Piscioneri v Brisciani and Reardon
[2017] ACTSC 237
•23 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Piscioneri v Brisciani & Reardon |
Citation: | [2017] ACTSC 237 |
Hearing Date(s): | 29 June 2017 |
DecisionDate: | 23 August 2017 |
Before: | McWilliam AsJ |
Decision: | 1. The applications filed by the plaintiff on 7 March 2017 are dismissed. 2. Judgment is entered for the defendants. 3. The plaintiff is to pay the defendants’ costs. |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 631, 632, 1118, 1452 – application to strike out defences for delay or default – application for summary judgment or summary dismissal – application for further and better particulars – interrogatories – where any default had been remedied – whether limitation period prevents claim from being pursued – where threshold for summary judgment met – where defences had been filed so as to make further compliance with request for particulars unnecessary – applications dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 133 Civil Procedure Act 2005 (NSW) ss 56 - 59 Court Procedure Rules 2006 (ACT) rr 433, 430, 434, 630, 631, 632, 1117, 1118, 1122, 1404, 1452 Court Procedures Act 2004 (ACT) s 5A Limitations Act 1985 (ACT) ss 21B, 33 |
Cases Cited: | Adams v Dickeson [1974] VR 77 American Flange and ManufacturingCo Inc v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 Armacel Pty Ltd v Smurfit Stone Container Corporation [2008] FCA 592; 248 ALR 573 Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 Bateman & Primary Healthcare v Nationwide News Pty Limited [2002] ACTSC 73 Bolas v Calvary Health Care Limited [2016] ACTSC 58 Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 Carl Zeiss Stiftung and Others v Rayner and Others [No 2] [1967] 1 AC 853 Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703 Commonwealth of Australia v Mewett (1997) 191 CLR 471 Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 Conway v Mercedes-Benz Australia/Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72 Crawford v Australian Capital Territory [2015] ACTSC 282 Dale v Western Australia [2011] FCAFC 46; 191 FCR 521 Dare v Pullman (1982) 148 CLR 658 Dunbar v Perc [1956] VLR 583 Dunstan v Highman and Ors [2010] ACTSC 133 Egan-Green v McLean [2017] ACTSC 48 Fiduciary Ltd v Morningstar Research Pty Ltd [2007] NSWSC 432 Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gheorghiu v Perpetual Trustees Victoria Ltd [2007] VSCA 83 Hamilton v Australian Capital Territory & Dr Tonks [2011] ACTSC 45 Helmhout v Apostoloff [2011] ACTSC 2 Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 Hillebrand v Penrith Council [2000] NSWSC 1058 Hunt v Knabe (No 2) (1992) 8 WAR 96 James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347 Johns v James (1879) 13 Ch D 370 Johnson v Public Trustee of Queensland as executor of the will of Brady (dec’d) [2010] QCA 260 Kalgeracos v Bomba [2009] NSWSC 1271 Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 Kennedy v Dodson [1895] 1 Ch 334 King Investment Solution Pty Ltd v Hussain [2005] NSWSC 1076; 64 NSWLR 441 Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 Lyell v Kennedy (1883) 8 App Cas 217 Mann v Department of Immigration and Ethnic Affairs (SC (NSW) Master Malpass, 16 April 1996, unreported) Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 McColley v Commonwealth of Australia [2012] ACTSC 154 Notaras & Anor v St George Bank Ltd & Ors [2005] ACTSC 5 O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Oztech Pty Ltd v Public Trustee of Queensland (No 6) [2016] FCA 391 Piscioneri v Brisciani [2015] ACTSC 106 Piscioneri v Reardon [2016] ACTCA 33 Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd[2006] FCA 1395 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; 295 ALR 52 Publishing and Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 Riches v Director of Public Prosecutions [1973] 1 WLR 1019 Ryan v Federal Capital Press (1990) 101 FLR 396 Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634 SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) [2013] FCA 526; 302 ALR 260 Spedley Securities Ltd (in liq) v Yuill (No4) (1991) 5 ACSR 758 Tiver v Tiver [1969] SASR 40 Trade Practices Commission v Total Australia Ltd (1975) 24 FLR 413 Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation [2006] VSCA 191 Tropical Traders Ltd v Goonan (1964) 111 CLR 41 Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wells v Commonwealth of Australia [2014] NSWSC 148 Young v Hones [2014] NSWCA 337 |
Parties: | Gabriella Jean Piscioneri (Plaintiff) Anthony Scott Brisciani (First Defendant) Marek Janusz Michael Reardon (Second Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Mr I Thompson (First Defendant) Mr S Malcolmson (Second Defendant) |
| Solicitors Self-represented (Plaintiff) IBT Law (First Defendant) David RL Laws Solicitors (Second Defendant) | |
File Number(s): | SC 472 of 2015 |
McWilliam AsJ:
The parties in these proceedings have each filed various interlocutory applications. The plaintiff’s applications, filed 7 March 2017, seek to strike out the Defences that have been filed, essentially for default. The first and second defendants’ applications, initially filed on 10 April 2017 and amended on 8 June 2017 and 13 June 2017 respectively, seek either summary judgment or summary dismissal of the plaintiff’s claim, as well as leave to file an amended defence. In addition, the first defendant seeks an order that the plaintiff answer a request for further and better particulars.
The plaintiff was self-represented. The first defendant was represented by Mr Thompson, solicitor, and the second defendant was represented by Mr Malcolmson of counsel.
Due to the defendants amending their applications after the interlocutory proceedings had been listed for hearing, the plaintiff was not in a position to address the totality of the submissions ultimately being put against her. She had, however, prepared part of what she wanted to say orally.
Rather than adjourn the entirety of the interlocutory proceedings, I heard the oral argument and then gave the parties an opportunity to file further written submissions, which they have done, including reply submissions.
As part of the submissions filed, the parties also addressed an issue raised at the hearing as to the appropriate time for determining questions of the applicability of a limitation period, and in particular, whether the issue ought be left for determination at a final hearing in the circumstances of this case.
These reasons deal with the applications in the chronological order in which they were filed. Although some issues are not ultimately determinative of the outcome of these proceedings, their consideration has been included in these reasons because they were fully argued and the resolution of those issues may have had some bearing on the exercise of the Court’s discretion with regard to the costs of the applications that were before the Court.
Although these reasons deal with the applications in the chronological order in which they were filed, I have ultimately concluded that the entire proceedings ought be dismissed on a summary basis.
The substantive proceedings in context
The proceedings were commenced on 10 December 2015 by Originating Claim which included a Statement of Claim (Claim). The cause of action is defamation. The plaintiff is a legal practitioner. The first defendant was the owner and administrator of the website ‘ The second defendant posted material to that website under the pseudonym ‘Sagacious’.
The Claim alleges that on or about 11 January 2010, and since that date, the defendants published the following defamatory material, set out in a Schedule A to the Claim:
(a) “The Myrmidon Friends send me another legal threat!” Username “That Bloke”. Originally posted by vjay. “If you google this person’s name you see that they bought (sic) the administration of justice into disrepute and that comes up as result before any mention of this forum too. Maybe the Office of the Legal Services Commissioenr (sic) defamed her too since it’s online and all. Maybe for the 5th wave they can find a lawyer who is still practicing & hasn’t faced severe disciplinary action.
(b) “The Myrmidon friends send me another legal threat!’” Username “Sagacious” (post #36). A person who pursues litigation in the knowledge that it is without merit for a purpose other than for redress of the cause of action pleaded in the proceeding indulges in an abuse of process. If that person is a legal practitioner then such conduct is capable of amounting to unprofessional conduct or at the very least conduct falling short of the standard expected of a legal practitioner. That is all.”
(c) http/pipl.com “Gabriella Piscioneri Tool of the week forum…Introducing our new tool of the week Gabriella Piscioneri. Gabreilla (sic) is very moral lawyer (we are probably going to get sued for “
It is further alleged that the posts and references on forums were republished by the first defendant on or about 9 November 2014 at ‘http/pipl.com’.
The plaintiff claims aggravated damages.
The context to these proceedings is critical to the applications presently before the Court. On 14 December 2010, the plaintiff brought proceedings against the first defendant, which resulted in a judgment delivered by Burns J on 6 May 2015: Piscioneri v Brisciani [2015] ACTSC 106 (Piscioneri v Brisciani). That judgment was unsuccessfully appealed by both parties: Brisciani v Piscioneri CA [2016] ACTCA 32 (Brisciani v Piscioneri CA).
The second defendant was not joined in either of those proceedings.
The plaintiff pleads that she became aware the second defendant was the person referred to as ‘Sagacious’ on 18 October 2013 as part of a pre-trial interlocutory hearing, although this was well before the hearing before Burns J on 15 October 2014 that resulted in the delivery of the first judgment. Both chronologies provided by the parties confirm that date as the date when the second defendant’s identity was revealed and I have proceeded on the basis that is now an undisputed fact.
The first and second defendants have each filed Defences on 17 February 2017 and 12 July 2016 respectively.
The plaintiff commenced separate proceedings against Mr Reardon on 8 September 2014 (proceedings no. SC 395 of 2014).
Plaintiff’s applications to strike out Defences
The plaintiff seeks to strike out the Defence of each defendant on the basis of a failure to comply with the Court’s directions made on 16 December 2016, a failure to prosecute the Defence in a timely manner, and a general failure to comply with s 5A of the Court Procedures Act 2004 (ACT) (Act).
The reference to s 5A of the Act is to be understood more particularly as a reference to sub-s 5A(4) of the Act, which places a statutory obligation on parties to assist the Court to achieve the just resolution of disputes as quickly, inexpensively and efficiently as possible.
In support of her application, the plaintiff relied on the affidavit affirmed by her on 7 March 2017.
The Court’s power to strike out a defence and enter judgment for default arises under r 1118 of the Court Procedure Rules 2006 (ACT) (Rules). As the Originating Claim dated 10 December 2015 was based in defamation and sought unliquidated damages, r 1122 would also apply.
The Court also has power to enter judgment for the plaintiff upon the failure of the defendants to comply with an order to take a step in the proceeding in the Court pursuant to r 1452(4)(a), or a failure to comply with directions, pursuant to r 1404(2)(e).
Such rules operate in addition to the inherent jurisdiction of the Court, although the principled exercise of the discretion remains the same in each case: see Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 (Weston) at [498]; cited in Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 (Australasian Correctional Services) at [36].
Whether the Court is exercising its broad discretion under rr 1118 or 1452 or in its inherent jurisdiction in considering whether to strike out a defence and enter default judgment, the essential criterion is the same as the ultimate question when considering whether to strike out a proceeding; namely, whether, in all the circumstances, including balancing the prejudice to the respective parties, justice requires that (relevantly) the defence be struck out: see Johnson v Public Trustee of Queensland as executor of the will of Brady (dec’d) [2010] QCA 260 (Johnson) at [16]-[18]. See also Weston at [501]; Australasian Correctional Services at [37].
In Johnson, the Queensland Court of Appeal was considering a rule in similar terms to r 1452, and it was stated that the exercise of the discretion was governed by the purpose of the rules there under consideration. Similarly in Weston, Ward J in the NSW Supreme Court referred to the overriding purposes mandated by ss 56-59 of the Civil Procedure Act 2005 (NSW).
In the present context, the equivalent overriding purpose of the Rules is to be found in s 5A of the Act, referred to above.
Factors that may be relevant to the exercise of the Court’s discretion were set out by the Full Court of the Federal Court of Australia in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; 295 ALR 52 at [44]. They include inter alia the nature of the default, the duration of the default, the circumstances in which the default has occurred (or the explanation for the delays) and the impact of the delay on the proceedings, including whether the proceedings have been commenced for some time but not advanced, due in whole, or in part, to the default. Considerations to the same effect were stated by Mossop AsJ (as his Honour then was) in Crawford v Australian Capital Territory [2015] ACTSC 282 at [19], in the context of considering an application to dismiss the proceedings for default or want of prosecution.
In the hearing before me, the plaintiff’s complaints about default were essentially directed to the proceedings being protracted for various reasons, including difficulties with service, the time it took for Defences to be filed and previous non-compliance with timetables. Save as to one matter, namely the failure/refusal by the defendants to answer interrogatories issued by the plaintiff, it is unnecessary to set those issues out in detail here, because it is plainly evident – from the fact that the Claim was filed more than a year and a half ago – that the timely resolution of the matter has not occurred.
Apart from the impasse on interrogatories (dealt with separately below), the plaintiff frankly accepted that as at the date of the hearing of the application for default judgment, neither of the defendants were in default of any particular order of the Court. I have independently had regard to r 1117 of the Rules, and find that, on the evidence before the Court, neither of the defendants is in default.
Assuming, without deciding, that past breaches of orders had occurred, the fact that there is presently no default means that r 1118 is no longer enlivened, or to the extent that it was enlivened when the application was made, justice does not require the exercise of the Court’s discretion to enter default judgment. It is appreciated that the delay in progressing the matter may be a source of frustration for the plaintiff, however in the circumstances of this case, any delay does not of itself warrant default judgment being entered.
Objections to interrogatories
As to the dispute over interrogatories, r 631 expressly envisages that a party may object to interrogatories, and r 632 provides the remedy, which generally encompasses the Court either setting aside the interrogatories in question or ordering a party to answer them. Fatal to the plaintiff’s applications for default judgment, in my view, is that r 632 does not provide for the striking out of the entire defence if a party objects under r 631 to interrogatories that were issued under r 630.
The Court record discloses that on 18 August 2016, directions for a timetable dealing with interrogatories were made. Interrogatories were served on each defendant on 1 December 2016, and on 16 December 2016, Elkaim J directed that replies to interrogatories be served by 21 February 2017.
It appears that those orders were made as a function of timetabling, rather than as a consequence of any dispute about the content of the interrogatories issued.
Subsequent to that direction, the defendants have refused to answer the interrogatories, primarily on the basis of oppression: see r 631(1)(b) of the Rules, although I note the submissions of the defendants that the interrogatories are otherwise objectionable on the basis of other grounds set out in the Rules. The en bloc objection (as described by the defendants) was notified to the plaintiff by way of a letter from the first defendant on 23 February 2017, and a letter from the second defendant on 13 February 2017.
Under r 632(2), the Court may make an order on the application of a party or on its own initiative. The issue has been crystallised by the plaintiff’s applications and therefore requires resolution.
The object of interrogatories is to enable a party to obtain discovery of material facts in order to support or establish proof of that party's case, or to find out the case to be met, or to destroy or damage the opposing case: Adams v Dickeson [1974] VR 77 at 79. The general intention is that interrogatories be administered if necessary and if they serve a useful purpose: Ryan v Federal Capital Press (1990) 101 FLR 396. These principles were cited by Gray J in Bateman & Primary Healthcare v Nationwide News Pty Limited [2002] ACTSC 73 at [3].
Importantly for the circumstances of this case, interrogatories are not to elicit evidence, nor to serve as a means of cross-examination: Kalgeracos v Bomba [2009] NSWSC 1271 (Kalgeracos), citing (per Brereton J at [1]) Dunbar v Perc [1956] VLR 583 at 591; Lyell v Kennedy (1883) 8 App Cas 217 at 234; Spedley Securities Ltd (in liq) v Yuill (No4) (1991) 5 ACSR 758 at 762; Johns v James (1879) 13 Ch D 370; Tiver v Tiver [1969] SASR 40; Kennedy v Dodson [1895] 1 Ch 334 at 341; Coal Cliff Collieries Pty Ltd v CE Heath Insurance Broking (Aust) Pty Ltd (1986) 5 NSWLR 703.
With those principles in mind, and having taken into account the issues likely to arise in the proceedings by reference to the current pleadings, I have reviewed the interrogatories filed with the Court on 1 December 2016. I accept the defendants’ submission that individually, many appear to be objectionable under one or more of the grounds listed in r 631. Examples taken from the interrogatories issued to the second defendant illustrate this point (with similar, although not identical, interrogatories issued to the first defendant):
(a)Interrogatory 15 requests the provision of ‘a list of all documents you are aware of that are relevant to this litigation including the document type, date, author and current location/custodian’. That interrogatory is improper for lack of precision, as well as being in the nature of ‘fishing’. Interrogatories that are directed at ascertaining what documents are available to be discovered are impermissible: see American Flange and ManufacturingCo Inc v Rheem (Australia) Pty Ltd (No. 2) [1965] NSWR 193 (American Flange) at 196; Fiduciary Ltd v Morningstar Research Pty Ltd [2007] NSWSC 432 at [24].
(b)Interrogatory 17 requests the second defendant to name each person the second defendant spoke to regarding the plaintiff within the last 7 years. It is also in the nature of ‘fishing’.
(c)Interrogatory 27 appears to be unnecessary and irrelevant, in that it asks the second defendant whether he agrees that ‘at the time of the publication of any allegedly defamatory communication involved in the action, the plaintiff was more sensitive to the publication of such communication than an average person would be’.
(d)Interrogatories 29 and 30 are uncertain and similarly irrelevant to the Claim, in that they request the defendant to ‘list all governmental standards and regulations governing conditions or activities involved in the alleged occurrence’ and to ‘list all industry, professional and trade association standards and regulations governing conditions or activities involved in the publication’.
(e)Interrogatory 34 requests the second defendant to ‘describe fully all consumption of any alcohol or drugs within the 24 hours preceding the publication’. In the context of a Claim for defamation, such interrogation does not appear to serve any useful purpose on its face. I find that it is unnecessary and irrelevant.
(f)Interrogatory 51 asks whether the defendant has insurance which covers the alleged occurrence. While that matter may be strategically important to the plaintiff, it is not forensically relevant to proof of the plaintiff’s Claim.
Taken as a whole and given their content, I consider that the interrogatories are oppressive, in that they require the second defendant to answer something in the order of 390 questions. Even though some may be proper, neither the Court nor the defendants ought be obliged to traverse the document and select from the large number that are improper the comparative few that are allowable: American Flange at 196. The same approach was taken in Kalgeracos. Accordingly, they will be set aside pursuant to r 632(1)(a).
Were it not for the outcome of the defendants’ applications below, it may have been appropriate to grant leave for a more limited form of interrogation to take place. Rule 630(4) of the Rules provide for such a procedure. The plaintiff would have been able to apply to the Court for leave to issue interrogatories following consideration of these reasons, with a draft of the proposed interrogatories to be attached to any such application.
The application for further and better particulars of the Claim
Part of the first defendant’s amended application filed 8 June 2017 seeks to compel the plaintiff to answer a request for further and better particulars that had been first served on 23 December 2016.
This aspect of the application is brought pursuant to r 434(1) of the Rules. However, the application must be read in the context of r 430, which sets out the obligation to include particulars:
Pleadings—all necessary particulars must be included
(1)A party must include in a pleading particulars necessary to—
(a) define the issues for, and prevent surprise at, the trial; and
(b) enable the opposite party to identify the case that the pleading requires the opposite party to meet; and
(c) support a matter specifically pleaded under rule 407 (Pleadings—matters to be specifically pleaded).
(2) This rule does not require a party to include in a pleading particulars of any claim for interest up to judgment other than those required by rule 51 (2) (Originating claim—additional matters for claims for debt and liquidated demands) or rule 304 (2) (Third-party notice—additional matters for claims for debt and liquidated demands).
Rule 430 reflects the purpose of particulars to a pleading, which is to identify the issues to be decided and ensure that the other party has a fair opportunity to meet the case: see Dare v Pullman (1982) 148 CLR 658 at 664; Helmhout v Apostoloff [2011] ACTSC 2 (Helmhout) at [101].
Those considerations have some resonance here, where not only a defence but an amended defence has been prepared. The first defendant has plainly been in a position to identify the issues and respond to the case to be met.
Before an order under r 434 would be made, it is necessary for the first defendant to establish that the particulars sought were properly requested, which ought to be determined by reference to whether there has been some failure to comply with the Rules, and in particular r 430.
The correspondence relevant to this aspect of the application is contained in the affidavit of Mr Ian Thompson, solicitor for the first defendant, sworn 7 April 2017. In particular, the affidavit annexes letters to the plaintiff dated 23 December 2016 and 6 March 2017.
The plaintiff attempted to provide further and better particulars on 25 January 2017 by way of correspondence, although it is apparent from the contents of Mr Thompson’s affidavit that the first defendant did not in fact receive them on that date. Nevertheless, the plaintiff’s answers have been received (although not filed, as required by r 433) and she submits that she answered the request frankly and to the best of her ability.
Having considered the document of 23 December 2016, the plaintiff’s response and the further correspondence of 6 March 2017, many of the particulars sought by the first defendant have been answered by the plaintiff, including the provision of emails referred to (although these do not appear to be annexed to Mr Thompson’s affidavit).
Moreover, much of the information sought under the requests said to be outstanding (as ultimately limited in an Appendix 3 to the first defendant’s submissions) does not appear to be necessary for the purpose of proper identification of the issues or pleadings to the case. In Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd[2006] FCA 1395 , French J, as his Honour then was, said (at [17]):
What are ‘necessary’ particulars of any claim, defence or other matter pleaded is a matter of judgment. The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.
Justice French’s comments reflect the contemporary approach to pleadings, referred to by Refshauge J in Hamilton v Australian Capital Territory & Dr Tonks [2011] ACTSC 45, where his Honour set out (at [30]) what fell from Martin CJ in Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82, including at [7]:
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
I have adopted that approach when considering the particulars sought. It is not necessary for the purpose of resolving this aspect of the dispute to traverse each of the particulars ultimately pressed by the first defendant in Appendix 3, particularly when many of those paragraphs contain sub-categories of particulars sought.
The conclusion I have reached is that the Claim fulfils its basic function of identifying the issues with sufficient particularity that the first defendant understands what material is said to be defamatory, what imputations the plaintiff seeks to prove, and what harm to her reputation the internet posts caused. Further, the first defendant is alive to the issue that the plaintiff seeks aggravated damages against him, on the basis of knowledge that the imputations were false, and intentional and malicious use of sensationalised internet forums: Claim, item (i) of the heading ‘Particulars of Aggravated Damages’.
That is not to suggest that the Claim is a model pleading, nor that the rules of pleading should be ignored. Rather, I find that the first defendant has not discharged his onus on this application of demonstrating that any non-compliance with r 430 has rendered him unable to identify the case to be met such as to warrant an order under r 434 in the exercise of the Court’s discretion. Nowhere in the letter dated 6 March 2017 (following the plaintiff’s answers) is there any indication that such is the case.
The following examples are provided to support the conclusion reached. The plaintiff pleaded that she was a self-employed legal practitioner (paragraph 3 of the Claim), and that the published content in Schedule A to the Claim carried, inter alia, the following imputations (see paragraphs 15(a), (c) and (d) of the Claim):
(a)That the plaintiff had faced very great disciplinary action as a result of which she was no longer practising.
(b)That the plaintiff was a person who indulged in abuse of process.
(c)That the plaintiff’s conduct was unprofessional.
In respect of those imputations alleged, the first defendant sought particulars of:
(a)All professional disciplinary action taken by any regulating body/authority and/or employer bodies; and
(b)All complaints, professional or otherwise, lodged against the plaintiff, that related to the plaintiff’s professional conduct or conduct of any legal matter.
The request appears to be in the nature of fishing so as to potentially mount a defence, rather than to identify any issue as to the particularity of the imputations pleaded. The pleading of imputations said to arise from the published material does not require the plaintiff to then particularise whether any professional disciplinary action or complaints were in fact taken.
The first defendant admits (at [12] of the Defence) to publication in January 2010 of the matters complained of (set out in Schedule A to the Claim), albeit in a different form.
However, the first defendant has then requested numerous further particulars related to the material in Schedule A, a small sample of which includes:
(a)the particular items within a webpage that ‘suggest, indicate, or otherwise outline issues and aspects related to the identification of the plaintiff specifically’;
(b)which system platform was used for software referred to in Schedule A;
(c)which URL was followed;
(d)how the plaintiff established that the website pleaded had a ‘varied reputation’;
(e)what search parameters were used to find the material;
(f)how the plaintiff came to know of the material;
(g)what make and model of computer was used to access the material;
(h)what was the location of the computer used to access the material; and
(i)how many times the material was viewed by the plaintiff.
As to the particulars sought of the make and model of the computer used, when the plaintiff replied that she did not know, the first defendant then asked her to explain why she did not know.
Save as to one matter, I do not see how any of the requested particulars still pressed are required for the first defendant to respond to the issues for determination. The particulars sought by the first defendant seek what is tantamount to either proof of facts pleaded or discovery, rather than particulars of the material facts pleaded. While a defendant is entitled to know the case he is called upon to meet, he is not entitled to be told the evidence that will be called to prove the case: Helmhout at [107] following Conway v Mercedes-Benz Australia/Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72; see also Trade Practices Commission v Total Australia Ltd (1975) 24 FLR 413 at 417, which was cited more recently in Oztech Pty Ltd v Public Trustee of Queensland (No 6) [2016] FCA 391 at [43].
The one remaining matter is the plaintiff’s pleading at [xiv] of the particulars of aggravated damages:
The first and second defendants displayed repeated and public disregard for the plaintiff’s well-being and livelihood and that of her family.
It is not at all clear how this sounds in aggravated damages and it is a matter that may be of surprise to the defendants if further particulars are not provided. If the plaintiff is asserting some sort of damage payable in respect of her livelihood, and that of her family, then I agree that the first defendant is entitled to know what that damage is, including any damage suffered by particular individuals.
Had I not concluded that the entire claim ought be dismissed, I would have directed the plaintiff to provide the further particulars sought in that regard.
The defendants’ applications for either summary dismissal or summary judgment
The defendants seek summary judgment, which is a discretionary remedy. The Court ought grant summary relief (of part or all of the proceedings) with the utmost caution and only in very clear cases: O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [66]; Young v Hones [2014] NSWCA 337 at [163], citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel) at 128-129.
In this Court, the applicable principles to applications for summary judgment are contained in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 at [5], cited with approval in McColley v Commonwealth of Australia [202] ACTSC 154 and Bolas v Calvary Health Care Limited [2016] ACTSC 58 at [1]:
(1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at 12).
(2) The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129).
(3) The procedure calls for “exceptional caution” (General Steel at 129).
(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91).
(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686;[2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).
(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v State of New South Wales [2007] ACTSC 43 at [9]).
(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group [supra] at [15]).
The defendants put the basis for the summary relief sought in three ways:
(a)The Claim was out of time under s 21B of the Limitations Act 1985 (ACT) (Limitation Act);
(b)The proceedings had been commenced contrary to s 133 of the Civil law (Wrongs) Act 2002 (ACT) (Civil Law (Wrongs) Act), without first seeking the leave of the Court; and
(c)The plaintiff is otherwise stopped from bringing the proceedings on the basis of res judicata or Anshun estoppel.
Summary judgment on the basis of s 21B of the Limitation Act
Section 21B of the Limitation Act provides:
Defamation proceedings generally to be commenced within 1 year
(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2) However, a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication.
The section does not extinguish the cause of action; it merely bars the remedy: Commonwealth of Australia v Mewett (1997) 191 CLR 471, Brisciani v Piscioneri CA at [12]; Piscioneri v Reardon [2016] ACTCA 33 (Piscioneri v Reardon CA) at [46]; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 (Piscioneri v Reardon) at [54] and the cases there-cited.
The application of the section was specifically pleaded at [23] of the Defence filed by the second defendant, and [23] of the Defence filed by the first defendant. Although each defendant mistakenly referred to the Limitation Act as being enacted in 2005, rather than in 1985, the error has no impact on the substance of the Defence. It is therefore an issue properly joined: see Piscioneri v Reardon at [56].
The issue was also raised at an appropriate stage in these proceedings, namely, when each defendant first filed a Defence (so no question of waiver arises), and on this application, consistent with the principle that a court would not consider the matter of the limitation period of its own motion: see Piscioneri v Reardon at [60], citing James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347 at 396.
The onus is on the defendants to prove the limitation defence once raised: Piscioneri v Reardon at [61].
The plaintiff deals with the issue by pleading at the outset s 33(1)(b) of the Limitation Act in the relief set out in her Claim. Relevantly, that section provides:
Fraud and concealment
(1) Subject to this section, if—
(a) there is a cause of action based on fraud or deceit; or
(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;
the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run and before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or her or by a person claiming through him or her against a person answerable for the fraud, deceit or concealment.
(2) Subsection (1) has effect whether the limitation period for the cause of action would, apart from this section, end before or after the date mentioned in that subsection.
Section 33 is not a provision which empowers the Court to make an order extending the limitation period. It postpones the operation of the statutory bar: Piscioneri v Reardon CA at [44].
The onus is on the plaintiff to prove deliberate concealment such as to enliven s 33 of the Limitation Act: Piscioneri v Reardon at [61].
Where there are matters of contested fact that need to be considered when determining as a fact whether the limitation period has expired, this would usually be appropriately determined in the context of the trial itself: Piscioneri v Reardon at [62]; see also Mann v Department of Immigration and Ethnic Affairs (SC (NSW) Master Malpass, 16 April 1996, unreported), cited in Piscioneri v Reardon CA at [44]. Dunstan v Highman and Ors [2010] ACTSC 133 is to similar effect, where Jagot J found (at [17]) that once there was an arguable claim that s 33 of the Limitation Act applies, summary judgment on the basis of s 21B of the Limitation Act was precluded.
These authorities are consistent with Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 where Mason CJ, Dawson, Gaudron and McHugh JJ remarked (at 533) on the undesirability that ‘limitation questions...should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases’ (emphasis added).
Although the High Court referred to interlocutory proceedings, there seems no dispute that an order for summary judgment is a final order: see Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 at [51], citing Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation [2006] VSCA 191; Hunt v Knabe (No 2) (1992) 8 WAR 96; King Investment Solution Pty Ltd v Hussain [2005] NSWSC 1076; 64 NSWLR 441; and Gheorghiu v Perpetual Trustees Victoria Ltd [2007] VSCA 83.
In Riches v Director of Public Prosecutions [1973] 1 WLR 1019 (Riches), Lawton LJ further explained at 1027:
One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statute barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act ... In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence. [Emphasis added.]
Riches was cited with apparent approval by Refshauge J in Piscioneri v Reardon at [63].
It can be drawn from these authorities that when the facts relevant to the question of a limitation period expiring are uncontested, then that will be a clear case when it is likely to be appropriate to decide the issue in advance of a substantive hearing.
Considerations of cost, efficiency and case management (consistent with the application of s 5A of the Act) are also to be borne in mind when determining whether the issue ought be dealt with either on a summary basis or in advance of a trial, as seen in authorities such as Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [95] and Wells v Commonwealth of Australia [2014] NSWSC 148 at [18] and [65].
The issues thus arising for determination on this aspect of the application are:
(a)Whether the defendants have proven s 21B of the Limitation Act operates to the requisite threshold of certainty discussed in the authorities set out above; and
(b)Whether the plaintiff has raised an arguable issue as to deliberate concealment sufficient to warrant its resolution at trial.
For the reasons that follow, I have concluded that the facts as agreed by the parties are sufficiently certain to permit the resolution of the issue now.
The cause of action pleaded against both defendants arose on 11 January 2010, and in respect of the republication pleaded against the first defendant, on 9 November 2014. Both dates are more than a year before the Claim was filed on 10 December 2015.
The second defendant’s identity was known from 18 October 2013, with time having commenced to run in respect of the second defendant on that day, the Claim was also filed more than a year later.
Having read the plaintiff’s submissions, including those in reply, there is no other reasonable argument as to the operation of s 33 of the Limitation Act such as to suspend the operation of the statute to include any period after 10 December 2015.
Accordingly, the plaintiff has not commenced her action against the defendants within the time permitted under the Limitation Act. I accept the defendants’ submission that there is no basis upon which this period could be extended. The trial of the action must be resolved in favour of the defendants. There is no reason not to give judgment at this point when it is known (through the Defences filed) that the defendants will rely upon a limitations defence at trial: see Hillebrand v Penrith Council [2000] NSWSC 1058, cited in Egan-Green v McLean [2017] ACTSC 48 at [37].
Section 133 of the Civil Law (Wrongs) Act
The second aspect of the defendants’ application is the application of s 133 of the Civil Law (Wrongs) Act, which provides:
Leave required for further proceedings in relation to publication of same defamatory matter
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
When the applications were heard, the plaintiff indicated that she was not aware of this section until she received the submissions of the defendants, nor was she aware that leave was required and that she should have applied for it. She subsequently filed an application for leave, which is yet to be heard.
Although the defendants have made submissions in relation to the substance of s 133 of the Civil Law (Wrongs) Act, they cannot be taken to have fully addressed the matter of the Court’s discretion on an application for leave, because none was before it.
Given the pending application in the proceedings and the fact that there are two other grounds which are determinative of the result on the defendants’ application, it is not necessary to consider this ground of the application.
Regrettably, one matter which ought be mentioned is that, with the Court’s leave, counsel for the second defendant subsequently filed supplementary submissions. They transpired to be unnecessarily inflammatory and ultimately unhelpful submissions on the plaintiff’s belated application for leave. They warrant comment only to the extent necessary to emphasise that the independence of counsel before this Court is a feature of the legal system that is well established, much valued, and must be maintained and protected. It is well appreciated that repeated litigation involving the same parties may be frustrating and indeed vexing. However, the opportunity to file written submissions after a hearing with leave of the Court is not to be misused as a forum through which to ventilate anger at a party, particularly when a party is represented by counsel.
Res Judicata and Anshun estoppel
The defendants contend that by reason of Piscioneri v Brisciani and Brisciani v Piscioneri CA a res judicata or issue estoppel arises.
The requirements for the doctrine of res judicata to apply are (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Carl Zeiss Stiftung and Others v Rayner and Others [No 2] [1967] 1 AC 853 at 935, cited in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363, at 373. See also Armacel Pty Ltd v Smurfit Stone Container Corporation [2008] FCA 592, 248 ALR 573 at [56]; Dale v Western Australia [2011] FCAFC 46; 191 FCR 521 at [69].
The extended doctrine of res judicata, known in Australia as Anshun estoppel, prevents a party to litigation in which a final judgment was given (or that party's privy) from raising in subsequent litigation an issue or cause of action which was, or which should have been, raised in the first proceedings: see, generally, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun) at 597-603 per Gibbs CJ, Mason and Aickin JJ, referred to in Notaras & Anor v St George Bank Ltd & Ors [2005] ACTSC 5 at [8].
As was succinctly stated by Handley AJA, with whom Allsop P and Tobias JA relevantly agreed, in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 at [60], “[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings”.
The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; (per Wigram V-C at 115; 319), cited in Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 per Refshauge ACJ at [270].
In terms of the ultimate conclusions which have been reached, it is unnecessary to dwell on the distinction between res judicata in the proper sense and issue estoppel, although a helpful discussion of the distinction is to be found in SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) [2013] FCA 526; 302 ALR 260.
Applying those principles to this case, the causes of action brought against each defendant will be considered separately. The first defendant was a party to Piscioneri v Brisciani and Brisciani v Piscioneri CA. A comparison of the cause of action here with the cause of action, the issues and their resolution by Burns J at [8] and the appendix to his Honour’s reasons, and the Court of Appeal at [9] of the unanimous judgment, leaves me in no doubt that a res judicata or issue estoppel has arisen in relation to the first defendant.
It is not to the point that in this cause of action the plaintiff may have selected different posts from the same chain of posts that were the subject of proceedings before Burns J. Their subject matter is so closely related to the earlier proceedings that without doubt they properly belonged to the subject of the litigation, and accordingly, ought to have been brought forward in those proceedings. It was plainly unreasonable not to do so.
The same may be said as regards the second defendant, even though he was not a party to the proceedings. The plaintiff well knew his identity at a stage before the hearing of the proceedings before Burns J. The plaintiff contends that she expressly withdrew from the earlier proceedings the posts by ‘Sagacious’ and ‘That-Bloke’ with a view to prosecuting them separately. That is the very conduct to which the doctrine or Anshun estoppel is directed to preventing.
I have been mindful, particularly with regard to the second defendant, of the caution that the mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it: Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 per Allsop P (as his Honour then was) at [4].
The reasoning of Burns J in Piscioneri v Brisciani at [83] and [90] and of the Court of Appeal in Brisciani CA at [94]-[99] satisfies me to the requisite degree of certainty that the complaints now brought against the second defendant were so relevant as to make it unreasonable not to deal with them in the earlier proceedings.
I further accept the defendants’ submission that the plaintiff’s non-reliance on the very matter now pleaded is properly (and again, without doubt) characterised as a procedural election: Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634; Tropical Traders Ltd v Goonan (1964) 111 CLR 41.
Accordingly, I am satisfied to the requisite level of certainty on a summary basis that in the case of the first defendant, the doctrine of res judicata applies and in the case of the second defendant, the principle of Anshun estoppel is a complete defence.
Application to amend the Defences
In light of the above reasons on the question of estoppel, it is unnecessary to determine whether the defendants ought be given leave to amend their Defences. The amendment proposed was to plead the defence of estoppel. It ought be clear, from the above references to the remarks of Lawton LJ in Riches and of Refshauge J in Piscioneri v Reardon at [63] that I have taken the view that the defence of Anshun estoppel was so obvious, requiring an amendment to plead the point before the Court would give consideration to that issue on the present application was unnecessary.
Costs
Costs are in the discretion of the Court under the Rules (and the Act) and where a party has been successful, it is usual to order that costs follow the event. In these interlocutory proceedings which were heard together, the defendants have succeeded both in respect of the plaintiff’s application to strike out their Defences, and on the defendants’ own application for summary judgment.
Accordingly, I consider it appropriate that the plaintiff bear the responsibility for the costs of the applications.
Further, as the defendants have succeeded in a substantive manner as to the outcome of the proceedings in their entirety, there is no reason to depart from the ordinary course that costs follow the event.
Orders
The Orders of the Court will be as follows:
1. The applications filed by the plaintiff on 7 March 2017 are dismissed.
2. Judgment is entered for the defendants.
3. The plaintiff is to pay the defendants’ costs.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 23 August 2017 |
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