Renuka Raghubir v Christine Nicolopoulos

[2022] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation:

Renuka Raghubir v Christine Nicolopoulos [2022] NSWSC 386

Hearing dates:

1 April 2022

Date of orders:

5 April 2022

Decision date:

01 April 2022

Jurisdiction:

Common Law

Before:

Sackar J

Decision:

Orders made to strike out and dismiss statement of claim.

Catchwords:

CIVIL PROCEDURE — Pleadings — Defamation — Whether pleadings contain sufficient particulars — Whether pleadings should be struck out

Legislation Cited:

Defamation Act 2005 (NSW)

Limitation Act 1969 (NSW)

Category:

Procedural rulings

Parties:

Renuka Raghubir (first plaintiff)
Virenda Singh (second plaintiff)
Christine Nicolopoulos (defendant)

Representation:

Counsel:
Karen Conte-Mills (defendant)

Solicitors:
Harb Lawyers (defendant)

File Number(s):

2021/00327143

Publication restriction:

N/A

Judgment – EX TEMPORE (REVISED)

1. This is a notice of motion to strike out and/or otherwise dismiss the Statement of Claim of 17 November 2021 issued by the plaintiffs, Ms Renuka Raghubir and her son Mr Virendra Singh. The first defendant is Ms Christine Nicolopoulos, and there are other defendants yet to be identified specifically.

2. Prior to today, I issued an invitation to all relevant persons to attend a live hearing. All persons except the plaintiffs Ms Raghubir and her son have attended. I received an email at 11:36am this morning from Ms Raghubir, addressed to my Associate, indicating that:

1. she wanted to address matters by telephone;

2. she had been caused homelessness and other conditions, including financial hardship, by the defendant;

3. she and the other plaintiff lacked their “basic resources”;

4. they were trying their best; and

5. there was bad weather today.

6. These were the five reasons given presumably for the plaintiffs dealing with the matter by telephone.

3. I heard the first plaintiff briefly to confirm whether she was content to deal with the matter by telephone, and she indicated that she was. The matter has therefore proceeded today with Ms Conte-Mills of counsel and her instructor and Ms Nicolopoulos and others in the courtroom, and Ms Raghubir by telephone.

4. There are seven main issues that are said to stand in the way of this pleading. First, it is said that the pleading does not disclose a reasonable cause of action.

5. Secondly, it is said that the pleading seeks to complain about publications that are outside the limitation period, and there has been no application for extension of time.

6. Next, it is said there has been no concerns notice served as required and for that reason the pleading is defective.

7. The next complaint is that the damages are grossly in excess of those which s 35 of the Defamation Act 2005 (NSW) would permit any court to award for non-economic loss, and it is therefore to be struck out on that basis. The plaintiffs seek some five million odd dollars in damages.

8. Next, it is said that the proceedings are an abuse of process. This hinges upon an application in very similar form, filed in the Federal Court by Ms Raghubir, and which was heard by Rares J on 3 September 2021. His Honour struck out the proceedings on the basis of a want of jurisdiction, and dismissed the suit. I have been told that there is an appeal to be heard from the decision of Rares J on 17 May 2022. As best I can work out from what Ms Raghubir has said, that appeal on one view only goes to the issue of costs but I will return to that in due course.

9. The next issue that is raised is that the defendants are not specifically identified other than the first defendant.

10. The final issue was that the claim has no reasonable prospects of success.

11. I take into account the fact that the plaintiffs are litigants in person. Ms Raghubir has however had continuous grievances, so it seems, with the defendant over some little time in relation to adjoining properties that they once occupied. That history is not relevant, for today's purposes and therefore it is not necessary to go into the factual controversies that may exist.

12. I note, however, that the defendant in this case, in support of the notice of motion, relies on her affidavit of 18 February 2022. Much of the material in that affidavit deals with factual issues and it is clear from Ms Raghubir's submission to me today much of it is likely to be controversial. Given the nature of the application that is made, apart from the relevance of the Federal Court process I put to one side the factual assertions of Ms Nicolopoulos in her affidavit.

13. The Statement of Claim is poor in form. It is badly drafted. I say that, given that a litigant in person has clearly drafted it. It is repetitious; it gives no indication whatsoever of precisely the imputations that are relied upon by the plaintiffs. It does not give any specificity as to the manner or the scope of the publication, whether they are libels, whether they are slanders, when they took place, to whom they were published. It is bereft of any relevant detail. I accept that there is a reference to the publication of “letters, logs, meeting documents, lying about us …” at [7], but no detail is provided.

14. It has a large section in the middle of the pleading dealing with a person called Wayne Condon, a lawyer who apparently acted for Ms Nicolopoulos at some point. What those paragraphs have to do with the claim in defamation against the defendant and others is utterly obscure. In addition to that there are claims at the end of the pleading, again partly repetitious, which make it seems claims in negligence, deceit and other matters going beyond defamation.

15. However, returning to the defamation pleading, it is by no means clear as I have already said, when those publications took place and, as I have also said, precisely in what form they took place. Paragraph [41] of the pleading, however, does give some hint that there were some publications between 5 October 2017 and 24 February 2020.

16. So far as the tort of defamation is concerned, it is uncontroversial that it is constituted by the communication of a matter, which is understood to be defamatory, of and concerning a person to someone other than that person. There are three vital elements in any such action: publication; identification; and, not the least of which, defamatory meaning. This pleading makes no attempt whatsoever to address specifically those three items such that any defendant, let alone Ms Nicolopoulos, could have the faintest idea precisely what it is that she is answering.

17. Apart from the repetition of material there is no attempt at all to plead any material facts or to distil in any way, shape or form, as I have said, precisely what the defamation or defamations are. That in my view, makes the pleading defective and it simply cannot proceed for that reason alone. That is not the only reason however why this pleading cannot stand.

18. On the dates that paragraph [41] refer to, the latest date, on one view, of the alleged publication is February 2020. Defamation proceedings must be brought, pursuant to s 14B of the Limitation Act 1969 (NSW), within a year of the date of publication subject to the court granting an extension of time. There is no specificity as to dates but it appears February 2020 may well be the latest date. It is clear that if that is correct the publication or publications are out of time (the Statement of Claim here was filed on 17 November 2021). There has been no application for extension of time.

19. No concerns notice has been issued as required pursuant to s 12B of the Defamation Act. That is another defect.

20. The damages pleaded at five or five-and-a-half million dollars far exceed that which could be allowed under s 35 of the Defamation Act for a claim such as this. Section 35 limits non-economic loss to $250,000.00. That is yet another defect.

21. The proceedings in the Federal Court, on at least their face, given what I have read of Rares J's decision of September 2021, covers almost the same material, if not the same material, as that which is articulated in the pleading before the court today. The appeal in the Federal Court is to be heard in May. It may well be that, by reason of the allegations that Ms Raghubir seeks to pursue there, they are identical to these proceedings. However, I do not think I have quite enough information to determine it is an abuse of process for that reason.

22. However, the failure on the part of the plaintiffs to specify the other defendants is, again, a significant flaw and it seems to me it could not proceed theoretically against anybody except Ms Nicolopoulos even if it were in proper form, although it purports to make a claim against other unnamed persons.

23. I am also of the view that because of total inability on the part of the plaintiffs to specify time, place, mode and extent of any publication, the matter as presently pleaded has in my view no reasonable prospects of success.

24. I propose to strike out this Statement of Claim and dismiss the proceedings. Given the state of this pleading I would stay any further proceedings based on these maters and order that the plaintiffs are not to recommence these proceedings without the leave of a Judge of this Court.

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Decision last updated: 05 April 2022