelling reason why Mr Cohen’s submissions as to his client’s “overwhelming” case should not be accepted, and that is because, on the evidence put before me by the defendant alone (let alone any evidence led by the plaintiff), the defendant’s argument falls well short of this fulsome description.

26. First, while I note Mr Cohen’s apparent concession concerning the commencement of the proceedings, the publications in question were serious and what finally drove the plaintiff to commence defamation proceedings was the discovery that the defendant’s allegations were being repeated in the close community in which he and Clorinda resided. This was despite his repeated requests to the defendant not to make these false allegations. Whether that stated purpose is in fact the purpose ought to be a disputed issue of fact for the trial.

27. Mr Cohen claims to be on surer ground with the admissions he asserts “speak for themselves” in the emails between the plaintiff and defendant. If the plaintiff had been serious about protecting his reputation he would have pushed onwards for the vindication of a judgment and damages.

28. Mr Senior notes that it is a common feature in defamation for a plaintiff to offer to drop the litigation without damages and costs orders. He drew my attention to discussion of this feature in several recent judgments in this court, and to their recognition on appeal. For example, in Un v Chow [2018] NSWCA 287, Leeming JA observed that the plaintiffs had made an offer to accept an apology and had not even sought costs (at [13]).

29. The claim that plaintiffs are only serious about a defamation claim if they want damages and/or their day in court is no more than Mr Cohen’s opinion. I prefer the opening words of Applegarth J in Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284:

“1. Decades ago Lord Hoffmann stated:

“What most plaintiffs want is the immediate publication of a correction with or without some modest compensation. What they get is three or four years of anxious and obsessional waiting, followed by a trial which, even if it ends in success, may reopen injuries everyone else had forgotten and stamp them indelibly on the public mind”.

Those words might have been written with plaintiffs like the Wagners in mind.

They apply generally to the victims of indefensible defamations.”

32. The desirability of settlement is even more the case in Family Court proceedings, where the welfare of the child is paramount. Mr Cohen did not suggest that the Family Court proceedings should have been run to finality; his submission was that the defamation action should not have been included in an overall settlement. However, as Mr Senior pointed out in his oral submissions more than once, it was the defendant who proposed that the defamation action be included in the settlement. How settlement of the Family Court proceedings could have been achieved without the defamation proceedings being considered in some form was not explained by Mr Cohen.

33. Furthermore, whatever else comes out of any analysis of the parties’ correspondence, it is clear that the plaintiff’s motivation is the successful conclusion of litigation that is financially ruinous and emotionally distressing for all concerned. To do so, he is prepared to criticise himself, Clorinda and the “angels”, if the result is the resolution of the issues. He writes about wanting to have the family members “like” each other again at some stage in the future, and to be able to meet socially, for their own benefit as well as for the children. His derogation of the merits of his own defamation should be treated with great caution because, as Mr Senior points out, this is the language of negotiation.

34. To portray the language of the plaintiff’s settlement negotiations, without more, as evidence of abuse of process is insufficient to amount to proof that the proceedings were commenced and/or continued as an abuse of process, and certainly not evidence that the ancillary, dominant improper purpose of the proceedings was an abuse of the process of the court. That is particularly the case in defamation proceedings, where the Defamation Act 2005 (NSW) not only contains a comprehensive alternative to commencing proceedings in the form of a Concerns Notice, but costs consequences under s 40 if offers are not made.

35. A party may have more than one motive in the commencement and/or continuation of proceedings. Although Mr Cohen commends what he calls the “broad approach” taken by the Court of Appeal in Toben v Nationwide News Pty Ltd [2016] NSWCA 296 (paragraph 6 of his written submissions), that adjective is inapt. The Court of Appeal was not opening the gates to abuse of process actions; to the contrary, the Court was of the view that the case “does not find a ready analogy in the cases where abuse of process has been found in the past” (at [111]). Ward JA, with whom Meagher and Payne JJA concurred, reviewed Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, noting the narrow circumstances in which a “genuine” case may be held to be brought for reasons amounting to abuse:

113 The plurality (at 522) shared the doubt expressed by Bridge LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503 as to whether a litigant “with a genuine cause of action, which he would wish to pursue in any event” could be debarred from pursuing that cause of action because the litigant also had “an ulterior purpose and view as a desired by-product of the litigation”. At 522, their Honours referred as an example of an abuse of process to cases where a plaintiff could establish a prima facie case but had no intention of prosecuting the proceedings to a conclusion because he or she wished to use them only as a means of extorting a pecuniary benefit from the defendant. (As already noted, no such conclusion could be drawn in the present case.)

36. Her Honour found the answer to this in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, namely the difference between “motive” and “purpose”:

“120 In that context, Lord Wilson explained that if the intention of a claimant is that the result of victory in the action will be the defendant’s downfall then the claimant’s purpose is not improper “for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it”, contrasting the position where the intention is to secure the defendant’s downfall or some other disadvantage to the defendant (or advantage to the claimant) by use of the proceedings other than for the purpose for which they are designed (at [63]). The distinction there clearly drawn is between motive and purpose.

37. I accept Mr Senior’s submission that, putting the defendant’s case at its highest (to invert the onus of proof on such applications), the defendant has failed to demonstrate that the conduct of the plaintiff, in terms of what he says in his emails to the defendant, has the purpose of achieving victory described as the parties all being able to sit down together for a meal and “like” each other after putting all this litigation between them. Implicit in that is that the defendant will not continue to make the very serious allegations contained in the matters complained of. It is implicit, from the defendant’s responses to the plaintiff’s emails, that he understands this.

38. At an early stage of this application Mr Cohen appeared to characterise the plaintiff’s conduct as a vendetta, and reference was made by me to Wallis v Valentine [2002] EWCA Civ 1034. He has been supplied with a copy of this judgment but has not referred to it, so I infer that this line of argument is no longer pressed. It would hardly be in keeping with the plaintiff’s repeated wish for the parties to be able to meet socially and to “like” each other again, in future in any event.

Findings as to abuse of process

39. For the reasons set out above, I am satisfied that none of the grounds put forward by Mr Cohen as evidencing these proceedings are an abuse of process have been made out. The notice of motion must therefore be dismissed. I will reserve the issue of costs.

Proportionality

40. Mr Cohen did not include any application for dismissal on the grounds of proportionality in the notice of motion and told the court he did not intend to make any submissions on this issue. However, when I inquired further, it transpired that what he meant was that he had nothing further to say beyond the brief outline in his submissions referring to Bleyer. He did, however, provide oral submissions in relation to the extent of publication and the role of foreign law, both of which were referred to in Bleyer.

41. Appellate and superior courts initially opposed proportionality principles based on court management: see the discussion of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231. Since that time, there have been obiter comments on the desirability of proportionality in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [39]; and Tajjour v New South Wales [2014] HCA 35 which suggest a potential for change. The landmark decision of Bleyer has been favourably commented on by Basten JA in dicta in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5], but that is the latest appellate word on this issue. Great caution is therefore necessary.

42. I do not see the need to set out further discussion of these principles, as Mr Cohen’s brief (one-paragraph) submissions essentially amount to referring to Bleyer in the context of unnamed decisions where “the Court of Appeal has upheld this principle” despite “some criticism” in other unnamed decisions (paragraph 9). The prejudice outlined is a submission about the costs of the litigation for a defendant who lives overseas (paragraph 10), but I understand the defendant comes to Australia regularly for family and other reasons. I have no costs estimates or other breakdowns of the fees involved.

43. Mr Senior submits:

1. The defendant accepts that the imputations are serious (Mr Senior’s submissions at [19]).

2. The defendant brings the application on the basis that the plaintiff has taken a frivolous attitude to the proceedings (submissions at [19]), without any explanation as to how the plaintiff is said to have been frivolous.

3. The defendant wrongly alleges that the publications were only made to a small number of people (submissions at [19]); the plaintiff’s evidence is that there were people in the close community in which he and Clorinda resided who heard these allegations.

4. It should be noted that the defendant is pleading justification and that it is anticipated that he will call a number of witnesses to make good that defence (submissions at [19]). Unfortunately, due to the nature of the allegations, I note that at least one and probably both of the children of the marriage would have to be cross-examined.

5. The defendant alleges that the plaintiff is unlikely to be awarded any damages for hurt to feelings, as his feelings have not been hurt (submissions at [20]), whereas the plaintiff has deposed to the contrary.

6. The defendant alleges that the plaintiff has expressly rebutted the presumption of damage and does not appear to seek any form of vindication (submissions at [20]), which is a misstatement of the plaintiff’s evidence.

44. Mr Cohen developed two additional areas in his oral submissions, namely the extent of publication and the enforceability of any judgment.

Extent of publication

45. Mr Cohen submits that, as was the case in Bleyer, there has been publication only to a handful of persons.

46. In Desfosses v Martinson [2018] WASC 114 at [36], Martin CJ noted that proportionality applications were not a “numbers game”, in that there were many additional factors as well.

47. In fact, as Mr Senior points out, this is not a limited publication in the manner Mr Cohen claims. When determining the extent of publication in relation to the issue of damages, the court would take into account evidence of the kind that the plaintiff has deposed to, namely discussion of these allegations in the close community where he and Clorinda reside, which led to some members of that community avoiding him. In paragraph 7 of the statement of claim, he relies on the grapevine effect.

48. I consider this evidence of further publication, although not actionable, to be relevant in relation to the issue of proportionality. I do not consider the extent of publication to be such as to warrant the extreme remedy of summary dismissal.

The law of the foreign jurisdiction

49. The place of publication is set out in the statement of claim as being in New South Wales. Mr Cohen appeared to hint, during oral submissions, that the publications could have been made overseas but, if so, he is wrong. The place where the publication is read is the place of publication: Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433 at [4], citing Bata v Bata [1948] WN 366; Ramsey & Ors v Vogler [2000] NSWCA 260 at [36] ff.

50. Mr Cohen’s next submission is that, if the matters complained of were published in Australia, then in the absence of evidence from the plaintiff as to the recognition of Australian judgments in the country in which the defendant resides, I should assume that, as was the case in Bleyer, any judgment for defamation in Australia would not be enforced in the country in which the defendant resides. This was a significant factor in Bleyer and Mr Cohen submits, conformably with that decision, I should dismiss these proceedings for that reason. (Mr Cohen did not draw any factual comparison with statements in Bleyer as to the law of defamation in the United States; as his client lives in another country altogether; his statement was of a general kind.)

51. This is a misstatement of the relevant principles to apply, as well as being inconsistent with the defendant’s burden of proof on this application. First, proof of the law in another jurisdiction is not a task for the plaintiff. Second, any party who wishes to rely on a matter of foreign law must specifically plead or particularise that foreign law (Ascherberg, Hopwood & Crew Ltd v Casa Musicale Sonzogno Di Pietro Ostali SNC [1971] 1 WLR 1128) in circumstances where that party wishes to rely on a forensic advantage in the foreign law. Third, in the absence of such a pleading, “it will be presumed that the foreign law is the same as local law”: Palmer v Turnbull [2018] QCA 11 at [21]. That means I can assume that the law in the defendant’s place of residence is the same as the law in New South Wales, the place of publication identified by the plaintiff.

Conclusions concerning proportionality

52. Neither the principles applicable to proportionality, nor the facts of this case warrant summary dismissal. None of the issues raised and discussed by McCallum J in Bleyer have been made out and I have no information as to the costs Mr Cohen obliquely refers to. These are serious defamations and the plaintiff’s affidavit refers to publication of these not only to the persons the defendant chose to address the email to, but also in a wider sense in the community in which he resides. The application for summary dismissal on the grounds of proportionality is accordingly dismissed.

Orders

1. Defendant’s Notice of Motion dismissed.

2. Costs reserved with liberty to apply.

3. The parties are to bring in Short Minutes of Order containing a timetable for any remaining interlocutory steps prior to the allocation of a hearing date.

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Decision last updated: 21 August 2020