TRASENTE, D.J. Developments Pty Limited v McCreight - [2024] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v MCCREIGHT
[2024] SADC 149
Judgment of his Honour Judge Burnett
12 November 2024
DEFAMATION - ACTIONS FOR DEFAMATION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE
By a revised interlocutory application, the respondent seeks to strike out or summarily dismiss part of the claim of the applicants, namely their claim in defamation. This judgment deals only with the appropriateness of the court to deal with this application summarily. If the court determines that it is appropriate to determine the issue summarily, it will, at a further hearing, determine the merits of the application.
The basis of each application is that the applicants did not, prior to the institution of proceedings, give to the respondent a concerns notice required under s 12B of the Defamation Act 2005 (SA)(the Act). The respondent therefore contends that the applicants do not have a reasonable cause of action in relation to their claim in defamation.
The applicants sent, by email to the respondent, a concerns notice on 13 November 2023. The respondent gave evidence in an affidavit that she did not open or read that notice. The applicants sent the concerns notice again by email on 30 November 2023 (after the limitation period had expired, but prior to instituting proceedings), which the respondent admitted opening and reading. The respondent contended that s 41 of the Act provides a code as to the means by which a concerns notice may be given under the Defamation Act and that sending the email enclosing the concerns notice on either 13 November 2023 or 30 November 2023 did not comply with the code.
Held:
(1) The application of the respondent is dismissed. The application raises issues that are not suitable for summary determination.
(2) The application, if successful, will not dispose of the whole action and the claim for injurious falsehood will still need to be determined. Where there are multiple causes of action, there will often be little merit in prematurely determining one cause of action where the facts and evidence are relevant to the other cause of action: The estate of the late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1 applied.
(3) The Uniform Civil Rules 2020 (SA)(UCR) permit summary determination of a cause of action. There is some overlap in this case between the actions in defamation and injurious falsehood, but there would be some saving of time and cost at trial if the defamation matter was determined prior to trial. Evidence relating to whether the applicants had suffered serious harm as required by s 10A of the Act and whether the respondent had made out any of the defences to the claim would not be required.
(4) The hearing and determination of the application summarily would result in fragmentation of the proceedings and even if successful, delay the trial of the claim for injurious falsehood. It would not be desirable to hear the claims separately given the risk of inconsistent findings.
(5) The application raises complex questions of law which are not appropriate to determine summarily: Theseus Exploration NL v Foyster (1972) 126 CLR 507 considered. Those questions are:
(a)can a claim in defamation be maintained if a concerns notice has not been given prior to the institution of proceedings: Peros v Nationwide News Pty Ltd [2024] QSC 80, Aguasa v Hunter [2024] WASC 380 considered;
(b)does s 41 of the Act provide a code as to the means by which a concerns notice may be given, even if the respondent had actual notice of the concerns notice: Khan v Hassan [2023] VCC 852 considered.
(c)if s 41 is a code, have the applicants given the respondent the concerns notice, by sending it to an email address that had been specified by the respondent for the giving and service of documents pursuant to s 41(1)(a)(iv) of the Act.
(d)if the respondent actually received the concerns notice, either or 13 November 2023 or 30 November 2023, can she maintain that she was not given the concerns notice under the Act;
(e)if s 41 does not constitute a code, was the respondent given the concerns notice either on 13 November 2023 or 30 November 2023 under UCR 42.2 (because she had given an email address in relation to the subject matter of the proceeding) or UCR 42.1 because she had actual knowledge of the notice.

(6) The application will involve some questions of fact, namely the identification of the email address by the respondent in the building contract and whether the respondent opened and read the concerns notice on 13 November 2023. Although these are relatively discrete factual matters, there is an unfairness to the applicants if these matters are determined in a separate hearing prior to trial.
(7) If the court determines that the concerns notice was not given on 13 November 2023 but was given on 30 November 2023, the hearing of the application will not result in the dismissal of the defamation claim and the claim must still be heard at trial. In that event, the issue to be determined at trial will be whether the applicants are entitled to an extension of time to bring the defamation claim.

Uniform Civil Rules 2020 (UCR) 42.2, 42.10, 70.3(1)(b), 70.3(1)(c), 14301, 143.2, 144.2(c), 144.2; Defamation Act 2005 (SA) 10A, 12A, 12B, 21, 41, 41(1), 41(1)(a), 41(1)(a)(iv), 41(1)(a)(iii), 41(2); Limitation of Actions Act 1936 (SA) 37(1), 37B; Federal Court of Australia Act 1976 (Cth) 31A, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; Peros v Nationwide News Pty Ltd & ors [2024] QSC 80; Randell v McLachlain [2022] NSWDC 506, Teh v Woodworth & Anor [2022] NSWDC 411; Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213; Georges v Georges [2022] NSWDC 558; Aguasa v Hunter [2024] WASC 380; Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126; Khan v Hassan [2023] VCC 852; the Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; Wickstead v Browne (1992) 30 NSWLR 1; Theseus Exploration NL v Foyster (1972) 126 CLR 507; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, applied.

TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v MCCREIGHT
[2024] SADC 149
Introduction

By a revised interlocutory application dated 12 September 2024, the respondent has sought orders that the applicants’ claim in defamation be struck out pursuant to Uniform Civil Rules 2020 (UCR) 70.3(1)(b) or (c), or alternatively summarily dismissed pursuant to UCR 143.2 or, in the further alternative, summary judgment be given against the applicants in respect of the defamation claim, pursuant to UCR 144.2(c).
The basis of each application is an allegation that the applicants, prior to instituting proceedings, failed to give to the respondent a concerns notice that is required to be given under s 12B of the Defamation Act 2005 (SA)(‘the Defamation Act’). The respondent contends that in these circumstances the applicants do not have a reasonable cause of action in relation to the claim in defamation.
The applicants opposed the application. The applicants raised a preliminary point that it was not appropriate that the application be dealt with at the present time, but instead the application should be adjourned to trial. I refused the applicants’ application to adjourn the respondent’s application to trial. I ordered that the respondent’s application for summary determination should be heard in two stages: first, to determine whether the application raises issues that are suitable for summary determination and secondly, if that question is answered in the affirmative, to proceed to hear the merits of the application. If I determine that the respondent’s application is not suitable for summary determination, then the appropriate order is to dismiss the application.
I set out the background to the application in my earlier decision in which I refused to adjourn the respondent’s application to trial. However, that background is also relevant to the determination of this application, and I will repeat in this judgment what I said in my earlier decision.
The claim and factual basis for the application
The applicants have brought claims in defamation and injurious falsehood against the respondent. These claims were instituted on 4 January 2024. Both of those claims relate to publications that are alleged to have been made by the respondent on or around 15 November 2022. The time limit for the institution of the defamation proceedings therefore expired on 15 November 2023 pursuant to s 37(1) of the Limitation of Actions Act 1936 (SA)(‘the Limitation Act’). That limitation period is extended if a concerns notice was given to the respondent in the 56 day period prior to the limitation period expiring. In that event, the limitation period is extended by an additional period of 56 days minus any days remaining after the notice was given until the 1 year period expired on 15 November 2023.
In the statement of claim-revision 2, the applicants pleaded that they gave a concerns notice, which complied with s 12A of the Defamation Act, gave to the respondent on 13 November 2023 (‘the Concerns Notice’). If a concerns notice was given on 13 November 2023, then the proceedings were instituted within the limitation period, being the extended period of 54 days from 15 November 2023 (i.e. 56 days less 2 days).
The applicants have also sought, in the alternative, an extension of time to bring the claim in defamation, in that if the respondent did not receive and read the Concerns Notice that was sent on 13 November 2023, the respondent received and read the Concerns Notice on 30 November 2023. If that is the case, as no concerns notice had been issued prior to 15 November 2023, the limitation period expired on 15 November 2023 and an extension of time is needed to institute the proceedings. The extension of time is sought pursuant to s 37B of the Limitation Act which provides that the court, if it is satisfied that it is just and reasonable to do so, may extend the time for instituting proceedings up to a period of up to

3 years from the date of publication.
If the applicants’ claim in defamation is summarily dismissed because they failed to give a concerns notice prior to instituting proceedings, then the applicants may seek to bring a further claim. The applicants would need leave pursuant to s 21 of the Defamation Act to institute a second claim against the same party in respect of the same publication and would also need to seek an extension of time pursuant to s 37B of the Limitation Act.
The respondent is yet to file a defence. The respondent denies that the Concerns Notice was given in the manner required under the Defamation Act on either 13 November 2023 or 30 November 2023. For the purposes of this application, the respondent relied upon s 12B of the Defamation Act which states an aggrieved person cannot commence defamation proceedings unless the person has given the proposed defendant a concerns notice.
There is no dispute that on 13 November 2023, the applicants’ solicitors sent an email to the respondent attaching a concerns notice to an email address of the respondent. That email address had not been specifically provided for the purposes of receiving notices or proceedings under the Defamation Act. It had been provided by the respondent to the applicants under a building contract that the parties entered into on 26 April 2019. During the course of the performance of that contract, the parties communicated using that email address up to at least 14 February 2023. The email on 13 November 2023 was expressed to be of high importance and stated there was an attachment being a letter to the respondent.
The respondent, in an affidavit that she filed in support of her application, stated that she saw on her phone an email had come from a Peter Campbell, HWLE, marked urgent and confidential. She said that she did not know who Peter Campbell was or what HWLE meant. She said that she did not open the email as she believed it was spam and deleted the email. The applicants do not accept those matters. The applicants have submitted that the respondent read the Concerns Notice on 13 November 2023. I consider that there is a proper basis for the applicants to dispute the evidence of the respondent and contend that such evidence is not believable. The applicants may seek to engage an IT expert to examine the respondent’s computer to determine whether the Concerns Notice was opened.
The respondent did not respond to the 13 November 2023 email.
The applicants’ solicitors sent a further email on 30 November 2023 which again attached the Concerns Notice dated 13 November 2023. In the email, they noted that they had received no response to the email and concerns notice dated 13 November 2023. The respondent said in her affidavit, that after making some enquiries, she opened the email and read the Concerns Notice on about 30 November 2023.
Issues for determination
The respondent’s application raises the following issues:
(1)can the claim in defamation be maintained if a concerns notice has not been given to the respondent prior to the institution of proceedings (‘the first issue’)?
(2)does s 41 of the Defamation Act provide a code as to the means by which a concerns notice may be given to a respondent (‘the second issue’)?
(3)if yes to (2) above, was the Concerns Notice dated 13 November 2023:
(a) sent to an email address specified by the person for the giving or service of documents (the third issue)?
(b) brought to the actual attention of the respondent and if so, can the respondent maintain in such circumstances that she was not given the notice (the fourth issue)?
(4)if no to (2) above, was the Concerns Notice validly given to the respondent pursuant to UCR 42.2 in that the parties had communicated using that email address in relation to the subject matter of the proceeding or alternatively was it validly given pursuant to UCR 42.10 in that the respondent had actual knowledge of the document and its contents (the fifth issue)?
(5)if the Concerns Notice was not given to the respondent on 13 November 2023, either pursuant to s 41 of the Defamation Act or UCR 42.2 or 42.10 (if service is permitted under those rules), was service of the Concerns Notice validly given on 30 November 2023:
(a) under s 41 of the Defamation Act in that the respondent had admitted actual knowledge of the document and its contents (the sixth issue);
(b) alternatively, under UCR 42.2 or 42.10 (if s 41 of the Defamation Act was not a code) (the seventh issue)?
(6)
if the Concerns Notice was validly given to the respondent on

30 November 2023, but not on 13 November 2023, are the applicants entitled to an extension of time to bring the proceedings pursuant to s 37B of the Limitation Act (the eighth issue).
The respondent acknowledged that the extension of time point, if that became a relevant issue, was not suitable for determination on a summary basis.
Service of a concerns notice.
Section 12B of the Defamation Act provides that an aggrieved person cannot commence defamation proceedings unless they have given the proposed defendant concerns notice in respect of the matter concerned.
Section 41 of the Defamation Act provides as follows:
41—Giving of notices and other documents
(1)For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person)—
(a) in the case of a natural person—by—
(i)delivering it to the person personally; or
(ii)sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or
(iii)sending it by facsimile transmission to the facsimile number of the person; or
(iv)sending it by email to an email address specified by the person for the giving or service of documents; or
(b) in the case of a body corporate—by—
(i)leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents; or
(ii)sending it by facsimile transmission to the facsimile number of the body corporate; or
(iii)sending it by email to an email address specified by the body corporate for the giving or service of documents.
(2)Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
Also relevant to consideration of the application are the rules contained in the UCR that deal with service of documents.[1] UCR 42.2 relevantly provides:
(1)A document is served by email service on a person (the recipient) if-
(a) it is sent as an attachment in a PDF or Word format to and email address;
(b) either-
(i)the recipient has consented to the document or a class of documents encompassing the document being served on the recipient by email sent to that email address;
(ii)the recipient communicated using that email address with the party on whose behalf the document is to be served in relation to the subject matter of the proceeding or the dispute the subject of the proceeding.
[1] Documents is defined in UCR 2.1 by reference to s 4 of the Legislation Interpretation Act 2021 (SA) which defines in s 4 document to include anything on which there is writing.
UCR 42.10, which deals with deemed service, provides:
(1)A document is to be regarded as having been served (deemed service) on a person if-
(a) The person acquires actual knowledge of the documents and its contents…
Summary determination principles
The respondent has brought its application on three alternative bases: that the claim in defamation be struck out pursuant to UCR 70.3(1)(b) or (c), summarily dismissed pursuant to UCR 143.2, or summary judgment be given against the applicants in respect of the defamation claim pursuant to UCR 144.2(c). A claim may be struck out pursuant to UCR 70.3(1)(b) or (c) if it is an abuse of process or discloses no reasonable cause of action. Pursuant to UCR 143.1, the Court may grant judgment dismissing an action on the ground that there is no reasonable cause of action. Pursuant to UCR 144.2, the Court may give summary judgment against an applicant if there is no reasonable basis for prosecuting the claim or on a cause of action if there is no reasonable basis for prosecuting that cause of action. The party seeking summary determination or strike out, in this case the respondent, bears the onus of persuading the court that an order should be made dismissing or striking out the claim or part of the claim.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (Adelaide Brighton Cement),[2] Doyle J discussed the differences between the three sorts of applications in circumstances, such as in the present case, where they all rely upon there being no reasonable cause of action. Doyle J referred to the decision of the High Court in Spencer v Commonwealth of Australia[3] where it was held that the exercise of the power required a practical assessment as to whether the applicant had real, as opposed to merely fanciful, prospects of success. The Court should be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact or law. The court should not embark on a mini trial.
[2] (2020) 137 SASR 117; [2020] SASC 161.
[3] (2010) 241 CLR 118, [24]-[26]; [2010] HCA 28.

In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd,[4] Rares J held in respect of the broadly similar power to award summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth), that the purpose of that section was to enable the court to deal with matters that should not be litigated because there is no reasonable prospect of any outcome but one.

Rares J went on to hold that the exercise of judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success, would defeat, not advance the ends of justice.
[4] (2006) 236 ALR 720; [2006] FCA 1352.
Doyle J in Adelaide Brighton Cement, also considered the difference between the power to summarily dismiss a claim and granting summary judgment. His Honour held that while the difference was difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.[5]
[5] (2020) 137 SASR 117, [68]; [2020] SASC 161.
Doyle J also discussed the differences between the strike out application and the summary dismissal application. His Honour held that the strike out application is focused on the applicant’s claim or pleading while the focus of the summary dismissal application is on the applicant’s claim.[6] This difference in focus has two primary consequences. The first consequence relates to the evidence that might be adduced. In a strike out application, evidence might be permitted of the documents referred to in the pleading and some evidence to understand the pleaded case in its proper context, but not ordinarily of the underlying merits. In the case of a summary dismissal (or summary judgment) application, evidence is permitted to demonstrate the defect in the claim.[7] The second difference relates to the consequence of granting the application. Summary judgment or summary dismissal will result in a judgment being entered against the applicant. A strike out will usually result in a striking out of a pleading or part of a pleading with leave to amend and not ordinarily give rise to res judicata or prevent a fresh claim being brought in appropriate circumstances.[8]
[6] Ibid, [66].
[7] Ibid, [67].
[8] Ibid, [69].
In determining the present application of the respondent, the differences between the three bases for the orders sought are more theoretical than practical. In each case, they require the respondent to satisfy the court that the applicants have no reasonable cause of action because they have not given the respondent, prior to instituting proceedings, a concerns notice. In the case of the strike out application, evidence from the respondent that she did not read the email dated 13 November 2023 would not be admitted as it does not relate to the pleading or understanding the pleading in the proper context. It is disputed evidence. However, that evidence may be permitted on the summary judgment application or the summary dismissal application, depending on the view that the Court takes of the nature and extent of that evidence.
The respondent, in its written submissions, contended that if the claim for defamation was liable for summary determination because of the failure to serve the concerns notice, that cause of action was rendered frivolous or an abuse of process. I do not accept that is a correct characterisation of the cause of action. In Adelaide Brighton Cement, Doyle J discussed what was meant by frivolous claims and abuse of process.[9] A frivolous claim was a claim that was not worthy of serious attention.[10] The defamation claim of the applicants could not be characterised in this way. The fact that there may be a defence (which involves complex questions of law), does not render the claim frivolous. An abuse of process might arise because the cause of action lacks a proper basis or is based on an assertion for which there is no basis.[11] This could only arise in the present case if there is no reasonable cause of action. There is no other evidence suggesting that the claim lacked a proper basis. The reference to an abuse of process therefore does not take the matter any further.
[9] Ibid, [62]-[63].
[10] Ibid, [62].
[11] Ibid, [43].
Is the case suitable for strike out or summary judgment or summary dismissal?
Nature of the issues to be determined on the application.
The issues that require determination in the application by the respondent for summary determination or strike out of part of the claim are complex. They involve primarily questions of law but some questions of fact.
The first issue (referred to in paragraph 14 above), namely whether a claim in defamation can be maintained if a concerns notice has not been given to the respondent prior to the institution of proceeding, is a question of law. Counsel for the respondent relied upon the decision of Applegarth J in Peros v Nationwide News Pty Ltd & ors,[12] (Peros) where his Honour referred to a number of cases where it had been decided that commencing an action without first serving a concerns notice meant that the action was liable to be dismissed or struck out. The cases referred to by Applegarth J in Peros were all District Court or County Court decisions.[13] However, Applegarth J did not need to decide that question in Peros because he found that the law to be applied in that case was the law of Western Australia (which did not include a provision equivalent to s 12B). Applegarth J went on to decide (although it was not strictly necessary for him to do so) that s 12B should be characterised as procedural and not as a substantive provision.[14] The correct characterisation of s 12B was recently considered by Tottle J in Aguasa v Hunter (Aguasa),[15] where contrary to the decision of Applegarth J in Peros, his Honour found s 12B to be a substantive provision that affects the enforceability and extent of rights.[16] That finding as to the characterisation of s 12B led Tottle J in Aguasa to find that because a concerns notice had not been given before the proceedings were commenced, the proceedings must be dismissed. Tottle J referred to the decision in Cavar v Campbelltown Catholic Club Ltd (Cavar),[17] where the court, inter alia, refused an application by a self-represented litigant for leave to replead a claim in defamation (which was grossly deficient) because the proceeding had been commenced without the applicant giving a concerns notice.[18] The court in Cavar went on to hold that because she did not give a concerns notice, the applicant was not entitled to bring a claim for defamation.[19]
[12] [2024] QSC 80, [43].
[13] Randell v McLachlain [2022] NSWDC 506, [15]; Teh v Woodworth & Anor [2022] NSWDC 411, [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213, [83], [109]-[110]; Georges v Georges [2022] NSWDC 558, [55].
[14] [2024] QSC 80, [102], [156]-[160].
[15] [2024] WASC 380.
[16] Ibid, [57].
[17] [2024] NSWCA 126.
[18] Ibid, [24].
[19] Ibid, [34].
The above discussion indicates that although it is a question of law whether an applicant may institute proceedings without first giving a concerns notice and existing authority favours a conclusion that an applicant may not institute proceedings in those circumstances, at present there is no binding authority to that effect.
The second issue concerns whether s 41 of the Defamation Act provides a code as to the means by which a concerns notice may be given. Again, that is a question of law. There is no binding authority that has found s 41 to be a code. There are textual indicators that suggest that it is not a code, including in particular s 41(2), which permits service in accordance with the rules of a court authorising a document to be served on a person in any other manner. It is difficult to see when s 41(2) could ever apply if s 41(1) is found to be a code. The respondent relied upon the decision of Judge Myers of the County Court of Victoria in Khan v Hassan (‘Khan’)[20] where her Honour held that the concerns notice must be given in accordance with the equivalent section to s 41 of the Defamation Act.[21] The applicants submitted in response that Judge Myers in Khan did not consider that the equivalent to s 41(2). Judge Myers also did not address whether the use of the word “may” in s 41(1) suggested that the methods of service set out in s 41(1) were not mandatory.
[20] [2023] VCC 852.
[21] Ibid [88].
The third and fourth issues arise if the court finds that s 41 constitutes a code as to how notices, and in this case a concerns notice, may be given. The third issue concerns whether an email address given by the respondent for the purposes of giving or receiving email communications for the purposes of the building contract which the applicant and the respondents entered into in 2019 was, for the purposes of s 41(1)(a)(iv), an email address specified by the respondent for the giving or service of documents. Counsel did not refer to any authority on this issue. Construction of s 41(a)(iv) raises a question of law insofar as it might be contended that the provision does not permit any email address to be relied upon that had been provided in relation to some past transaction between the parties. It also partly an evaluative decision, if there is no blanket prohibition, that involves the characterisation of the email address that had been given and whether at the time that the Concerns Notice was sent, it could still be said to be an email address specified by the person for the giving or service of documents. Again, there are some textual indications that suggest it is not necessary to specify an email address for the purposes of these proceedings to come within s 41(1)(a)(iv). Section 41(1)(a)(iv) does not state that the address must be specified for the purposes of the proceeding. There is no such requirement in the case of sending the notice by facsimile transmission under s 41(1)(a)(iii).
The fourth issue raises a question of fact and a question of law. If it is found that the respondent actually received the Concerns Notice on 13 November 2023, can she maintain that she was not given the notice. The respondent accepted that the actual receipt of the Concerns Notice is a question of fact but submitted that it is of very limited compass and would require only limited cross-examination of the respondent. I do not agree that the cross-examination on this topic would be as limited as the respondent has submitted. The applicant would be entitled to examine the respondent’s general practice concerning emails and would invite the court to infer from all of the evidence concerning the respondent that she would have opened the email on 13 November 2023 in which the Concerns Notice was enclosed. I accept that the applicant would be disadvantaged if cross-examination on this issue was heard separately from the trial and from other issues.
The fourth issue also raises the following question: if it is shown that the respondent had actual knowledge of the Concerns Notice on 13 November 2023, can she maintain, as a matter of law, that she was not given the Concerns Notice. In such a case, there may be room for an estoppel to operate precluding the respondent from maintaining that she had not been given the notice. Alternatively, it might be contended that the Concerns Notice had been delivered to her personally within the meaning of s 41(1)(a). That sub-section does not refer to the concerns notice being handed to the respondent (which would require personal delivery) and a document may be delivered to a person by way of email. Judge Myers in Khan held that actual receipt of the concerns notice did not amount to the notice being given under s 12B of the Defamation Act but did not address the matters discussed above.[22]
[22] [2023] VCC 852, [89].
The fifth issue becomes relevant if it is found that s 41(1) of the Defamation Act does not constitute a code as to the means by which a concerns notice may be given. It raises a question of fact insofar as the applicants will seek to establish, for the purposes of UCR 42.10, that the respondent had actual knowledge of the Concerns Notice and a mixed question of fact and law as to whether, for the purposes of UCR 42.2 the parties had communicated using an email address in relation to the subject matter of the proceeding.
The sixth and seventh issues concerns the alternate case of the applicants that the Concerns Notice was given on 30 November 2023, which arises if the Court determines that the Concerns Notice was not given on 13 November 2023. As the respondent has admitted reading that notice on 30 November 2023, was the notice validly given at that time, even if s 41 of the Defamation Act is a code as to the means by which the Concerns Notice may be given? Alternatively, if it was found by the Court that s 41 was not a code, was the notice validly given under UCR 42.2 or 42.10? These issues raise either questions of law or the application of the law based on facts that are not in dispute.
The eighth issue arises if the Court determined that the Concerns Notice was validly given to the respondent on 30 November 2023, but not on 13 November 2023. In that event, the applicants pleaded that they are entitled to an extension of time to bring the proceedings pursuant to s 37B of the Limitations Act. The respondent agreed that if this issue arose, it was not a suitable issue for determination on a summary basis.
Determination of the question of whether the claim for defamation is suitable for summary determination or strikeout?
The analysis of the issues that the Court must determine on the application reveals the following matters that are relevant to an assessment as to whether the court should proceed to summarily determine or strike out the applicants’ claim for defamation on the basis that it discloses no reasonable cause of action.
First, the application, if successful, will not dispose of the whole action and a trial will proceed on the remaining claim for injurious falsehood. This has the consequence that some of the advantages of a summary disposal will not be achieved, even if the respondent were successful in her application, as the parties will still incur the costs of the trial. In the Estate of the Late Sir Donald Bradman v Allens Arthur Robinson,[23] Sulan and Layton JJ quoted from the judgment of Kirby P in Wickstead v Browne[24] that where there were multiple causes of action, there was little merit in prematurely shutting down the applicant from arguing one of the causes of action where facts and evidence to be adduced are relevant to both and this is to be contrasted with cases where summary determination might save a respondent from the continuation of useless proceedings.
[23] (2010) 107 SASR 1, [58]; [2010] SASC 71.
[24] (1992) 30 NSWLR 1, 5.
Secondly, the rules permit summary judgment or determination or a strike out to be granted in respect of a cause of action and not just the whole of the claim.
Thirdly, although there is some factual overlap between the defamation claim and the claim for injurious falsehood, I accept there would be some saving of time at trial in the event that the defamation claim had been dismissed or struck out prior to trial. Although the same publications are the basis for both claims, the applicants will need to prove in the defamation claim that they have suffered serious harm pursuant to s 10A of the Defamation Act. Further, the respondent will have defences to the defamation claim that are not relevant to the injurious falsehood claim. Those defences will require both evidence to be adduced and submissions to be made about the application of those defences.
Fourthly, the hearing and determination of the summary judgment application will result in the fragmentation of the proceedings. In making this finding, I do not accept the submission of the applicants that the application is, in substance, an application for an early trial on some issues only. The application is properly characterised as an application for summary determination.
However, there will be two substantial hearings if the application for summary determination is heard on its merits. It is likely that any finding adverse to the applicants on the summary judgment application will result in the delay of the trial of the injurious falsehood claim as there would likely be, or at least it is possible, that there would be an appeal by the applicants from any adverse decision made on the application. Given the overlap between the claims for defamation and injurious falsehood, it would not be desirable to hear the claims separately, with the risk of inconsistent findings. In these circumstances, I do not consider that there would be cost and time savings if the court proceeded to determine the application of the respondent for summary determination.
Fifthly, the issues required to be determined by way of summary determination, raise complex questions of law, in respect of which there is no binding authority. For the respondent to be successful, the Court must find in her favour on a number of questions of law. In Theseus Exploration NL v Foyster,[25] Barwick CJ held that it was open to the primary judge to take the view that the extent and complexity of the matters of law and of argument warranted a hearing. In this case, there are a series of complex questions, which would determine how the court determined whether or not the claim in defamation could be maintained. I consider that these questions of law, with the many alternative pathways depending on what the court decides in relation to a particular issue, are best determined at trial.
[25] (1972) 126 CLR 507, 514.
Sixthly, the application will involve some questions of fact, in particular, concerning the identification of the email address by the respondent in the building contract and its use and whether the respondent opened the email and the Concerns Notice on 13 November 2023. I accept these are relatively discrete factual matters and that there is no absolute rule that there cannot be some form of factual inquiry on a summary judgment application. However, I also accept the submission of the applicants that there can be unfairness to a party when cross-examination is undertaken on a discrete issue prior to discovery being undertaken.[26] I also accept that credit findings would need to be made on the summary judgment application in relation to the respondent and again at trial. This would mean that a different judge would need to hear the trial. Therefore, the existence of a factual dispute and the need for cross-examination, even on a limited issue, is a factor that weighs against the matter being suitable for summary determination.
[26] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, [13]; [2008] SASC 58.
Seventhly, even if the court determines that the Concerns Notice was not given on 13 November 2023, the hearing of the application might not result in the dismissal of the defamation claim. That scenario will arise if the Court finds that the Concerns Notice was not given on 13 November 2023 but was given on 30 November 2023, such that the issue will arise whether the applicants are entitled to an extension of time to bring the defamation claim. That is a matter for trial.
Taking into account the above matters, I consider that the application for summary judgment, summary determination, or strike out of the claim in defamation raises issues that are not suitable for summary determination.
Conclusion
It follows from the reasons that I have expressed; the application raises issues that are not suitable for summary determination, summary judgment or strikeout. I therefore dismiss the application of the respondent.