Webb v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Webb v Commonwealth of Australia [2021] FCA 1215  

File number: NSD 376 of 2021
Judgment of: ABRAHAM J
Date of judgment: 7 October 2021
Catchwords: PRACTICE AND PROCEDURE – application for pleadings to be struck out under r 16.21 of Federal Court Rules 2011 (Cth) – whether statement of claim likely to cause prejudice, embarrassment and delay – whether statement of claim fails to disclose reasonable cause of action – application for strike out granted – whether applicant should have leave to replead – leave to replead granted
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules2011 (Cth) rr 16.02, 16.21

Defamation Act 2005 (NSW)

Limitation Act 1969 (NSW) s 14B
Cases cited:

Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434

Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86

Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263

Faruqi v Latham [2018] FCA 1328

Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440

Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276

Meckiff v Simpson [1968] VR 62

Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153

Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361

Plaintiff M83A-2019 v Morrison (No 2) [2020] FCA 1198

Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325

Re Morton, Ex parte Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Takemoto v Moody’s Investor Service Pty Ltd [2014] FCA 1081

Taylor v Department of Health (Cth) [2020] FCA 1364

Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 71 ALJR 767

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298

Wride v Schulze [2004] FCAFC 216

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 56
Date of hearing: 20 September 2021
Counsel for the Applicant: Applicant appeared in person
Counsel for the Respondent: Mr N Olson
Solicitor for the Respondent: MinterEllison

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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Details
Case
[2021] FCA 1215
Decision Date

CaseChat Overview and Summary

The case of Webb v Commonwealth of Australia involved a defamation claim brought by the applicant, Gayle Webb, against the Commonwealth of Australia. The applicant sought to replead her statement of claim after the respondent moved to strike it out for failing to disclose a reasonable cause of action and likely causing prejudice, embarrassment, or delay. The primary legal issue was whether the applicant's statement of claim should be struck out under r 16.21 of the Federal Court Rules 2011 (Cth), and if so, whether the applicant should be granted leave to replead.

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

Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the Federal Court of Australia Act 1976 (Cth), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Chandrasekaran at [101]. Evidence The respondent read the affidavit of Thomas Miller dated 15 July 2021 in support of the application, which was directed to the issue of repleading. This was opposed by the applicant on the basis that it contained “false and misleading and wrong information.” Annexed to the affidavit was, inter alia, a transcript of a conversation between the National Customer Service Line and Ms Webb from 23 September 2019. Although the applicant did not dispute the conversation, she complained that there was missing conversations that led to this annexed excerpt. I admitted the affidavit. The applicant read the affidavit of Gayle Webb dated 9 August 2021 in opposing the application. Submissions Respondent’s submission The respondent submitted that to make out a cause of action for defamation, the applicant must establish that the respondent published “matter” of and concerning her which carried one or more defamatory imputations. The term “matter” is defined in s 4 of the Defamation Act 2005 (NSW), and its counterparts in other jurisdictions. “Published” in this context means that the allegedly defamatory matter must have been read or otherwise comprehended by a third party, that is, someone other than the applicant or the respondent. It submitted that the pleading is not capable of establishing any of the essential matters required to make out a cause of action. The respondent read the affidavit of Thomas Miller in support of the application, which was particularly directed to the question of leave to replead. The respondent made submissions directed at the pleadings which included [10], recited above at [1]. The respondent submitted it does not plead any specific “matters” within the definition of s 4 which are alleged other than by reference to Schedule A. In relation to the ten “articles” the respondent submitted the following:(1)Articles 1 and 2 are letters from Services Australia to the applicant dated 29 July 2020 and 25 November 2020. (2)Articles 3 and 4 are “incident reports” in respect of incidents occurring on 6 May 2019 and 11 September 2019 involving the applicant. It is not apparent from the pleading where or how she alleges these incident reports were recorded. Article 3 contains no information about the nature of the incident. Article 4 states “JS [job seeker] went on a rant, was verbally abusive and threatening to staff onsite” and “Severity Level: MODERATE”. (3)Article 5 is a document titled “Incident Report Alert Popup”, apparently dated 21 January 2020. The applicant asserts this document was generated by Services Australia and distributed to “DESE [Department of Education, Skills and Employment] and other departments/agencies and 3rd parties”. The document contains no information about the nature of the “incident” beyond the words “Severity: SERIOUS” in the top right-hand corner. (4)Articles 6, 7 and 8 were obtained by the applicant pursuant to her freedom of information requests to DESE, but substantial parts of each document were redacted prior to release. They are alleged to relate to a “disability assessment” performed on the applicant by “SA [Services Australia]/Medicare, Department of Health”, but there is no evidence of such assessment beyond the words “Disability completed” (Article 6) and “Disability assessment outcome: withdrawn” (Article 8). It is alleged that “These departments then published this information with their Service Providers and other 3rd parties”.(5)Article 9 is an online claim form which was provided by Services Australia to the applicant for completion. The applicant complains that she was “targeted” by the form’s pro forma answer “I am not in prison and/or a psychiatric institution and was not in prison and/or a psychiatric institution for more than 25 weeks in total during the 2014-2015 financial year”, apparently on the basis that this pro forma answer might imply that she was in prison or a psychiatric institution for less than a total of 25 weeks.(6)Article 10 is apparently a print-out of the applicant’s “file”. There is no basis in the pleading to be satisfied as to where this file was maintained or who had access to it. The applicant complains about the fact that Services Australia and DESE “providers” have annotated the file with the comment that “The Customer would benefit from referral to either SEE or [blank]”. The Applicant alleges that the [blank] is “AMEP”. SEE is the Skills for Education and Employment program and AMEP is the Adult Migrant English Program.

Decision

Reasons for decision

This is not an assessment of the substantive merits of any claim, but is a matter of pleadings. The applicant is unrepresented, and has submitted that she now understands more clearly what is required. It is unclear what material the applicant has and the basis on which she has to found her claim. Ordinarily an applicant is given leave to replead. In those circumstances I grant leave to replead. Conclusion The applicant’s statement of claim is struck out, with leave to replead granted. The applicant is to pay the costs of the respondent, to be agreed or assessed.

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.