Tull v Wolfe
[2016] WASC 65
•4 MARCH 2016
TULL -v- WOLFE [2016] WASC 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 65 | |
| 04/03/2016 | |||
| Case No: | CIV:2516/2015 | 29 JANUARY 2016 | |
| Coram: | KENNETH MARTIN J | 29/01/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Defendants' applications for summary judgment allowed | ||
| B | |||
| PDF Version |
| Parties: | ROGER WILLIAM TULL STEVEN JOHN WOLFE ALLIED EXPRESS TRANSPORT PTY LTD |
Catchwords: | Defamation Absolute privilege Australian tribunal Evidence of witness impugned as defamatory Practice and procedure Application for summary judgment Application granted Actions dismissed |
Legislation: | Defamation Act 2005 (WA) Fair Work Act 2009 (Cth) Rules of the Supreme Court 1971 (WA) |
Case References: | Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 McJannett v Daley [No 2] [2012] WASC 386 Norris v Gittos [2011] WASC 295 Tull v Allied Express Transport Pty Ltd [2015] FWC 1483 (U2014/15405) Tull v Allied Express Transport Pty Ltd [2015] FWC 3319 (U2014/15405) Tull v Allied Express Transport Pty Ltd [2015] FWCFB 6227 (C2015/4233) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
STEVEN JOHN WOLFE
Defendant
- Plaintiff
AND
ALLIED EXPRESS TRANSPORT PTY LTD
Defendant
Catchwords:
Defamation - Absolute privilege - Australian tribunal - Evidence of witness impugned as defamatory - Practice and procedure - Application for summary judgment - Application granted - Actions dismissed
Legislation:
Defamation Act 2005 (WA)
Fair Work Act 2009 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Defendants' applications for summary judgment allowed
Category: B
Representation:
CIV 2516 of 2015
Counsel:
Plaintiff : In person
Defendant : Ms D de Blank
Solicitors:
Plaintiff : In person
Defendant : MDS Legal
CIV 2517 of 2015
Counsel:
Plaintiff : In person
Defendant : Ms D de Blank
Solicitors:
Plaintiff : In person
Defendant : MDS Legal
Case(s) referred to in judgment(s):
Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204
McJannett v Daley [No 2] [2012] WASC 386
Norris v Gittos [2011] WASC 295
Tull v Allied Express Transport Pty Ltd [2015] FWC 1483 (U2014/15405)
Tull v Allied Express Transport Pty Ltd [2015] FWC 3319 (U2014/15405)
Tull v Allied Express Transport Pty Ltd [2015] FWCFB 6227 (C2015/4233)
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 29 January 2016 and has been edited from the transcript.)
1 I am dealing with two summary judgment applications by the respective defendants against Roger William Tull, the common plaintiff in both actions.
2 The first action, CIV 2516 of 2015, is brought against Steven John Wolfe as defendant.
3 The second action, CIV 2517 of 2015, is brought against the company Allied Express Transport Pty Ltd.
4 In both actions the defendants, commonly represented, have applied for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA) (RSC) and seek that the actions be dismissed, on the basis that each action is hopeless and unarguable.
5 In short, both actions, as seen from the indorsements of claim to the two writs filed by Mr Tull on 23 September 2015, seek defamation damages arising by reason of certain statements allegedly made by Mr Wolfe.
6 In the case of the defendant corporation Allied Express Transport Pty Ltd, it is sued, in effect, vicariously, as being responsible for what its employee, Mr Wolfe, had said, on the basis that Mr Wolfe was, at the time, State Manager in Western Australia for Allied Express.
7 The common applications have been heard together before me today. They are brought by chamber summons issued on behalf of the respective defendants on 14 December 2015, which seek summary dismissal of both actions.
8 Each defendant invokes absolute privilege under defamation law, augmented and codified by s 27 of the Defamation Act 2005 (WA) - see particularly s 27(2)(b), which extends to matters published in the course of proceedings of an 'Australian court' or an 'Australian tribunal'.
9 The term 'Australian tribunal' is defined in the Defamation Act in s 4 as:
[A]ny tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).
10 A Commonwealth industrial tribunal, now known as the Fair Work Commission, established pursuant to the Fair Work Act 2009 (Cth), clearly falls within the definition of being an Australian tribunal.
11 My analysis of the first three paragraphs in both indorsements shows a mistaken reference by Mr Tull to an 'affidavit' by Mr Wolfe, of 10 February 2015. It is apparent from the indorsements to both writs that what is being complained about, for the purposes of his tort of defamation claims, relates to a 'witness statement' signed by Mr Wolfe on 10 February 2015. This witness statement was clearly for the purpose of resisting the unfair dismissal action which was brought in November 2014 against Allied Express by Mr Tull in the Fair Work Commissionat the time.
12 What is also complained by Mr Tull is evidence which Mr Wolfe gave in person before the Fair Work Commission on 10 April 2015. It appears that Mr Wolfe testified on the part of his employer, Allied Express, at those proceedings. Indeed, Mr Wolfe, as it appears, was cross-examined by Mr Tull in those Fair Work Commission proceedings which Mr Tull brought.
13 The Fair Work Commission unfair dismissal claim of Mr Tull was brought under s 394 of the Fair Work Act. It was dismissed by Commissioner Williams on jurisdictional grounds on 19 May 2015: Tull v Allied Express Transport Pty Ltd [2015] FWC 3319 (U2014/15405). The learned Commissioner's reasons are appended to Mr Wolfe's affidavit, affirmed 14 December 2015, in support of the summary judgment application under RSC O 16 to summarily dismiss Mr Tull's actions.
14 The dismissal of Mr Tull's application for unfair dismissal before the Fair Work Commission in 2015 was on the basis of the finding by Commissioner Williams that Mr Tull was an independent owner driver subcontractor, and not an employee and, therefore, Mr Tull was a person over whom the Commission did not have jurisdiction.
15 Grounds for bringing proceedings for unfair dismissal under the Fair Work Act are held by employees, not by independent contractors. Independent contractors' rights and claims are essentially a matter of pure contract law, whereas employees' claims and rights against their employers generally fall within the jurisdiction of the Fair Work Commission. That was Commissioner Williams' ruling on 19 May 2015, dismissing Mr Tull's action.
16 There followed an attempted appeal by Mr Tull lodged against that decision. Permission to appeal was sought. That application was argued before the Full Bench of the Fair Work Commission. Mr Tull's argument was heard on 15 July 2015, over a video link from Perth to Sydney, and before a Full Bench of the Commission, comprising Vice President Catanzariti, Senior Deputy President Drake, and Commissioner Johns.
17 On 9 September 2015, the Full Bench declined leave to Mr Tull to appeal against the rejection of his unfair dismissal action, on grounds of a lack of jurisdiction. Again those reasons are found in Mr Wolfe's affidavit: see Tull v Allied Express Transport Pty Ltd [2015] FWCFB 6227 (C2015/4233).
18 With avenues to pursue relief under the Fair Work Act then closed off by those decisions of the Fair Work Commission, it was then that Mr Tull filed his two writs in this court. That was on 23 September 2015, as I have indicated, separately against Mr Wolfe as a defendant personally in CIV 2516 of 2015, and second, against his former employer, Allied Express Transport Pty Ltd, in CIV 2517 of 2015.
19 It is readily apparent that the starting foundation of all Mr Tull's grievances relates to what happened in an incident of 2014. This was when his relationship was terminated with Allied Express, back on 10 November 2014.
20 Mr Tull expresses in his indorsement his grievance in defamation over Mr Wolfe's evidence, namely, his witness statement, which was assembled and prepared for the purposes of being filed and used, as indeed it was, before Commissioner Williams in the Fair Work Commission.
21 It is abundantly clear in those circumstances, by reference to much law concerning the protections of absolute privilege in defamation, that materials, such as witness statements or affidavits and, indeed, the verbal evidence of witnesses given in chief, under cross-examination, or re-examination, are the subject of an absolute privilege. In other words, even if, theoretically, a witness had given deliberately false and malicious evidence before a court, or before an Australian tribunal (as defined) that could not be the subject of a viable defamation action. Such conduct might be the subject of sanction through distinct proceedings or under the criminal law. But for the purposes of defamation, which is all I am concerned about today, the law on that issue is crystal clear. Its clarity is not in dispute. It was covered by Le Miere J in McJannett v Daley [No 2] [2012] WASC 386, delivered on 17 October 2012. I refer to his Honour's reasons between [10] and [14] of those reasons.
22 I have also dealt previously with the subject matter of absolute privilege in my decision Norris v Gittos [2011] WASC 295. There I dealt with similar issues in the context of the defendants' application for summary judgment. I refer to what I said in those reasons, commencing at [20] and following through to [31].
23 At [33] in Norris I refer to the fact that a court exercising jurisdiction to grant summary judgment under RSC O 14, or the summary dismissal of a plaintiff's action under RSC O 16 applies a high degree of caution before delivering such a ruling.
24 For the present case, however, it is quite clear, on an analysis of all affidavits filed by Mr Tull, and the answering materials on the part of Mr Wolfe and Allied Express, that Mr Tull runs into what is effectively a 'brick wall' executed under s 27 of the Defamation Act.
25 The evidence of Mr Wolfe to the Fair Work Commission in 2015 that Mr Tull is obviously very upset about, was given in part by a witness statement used for the purposes of resolving the Fair Work Commission action. Mr Wolfe then gave further evidence verbally in person before Commissioner Williams in the Fair Work action on 10 April 2015.
26 All that evidence of Mr Wolfe is clearly protected as against defamation exposure by the principle of absolute privilege. Even if, hypothetically - and, of course, both defendants would strongly resist this - all that evidence given was false or malicious, it still cannot be the subject of a valid defamation action, given the state of the law.
27 Le Miere J's citations from the leading authorities in McJannett, explains the policy reason for why the law erects such an impenetrable shield against defamation exposures. At [11] Le Miere J cites Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 from the High Court of Australia, where this was said:
And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses, or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings (213). (footnotes omitted)
28 The only potential matter raised in Mr Tull's affidavits resisting summary judgment was his hopeful invocation of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. Mr Tull's affidavits of 21 December 2015 and 22 December 2015 raise article 12 of the Universal Declaration of Human Rights, which he points out reads:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation …
29 In fact, article 12 goes on to also say, so that it can be read in its completeness:
Everyone has the right to the protection of the law against such interference or attacks.
30 Mr Tull would appear to be contending that because Australia is signatory to the Universal Declaration of Human Rights, in particular, article 12, it somehow impinges to limit the impact of s 27 of the Defamation Act 2005. It does not. That result emerges from a true understanding of the law concerning international treaties, particularly as explained by Dawson J, in Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1. His Honour said:
In any event, the Convention has not at any time formed part of Australian domestic law. As was recently pointed out in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Where such provisions have not been incorporated, they cannot operate as a direct source of individual rights and obligations. (70 - 71)
31 His Honour was referring there to the Convention on the Prevention and Punishment of the Crime of Genocide, ratified by Australia in July 1949 and in force from January 1951. But this is a rule applicable to all conventions.
32 As far as I am aware, the Universal Declaration of Human Rights has not been enacted as part of any domestic Australian law that could arise for valid consideration detracting somehow from the full force and effect of s 27 of the Defamation Act 2005 (WA). But, even if that convention did somehow apply, my analysis is that the provisions of s 27(2), are not at all arbitrary for the purposes of engaging with article 12. They fulfil a distinct policy function and sit, on my assessment, quite comfortably with a full application of that convention and article 12, were it a part of Australian domestic law.
33 My only remaining observations concern what I have then referred to as pars 4 and 5 of Mr Tull's indorsement of claim on 23 September 2013. They are actually seen to be unnumbered in the indorsement of claim of Mr Tull in both actions. But by reference to his action against Mr Wolfe, that is, for CIV 2516 of 2015, Mr Tull makes reference to the alleged clash of evidence given before Commissioner Williams in the Fair Work Commission on 10 April 2015, between testimony of a Ms Sharon Schmechtig contrasted to the testimony of Mr Wolfe. In effect, there is a clash of evidence suggested by Mr Tull over whether Mr Wolfe had spoken to Ms Schmechtig on Monday, 10 November 2014. Mr Tull says Ms Schmechtig's testimony to the Fair Work Commission was that they had not spoken on Monday, 10 November, or that she could not remember speaking to him.
34 But that is an irrelevant consideration for the purposes of a defamation action in the Supreme Court. This court is not at all concerned with clashes of evidence between different witnesses called in the Commonwealth Fair Work Commission. Even if there was something more to it, it would be a matter to be advanced elsewhere than here. It does not bear in any way upon the impenetrability of the absolute privilege against defamation brick wall, to use that expression, effectively now inhibiting Mr Tull under s 27 of the Defamation Act. The alleged evidence clash is, in effect, a wholly irrelevant distraction.
35 Of course, Commissioner Williams in the Fair Work Commission did not, in the end, need to evaluate the clash of evidence, if there was one, on the part of those two witnesses. This was because he found he had no jurisdiction, based on the subcontractor issue inhibiting Mr Tull's action there.
36 The last paragraph of each indorsement again raises a matter that is not at all relevant to a defamation action. This is an issue in terms of Mr Wolfe's evidence about how long security tapes were kept after the incident of 10 November 2014, which saw the contractual relationship with Mr Tull terminated.
37 Irrespective of the underlying rights and wrongs, or merits or deemed merits of what happened that day in 2014, any question about keeping the security recordings, at best, is some sort of evidentiary consideration. I see that it was, in fact, the subject of an application heard by Commissioner Williams, and is the subject of his ruling, appended as an attachment to Mr Wolfe's affidavit, affirmed 14 December 2015. Mr Wolfe appends as his SJW1 the decision at Perth by Commissioner Williams on 3 March 2015, in which he refuses documents requested by Mr Tull in that Fair Work action: Tull v Allied Express Transport Pty Ltd [2015] FWC 1483 (U2014/15405).
38 At [5] of that decision, dealing with item 4, Commissioner Williams said:
The information before the Commission is that there is no video footage for any period prior to January 2015.
39 Now, the purport of paragraph 5 of Mr Tull's indorsements to his writ seeks, in effect, to make something of that issue over whether or not security footage should be capable of being produced or not. That is, in the context of the present defamation proceedings, an irrelevant distraction. It is an issue that should not even be found on a writ seeking damages for a cause of action in defamation.
40 It does not, again, detract from the impenetrability of the brick wall erected, against the merit of pursuing such a defamation claim, by s 27 of the Defamation Act. For that reason it does not inhibit the underlying merit of the applications brought by the defendants on their respective applications, seeking to have Mr Tull's actions dismissed on the basis that they are without merit and unarguable. What Mr Tull is doing is trying to hopelessly pursue claims that are the subject of absolute privilege by s 27 of the Defamation Act.
41 That argument by the defendants is correct and, in the end, is irresistible. It is not detracted from by any international treaty or convention to which Australia is a signatory.
42 On that basis, there is nothing further that can be said by Mr Tull to support these actions being pursued any further. So, even at the very high standard that applies on an application of this kind, it is clear that the defendants' arguments grounded on s 27 of the Defamation Act must prevail.
43 Mr Tull is, of course, unrepresented by any lawyer. He has brought these actions himself. As a case management consideration, I see no need for any statement of claim on his part. That would only exacerbate or intensify what are demonstrably two misconceived and meritless defamation actions. Nor is there any need, as I would see it, for any formal defences to be required of each defendant, explicitly pleading by defence s 27.
44 It is plain on the materials from the defendants put before me that s 27 has been raised. It is a brick wall, in effect, against these actions. Those arguments must succeed.
45 On that basis, I accede to the application of the defendants in both actions to strike out and dismiss the indorsement of claim and each writ. I do so on the basis of RSC O 16, because what is sought to be raised by Mr Tull is demonstrably hopeless and unarguable.
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