Vescio v Guardianship Tribunal of New South Wales

[2009] NSWDC 341

Reported Decision: 10 DCLR (NSW) 83

District Court

CITATION:	Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341
HEARING DATE(S):	9, 10 and 16 November, 15 December 2009
JUDGMENT DATE:	15 December 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) The plaintiff’s proceedings filed on 23 June 2009 and notice of motion dismissed pursuant to r 13.4 and struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW). (2) The plaintiff pay the costs of this motion and the defendant’s costs of these proceedings. (3) Exhibits retained for 28 days.
CATCHWORDS:	TORT - defamation - absolute privilege - plaintiff sues Guardianship Tribunal - application for summary judgment - s 27 Defamation Act 2005 (NSW) - s 74 Guardianship Act 1987 (NSW) - proceedings dismissed with costs
LEGISLATION CITED:	Defamation Act 2005 (NSW), s 27 Guardianship Act 1987 (NSW), s 74 Limitation Act 1969 (NSW), ss 14B and 56A Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 14.30(2), 15.19(1)(e) and 15.19(2)
CASES CITED:	Al-Shennag v Statewide Roads Ltd and Anor [2006] NSWSC 1226 Boland v Dillon (No.2) [2007] NSWDC 77 Cabassi v Vila (1940) 64 CLR 130 Cumberland v Clarke (1996) 39 NSWLR 514 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hargraves v Bretherton [1959] 1 QB 45 Hercules v Phease [1994] 2 VR 411 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 Lee v Cha [2008] NSWCA 13 Malouf v Malouf [2006] NSWCA 83 Mann v O’Neill (1997) 191 CLR 204 R v Beydoun (1990) 32 NSWLR 256 Rajski v Carson (1986) 4 NSWLR 735 Von Reisner v Commonwealth (No 2) [2009] FCAFC 172
PARTIES:	Plaintiff: Carmelo Michael Vescio Defendant: Guardianship Tribunal of New South Wales
FILE NUMBER(S):	2714 of 2008
COUNSEL:	Plaintiff: In Person Defendant: Ms S Chrysanthou
SOLICITORS:	Plaintiff: In Person Defendant: Crown Solicitor’s Office

Judgment

[1] This is a summary judgment application brought by the defendant by way of notice of motion filed on 11 August 2009 seeking orders that the plaintiff’s proceedings be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or, in the alternative, struck out pursuant to r 14.28 UCPR, together with an order for costs.

[2] The plaintiff has filed a notice of motion in court seeking orders that the defendant’s notice of motion be struck out and that the hearing proceed by way of trial by jury as well as an order for costs.

[3] The plaintiff relies on four affidavits sworn on 23 June, 3 September, 9 and 15 December 2009. He has provided me with written submissions dated 15 December 2009 (as well as submissions on previous occasions) and I have also heard his oral submissions this morning.

[4] The plaintiff’s statement of claim seeks damages for defamation for “defaming the plaintiff continueously [sic] for a period of 5 years” in that it has published allegations that the plaintiff is unfit and unreliable to carry on with the power of attorney for his mother which was registered on 26 February 2003. The specific occasions of publication referred to are 2 April 2004, 27 January 2005, 7 April 2005, “August 2006”, 20 September 2006, 28 March 2007 and 3 July 2008.

[5] The matters complained of are not attached to the statement of claim, but they have been provided as an annexure to an affidavit of publication of the defendant’s deponent Mr Bruce Cantrill of the Crown Solicitor’s Office sworn on 3 September 2009.

[6] The statement of claim is accompanied by an affidavit sworn by the plaintiff to which he annexes some portion of the reasons attached by the Guardianship Tribunal and setting out some background information as well as some statements about the law of defamation and injury to reputation.

[7] It is clear both from the plaintiff’s affidavit of 18 June 2009 and the affidavit of publication of the defendant sworn 3 September 2009 that all of the statements complained about by the plaintiff are in fact judgments and orders made by the Guardianship Tribunal in an application for a guardianship order, review of an enduring power of attorney and an application for a guardianship and financial management order where the applicants were Mr Manual Vescio, Ms Miranda Vescio and Ms Rina Ruperto. The applicant in another application before the Guardianship Tribunal was the plaintiff in these proceedings, Mr Vescio. The tribunal members handed down reasons for decision dated 2 April 2004 in which they extensively reviewed the evidence before them in a long and careful judgment of 21 pages. Essentially the Tribunal determined not to conduct a review of the enduring power of attorney executed by Mrs Vescio in favour of the plaintiff but instead to proceed with the matter by way of an application for a financial management order. The Tribunal held that Mrs Vescio was a person who had a disability and was at least partially incapable of managing her affairs, that a guardian should be appointed, and that the circumstances of the case were such that it was not appropriate to appoint a person other than the Public Guardian to make decisions in relation to her accommodation and services. Further, in relation to her financial management, this was to be managed by the Protective Commissioner. The Tribunal’s orders for financial management were also given a review date.

The applications before me

[8] The defendant asks me to determine, as a separate question of law pursuant to r 28.2 UCPR, whether there is any cause of action, and whether these proceedings should be struck out summarily. The Court has power to dismiss the proceedings pursuant to r 13.4 or to strike out any part-pleading or part of a pleading in accordance with r 14.28(1), the terms of which enable applications for dismissal of entire proceedings or the striking out of any part thereof.

[9] The applicable principles for the striking out of causes of action are of long standing: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. They have been recently been reviewed by both the NSW Court of Appeal: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [67] and by the High Court: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6].

[10] The defendant seeks orders for the dismissal of these proceedings on two bases, namely that the publications are each protected by the defence of absolute privilege and in those circumstances the entire claim should be dismissed, and that all but one of the publications (3 July 2008) are time-barred.

[11] The claim for summary judgment for absolute privilege is put forward on three bases:

(i) pursuant to the common law;

(ii) pursuant to s 27 Defamation Act 2005 (NSW); and

(iii) pursuant to s 74 Guardianship Act 1987 (NSW).

[12] The defendant opposes this application. One of the bases was that a defence had not been filed formally pleading these matters. I adjourned these proceedings part-heard on 13 November 2009 to enable the filing of a defence. However, the issues between the parties are clear, and the defence that has been filed is no different to the matters that are set out in the defendant’s written submissions.

[13] The plaintiff essentially contends that these are matters of fact which should not be disposed of on a summary basis and that immunity from suit is neither available nor a basis upon which these proceedings should be struck out. The plaintiff asks for his case to be sent immediately before a jury so that he can be judged by his “peers”.

[14] However, as Levine J pointed out in Cumberland v Clarke (1996) 39 NSWLR 514 at 515 and following, while the advisability of striking out an action on an interlocutory basis where a defence such as contextual truth or innocent dissemination has been questioned, the Court has always been prepared to entertain applications to strike out statements of claim where there is a defence of absolute privilege: see for example Rajski v Carson (1986) 4 NSWLR 735 at 743-744. Levine J noted in Cumberland v Clarke that Cabassi v Vila (1940) 64 CLR 130 went to the High Court on a demurrer.

[15] This is not a case where there are disputed questions of fact as to the identity of the publications which are the subject of the claim for defamation. It is clear beyond doubt that these publications are the judgments of the Guardianship Tribunal.

[16] Having made these introductory comments, I now turn to a consideration of the three bases upon which the application to dismiss the proceedings is brought.

Common Law

[17] Although the defence of absolute privilege is set out in s 27 Defamation Act, the Act does not preclude defences under the general law (s 24). Accordingly, it is appropriate to start with the common law defence.

[18] As Kirby J noted in Rajski v Carson, the Courts will exercise the utmost caution when considering any claim of absolute privilege. In Rajski, the use of the word “purpose” was sufficient to raise for the Court of Appeal questions of disputed fact as to the purpose of the publication. However, no such problem arises here.

[19] The privilege arises as a result of the occasion, not the contents of the communication, or the person making it: Hercules v Phease [1994] 2 VR 411 at 417 per Marks J. However, in the present case, the persons making the publication are, according to the defendant, the Guardianship Tribunal by its servants or agents, and the tribunal members who made and handed down the decision.

[20] For the privilege to arise, the statements and questions must be before a court or any other body exercising judicial functions, such as a statutory tribunal. Judicial officers, or tribunal members exercising a judicial function, who make statements or hand down judgments in the course of these proceedings are entitled to the privilege, even where their statements are malicious or irrelevant. This is important, because the statements that are complained of are in fact the statements of the tribunal members in the proceedings, not those of the witnesses.

[21] I should briefly note that the privilege extends to oral statements, statements in the originating process, in pleadings, or in other documents produced in evidence or filed in these proceedings: Mann v O’Neill (1997) 191 CLR 204 at 211; see also the authorities collected by Levine J in Cumberland v Clarke.

[22] The Guardianship Tribunal is a tribunal exercising a judicial function by reason of the powers conferred on it by Part 6 Guardianship Act 1987 (NSW) and each of the six matters complained of was published by the defendant in the course of the exercise of that function.

[23] I should also note that this immunity extends not only to defamation proceedings but to any civil action of the kind described by Hunt CJ at CL in R v Beydoun (1990) 32 NSWLR 256 at 259-60, including damages for false evidence (as to which see Hargraves v Bretherton [1959] 1 QB 45 at 51).

[24] In other words, even if the plaintiff were to reframe his cause of action as a claim for injurious falsehood or negligent misstatement, these causes of action (in addition to any other problems they might have) would similarly not be available. Each of the publications listed by the plaintiff in the statement of claim was published by the defendant in the course of the exercise of its function as a tribunal, which is a judicial function by reason of the powers conferred on it by Part 6 of the Guardianship Act.

Section 27 Defamation Act

[25] Section 27 of the Defamation Act provides:

“(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:



(a) …[this provision is irrelevant].

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):


(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii) the publication of matter while giving evidence before the court or tribunal, and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or


(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or

(d) the matter is published by a person or body in any circumstances specified in Schedule 1.”

[26] As the Guardianship Tribunal is an “Australian Tribunal” for the purposes of s 27(2), each of the publications listed by the plaintiff in the statement of claim falls within the parameters of s 27(2)(b), and is therefore published on an occasion protected by absolute privilege.

Section 74 Guardianship Act

[27] Section 74 Guardianship Act provides:

“Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.

Note: Section 27(2)(b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following:



(a) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),

(b) the publication of matter while giving evidence before the court or tribunal,

(c) the publication of matter in any judgment, order or other determination of the court or tribunal.


The term “Australian tribunal” is defined in section 4 of that Act to mean any 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).

The Guardianship Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under section 60(1) of this Act to take evidence from witnesses under oath.”

[28] Each of the matters complained of falls within the categories set out in this section, and is therefore protected by absolute privilege.

Proceedings brought against judges and tribunals arising out of the exercise of their jurisdiction

[29] I should briefly note that the immunity of judges and courts relates not only to defamation actions but immunity from suit of any kind for any such act: Von Reisner v Commonwealth (No 2) [2009] FCAFC 172 at [21] per the Court (application by a litigant in person for the judge to pay legal costs rejected).

Conclusions concerning application to dismiss the proceedings

[30] Each of the publications identified in the statement of claim was published on an occasion protected at common law, pursuant to s 27 Defamation Act and pursuant to s 74 Guardianship Act. Accordingly, the statement of claim should be dismissed with costs pursuant to r 13.4 UCPR. I am further of the view that the cause of action is so hopeless as to amount to an abuse of the process of the Court and would warrant being struck out in its entirety pursuant to r 14.28(1)(c) UCPR.

Limitation problems

[31] All but one of the publications in the statement of claim are published outside the limitation period.

[32] The applicable limitation period for defamation actions in New South Wales is one year from the date of publication (s 14B Limitation Act 1969 (NSW)). The circumstances in which the period can be extended set out in s 56A Limitation Act 1969 and require the plaintiff to establish that it was not reasonable in the circumstances to have commenced proceedings within one year, but with a limitation of up to three years from the date of publication.

[33] Section 56A (as amended) applies to publications after 1 January 2006: Al-Shennag v Statewide Roads Ltd and Anor [2006] NSWSC 1226 at [15]. However, it should be noted that s 14B was enacted in 17 February 2003 and applies to all publications after that date: see Boland v Dillon (No.2) [2007] NSWDC 77.

[34] The Guardianship Tribunal judgment of 2 April 2004 and the publication on 27 January and 7 April 2005 fall outside the three year period. The statement of claim was filed on 23 June 2009 and no publication prior to 23 June 2006 can be the subject of any application to extend time.

[35] The plaintiff has today brought an application to extend time in relation to the publications of “August 2006”, 20 September 2006 and 28 March 2007. Although any application would be hopeless, having regard to my findings concerning absolute privilege, I should note that there is also a failure to satisfy s 56A(2), which requires me to find whether there was a reasonable explanation for failing to commence proceedings. Mr Vescio was present at and participated in these proceedings. His submission that he did not sue because he hoped things would “get better” is inconsistent with his submission that the defendant is involved in a conspiracy and vendetta against him.

[36] By reason of the limitation provisions, the causes of action for defamation would therefore not be maintainable in relation to all publications save for the publication of 3 July 2008.

Defects on the face of the pleading

[37] I note a number of complaints have been raised in relation to defects in the pleading, such as the claim for liquidated damages rather than an unliquidated sum, the failure to attach any of the matters complained of, failure to particularise defamatory meanings and the failure to identify the part or parts of the matter complained of conveying such meanings (see rr 14.30(2), 15.19(1)(e) and 15.19(2) UCPR).

[38] I also note, having read the Tribunal decision of 3 July 2008, that it does not contain any material capable, in my view, of conveying an imputation the plaintiff is unfit and unreliable to carry on with the power of attorney. It describes an urgent application to review the guardianship order, which the plaintiff sought to revoke, notes that he did not attend court and declines to review the guardianship order.

[39] The plaintiff attended this court in person. He has sought and obtained two adjournments to present his material, namely 4 September and 13 November 2009. On each occasion I invited him to take as long as he wished to tell me about these proceedings. He has told me this morning that if I do not decide in his favour and send his case immediately to a jury for assessment of damages (and he has provided some examples of the damages he seeks to be awarded in his affidavit), I will be guilty of perversion of justice.

[40] I am aware of the Court of Appeal’s concerns about the needs of this Court to take into account the ability of litigants in person to understand complex litigation such as defamation. However, in my view, the insightful comments of Bryson JA in Malouf v Malouf [2006] NSWCA 83 are of more assistance to trial judges than imposing, on both the Court and the opposing parties, the obligation of explaining to and counselling litigants in person concerning a wide variety of issues, including legal issues, court procedure and how to go about running their case, of the kind referred to by the Court of Appeal in Lee v Cha [2008] NSWCA 13.

ORDERS

(1) The plaintiff’s proceedings filed on 23 June 2009 and notice of motion dismissed pursuant to r 13.4 and struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW).

(2) The plaintiff pay the costs of this motion and the defendant’s costs of these proceedings.

(3) Exhibits retained for 28 days.

******