Whitehall v Oxborough

[2018] NSWDC 315

District Court

New South Wales

Medium Neutral Citation:	Whitehall v Oxborough [2018] NSWDC 315
Hearing dates:	4 October 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the application of the defendant, these proceedings are stood over to the Defamation List on Thursday 1 November 2018. (2) Stand over the notice to produce issued by the defendant and the capacity and form challenges to the imputations to 1 November 2018. (3) Costs reserved.
Catchwords:	TORT – defamation – application by defendant for form and capacity rulings on imputations – defendant issues notice to produce for court documents in Supreme Court proceedings where the defendant is a party – interim non-publication orders made in the Supreme Court pending an urgent hearing – whether interim orders prevent the hearing of the argument on imputations and/or the production of documents under the notice to produce – applications adjourned pending further Supreme Court orders
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Al Muderis v Duncan (No 4) [2018] NSWSC 925 Bennette v Cohen (2005) 64 NSWLR 81 Bennette v Cohen (2007) Aust Torts Reports 81-897 Bennette v Cohen [2009] NSWCA 60 Calabro v Zappia (2010) 11 DCLR (NSW) 12 Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767 Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345 Craven v Globe Valley Pty Ltd [2018] QDC 155 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) [2018] FCA 1418 Huang v Zhi [2018] VCC 529 Inserve Australia Ltd v Kinane [2018] QCA 116 Marshall v Smith [2013] WASC 432 Mowen v Rockhampton Regional Council [2018] QSC 192 Mowen v State of Queensland [2018] QSC 183 Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 3) [2018] NSWSC 784 Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719
Category:	Procedural and other rulings
Parties:	Plaintiff: Nathaniel John Whitehall Defendant: Terry Oxborough
Representation:	Counsel: Plaintiff: Mr N J Whitehall (in person) Defendant: Mr B Goldsmith (solicitor)   Solicitors: Plaintiff: Mr N J Whitehall (in person) Defendant: Goldsmiths Lawyers
File Number(s):	2018/159739
Publication restriction:	None

Judgment

Background

1. The plaintiff commenced proceedings for defamation arising out of three publications made by the defendant, the first on 19 May 2017 and the other two subsequent publications on 27 August 2017.

2. The proceedings were first listed for directions on 14 June 2018, when the defendant appeared in person. On the second directions hearing date on 23 August 2018, Mr Goldsmith appeared for the defendant. Mr Goldsmith gave notice of objections to the form and capacity of the imputations and sought a date for argument (the plaintiff, who is self-represented, was not present on that day and Mr Goldsmith undertook to inform him). The argument, which required rulings by way of a separate trial pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), was accordingly listed on 4 October 2018.

3. The plaintiff also commenced proceedings against the Civil Aviation Safety Authority (“CASA”): Whitehall v Civil Aviation Safety Authority (2018/257947), which were stood over on the first return date, as the plaintiff did not appear.

4. In the intervening period of time between 23 August and 4 October 2018, the CASA brought proceedings against the plaintiff in the Supreme Court of New South Wales (Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345) for breach of confidence and seeking restraining orders against Mr Whitehall from using confidential information. That confidential material is the first of the three matters complained of in these proceedings, namely a complaint by the defendant to the CASA. The CASA sought orders from the Equity Division of the Supreme Court, in relation to the publication which is the first matter complained of, as follows:

“Upon the plaintiff giving the usual undertaking as to damages, the defendant, his servants and agents be restrained forthwith from further using, publishing or dealing with the subject documents listed in Schedule “A” annexed hereto, or otherwise disclosing or permitting to be disclosed, directly or indirectly, any information contained within the subject documents.”

The hearing before Kunc J

5. Kunc J, who heard the CASA’s application for the order set out in paragraph 4 above, set out the background to the application as follows:

“3. The background to the dispute may be shortly stated. The defendant is a pilot. The plaintiff operates a “notify and report” portal on its website whereby anybody who is concerned about the health or well-being of a pilot is able to report those concerns to the plaintiff. That is what occurred in relation to the defendant.

4. The defendant’s neighbour, a Mr Oxborough, made a report to the plaintiff about the defendant’s mental health and well-being. I will refer to that report and the related documents which are the subject of the present application as “the documents”.

5. The defendant vehemently disagrees with the contents of the documents. He asserts that they were motivated by bad faith and were malicious. Today is not the occasion to debate that issue nor is this the occasion to discuss the rights and wrongs of the reporting scheme operated by the plaintiff.

6. In part relying on the documents, the plaintiff notified the defendant’s employer and began an investigation. The end result of what has occurred is that the defendant’s aviation medical certificate (which, loosely described, might be thought of as a necessary licence for him to be permitted to perform his duties as a pilot) was not renewed. He has been without employment for more than twelve months.

7. There have been two FOI applications by the defendant. The first was an endeavour to obtain copies of the documents. These were provided to him as a result of the first FOI application in a heavily redacted form. He made a second application for what he describes as other documents. He attached the documents to the second FOI application, as a result of which the plaintiff became aware that the defendant actually had copies of the documents. The second FOI application was refused.

8. For a large part of this year there has been correspondence between the plaintiff and the defendant whereby the plaintiff has tried to recover the documents. In the meantime, the defendant has commenced defamation proceedings in the District Court against Mr Oxborough and, he says, against the plaintiff. The plaintiff says that it has not yet been served with a sealed copy of the District Court proceedings against it. The defendant informed the Court that the documents were attached to the statement of claim in the defamation case that he has filed against Mr Oxborough. The defamation proceedings are presently being case managed in the District Court.

9. Of greater moment, for present purposes, are administrative review proceedings that the defendant has brought in an endeavour to overturn the decision that has been made in relation to his aviation medical certificate. It is through those proceedings that the defendant is endeavouring to, as he would have it, recover his livelihood. These proceedings are fixed for hearing in December of this year.

10. The proceedings before this Court were ultimately precipitated by an article which appeared in The Australian newspaper on Monday 20 August 2018. That article was in evidence before the Court. It refers to the proceedings that the defendant has brought in the District Court. The article in The Australian does not disclose the terms, or describe the specific content of, the documents.”

6. Kunc J was of the view that the order sought was too wide, and made the following orders:

“(1) Upon the plaintiff by its counsel giving the usual undertaking as to damages and undertaking to bring an application for expedition as soon as practicable before the Expedition Judge, the defendant, his servants and agents are, subject to order 2 and until further order, restrained from:

(a) further disseminating, publishing or making public the subject documents listed in “Schedule A” annexed hereto (the “Documents”);

(b) adducing or tendering in any pending or proposed judicial or administration proceedings, the Documents or evidence as to the contents of the Documents.

(2) Order 1 does not prevent any conduct of the defendant in relation to the Documents to which the plaintiff has consented in advance in writing to the defendant or where the defenda2nt’s conduct is under compulsion of law.

(3) On or before 4.00pm on 30 August 2018 the plaintiff is to file and serve a Notice of Motion and affidavit in support for expedition of these proceedings.

(4) The Notice of Motion referred to in the preceding order is returnable before the Expedition Judge at 9.30am on 31 August 2018.

(5) There be liberty to any party to apply on two day’s written notice to the Duty Judge.

(6) The costs of the plaintiff’s application for interlocutory relief be costs in the cause.” [Emphasis added]

7. Kunc J noted (at [15]-[16]) that there was what his Honour called “a serious dispute on the facts” as to how the plaintiff came by the document or documents upon which he relied in the two actions for defamation commenced in the Distict Court. His Honour considered there was a serious question to be tried as to whether or not the Civil Aviation Safety Authority was entitled to return of the documents and for orders restraining their publication or dissemination by the Mr Whitehall.

8. His Honour was aware there were proceedings in this court and made the following observations at ([24]-[26]):

“24. At least on an interlocutory basis, I am satisfied that the defendant ought to be prevented from making public the terms of the documents themselves. That recognises the court’s acceptance of the plaintiff’s submission that there is a serious question to be tried about the confidentiality of those documents but will not prevent the defendant from continuing to prepare his various pieces of litigation in reliance on the documents.

25. The time will come when the defendant will wish deploy the documents publicly in his District Court proceedings and the Administrative Appeals Tribunal proceedings. His tendering of the documents in any of those proceedings will, of course, destroy their confidentiality. As it happens, there is a period of time (at least until December in the case of the Administrative Appeals Tribunal) before the defendant would have any reason to have to tender the documents in evidence. There is no suggestion his District Court proceedings will be heard before then.

26. The orders which I will make are intended, for the moment, to prevent the defendant from tendering the documents in any proceedings or otherwise publicising their contents. The impending Administrative Appeals Tribunal proceedings justify these proceedings being resolved on a final basis as soon as possible, so I will refer these proceedings to the Expedition Judge. In other words, the defendant is entitled to know as soon as possible whether he can lawfully attempt to tender the documents in the Administrative Appeals Tribunal proceedings.” [Emphasis added]

9. His Honour also noted (at [31]-[32]):

“31. The defendant made it clear that he wishes to continue his public advocacy that the plaintiff’s reporting scheme was unjust and unfair to pilots. That is his democratic right. The orders which I will shortly make are not intended to prevent him doing so. They are only intended to prevent him making public the terms of the documents.

32. I have also taken into account that the defendant may, in the future, need to show the documents to potential legal advisers or other persons who may be willing to assist him legally or otherwise. The orders will include a mechanism whereby the plaintiff can consent to the defendant using the documents for that or any other proper purpose. If the defendant believes that the plaintiff is unreasonably withholding its consent to him showing the documents to any person, then the defendant will be able to relist proceedings before the Duty Judge to enable that issue to be determined.” [Emphasis added]

10. The Equity proceedings had been given an urgent hearing date as well as a return date of 22 October 2018.

11. The difficulty for me is that each party in these proceedings seeks access to the document the subject of these orders, in circumstances which are likely to amount to their being “deployed” or “tendered” in the sense of being produced to the court and the subject of argument and then of judgment. This arises by reason of Mr Goldsmith’s application not only for a separate trial on capacity but also for documents in answer to a notice to produce to produce, namely the Supreme Court pleadings containing the matter complained (an application which he candidly admitted he had already been made to the CASA but had been refused) and by the plaintiff’s wish to get on with the conduct of these proceedings.

12. Kunc J has made these orders on the understanding that the defamation proceedings are unlikely to be heard prior to the Equity proceedings. His Honour may not have been aware that a date for argument concerning the form and capacity of imputations had already been allocated, and he was certainly unaware that the defendant had served a notice to produce which called for, inter alia, production of the document the subject of the order.

13. Both the plaintiff and defendant took a robust approach as to whether Kunc J’s orders prevented compliance with the notice to produce and the hearing of the argument concerning form and capacity of imputations. The plaintiff suggested that the argument could still go ahead in relation to the remaining two publications and the defendant file a defence in relation to those publications. Mr Goldsmith foreshadowed an application to dismiss the proceedings as an abuse of process, sought to have the argument on imputations heard and submitted that the plaintiff’s production of the document under a notice to produce would amount to “compulsion of law”, the term used in order (2) by Kunc J in relation to the adducing or tendering in any pending or proposed judicial or administrative proceedings the documents in evidence.

14. The precise meaning of “compulsion of law” is one of some nicety, in that there is no “compulsion of law” for the parties to conduct separate trials as to the form and capacity of imputations or the seeking of documents pursuant to a notice to produce. I will set out my reasons for concern in relation to each of the applications before the court.

The defendant’s notice to produce

15. Independently of the difficulties caused by Kunc J’s interim orders, the notice to produce issued by Mr Goldsmith on behalf of his client is problematic, for the following reasons:

1. The issuing of a notice to produce at this early stage of the litigation is, in defamation actions, premature: Marshall v Smith [2013] WASC 432.

2. The notice to produce does not go to any issue in the litigation in its current state that Mr Goldsmith was able to identify: Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719. If the issue is to rely upon the Supreme Court summons to argue that the matter complained of was obtained illegally, the contents of the CASA pleadings will not establish that. It is an interesting question of law as to whether defamation proceedings can be commenced where the matter complained of was illegally obtained, such as an illegally recorded conversation (Bennette v Cohen [2009] NSWCA 60; Bennette v Cohen (2007) Aust Torts Reports 81-897; Bennette v Cohen (2005) 64 NSWLR 81) or a witness statement which was stolen from an opposing party (Calabro v Zappia (2010) 11 DCLR (NSW) 12), but no such application is before the court at present.

3. Case management in the Defamation List proceeds by way of discovery and interrogatories, and parties should not use subpoenae or notices to produce to opponents as a substitute: see Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) [2018] FCA 1418 at [8] – [12] (note the reference to inter partes subpoenae at [8]) and Marshall v Smith.

4. The CASA has refused to provide these documents to Mr Goldsmith and may wish to be heard in relation to their production in this court.

16. Accordingly the notice to produce, if called upon on the next occasion that these proceedings are before the court, may well suffer from other defects which means that the orders sought by Kunc J are irrelevant.

The defendant’s application for a separate trial on capacity and challenges to form of the imputations

17. The online nature of most publications sued on in defamation proceedings means that injunctive relief is an increasingly common order made by the court in interim or final relief. This is further complicated when orders in relation to one of the parties are made by another court. The potential for one, the other or both of the parties becoming involved in a technical contempt of court is to be avoided wherever possible.

18. Courts need to be particularly attentive to such a possibility in defamation litigation because, in recent months, contempt of court applications in relation to defamation proceedings appear to have been on the rise. A special factor for concern is that most of these contempt of court applications have been brought against litigants in person and relate to similar facts to those here, namely that the material published is the subject of court orders restricting publication. These problems have arisen a number of times over the past six months:

1. In Huang v Zhi [2018] VCC 529, a defendant who breached injunctions made as part of a defamation judgment was convicted of contempt of court for continuing to make comments on a website, and ordered to pay a fine of $12,000. At the time of publication, the defendant (who had not participated in the trial) was unrepresented.

2. In Al Muderis v Duncan (No 4) [2018] NSWSC 925, a self-represented defendant in defamation proceedings who breached non-publication orders was found guilty of four charges as to civil contempt and seven as to both criminal and civil contempt.

3. In August 2018, a person conducting a website was convicted and was sentenced to a term of imprisonment in relation to ongoing publication of material on a website (see, inter alia, Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 3) [2018] NSWSC 784). I note there are references to claims of a similar nature being under consideration in Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767.

4. There have also been applications to deal with a self-represented person for contempt in Queensland, in Inserve Australia Ltd v Kinane [2018] QCA 116, Craven v Globe Valley Pty Ltd [2018] QDC 155, Mowen v Rockhampton Regional Council [2018] QSC 192 and Mowen v State of Queensland [2018] QSC 183. In each case, asserted conduct in contempt arose from continued publications.

19. Whether the frequency with which courts make orders restraining publication has increased, or whether the nature of defamation actions plays some role in the sudden increase in contempt proceedings arising out of publication of defamatory material, courts clearly need to be alert to the dangers of members of the public exposing themselves to the risk of being fined or imprisoned for contempt of court.

20. In addition, I would need to ensure that any judgment I hand down (which would need to discuss and repeat large parts, if not the whole, of the publication the subject of the orders) did not defeat the purpose of the orders made by Kunc J. That difficulty may benefit from clarification in the course of the proceedings before the Supreme Court.

21. There is a simple solution to this problem. Kunc J has carefully set out a procedure for the seeking of permission from the CASA as well as for the consideration of further orders by way of case management. As the proceedings in the Supreme Court are listed for directions on 22 October 2018, I have suggested to the plaintiff that he should consider seeking clarification or assistance from the Supreme Court as to the manner in which he should conduct these proceedings, the proceedings referred to by Kunc J at [21], [22], [25], [26] and [30] of his Honour’s judgment, as well as the second set of defamation proceedings commenced by the plaintiff in this court against the CASA.

19. On that basis, I have stood the proceedings over, to enable the plaintiff to seek appropriate guidance in the Supreme Court proceedings. I have provided these reasons in order that the situation of both parties to this litigation is clear to the court hearing the CASA’s applications. It may also be appropriate for the Supreme Court to consider, if the proceedings are to be the subject of any judgment by me on interlocutory applications of the kind set out above, whether any restrictions on publication such as a suppression order should be placed on that judgment.

20. I have reserved the issue of costs.

Orders

1. On the application of the defendant, these proceedings are stood over to the Defamation List on Thursday 1 November 2018.

2. Stand over the notice to produce issued by the defendant and the capacity and form challenges to the imputations to 1 November 2018.

3. Costs reserved.

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Decision last updated: 29 October 2018