Thompson v Department of Child Protection of Western Australia
[2018] WADC 31
•13 MARCH 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: THOMPSON -v- DEPARTMENT OF CHILD PROTECTION OF WESTERN AUSTRALIA [2018] WADC 31
CORAM: GLANCY DCJ
HEARD: 24 JANUARY 2018
DELIVERED : 13 MARCH 2018
FILE NO/S: CIVO 142 of 2017
BETWEEN: RAYMOND THOMPSON
Applicant
AND
DEPARTMENT OF CHILD PROTECTION OF WESTERN AUSTRALIA
Respondent
Catchwords:
Defamation - Application for summary judgment - Defence of absolute privilege
Legislation:
Defamation Act 2005 (WA) s 27
Rules of the Supreme Court 1971 (WA) O 4 r 1, O 16 r 1(1), O 58 r 29
Result:
Respondent's application for summary judgment granted
Applicant's application dismissed
Representation:
Counsel:
Applicant: In person
Respondent: Ms J E Rhodes
Solicitors:
Applicant: Not applicable
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61‑424
Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Knights Capital Group Ltd v Bajada & Associates Pty Ltd [2016] WASC 69
Norris v Gittos [2011] WASC 295
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
The State of Western Australia v Collard [2015] WASCA 86
Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
GLANCY DCJ:
Background
The applicant is a litigant in person.
The important facts in this matter are not in dispute between the parties.
On 15 February 2017 the applicant commenced proceedings in the Family Court of Western Australia by which he sought orders allowing him to have unsupervised contact with two of his grandchildren. At the time of the hearing of these proceedings in the District Court, those Family Court proceedings were unresolved.
On 11 April 2017, in the course of the Family Court proceedings, and as is the usual practice in such matters, an order was made requiring the Family Court's Family Consultant and the Department for Child Protection and Family Support (DCPFS) to liaise so that the Family Court could be informed about any contact the DCPFS may have had with persons relevant to the applicant's Family Court proceedings.
The officer of the DCPFS based at the Family Court undertook a search of the DCPFS's records and provided information to the Family Consultant. Ultimately a report dated 28 June 2017 (Report) was filed in the Family Court proceedings and was made available to the parties to those proceedings.
Unfortunately, the Report contained some errors about certain matters the nature of which have, understandably, caused the applicant great personal distress. It is not necessary to compound the distress by recounting that information here.
The applicant brought the errors to the attention of the DCPFS which in turn notified the Family Consultant and, on 3 August 2017, a corrected report was filed in the Family Court.
The applicant also brought these errors to the attention of the relevant Minister and, after some delay, which was explained as being occasioned by the need to obtain legal advice, on 4 October 2017 the Minister wrote to the applicant acknowledging the errors made in the Report and apologising sincerely for the distress caused to him.
The applicant's proceedings
The applicant commenced these proceedings against the Department of Child Protection by originating summons dated 19 September 2017. He seeks from the respondent, damages of $100,000 (or 'another sum deemed appropriate by the court') for stress, anxiety and 'ongoing concerns about seeing his grandchildren' which he says was caused by the Department of Child Protection providing the erroneous information which was set out in the Report which was provided to the Family Court.
The legal basis of the applicant's claim was not set out in the originating summons.
On 21 November 2017 the applicant filed a statement of claim and an affidavit sworn by him. That statement of claim and affidavit attest to the central facts in this matter. They do not however reveal the basis of his claim for damages.
At a hearing before his Honour Judge O'Neal on 1 December 2017 the applicant confirmed that his action was a claim for damages made on the basis that he had been defamed in the publication of the Report in the Family Court. The applicant confirmed at the hearing of this matter that his claim was one of defamation.
Actions in defamation are required to be commenced by Writ: O 4 r 1(a) of the Rules of the Supreme Court 1971 (RSC).
While the respondent contended that the proceedings were commenced irregularly, it also correctly accepted that a self‑represented litigant should not be denied a remedy for mere failure to comply with legal technicalities. Notwithstanding the irregularity, the court retains the power to 'pronounce such judgment as the nature of the case may require': O 58 r 29(e) RSC.
Respondent's summary judgment application
The respondent's position is that it has a complete defence to the defamation action; that defence being one of absolute privilege and that, on that basis, the applicant's originating summons should be dismissed.
It was agreed before his Honour Judge O'Neal on 1 December 2017 that the hearing on 24 January 2018 was to be regarded as the hearing of a summary judgment application brought by the respondent. It was accepted that taking that approach would avoid the prospect of putting both parties to the expense of a strike‑out application which would almost inevitably lead to the action being properly commenced only to arrive at the hearing of a summary judgment application in any event.
It should be noted for completeness that on 1 July 2017 the DCPFS was amalgamated with several other government departments and the resulting Department was redesignated the Department for Communities (Government Gazette (28 June 2017) 3503). Although the respondent did not take any real issue with the incorrect naming of the respondent in the proceedings it submitted that the proper respondent should be the Chief Executive Officer, Department of Communities. In the circumstances it was thought unnecessary to require an amendment to the originating summons unless the respondent's summary judgment application was unsuccessful.
Applicant's summary judgment application
On 16 January 2018, the applicant filed submissions in support of what he called his own application for summary judgment against the respondent and in that document sought leave to make an application for summary judgment against the respondent.
The applicant's written submissions, comprising five paragraphs, were somewhat difficult to follow. In essence they repeated his complaints about the time it took the Minister to reply to his correspondence and asserted first, that the fact that a replacement report was filed demonstrates that an injustice was done to him, and second, that a document containing false information which causes a person mental anguish should never be privileged.
At the hearing on 24 January 2018, the applicant did not press his application for summary judgment and was content that, if the respondent's summary judgment application were unsuccessful, the court would hear the substantive defamation action at a later hearing. In any event, I have regarded those written submissions as submissions opposing the respondent's summary judgment application.
Evidence regarding the production of the Report
In support of the summary judgment application the respondent filed an affidavit of Ms Michele Jeanne Cohan sworn on 19 December 2017 which set out the circumstances in which the Report came to be produced and filed in the Family Court proceedings.
While the applicant sought to cross-examine Ms Cohen on her affidavit, his questions were directed at matters other than those relevant to the summary judgment application going, as they did, to issues such as the existence of and truth of the materials the DCPFS had on file which were noted in the Report and the replacement report. While those matters may become relevant to the defamation action if I do not dismiss it on the basis contended for by the respondent, they were not relevant to the summary judgment application and I did not allow the applicant to ask those questions of Ms Cohan in this hearing.
In the end, there was no dispute between the parties about the circumstances in which the Report came to be prepared and filed in the Family Court proceedings. Those facts are set out in the opening paragraphs of this judgment.
Summary judgment – self‑represented litigants
I am mindful that, in dealing with this application for summary termination of litigation brought by a litigant in person, I must approach it with a view to ensuring that, in a possibly poorly expressed document, there is no viable cause of action which, with appropriate amendment, could be put into a proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J).
Summary judgment – general principles
Order 16 r 1(1) of the RSC allows the court to enter judgment for a defendant in proceedings if the court is satisfied that the action is frivolous or vexatious or that the defendant has a good defence on the merits or that the action should be disposed of summarily without pleading.
While the RSC also require such applications to be brought in a particular way, given the nature of these proceedings those procedures have not been required to be met.
A claim will be frivolous as required by RSC O 16 r 1 if it is so clearly untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (O'Connor J). A claim may also be described as vexatious for the same reason: Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225, 230 (Jessel MR).
In the event that the court determines that there is a real question, whether of fact or law, on which the rights of the parties depend, the action should not be dismissed as frivolous or vexatious: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 (Dixon J); Anderson v Effexseven (1998) 10 ANZ Ins Cas 61‑424, 74,757 (Parker J, with whom Owen J agreed).
A high degree of caution is to be applied when considering whether to exercise a power to grant summary judgment: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ).
A high degree of certainty of outcome is also required. As was said in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow and Hayne JJ):
It is of course, well accepted that a court whose jurisdiction is regularly involved in respect of a local defendant … should not decide the issue raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her 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 the high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way (citations omitted).
The onus is on the respondent, as applicant, to persuade the court that there is no serious question to be tried: Knights Capital Group Ltd v Bajada & Associates Pty Ltd [2016] WASC 69 [42] (Pritchard J).
An application for summary judgment must be resolved on the basis that the version of the facts put forward by the defendant, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane and Dawson JJ).
On an application pursuant to RSC O 16, the plaintiff is bound by its pleaded case. In Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994) (7) Franklyn J (with whom Wallwork J agreed) stated:
It is for the plaintiff to determine what is his cause of action. The defendant then knows what is the case he has to meet. It is not for the Court, on an O 16 application, to identify or accept some other cause of action, not pleaded, which the evidence before it might arguably support and which, possibly for good reason, was not relied on by the plaintiff in his Statement of Claim and to then allow the Statement of Claim to remain on foot in reliance on a possible subsequent amendment.
In Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 (24) the Court of Appeal summarised the principles which apply in the resolution of applications for summary judgment as follows:
The principles to be applied on an application for summary judgment are well established. Summary judgment will only be granted when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 81, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment might properly to be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57], Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] – [55].
Whilst the court may determine any difficult question of law on an application for summary judgment, it will usually be appropriate to leave the determination of such questions for trial: Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 514 (Barwick CJ), 514 ‑ 515 (Gibbs J); Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36] (McLure JA).
Application of principles to this matter
The applicant's case is that:
(a)a Family Consultant was ordered to produce a report for the Family Court for its use in the applicant's Family Court proceedings;
(b)the Department of Child Protection and the Family Consultant were ordered to liaise for the purposes of the preparation of the Report;
(c)information was provided by an officer of the Department of Child Protection to a Family Consultant pursuant to the order of the Family Court for the purposes of the Family Consultant's preparation of the Report;
(d)the Family Consultant complied with the order and filed the Report in the applicant's Family Court proceedings;
(e)the Report contains statements that are defamatory of the applicant; and
(f)the CEO of the Department of Child Protection is liable for the publication of the defamatory statements contained in the Report.
For the purposes of determining the summary judgment application I am required to take those facts as true (Webster v Lampard (608) (Mason CJ, Deane & Dawson JJ)). It should be noted, however, that those facts have not been admitted and some would likely be contested if the respondent's summary judgment application is dismissed.
Absolute privilege as a defence in defamation actions
The respondent submitted that, irrespective of the fact that the erroneous material published in the Report may have been defamatory of the applicant, the respondent had a defence of absolute privilege that would entirely defeat the claim.
Section 27(1) of the Defamation Act 2005 provides a defence to the publication of defamatory matter if the defendant establishes that it was published on an occasion of absolute privilege.
Section 27(2)(b)(i) of the Defamation Act makes it clear that material published in a document filed or lodged with, or otherwise submitted to, an 'Australian court' or 'Australian tribunal' is published on an occasion of absolute privilege.
The term 'Australian court' is defined in s 4 of the Defamation Act as:
[A]ny court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).
It is not in dispute that the Family Court of Western Australia is an 'Australian court' for the purposes of s 27 of the Defamation Act.
The common law position in relation to the publication of defamatory material on an occasion of privilege was summarised by Martin J in Norris v Gittos [2011] WASC 295 [27] ‑ [30]. In his judgment, his Honour quoted the editors of Gatley on Libel and Slander (11th ed, 2008) at [13.1] where they explained the law of privilege in defamation actions as follows:
The law recognises that there are certain situations ('privileged occasions') in which it is for the public benefit that a person should be able to speak or write freely and that this should override or qualify the protection normally given to reputation by the law of defamation. In most cases the protection of privilege is qualified, ie the defence is displaced by 'malice', but there are certain occasions on which public policy and convenience require that a person should be wholly free from even the risk of responsibility for the publication of defamatory words and no action will therefore lie even though the defendant published the words with full knowledge of their falsity and even with the express intention of injuring the claimant.
His Honour then said [30]:
At common law no action will lie for defamatory statements made in connection with 'judicial' proceedings: see generally, Gatley on Libel and Slander [13.5]. The privilege reaches beyond what is uttered in court or before a tribunal so as to cover 'everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purposes of proceedings and starting with the writ or other document which institutes the proceedings': Lincoln v Daniels [1962] 1 QB 237, 257 (Devlin LJ).
Section 6(2) of the Defamation Act provides that the general law position for defamation is not affected by the Act unless expressly provided by the Act or by necessary implication. There is nothing express or to be implied in the Defamation Act which requires departure from the general law position regarding absolute privilege for defamatory statements made in the course of judicial proceedings.
On the facts accepted as true for the purposes of determining the summary judgment application, even exercising the great caution required in these cases, it must follow that because the publication complained of was publication in the Report filed in the applicant's Family Court proceedings, the respondent has an absolute defence to the action. It matters not, for the purposes of a defamation action that the statements in the Report were erroneous, notwithstanding that the error, understandably, matters a great deal to the applicant.
Conclusion
It follows from the above that the application has no prospects of success, is frivolous and vexatious and must be dismissed.
Orders
I propose to make an order that the applicant's defamation action commenced by originating summons dated 19 September 2017 is dismissed.
As the respondent has been successful, I am of the preliminary view that costs should follow the event: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] ‑ [68] (McHugh J); The State of Western Australia v Collard [2015] WASCA 86 [25] (judgment of the court).
I will hear from the parties as to costs.
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