Woolf v Brandt

[2023] NSWCA 290

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Woolf v Brandt [2023] NSWCA 290

Hearing dates:

30 November 2023

Date of orders:

30 November 2023

Decision date:

05 December 2023

Before:

Kirk JA; Adamson JA

Decision:

1.   Leave to appeal refused.

2.   Order the applicant to pay the respondent’s costs.

3. The respondent to file and serve submissions and evidence in relation to his application that his costs of the proceedings be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) by 4 December 2023.

4.   The applicant to file and serve any submissions and evidence in response by 12 December 2023.

5.   The respondent to file and serve any submissions and evidence in reply by 14 December 2023.

Catchwords:

LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — abuse of process — defamation proceedings — applicant’s predominant purpose an ulterior purpose to maintain contact with respondent — whether finding of ulterior purpose erroneous — whether ulterior purpose sufficient to make proceedings abuse of process where also pursuing legitimate remedy — ulterior purpose need not be sole purpose

LEAVE TO APPEAL — PRACTICE AND PROCEDURE — alleged denial of procedural fairness — where applicant read extensive affidavit near the end of hearing — where applicant sent submissions to primary judge without leave after judgment reserved

LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — Anshun estoppel — whether subsequent interlocutory application for dismissal can be brought in same proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 58, 60

Defamation Act 2005 (NSW), ss 12A, 27

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Browne v Dunn (1894) 6 R 67

Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; [1915] HCA 56

Hanna v Maks [2003] NSWSC 158

Packer v Meagher [1984] 3 NSWLR 486

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Varawa v Howard Smith Company Ltd (1911) 13 CLR 35; [1911] HCA 46

Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:

Principal judgment

Parties:

Richard Woolf (Applicant)
Nicholas Brandt (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
T Smartt (Respondent)

Solicitors:
Not applicable (Applicant)
Youth Law Australia (Respondent)

File Number(s):

2023/214839

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Woolf v Brandt (No 2) [2023] NSWDC 184

Date of Decision:

7 June 2023

Before:

Gibson DCJ

File Number(s):

2022/135926

HEADNOTE

[This headnote is not to be read as part of the judgment]

Richard Woolf (the applicant) sought leave to appeal against an order made by Gibson DCJ (the primary judge) summarily dismissing proceedings which he had brought in the District Court claiming damages for defamation against Nicholas Brandt (the respondent).

The parties had been in a relationship which ended in late 2019 or in 2020. The single matter relevantly complained of in the defamation claim was a Facebook post made on 13 May 2021 in which the respondent stated, inter alia, that the applicant was “a guy who’s been stalking me and has been obsessed with me” and asking that if anyone is contacted by the applicant to “please let me know so I can report it to the authorities if needed”. The applicant pleaded that the imputations said to arise from the matter complained of were that he had stalked and harassed the respondent and that his conduct was such that he should be reported to the police. At the applicant’s request, the respondent took down the post.

The defamation proceedings were dismissed by the primary judge on the basis that they were an abuse of process because the applicant’s predominant purpose in maintaining the proceedings was an ulterior one: namely, to continue contact with the respondent and maintain pressure on him as part of a recriminatory process following the break-up of their relationship (the ulterior purpose finding).

The primary judge took into account an affidavit that was read by the applicant’s counsel at trial “on instructions” near the end of the hearing which was “quite extensive”, which had neither been filed nor served and which was not initially identified to be relied upon by his counsel until after a short adjournment requested by the applicant to speak to his legal advisers. The primary judge also took into account submissions which were sent by the applicant after the judgment had been reserved which extended beyond the leave granted to his counsel to make submissions regarding costs. The first ground of appeal was an alleged denial of procedural fairness related to this material. The applicant alleged error in the primary judge making the ulterior purpose finding in circumstances where this proposition (based on the affidavit) had not been put to the applicant in cross-examination and where her Honour took into account the written submissions which she had been sent after reserving her decision (ground one).

The applicant also sought leave to appeal on the following grounds: that the ulterior purpose finding was erroneous (ground two), that even if it had been established, it was insufficient to make the proceedings an abuse of process since the applicant was also pursuing a legitimate remedy (ground three), the primary judge erroneously relied on Hanna v Maks [2003] NSWSC 158 (ground four) and the respondent’s application for summary dismissal ought not to have been entertained as he was subject to an Anshun estoppel, as the respondent’s earlier strike-out application was unsuccessful (ground five).

The Court held (Kirk and Adamson JJA) refusing leave to appeal:

Ground one

1. In the circumstances of this case, the respondent’s counsel’s decision not to cross-examine the applicant in circumstances where the applicant was plainly on notice of the respondent’s intention to rely on his alleged ulterior purpose was not only open but accorded with his obligation under s 56(4)(a) of the Civil Procedure Act 2005 (NSW): [21]-[23].

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, applied.

1. The principles of procedural fairness did not necessarily prohibit the primary judge from taking the applicant’s submissions into account against him. It is not for the applicant to complain that the primary judge considered and took into account his submissions when this was his purpose in sending them to her Honour. In these circumstances, there is no reasonably clear injustice which goes beyond that which is merely arguable: [27]-[28].

Ground two

1. The primary judge’s reasons indicate that the matters raised by the respondent in his application for summary dismissal would, without more, have been insufficient to discharge the onus of proving that the proceedings were an abuse of process on the basis that the applicant’s sole or predominant purpose was an ulterior one. However, the applicant’s admissions in his affidavit evidence enabled the primary judge to draw the inference that his predominant purpose was an ulterior one. No error in this finding, going beyond a merely arguable one, has been demonstrated: [43]-[45].

Ground three

1. The ulterior purpose need not be the litigant’s sole purpose. That there may be a parallel purpose which is legitimate does not detract from the finding of abuse of process where the ulterior purpose is the predominant one. The primary judge found that the applicant was abusing the processes of the Court notwithstanding that he may have obtained vindication and damages if the proceedings concluded in his favour. The applicant has not established an error of principle or any injustice beyond that which is merely arguable: [46]-[48].

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, applied.

Ground four

1. The proceedings were an abuse of process because the proper purpose of the proceedings – being to vindicate the reputation of the plaintiff – was not the predominant purpose and there was, in both the present matter and Hanna v Maks, a predominant ulterior purpose. There is no discernible error or reasonably clear injustice which rises beyond the merely arguable: [51].

Ground five

1. The present case does not give rise to an Anshun estoppel. The respondent’s strike-out application, as part of the same proceedings, was entirely separate and distinct from his application to dismiss the proceedings on the basis that they were an abuse of process. This ground does not raise any issue of principle or reasonably clear injustice which is more than merely arguable: [57]-[58].

JUDGMENT

1. THE COURT: Richard Woolf (the applicant) sought leave to appeal against the order made by Gibson DCJ (the primary judge) on 7 June 2023 summarily dismissing proceedings he had brought in the District Court in which he claimed damages for defamation against Nicholas Brandt (the respondent). The parties had been in a relationship which ended in late 2019 or in 2020. Leave to appeal is required as the decision is interlocutory: s 101(2)(e) of the Supreme Court Act 1970 (NSW).

2. The application for leave was heard on 30 November 2023. Following a short adjournment, this Court made the following orders:

“1.   Leave to appeal refused.

2.   Order the applicant to pay the respondent’s costs.”

3. The following directions were also made regarding an application for a gross sum costs order which will be determined on the papers:

“3. The respondent to file and serve submissions and evidence in relation to his application that his costs of the proceedings be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) by 4 December 2023.

4.   The applicant to file and serve any submissions and evidence in response by 12 December 2023.

5.   The respondent to file and serve any submissions and evidence in reply by 14 December 2023.”

4. The Court’s reasons for refusing leave to appeal with costs are set out below.

5. It is unnecessary to recount the lengthy procedural history of the matter since the only order in respect of which leave to appeal is sought is the order for summary dismissal of the defamation claim based on a single matter complained of. The matter complained of comprised a single post on Facebook, which the respondent posted on 13 May 2021 as follows:

“Hey all,

Just a heads up there’s a guy who’s been stalking me and has been obsessed with me, his name is Richard woolf, I have chosen to no longer associate with him and he is not taking it well, if you receive any text, message or email please let me know so I can report it to the authorities if needed, I’m sorry in advance for anything he sends you.”

6. The applicant pleaded the following imputations said to arise from the matter complained of:

“(a)   The plaintiff stalked the defendant.

(b)   The plaintiff harassed the defendant.

(c)   The plaintiff’s conduct in stalking the defendant is such that he should be reported to the police.”

7. At the applicant’s request, the respondent took down the post, on 22 May 2021. At that time, the respondent had 52 Facebook friends but the applicant could prove only that it had been seen by three of them.

8. The basis for the primary judge’s order dismissing the proceedings was that they were an abuse of process because the applicant’s predominant purpose in maintaining the proceedings was an ulterior one: namely, to continue contact with the respondent and to maintain pressure on him as part of a recriminatory process following the break-up of their relationship (the ulterior purpose finding). Her Honour took into account, in making this finding, the applicant’s affidavit which was read at the conclusion of the hearing as well as submissions which the applicant had sent to the primary judge without leave after her Honour had reserved her decision the conclusion of the hearing.

9. To obtain leave to appeal, the applicant needs to show that there was an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).

10. As this Court (Basten JA, Tobias AJA agreeing) confirmed in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with “the dictates of justice”, applies to leave applications, as does s 60 of the Civil Procedure Act which provides:

“60 Proportionality of costs

In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.”

11. The applicant, by a draft amended notice of appeal accepted by this Court (without opposition) on 30 November 2023, seeks leave to appeal on the following grounds:

1. there was a denial of procedural fairness in the primary judge making the ulterior purpose finding in circumstances where:

1. the proposition which underpinned the finding had not been put to the applicant in cross-examination; and

2. the primary judge took into account written submissions which had been sent to the primary judge after her Honour had reserved her decision;

2. the ulterior purpose finding was erroneous and had not been established to the requisite standard;

3. even if the ulterior purpose had been established, this was insufficient to make the proceedings an abuse of process since the applicant was also pursuing a legitimate remedy;

4. the primary judge erroneously relied on Hanna v Maks [2003] NSWSC 158;

5. the respondent’s application for summary dismissal ought not to have been entertained as he was subject to an Anshun estoppel (named after Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) as his earlier strike-out application, heard on 9 December 2022, was unsuccessful.

12. In order to determine the question of leave, it is necessary to address the grounds sufficiently to assess whether they raise an issue of principle, a question of public importance or give rise to a reasonably clear injustice which is more than merely arguable.

The primary judge’s reasons

13. The primary judge made the following findings about what led to the taking down of the matter complained of:

“10    At 4.19 pm on 13 May 2021, the plaintiff responded:

‘Hey. Please take down your Facebook message, it really isn’t nice nor fair, and is really sad hostile behaviour from you. I spoke to my therapist and he agrees my behaviour isn’t stalking. Please don’t escalate things more than they already are. Take down the post. And simply talk to me in person, like you once asked me.’

11   The following day, 14 May 2021, the plaintiff sent the following Facebook message:

‘So I have obtained some legal advice and sadly the Facebook message is illegal and considered defamation of character because it explicitly mentions me by name and accuses me of stalking which I have not done. So if it isn’t removed in the next 24 hours I will be taking legal action against you which will probably involve an order against you which will impact your ability to get a job especially in the police force and army.’

12   The defendant did take the message down as requested and in addition, in a message dated 25 May 2021, he sent a letter of explanation to their mutual friends Skye and Angelus saying that, while he was not saying that what he had said was untrue, it should be borne in mind that the plaintiff had helped him through tough times and had made a lot of sacrifices to help him.”

14. Mr Smartt, who appeared on behalf of the respondent in the Court below and in this Court, summarised the evidence which had led to the posting of the matter complained of, which the primary judge set out (and accepted) in the following passage from the judgment:

“Text messages and calls on 9 – 10 May 2021

31   Mr Smartt summarises these as follows:

(a)   In the days shortly before the matter complained of was published, the plaintiff repeatedly texted and called the defendant. On 9 May 2021 he started telephoning the defendant at 4:09 am and continued to do so even after midnight … These calls continued after into the early hours of 10 May, after which the defendant replied “Ive [sic] got work in 6 hours, go away”. In those texts and calls, the plaintiff begged the defendant to speak to him. When the defendant did not respond, the plaintiff bombarded the defendant with calls and texts …. The defendant eventually replied telling the plaintiff to “chill out” and said that he didn’t feel like talking …. The plaintiff did not honour that request, but continued sending defendant messages, including a demand that the defendant speak to him. According to the plaintiff, if the defendant acceded to that demand, then he would be “free” …. The plaintiff continued these calls and texts despite the lack of response …. The defendant finally responded: “Stop fucking calling me, get a life, jesus christ …. The plaintiff did not stop calling the defendant and instead replied: “Stop ignoring me and call me. Be a decent friend for once in your life”…”

(b)   The plaintiff continued calling the defendant incessantly, including after the plaintiff realised that the defendant had blocked his calls …. The plaintiff continued to text the defendant. This prompted the defendant to say “STOP” …. The plaintiff continued to text the defendant. The plaintiff said: “I think [I] was in the ‘devalue’ phase, now I’m in the ‘discard’ phase”. The defendant replied: “Or maybe you’ve been harassing me more and more and I’m sick of it” ….

(c)   The plaintiff called the defendant again. When this call went unanswered, the plaintiff began abusing the defendant, saying: “[i]t’s taken me 9 months to get to the bottom of your disorder and pathology, and it’s incredibly sad, but you’ll be too proud to backtrack on blaming me for everything, or to stop stonewalling, so I’ll never get closure, meanwhile you’ll punish and resent me” ….

(d)   The plaintiff additionally referred to their mutual friend, Chris, and said: “I look forward to contacting him and spilling the truth about you. Have it your way” …. The defendant replied: “he’s not intended in talking to you, do not harass him” ….

32   This warning about contacting “Chris” is of relevance as it suggests a reason for the contents of the matter complained of.”

[Evidentiary references omitted.]

15. The dispositive reasons for the primary judge’s order are as follows:

“59   Mr Smartt is on surer ground, however, when he submits that the proceedings have been brought ‘not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers’ (Williams v Spautz at 526 – 527). He submitted that I should infer such a purpose from the plaintiff’s course of conduct, including the commencement of these proceedings and the complaint to police, both of which were brought after considerable delay and apparently in an attempt to gain the defendant’s attention and/or to force him to continue to have a relationship with the plaintiff.

60   This argument would very likely not have succeeded on the material tendered by Mr Smartt, but I now have better evidence of the plaintiff’s wishes and desires, in the form of the affidavit which the plaintiff requested should be put before me at the conclusion of the argument, as well as his written submissions dated 29 May and 6 June 2023. I am conscious that neither counsel has addressed me on these submissions, but they addressed me on the affidavit which is in similar terms. Its relevance to this application was stressed by Mr Smartt, and the similar content of the plaintiff’s further submissions entitles me to have regard to their contents.

61   What all these documents sent to the court by the plaintiff make very clear is that the plaintiff is obsessed by his feelings for the defendant, and is using this litigation for that purpose rather than for vindication. He asserts that it is ‘critically important’ (affidavit, paragraph 12) that the parties had an agreement that they would always take each other’s calls, even when they were fighting. He wants the defendant to continue to remain in touch with him while insulting and abusing him, and sees his angry response and stalking behaviour as justified in those circumstances. He attaches what he calls “a conspectus” of the plaintiff saying the sort of things he wants to hear, in a suitably humble way. Some of these are set out above, but one that I particularly noticed is a message the defendant sent to the plaintiff on 15 February 2019:

‘You’re such a great person, a great friend, and I feel like I’m [nothing] but a self-absorbed narcissistic piece of shit who only treats you like shit.’

62   In summary, the new material supplied by the plaintiff makes it clear he wants the defendant to keep in touch with him and to keep sending these messages. If the defendant will not do so (and it is clear that this is the case) he will force him to do by using this litigation. There is a level of rage in this material (particularly in relation to the solicitors and counsel formerly and currently retained) that is frightening.

63   In the unusual situation where the plaintiff has proffered this material himself, I am entitled to rely upon it as demonstrating his true intentions. I am satisfied from this material that the plaintiff is relying upon this litigation as a way of keeping pressure on the defendant, not only to remain in contact with him, but also to return to his former servile role.

64   This is the same kind of misuse of the litigation process identified in Wallis v Valentine and Hanna v Maks. The courts should not countenance the bringing of such actions where one or both of the parties is seeking to misuse the litigation process, as well as waste the time of the court (Ugur v Attorney General for New South Wales at [70]) as part of a recriminatory process for a relationship that has ended badly.

65   For the above reasons, these proceedings should be struck out as an abuse of process.”

Ground 1: alleged denial of procedural fairness

16. As set out above, there are two aspects to this ground: the applicant’s affidavit and his submissions. The importance of the primary judge taking this material into account appears from the extract from her Honour’s reasons set out above.

17. The circumstances in which the applicant’s affidavit was read and the material provided to the primary judge are significant. The hearing of the respondent’s application for summary dismissal commenced on 25 May 2023 and was completed by 1.20pm (the primary judge sat extended hours as there was a hearing in another matter listed for 2pm). When the applicant’s counsel, Mr Rasmussen, identified the evidence to be relied on in opposition to the respondent’s application, he did not read the applicant’s affidavit affirmed on 25 May 2023.

18. During the course of the hearing, the primary judge raised the question whether she could take judicial notice of the likely costs of the proceedings if they were not dismissed. Mr Rasmussen submitted that she could not and contended that the likely costs would have to be the subject of evidence, including from the respondent’s solicitor. The primary judge indicated that she would give the applicant’s counsel an opportunity to put in a submission with reference to any relevant authority. The primary judge indicated that she would be sitting in Newcastle for the next fortnight and that her decision was likely to be reserved until after that date.

19. It was at this point that the applicant himself addressed the primary judge and sought a short adjournment to speak to his legal advisers. Although the court had been sitting since 9am, and it was then 1.05pm, her Honour granted a short adjournment for that purpose. When Mr Rasmussen returned to court after conferring with the applicant, he indicated that “on instructions” he had been asked to read the applicant's affidavit affirmed that day (Thursday 25 May 2023), which had neither been filed nor served. He said of the affidavit that “It’s quite extensive. I don't expect anyone to read it now”. The primary judge indicated that she would come back at 2pm to hear whether Mr Smartt objected to the affidavit.

20. Mr Smartt indicated that he could read it and inform the primary judge of any objection before the Court adjourned. The following exchanges ensued:

“SMARTT: I’ve read it, your Honour. I don’t – I’m happy to let it in. I hope your Honour reads it in light of my submissions.

HER HONOUR: Yes, I think I can. What I will do is this, go away and have a look. If you decide that you do need to address some point in it, then what I will do, since I’ve asked Mr Rasmussen to provide me with submissions by Monday on that issue, I would ask you to do so as well, and Mr Rasmussen, if you do get such submissions, which I frankly think are unlikely, and you feel there’s a need to reply, you can just contact my associate. Would that be an acceptable way to go ahead?

SMARTT: Yes, and I’ll just say, I don’t anticipate doing submissions, but don’t take my lack of submissions as agreeing with it or not challenging it.

HER HONOUR: Mr Smartt, I’m going to assume you’re furiously opposed to everything that Mr Rasmussen and those who sit behind you say, but I must say, I can understand that very often, to members of the public, the rules that courts impose seem arbitrary and highly artificial and technical, and I think there’s much to be said for bending them, even in unusual circumstances such as this. So, Mr Woolf, your affidavit has gone in, and I will read it carefully. I don’t think I’ll need to hear submissions about it from you, Mr Rasmussen, because you’ve pretty much covered this territory already, as I see it.

RASMUSSEN: Yes. Well, the concern might be that I haven’t, your Honour.

HER HONOUR: Well look, you’ve got the same thing. You’ve got a right to provide submissions by Monday. If there’s anything that’s particularly troubling you, you can let me know and I’ll see what I can do. But remember that I’ll be in Newcastle for two weeks. So, don’t assume that I’ll be around to hear your application. I apologise profusely to my staff and the Court reporter for keeping you until 20 past, especially since we’ve got a 2 o’clock hearing, but sometimes these things have to happen.”

21. The primary judge’s reference to “the following Monday” is a reference to Monday 29 May 2023. On 29 May 2023, then again on 6 June 2023, the applicant sent his own submissions to the primary judge, despite the fact that he had counsel briefed. These submissions extended beyond the leave which was granted to his counsel (which was limited to providing an authority for the proposition that evidence of costs was required before a judge could take into account likely quantum) and addressed several topics.

Allegation of lack of procedural fairness regarding the applicant’s affidavit

22. The applicant submitted that it was unfair for the primary judge to make the ulterior purpose finding when it had not been put to him in cross-examination.

23. Mr Smartt was entitled to cross-examine the applicant once his affidavit had been read. He chose not to do so. Generally, an opposing party is obliged to put to a witness, including a witness who is also a party, as a matter of fairness, propositions on which the opposing party proposes to rely, in order to give the witness an opportunity of responding to the proposition: Browne v Dunn (1894) 6 R 67. However, this “rule” is not invariable. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, Hunt J in his lengthy discussion at 15-26 of the so-called rule in Browne v Dunn, summarised the principle as follows:

“… unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.”

[Emphasis added.]

24. As the narrative set out above demonstrates, the respondent’s application was that the proceedings were an abuse of process because of the applicant’s ulterior purpose in maintaining them. The respondent submitted that the applicant’s ulterior purpose was to continue to engage with the respondent and to punish him and take revenge on him for terminating the relationship. It was only after both parties had finally addressed that the applicant sought to have his affidavit read by his counsel. At that time, the primary judge had a hearing in another matter which was to commence at 2pm and was to be sitting in Newcastle for the following fortnight. Mr Smartt chose not to cross-examine the applicant in circumstances where the applicant was plainly on notice of the respondent’s intention to rely on his alleged ulterior purpose. Further, he expressly indicated that the matters in the affidavit were disputed.

25. Mr Smartt’s forensic decision was not only open but it also accorded with his obligation under s 56(4)(a) of the Civil Procedure Act not to cause the respondent to be in breach of his duty pursuant to s 56(3) to assist the court to further “the overriding purpose” in s 56(1) (of … “facilitat[ing] the just, quick and cheap resolution of the real issues in the proceedings”) and “to that effect, to participate in the processes of the court.” That decision was made in circumstances where the applicant himself had requested a large indulgence by being permitted to read an extensive affidavit at the very end of the hearing. In permitting this course, the primary judge spoke of bending the rules to allow the affidavit to be read. In these circumstances it is disingenuous for the applicant to complain of a breach of procedural fairness.

26. For these reasons, the first part of ground 1 does not give rise to any reasonably clear injustice going beyond what is no more than merely arguable. Nor does it raise an issue of principle or public importance.

Alleged denial of procedural fairness in taking into account the submissions sent to the primary judge by the applicant himself

27. As is evident from the above narrative, the submissions which the applicant sent to the primary judge did not fall within the confines of the leave granted by the primary judge. The submissions sent on 29 May 2023 were within the time period allowed but their subject matter was outside the confines and the submissions dated on 6 June 2023 breached both the time and subject matter limitations of the grant of leave. Further, they were sent without the consent of the respondent.

28. The applicant can be taken to have sent the material to the primary judge with a view to influencing her Honour in determining the respondent’s application. Her Honour was entitled to read the submissions, at least to ascertain whether they fell within the grant of leave. The transcript extracted above reveals that the primary judge was prepared to allow a certain latitude to accord procedural fairness to the parties, having regard to the limits on available court time due to the primary judge’s other court commitments.

29. In the circumstances, the principles of procedural fairness prohibited the primary judge from taking the submissions into account against the respondent (who had not had an opportunity to be heard on the applicant’s submissions). However, these principles did not necessarily prohibit her Honour from taking the submissions into account against the applicant (and in favour of the respondent), since it was the applicant who wanted her Honour to take them into account.

30. The limits to which judicial officers may have regard to submissions sent after judgment has been reserved do not arise for consideration in the present case. It is not for the applicant to complain that the primary judge considered and took into account his submissions when this was his purpose in sending them to her Honour. In these circumstances, there is no reasonably clear injustice which goes beyond that which is merely arguable. A grant of leave is, accordingly, not warranted.

Ground 2: the ulterior purpose finding was erroneous

The relevant principles

31. The primary judge correctly identified the relevant principles which apply in an application such as the respondent’s application for summary dismissal on the grounds of abuse of process. These principles and examples of their application are as follows.

32. In Varawa v Howard Smith Company Ltd (1911) 13 CLR 35 at 91; [1911] HCA 46 (Varawa), Isaacs J said:

“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose, and as ex hypothesi the final judgment however given will have no reference to the ulterior purpose, there is no necessity to await the irrelevant determination.”

[Emphasis added.]

33. The limits of the concept of abuse of process were considered in Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; [1915] HCA 56 (Dowling) where the respondent society acquired a debt owing by the appellant in order, following the making of a sequestration order, to find out on examination of the appellant, the identity of the person behind the appellant’s publication of defamatory material.

34. The High Court, by majority (Isaacs and Powers JJ, Griffiths CJ dissenting) held that there was no abuse of process. However at 524 Isaacs J postulated an example which would have constituted an abuse of process. His Honour said:

“Now, in the present case, there is no doubt the petitioning creditor wishes to use the process—that is, to attain by its means the very object for which it is designed by law, namely, sequestration, and this, notwithstanding there is a desire to use the sequestration afterwards for a certain purpose. But that subsequent purpose can only be reached, and is only intended by the creditor to be reached, if reached at all, by the act of the Court itself in compelling an answer to the questions put. … If the facts had been different, if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process.”

[Emphasis added and citations omitted.]

35. In Williams v Spautz (1992) 174 CLR 509 at 520, [1992] HCA 34, the respondent lecturer commenced an action against a university for wrongful dismissal. He later laid informations (alleging criminal defamation and a conspiracy to defame him) against the applicants, who were various officers of the university, including Professor Williams. The applicants applied for declarations which were made by the trial judge on the basis that the proceedings were an abuse of process because the respondent’s predominant purpose in bringing and maintaining them was to exert pressure on the university to reinstate him and/or to agree to a favourable settlement. An appeal against the declarations was allowed.

36. The applicants appealed to the High Court, which allowed the appeal by majority (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). The majority said that “the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides.” Thus, in Dowling, the purpose of the proceedings was to obtain a sequestration order, which was a result for which the law provided. However, their Honours held that a court could intervene to prevent an abuse of process “if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression” (at 526-527). It was necessary that the improper purpose be the litigant’s predominant purpose (at 529).

37. The Court held that the proceedings were an abuse of process because the respondent’s predominant purpose in bringing them was to put pressure on the university to reinstate him or settle the dispute on terms favourable to him. Their Honours considered that the applicants had discharged the “heavy” onus (529) of establishing abuse of process. The Court said further, at 529-530:

“Although the primary purpose of the criminal action for defamation was to punish a defamer by peaceful process of law, thereby discouraging resort to violence and preventing disorder, it was recognised that the action served a purpose in vindicating the reputation of the injured party. …

On the other hand, Law Commissions have acknowledged that criminal defamation may serve some purpose in vindicating the reputation of the injured party in cases where the defamer is impecunious …

Nevertheless, the fundamental purpose of criminal action for defamation, as with other criminal proceedings, is to decide whether the accused has engaged in conduct which amounts to an offence and is deserving of punishment …. Consequently, we do not regard the primary judge's finding that vindication of his reputation was a subsidiary motive of Dr Spautz as detracting from the overall finding that his predominant purpose was improper in that he sought to use the threat of proceedings and the maintenance of them as a means of securing his reinstatement.”

[Citations and references omitted.]

38. Varawa was applied in Packer v Meagher [1984] 3 NSWLR 486, in which Kerry Packer, a media magnate, sued Douglas Meagher QC, who was senior counsel assisting the Royal Commission inquiring into the Federal Ship Painters and Dockers Union. The National Times newspaper published confidential case summaries produced by the Royal Commission which were said to relate to Mr Packer (alleging that he was involved in criminal acts, including unlawful importation and distribution of drugs and tax evasion). Mr Packer alleged that Mr Meagher had published the case summaries to the newspaper, knowing and intending them to be published by the newspaper. In his defence, Mr Meagher denied that he had published them to the newspaper. Mr Packer subsequently filed a notice of discontinuance, which Mr Meagher submitted ought be struck out, to permit him to apply for the proceedings to be summarily dismissed as an abuse of process.

39. Hunt J granted Mr Meagher's applications and struck out the notice of discontinuance and summarily dismissed the proceedings as an abuse of process. His Honour noted that the “fundamental purpose of civil defamation proceedings is to vindicate and to protect the reputation of the person defamed” (at 492). However, of the case at hand he said (at 500):

“All of these circumstances suggest to me very strongly that there may indeed have been a vindictive desire on the part of the plaintiff to make the defendant as uncomfortable as possible, for as long as possible, by having these proceedings hanging over his head in order to punish him for his part in assisting in the compilation of the report of the Royal Commission. Whether or not such a vindictive desire existed, I am nevertheless satisfied that the plaintiff’s proceedings were brought for the dominant ulterior and collateral purpose of investigating the conduct of Mr Costigan’s Royal Commission, and not to vindicate the plaintiff’s own reputation. I am satisfied that such a purpose is not one for which defamation proceedings are properly designed and exist. I am satisfied also that the defendant has succeeded in the task of establishing, upon strong evidence, that the plaintiff's proceedings are an abuse of process.”

40. The purposes of the jurisdiction to summarily dismiss proceedings which are an abuse of process was recently identified in Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [18]:

“The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.”

[Citations omitted and emphasis added.]

41. Where an abuse of process is said to arise because of an improper purpose it is not necessary to determine whether a fair trial can be held: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [24].

Consideration of ground 2

42. The applicant submitted that the primary judge erred in making the ulterior purpose finding. He contended that the evidence before her Honour was insufficient to warrant such a finding in circumstances where he had been defamed and was entitled to pursue a remedy by proceedings for defamation in order to “nail the lie” and vindicate his reputation by a judgment and an award of damages. In the alternative, he submitted that even if the primary judge was satisfied that he had commenced and was maintaining the proceedings for the ulterior purpose alleged by the respondent, the respondent had failed to establish to the requisite standard that it was either his sole or pre-dominant purpose.

43. In support of his application for summary dismissal, the respondent had relied on the following (before the applicant’s affidavit was read):

1. the strong prospects of the defence of justification being made out, having regard to the number of texts sent and calls attempted by the applicant to the respondent in the two days leading up to and including the date of publication of the matter complained of;

2. the prospect that, if the defence of justification were not made out, the damages awarded would be very modest, having regard to the limited publication, the likely contextual imputations and the principles of mitigation;

3. the prospect that, even if the award of damages were modest, the respondent would be unable to pay damages or meet any costs order because of his impecuniosity; and

4. the circumstance that the respondent had, on 10 May 2023 and 11 May 2023, made, and the applicant had not accepted, two offers to settle the proceedings on the basis that the respondent would forego the benefit of the previous costs order made in his favour and that there would be no order as to costs.

44. These matters, without more, would have left open the reasonable possibility that the applicant’s purpose in maintaining the proceedings was to vindicate his reputation. After all, it is the experience of courts that plaintiffs in proceedings for defamation may regret invoking the court’s jurisdiction because of the ensuing publicity which may be accorded to them, which may result in further publication of the matter complained of, but in circumstances of absolute privilege which applies to reporting of court proceedings, which is a defence to defamation: s 27 of the Defamation Act . Moreover, commonly the costs incurred are very large compared to the amount of damages ultimately awarded. However, these matters are not a sufficient basis for a finding of abuse of process by reason of an ulterior purpose.

45. The primary judge’s reasons indicate that these matters would, without more, have been insufficient to discharge the heavy onus which lay on the respondent of proving that the proceedings were an abuse of process on the basis that the applicant’s sole or predominant purpose was an ulterior one. Indeed, her Honour said at [79] of the reasons:

“[The respondent’s application] succeeded essentially because of the new evidence provided by the plaintiff on the day of the hearing of the application and subsequently.”

46. These admissions (being statements by the applicant of his wishes and desires which were against his interest in the context of the litigation) meant that the evidence otherwise relied on by the respondent was cast in a different light and enabled the primary judge to draw the inference that the applicant’s predominant purpose was an ulterior one. So much is also apparent from [61]-[62] of the primary judge’s reasons where her Honour found that the applicant’s affidavit and submissions betrayed (and established) that his predominant reason for maintaining the proceedings was to “keep … pressure on the [respondent], not only to remain in contact with him, but also to return to [the respondent’s] former servile role.”

47. Her Honour’s finding rested on evidence for which the applicant himself was the source. His statements in his affidavit and submissions, as described by the primary judge in the reasons, were the foundation for the inference which her Honour was entitled to draw. No error in this finding, going beyond a merely arguable one, has been demonstrated. A grant of leave is, accordingly, not warranted.

Ground 3: alleged error in dismissal because the applicant was also pursuing the proceedings for a legitimate purpose

48. Ground 3 is related to ground 2. As the majority in Williams v Spautz held (at 529), the circumstance that there may be a parallel purpose which is, or would otherwise be, legitimate does not detract from the finding of abuse of process where the ulterior purpose is the predominant one. The ulterior purpose need not be the litigant’s sole purpose. In Williams v Spautz the High Court upheld the stay of proceedings even taking account of the trial judge's finding that a subsidiary motive of Dr Spautz was to vindicate his reputation (at 530).

49. Here, her Honour found that the applicant was abusing the processes of the Court by pursuing the defamation proceedings for an ulterior purpose, for which the law did not provide, notwithstanding that if the proceedings concluded in the applicant’s favour, the applicant might have obtained vindication and damages. This finding is consistent with Williams v Spautz and with the example postulated by Isaacs J in Dowling set out above.

50. In ground 3, the applicant has not established an error of principle or any injustice beyond that which is merely arguable.

Ground 4: alleged erroneous application of Hanna v Maks

51. The primary judge referred to Hanna v Maks in the following passage in her Honour’s reasons:

“50   Over the past decades, courts have warned that it is improper for the predominant purpose of the defamation action to be for the purpose of punishment, intimidation or revenge, as opposed to vindication of reputation. In Hanna v Maks at [42], Levine J stated:

‘As I have remarked, the Court does not lightly dismiss an action as an abuse of process (see Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 498H per Scarman LJ). However, in the instant case I am persuaded that not only were these proceedings commenced against all the defendants, including the first and second, after a threat constituted by the Notice to Produce and thus amount to an abuse upon their initiation, I am also persuaded in relation to the first and second defendants (in relation to the latter especially in the light of my findings as to her non-involvement) that the purpose, and that the predominant purpose of the plaintiff is not to vindicate his reputation but to punish, out of revenge, the first and second defendants for having cooperated with Commonwealth authorities in giving evidence in the Local Court leading to his conviction of a criminal offence. The institution and purported prosecution of proceedings in those circumstances clearly amounts to an abuse of the Court’s process (see also Packer v Meagher (1984) 3 NSWLR 486 at 492D).’

51 The factual circumstances in that case were, however, extraordinary. The plaintiff brought proceedings for contraventions of ss 300(1)(a) and (1)(b) of the Crimes Act 1900 (NSW) (false instrument); s 328 of the Crimes Act (perjury); s 319 of the Crimes Act (intention to pervert the course of justice); s 102 of the Crimes Act (threatening to accuse the plaintiff of serious indictable offence) and s 285(1) of the Migration Act 1958 (Cth) (advertising that another person, not registered as an agent, gives immigration assistance). He also sought leave to commence proceedings against the first and second defendants for criminal defamation (Defamation Act 1974 (NSW), s 50(4)). In the civil action for defamation which was the subject of the dismissal application, he sued more than fifty persons for an article in an Arabic language newspaper reporting court proceedings in which his certificate as a migration agent had been cancelled. Those sued included persons who had advertised in the newspaper. Many could not read English and were in some distress.

52   The newspaper defendants argued that this was a vendetta and campaign to put the newspaper out of business in revenge for their having assisted the prosecution in prosecuting the plaintiff, a submission that Levine J accepted. Levine J added that the statement of claim was hopelessly drafted (at [3]) but this was a minor matter compared to the other issues in the application for dismissal.

53   In the two decades which have passed since Levine J’s observations, complaints about defamation actions being brought to crush or punish the defending party have become more frequent. …

54   … More recently, however, there has been legislative concern as to the need to alleviate the financial and emotional stress caused by publications of a limited and trivial nature, particularly where there is a waste of court resources. These concerns form part of the rationale for a jurisdictional requirement for preliminary determination of “serious harm” (s 10A of the Act) in Australian defamation law, a provision based on the apparent success of s 1 of the UK legislation ….

55   The matter complained of the subject of this application was published before those reforms came into force, and this application must be dealt with on the basis of the common law principles applicable to such publications. The question is whether the evidence reaches the very high level identified by Levine J in Hanna v Maks.”

[Emphasis added.]

52. As extracted above, at [64] of the reasons, her Honour described the applicant’s conduct in maintaining the proceedings as “the same kind of misuse of the litigation process identified in … Hanna v Maks.”

53. The facts of the present matter are different from those in Hanna v Maks (as summarised in the extract in [50] of the primary judge’s reasons), as her Honour indicated she was well aware in referring to the “extraordinary” factual circumstances of that case. Nevertheless, the cases bear similarities. Both proceedings were summarily dismissed on the basis of findings that the plaintiff suing for defamation had a predominant ulterior purpose of revenge or recrimination against the defendant as a result of a grievance harboured by the plaintiff. Thus, the proceedings were an abuse of process because the proper purpose of those proceedings – being to vindicate the reputation of the plaintiff – was, even if a purpose of the plaintiff, not the predominant one and there was, in both cases, a predominant ulterior purpose. We discern no error of principle or reasonably clear injustice which rises beyond the merely arguable.

Ground 5: alleged Anshun estoppel against the respondent

54. The applicant submitted that the respondent was estopped, on the basis of Anshun, from applying for summary dismissal because he had previously moved to strike out the proceedings.

55. The background to the respondent’s previous application to strike out the proceedings is as follows. On 11 May 2022, the applicant commenced the proceedings by statement of claim in which he alleged two matters complained of: the first published on 11 May 2021 and the second published on 28 August 2021. The respondent applied for an order that the proceedings be summarily dismissed on the basis that the applicant had failed to provide adequate particulars of publishing and downloading (for the first matter complained of) and that the applicant had failed to comply with the concerns notice procedures set out in s 12A of the Defamation Act (for the second matter complained of).

56. The primary judge heard the respondent’s application on 9 December 2022. On 14 December 2022, her Honour published reasons and made orders, which included an order requiring the applicant to provide particulars of publication of the first matter complained of and an order that the paragraphs of the statement of claim which related to the second matter complained of be “struck out and dismissed”. On 21 December 2022, the applicant filed an amended statement of claim which deleted those paragraphs which had been struck out by the primary judge and which was confined to a claim with respect to the first matter complained of.

57. As referred to above, the respondent made the present application by notice of motion filed on 14 April 2023.

58. In the Court below, counsel for the applicant submitted, in opposition to the application for summary dismissal, that the respondent was prevented by an Anshun estoppel from bringing the application because he ought to have brought it at the same time as the previous application heard on 9 December 2022. The primary judge’s reasons for rejecting that argument were:

“78   The earlier action falls into this category of interlocutory orders. The plaintiff did provide the missing particulars, and the action should have moved forward on that basis. The subsequent delays and the striking out of the second matter complained of, in circumstances where no attempt to restore it has yet been made, were new events triggering this application.

79   While there is much to be said for running an application of this kind at the same time as the other strike-out applications, like a series of Russian Doll alternatives, the failure to do so does not amount to an Anshun estoppel. In addition, the defendant’s applications on the abuse of process and proportionality issues depend a great deal on the plaintiff’s actions (or lack thereof) after the second matter complained of was struck out and, even more relevantly, succeeded essentially because of the new evidence provided by the plaintiff on the day of the hearing of the application and subsequently.

80   The defendant is not estopped by Anshun principles from bringing this application.”

59. Anshun was concerned with whether a party to previous proceedings was estopped from raising an issue in subsequent proceedings which could have been raised in the earlier proceedings. The present case turns on whether a subsequent interlocutory application for dismissal can be brought in the same proceedings. It can be seen from the above narrative that the respondent’s application which was heard on 9 December 2022 was entirely separate and distinct from his application to dismiss the proceedings on the basis that they were an abuse of process.

60. We are not persuaded that ground 5 raises any issue of principle or any reasonably clear injustice which is more than merely arguable. Accordingly, ground 5 does not provide a basis for a grant of leave.

Conclusion

61. For the reasons given above, none of the proposed grounds of appeal raises a question of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable. Accordingly, leave to appeal was refused.

62. There was no reason to displace the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. Accordingly, the applicant was ordered to pay the respondent’s costs.

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Decision last updated: 05 December 2023