FEDERAL COURT OF AUSTRALIA
Webb v Commonwealth of Australia [2021] FCA 1215
ORDERS
NSD 376 of 2021 BETWEEN: GAYLE MAREE WEBB
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.The applicant’s statement of claim filed on 3 May 2021…
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- Case
- [2021] FCA 1215
- Decision Date
CaseChat Overview and Summary
The court found that the applicant's statement of claim did not identify the specific matters she complained of, when such matters were published and to whom, or demonstrate that any actionable publication occurred within the 12 months prior to the commencement of the proceedings. The statement of claim also failed to plead the defamatory imputations alleged to be carried by the matters complained of. The court considered the respondent's submissions that the applicant's pleadings were likely to cause prejudice, embarrassment, or delay in the proceedings and did not disclose a reasonable cause of action. The court also took into account the applicant's unfamiliarity with the rules of pleading and the drafting of a statement of claim, and the potential for the proceedings to be used as a platform for ventilating generalised grievances.
In light of these considerations, the court granted the respondent's application to strike out the applicant's statement of claim. However, the court also granted the applicant leave to replead, as there was an opportunity to remedy the deficiencies in the statement of claim. The guiding principle in determining whether to grant leave to replead is doing what is just, taking into account the position of both parties and the need to prevent the unnecessary expenditure of public and private resources.
The final orders of the court were as follows: the applicant's statement of claim filed on 3 May 2021 was struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth); the applicant was granted leave to replead the cause of action struck out in order 1 above, to be filed and served by 4pm on Thursday 4 November 2021; and the applicant was to pay the costs of the respondent to be agreed or assessed.
Orders
Orders of the court
1. The applicant’s statement of claim filed on 3 May 2021 be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).
2. The applicant be granted leave to replead the cause of action struck out in order 1 above, to be filed and served by 4pm on Thursday 4 November 2021.
3. The applicant is to pay the costs of the respondent to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent submitted that the applicant makes a series of general complaints about her interactions with the Commonwealth, none of which have any relevance to the determination of her defamation claim. It was submitted that it “appears there is a prospect that these proceedings would be used as a platform for ventilating generalised grievances, rather than pursuing a specifically identified complaint of defamation”. In relation to the applicant’s submission summarised at [31], the respondent also submitted that the applicant has made “extreme and inherently improbable allegations [about the business records relied on by the respondent], which the applicant makes casually, without offering any examples or evidence in support”. From that it was submitted that the repetition of implausible assertions about the integrity of documents would inevitably increase the length, complexity and cost of the proceedings far beyond what is proportionate.Consideration I accept the respondent’s submission that the pleading does not identify the specific matters of which the applicant complains. It fails to identify when such matters were published and to whom; demonstrate that any actionable publication occurred within the 12 months prior to the commencement of the proceedings; or plead the defamatory imputations which are alleged to be carried by the matters complained. I am mindful that the applicant being unrepresented is not unsurprisingly unfamiliar with the rules of pleading and the drafting of a statement of claim, and is therefore at a disadvantage. This calls for particular caution to be exercised: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536 per Kirby P; cited in Re Morton, Ex parte Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 (Morton) at 513-514; Taylor v Department of Health (Cth) [2020] FCA 1364 at [60]. On the other hand the Court "must ... have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources": Corporate Affairs Commission v Solomon, Court of Appeal, unreported, 1 November 1989 per Mahoney AP, cited in Morton at 514. In that context, and taking into account the caution with which an application for strike out is approached, nonetheless the statement of claim does not fulfil its necessary function in any way. It is likely to cause prejudice, embarrassment or delay in the proceedings and fails to disclose a reasonable cause of action. In those circumstances, the statement of claim is to be struck out, with the issue being whether the applicant should be given leave to replead. Ordinarily, a party whose pleadings have been struck out will be afforded an opportunity to replead so long as it is clear that there is purpose in doing so and that the further time and opportunity will have utility. That is, where an amendment may remedy the deficiencies. The guiding principle is doing what is just: Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 71 ALJR 767 at 774-775 per Kirby J; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [175] per Kirby J (in dissent); Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153 (Nulyarimma v Thompson) at [208], Merkel J (Wilcox and Whitlam J relevantly agreed). Where no reasonable cause of action is available to be pleaded, liberty to replead may be refused: Takemoto v Moody’s Investor Service Pty Ltd [2014] FCA 1081 at [87] per Flick J.