Woolf v Brandt (No 2)

[2023] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

25 May 2023

Date of orders:

07 June 2023

Decision date:

07 June 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   The plaintiff’s claim for defamation for the publication made on 11 May 2021 is struck out and the proceedings are dismissed.

(2)   The plaintiff is to pay the defendant’s costs of the proceedings unless otherwise ordered previously.

(3)   The affidavits and submissions relied upon by the parties are to remain with the file until further order.

Catchwords:

TORT – defamation – two Facebook posts made after relationship between plaintiff and defendant ended – second matter complained of struck out pursuant to s 12B(3) of the Defamation Act 2005 (NSW) – remaining publication online for 10 days, with 3 downloadings – defendant brings application for summary dismissal – whether proceedings an abuse of process – whether proceedings brought to vindicate reputation or for an ancillary dominant improper purpose, namely as part of an ongoing vendetta – whether the asserted strength of the evidence of justification warrants summary dismissal – proportionality – whether plaintiff breached Uniform Civil Procedure Rules 2005 (NSW) r 12.11 by not informing the court that the limitation period had expired – whether defendant was estopped from bringing this application because it should have been brought at the same time as his earlier application to strike out this cause of action on other grounds – whether plaintiff entitled to ask the court to revisit the striking out of the second matter complained of – proceedings dismissed as an abuse of process

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Crimes Act 1900 (NSW), ss 102, 300(1)(a)(b), 319, 328

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Defamation Act 1974 (NSW), s 50(4)

Defamation Act 2005 (NSW), s 12B

Defamation Act 2013 (UK) c 26, s 1

Evidence Act 1995 (NSW), s 135

Migration Act 1958 (Cth), s 285(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 13.4, 14.28

Cases Cited:

Aleksandrov v Dimovski [2005] NSWDC 19

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

Bleyer v Google Inc (2014) 88 NSWLR 670

Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB)

Depp v News Group Newspapers Ltd [2021] EWCA Civ 423

Dow Jones & Co Inc v Jameel (Yousef Abdul Latif) [2005] EWCA Civ 75

Elton v Cavill (1994) 34 NSWLR 289

Feldman v The Daily Beast Company LLC [2017] NSWSC 831

Fogarty v Nationwide News Pty Ltd [2013] WASC 477

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Hanna v Maks [2003] NSWSC 158

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347

Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210

MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41

R v Brown [1994] 1 AC 212

Rayney v The State of Western Australia [No 4] [2022] WASCA 44

Re Luck [2003] HCA 70; 203 ALJ 1

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555

Robinson v State of New South Wales [2021] NSWSC 1571

Rock v Henderson [2021] NSWCA 155

Saraceni v Mentha [2013] WASC 95

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540

Ugur v Attorney General for New South Wales [2019] NSWCA 86

Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 8

Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80

Williams v Spautz (1992) 174 CLR 509

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Woolf v Brandt [2022] NSWDC 623

Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Richard Farrell Woolf (plaintiff)
Nicholas Brandt (defendant)

Representation:

Counsel:
Mr R Rasmussen (plaintiff)
Mr T Smartt (defendant)

Solicitors:
O'Brien Criminal & Civil Solicitors (plaintiff)
Youth Law Australia (defendant)

File Number(s):

2022/00135926

Publication restriction:

Nil

Judgment

The plaintiff’s claim for defamation

1. The plaintiff commenced proceedings on 11 May 2022 for defamation against the defendant, with whom he had previously been in a romantic relationship, for two Facebook publications dated 11 May 2021 and 28 August 2021. The second matter complained of, which was published after amendments to the Defamation Act 2005 (NSW) (“the Act”), had been served less than 28 days after the concerns notice, which is contrary to s 12B unless leave to do so is granted by the court.

2. On 14 December 2022, the second matter complained of was struck out by reason of my refusal of leave (s 12B(3) of the Act) to commence proceedings less than 28 days after service of the concerns notice: Woolf v Brandt [2022] NSWDC 623. I refused an application by the defendant for summary dismissal of the first matter complained of brought on other grounds, namely failure to provide proper particulars of publication and downloading.

3. The striking out of the second matter complained of was the subject of a Notice of Intention to Appeal filed on 11 January 2023. The Notice lapsed on 11 March 2023. Instead, on 22 March 2023, the plaintiff served fresh concerns notice for the struck-out publication. The defendant then filed a notice of motion on 14 April 2023 seeking summary dismissal of the first matter complained of as an abuse of process.

4. No proceedings have yet been commenced in this court to restore the struck-out defamation claim for the publication of 28 August 2021. Mr Rasmussen acknowledges that the 28 August 2021 claim is now time-barred, and that leave to extend time for commencement of proceedings would be required (although he made no concession that leave would be required under s 23 of the Act). No matter what applications must be made for the struck-out claim to be accepted by the court, Mr Rasmussen confirmed that his client intended to continue with this cause of action, adding that this was a relevant factor to take into account when considering the defendant’s application for dismissal of the proceedings as an abuse of process.

5. The preliminary difficulty for this application is how to treat the plaintiff’s stated aim of attempting to continue with his claim for the second publication, in circumstances where he has not yet taken this step.

6. I consider that the application should proceed on the basis that the plaintiff is likely to take such a step and, conformably with the treatment of evidence in summary judgment applications, that he would be successful in bringing such an application. In permitting the plaintiff to do so, I take into account that the defendant was already on notice, before he brought this application, of the plaintiff’s intentions. I have accordingly dealt with the defendant’s application on the basis that the first matter complained of is not the sole publication, and that the second matter complained of will be restored at some future stage.

7. However, at Mr Smartt’s request, I have also taken into account other aspects of the plaintiff’s conduct, such as failure to take the necessary steps to restore his claim, a delay which Mr Smartt relies upon as further evidence of these proceedings amounting to an abuse of process. I also take into account that, whether there is one publication or two, and whether the publications are seen by a thousand people or only by a handful, these are (except for the proportionality issue) largely questions of degree in terms of the defendant’s application which make little difference to the result.

The matter complained of the subject of this application

8. The challenged publication, namely the Facebook post which is dated 11 May 2021 (and thus not subject to the concerns notice requirements of the Act coming into force on 1 July 2021), consists of a long sentence, published to the defendant’s followers on that platform. They were, at most, 52 followers of the defendant who might have read it. The text is 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 [sic], 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.”

9. The following imputations are pleaded to arise:

1. The plaintiff stalked the defendant.

2. The plaintiff harassed the defendant.

3. The plaintiff’s conduct in stalking the defendant is such that he should be reported to the police.

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.

The defendant’s application

13. The defendant, by notice of motion filed on 14 April 2023, seeks summary dismissal of the 11 May 2021 claim, on the following bases:

1. The proceedings are an abuse of process, in that the resources of the court and the parties expended to determine the claim are out of all proportion to the interest claimed by the plaintiff: Bleyer v Google Inc (2014) 88 NSWLR 670. The plaintiff can only name three persons who saw this post during the ten days that it was up and, given that the plaintiff was assertedly demonstrating stalking behaviours, the prospects of success were slim. (This is a difficult argument to mount if the second publication is also taken into account).

2. The proceedings are brought not to vindicate reputation but to intimidate and harass the defendant as part of an ongoing campaign: Williams v Spautz (1992) 174 CLR 509 at 526-7. This applies to both publications.

3. The proceedings are a vendetta: Hanna v Maks [2003] NSWSC 158 at [41]–[42]; Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 8. This applies to both publications.

4. The claim is a hopeless one, in that the extensive material evidencing stalking and harassment by the plaintiff of the defendant is such that the claim would, even if successful, result in a judgment of zero damages: Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150; Dank v Nationwide News Pty Ltd [2016] NSWSC 295 at [77]. This would apply to both publications. Mr Smartt also draws to my attention the plaintiff’s last-minute commencement of proceedings as well as the failure to proceed with restoring his other defamation claim since I handed down my judgment.

5. The evidence of justification is so strong that the claim should be struck out; if the evidence of justification were so weak that the court would strike the defence out, the reverse should apply if the evidence is as strong as it is in this case. This largely applies to the first publication.

6. The orders made by the Court on 9 and 16 June 2022 should be set aside under r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) as the legal representatives of the plaintiff did not disclose to the court that the limitation period had expired. This applies to both publications.

Abuse of process and summary judgment applications

14. The circumstances in which summary judgment may be granted arise out of common law principles concerning abuse of process, as modified by UCPR r 13.4 or, alternatively, pursuant to UCPR r 14.28. However, the categories for abuse of process are not closed, and this application raises a series of distinct challenges to these proceedings based on a series of recognised categories of abuse of process.

15. Both counsel address the nature of abuse of process in their submissions and the relevant principles of law are not the subject of dispute. These are helpfully summarised in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210 at [75] and Robinson v State of New South Wales [2021] NSWSC 1571 at [31] ff. I accept the summary of these principles as set out by both counsel, noting in particular (at Mr Smartt’s request) that abuse of process does not simply apply to the commencement of proceedings; it may also arise from their continuation.

16. I should mention, however, that a feature of abuse of process that I consider of particular importance in this application is the role of court resources in such applications. In Ugur v Attorney General for New South Wales [2019] NSWCA 86, White JA said (Meagher and Brereton JJA agreeing) at [70]:

“One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.” (Emphasis added)

The applications for determination

17. The applications fall into the following three categories:

1. The likely successful plea of justification: Mr Smartt submits that the strength of the justification defence is such that the proceedings should be struck out.

2. Abuse of process: The four grounds of abuse of process set out above share a factual background as well as a common thread, in the form of abuse of process, and can conveniently be dealt together. As the material set out below confirms, each of the plaintiff and defendant accuses the other of stalking and harassment.

3. UCPR r 12.11: The fifth ground is derived from observations I made in my earlier judgment at [56] and needs little extra commentary.

The affidavits and submissions provided to the court

18. The defendant served the following affidavit material:

1. Affidavit of Kim Renae Richardson affirmed 31 March 2023.

19. The plaintiff served the following affidavit material:

1. Affidavit of Stewart O’Connell affirmed 11 May 2023.

2. Affidavit of Stewart O’Connell affirmed 24 May 2023.

3. Affidavit of the plaintiff sworn 25 May 2023 (this was served after completion of submissions).

20. Mr Rasmussen challenged the admissibility of the telephone records and letters from his client to the defendant under s 135 of the Evidence Act 1995 (NSW). I dismissed his challenge. The documents in question were authored by the parties, were corroborative (or otherwise) of dates and events described by the parties and directly related, in a chronological as well as causative sense, to the circumstances in which the defendant posted the first matter complained of.

21. The plaintiff, in his submissions of 6 June, claims that I was “sympathetic” to late submissions on s 135 and sought to extend this to a number of other evidence (such as the disparity between his age and the defendant’s age, which he says can be rebutted by evidence of the defendant’s promiscuity).

22. The plaintiff’s claim that I was sympathetic to this course of action is not correct. When I reserved, I granted leave to Mr Rasmussen to provide me with authority for the proposition that evidence of legal costs had to be given by an experienced practitioner on affidavit and that any such witness must be available for cross-examination. I expected a short list of authorities and nothing more. Courts do not permit the sending of unsolicited further submissions after judgment has been reserved.

How the hearing of this application proceeded

23. Mr Smartt provided an outline of submissions in support of his client’s application, which was answered by Mr Rasmussen. The hearing proceeded on that basis. None of the deponents were required for cross-examination.

24. Mr Rasmussen submitted that the defendant’s failure to provide an affidavit upon which he could have been cross-examined was fatal to his claims of likely success in the justification defence and his assertions of financial hardship, and indeed to the application generally.

25. After argument concluded Mr Rasmussen consulted with his client and sought to tender an affidavit which had not been served before the hearing and was in fact sworn only on that day. Although Mr Smartt did not agree to this course, I permitted the plaintiff to do so.

26. I also granted leave to Mr Rasmussen to supply me with a short outline of the law concerning appropriate evidence of the costs of defamation proceedings. Mr Rasmussen did not provide those submissions. His client, however, provided further written submissions on topics other than the one for which I had granted leave, asking me, inter alia, to reopen my judgment in Woolf v Brandt [2022] NSWDC 623.

27. After I notified the parties of my intention to hand down judgment on 7 June 2023, the plaintiff sent a further document filed on 6 June 2023, which he said he had asked his solicitor to file, but that the solicitor had refused to do so. The purpose of this document was asserted to be to correct “a significant error” and for “acceptance of her Honour’s offer to provide late submissions”.

28. The error is that I counted over 100 calls and texts in the documents attached to Ms Richardson’s affidavit. The plaintiff thought this number applied to “missed calls”, which the plaintiff agrees were over 47. My reference to the plaintiff making over 100 calls did not relate just to missed calls but also to text messages and to responses to the complaints from the defendant about receiving all these calls over a single day. Whether or not the defendant responded to these calls and messages (which he did, by sending a message saying “STOP”, blocking the phone or otherwise complaining about the plaintiff’s conduct), it is a pattern of conduct which Mr Smartt told the court his client found harassing, and the precise number of calls (whether 47 or over a hundred) should be seen in that light.

The circumstances leading to publication

29. The plaintiff and defendant commenced a sexual relationship when the plaintiff was 31 years old and the defendant was 16 years old, but the parties give different evidence of when, and in what circumstances, the relationship ended:

1. According to paragraph 1 of the statement of claim, the plaintiff and defendant stopped dating in July 2020. However, according to the plaintiff’s statement to police made on 22 July 2022, he terminated the sexual relationship in December 2019 when the defendant moved out of his apartment. On 22 July 2022, the plaintiff told police he cut ties with the defendant on 13 September 2020 by writing him “a civilly worded “goodbye” email” and blocked him on social media, and that the defendant continued to contact him in a harassing fashion until about August 2021. In his most recent submissions, the plaintiff says there is a “large time gap” between the breakup and the first matter complained of (paragraph 5), but I prefer to rely on the dates he gave to the police for these events.

1. The defendant says that the relationship ceased in about July 2020, and the tenor of further communications between the parties became increasingly recriminatory from about mid-2021.

30. Whatever the circumstances and end date of the relationship, the documentary evidence paints a vivid picture of both parties, in terms of their text and social media records. Nearly a hundred pages of text and phone messages, as well as three letters, are attached to the affidavit of Kim Richardson. Most of these relate to the period 9 – 10 May 2021, which is just before the defendant posted the matter complained of the subject of this application. I have also taken into account documents supplied by the plaintiff where he complains that the defendant was stalking him, rather than vice versa.

Text messages and calls on 9 – 10 May 2021

31. Mr Smartt summarises these as follows:

1. 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: (Affidavit of Kim Richardson at Annexure F (pp 20 ff)). 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 (ibid at p 20). The defendant eventually replied telling the plaintiff to “chill out” and said that he didn’t feel like talking (ibid at p 23). 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” (ibid at 25). The plaintiff continued these calls and texts despite the lack of response (ibid at 25). The defendant finally responded: “Stop fucking calling me, get a life, jesus christ (ibid at 27). 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” (ibid at 27.)

2. The plaintiff continued calling the defendant incessantly, including after the plaintiff realised that the defendant had blocked his calls (ibid at 27). The plaintiff continued to text the defendant. This prompted the defendant to say “STOP” (ibid at 28). 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” (ibid at 28 – 29).

3. 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” (ibid at 29).

4. 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” (ibid at 34). The defendant replied: “he’s not intended in talking to you, do not harass him” (ibid at 34).

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

The plaintiff’s response

33. The plaintiff makes a “proffer of further evidence” (submissions, 29 May 2023, paragraph 9) that the defendant phoned him on 25 May 2021 and in the course of a 25-minute call, asked for help with moving. They also had a discussion about the defendant removing the first matter complained of, which the defendant agreed to take down. He claims that the defendant said “It’s not that what you were doing was wrong”. He also says he said to the defendant “you know that I’m not stalking you” and the defendant responded “yeah” (submissions, paragraph 17). This is followed by a section headed “Clarification about culture”) where the plaintiff says he can show:

18 “…how the Defendant stalked me” [sic; underlining in original]) which is relevant because “it establishes the culture of ‘stalking and harassment’ within the relationship. There is a certain hypocrisy in how the defendant actually stalked and harassed me – by his own admission (Police Statement [40]) – over a period of two weeks – only to complain in MCO1 after a day of intermittently reciprocating communication [sic] me – that he is being “stalked and harassed”. This blatant hypocrisy makes sense in the context of him trying to distance himself from his criminal offences. I have some feedback that this is being misapprehended as “a culture of ‘stalking and harassment”. I am very concerned that this critically important point may be missed.

19 Properly read, this means that the nature of stalking and harassment is somewhat culture-bound, both generally, but especially within the culture of the relationship, and maybe completely different to how outsiders may see it. This is especially so in the LGBT community.

20 An example can be found in the recent and infamous Johnny Depp trial (albeit a different jurisdiction):-

One might say that in order for Amber Heard’s (the defendant) imputation that “she was a victim of domestic violence and Mr Depp was an abuser” was valid, all she needed to do was show any purported evidence of domestic violence against her by Mr Depp. This is not so. Instead, a juror (a factfinder) explained that within [the culture of] the relationship, where they were both arguably abusive, she was significantly more abusive than Mr Depp, and so it did not rise to the point where she could impute that she was a victim of domestic violence, and hat accordingly he was a perpetrator (See: various news articles).

21. So too, in this case. When the defendant actually stalked and harassed me for 2 weeks (by admission) as described in POLICE (“incident 6”) then that establishes the culture-bound bar of what stalking and harassment looks like in the relationship, and the defendant should not be able to offer a vignette of what looks like harassment – not even stalking – to tank the whole proceedings at an interlocutory stage.”

[punctuation and underlining in original retained]

34. The plaintiff relies on the conciliatory tone of the defendant’s responses, both before and after publication, and also on other emails the defendant had sent the plaintiff in February 2019 saying “I’m sorry for what I’ve put you through” and “I hate how I treated you” as evidence that he was not stalking the defendant and that the defendant had agreed this was so. There are similarly conciliatory messages sent in February - April 2021.

35. The plaintiff’s argument that he could not have been stalking the defendant because not only did the defendant accept his behaviour, both before and after publication of the matter complained of, but the defendant was guilty of this conduct himself, is replete with errors of law. Contrary to his description of the Depp judgments, that was not an argument accepted by either the first instance court or on appeal: Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB); Depp v News Group Newspapers Ltd [2021] EWCA Civ 423 (I do not regard a jury verdict from the United States of America as being able to provide any form of assistance). The concept of consenting to conduct amounting to a crime (such as an act of violence (R v Brown [1994] 1 AC 212) and in particular domestic violence, including stalking) is fraught with difficulty. As to the defendant’s purported complaisance concerning this conduct, as Besanko J stated in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [2190]:

“…I bear in mind the warnings against applying stereotypical expectations of how victims will respond to certain offences. It seems to me that those offences include, not only sexual assault, but also domestic violence (Nguyen v R [2022] NSWCCA 126 at [57]–[58]; Rao v R [2019] NSWCCA 290 at [98]).”

36. In the plaintiff’s latest submissions, he says that there were only 47 missed calls (paragraph 5). He seeks to exclude the occasions when the defendant responded to say “STOP” and blocked his phone and argues that some of those calls (for example, asking the defendant to take down the post and the plaintiff providing a “retraction”, all of which are made after the matter complained of was published) should not be included. They are, however, not included. I counted the calls the plaintiff made to the defendant on 9 May 2021, whether these calls were responded to or not. That they made the defendant feel harassed is evident from the responses he made to this effect, as well as his conduct in blocking his phone.

Letters sent by the plaintiff to the defendant

37. The plaintiff sent three letters in August 2021, which Mr Smartt summarises as follows:

1. The plaintiff mocks the defendant more than once about his abusive upbringing: Affidavit of Kim Richardson at Annexure F at 64, 85. Among other things, he says:

“You still have emotional flashbacks, don’t you? Of your mother’s harsh verbal tirades. Calling you “scum of the earth”. And how you “should have been aborted”. All those tedious, futile days, filled with the smell of weed, the raucous all-night-drug fuelled gatherings of your mother and her friends, never knowing what surprise might befall you when you wake up, or which possessions may be missing? How she might hit you with a rolling pin, or how you suffered for hours under a pillow while she verbally eviscerated you. So now you’re hypersensitive. She would barge into the room at any moment and abuse you – or the druggies could threaten you with a knife, or tie you up. So you learned to be hyper-vigilant. How you were too scared to fall asleep in your own bed, that you would watch TV in the lounge until you passed out from exhaustion.”

2. The plaintiff spends pages and pages of these letters explaining why the defendant should be diagnosed as suffering from multiple mental illnesses, in a humiliating fashion, such as narcissism (ibid 62), post-traumatic stress disorder (ibid 64), pre-psychopathy (ibid 66), paranoid schizoid disorder (ibid 68), borderline personality disorder (ibid 69), sociopathy (ibid 69), complex developmental trauma (ibid 69), ADHD (ibid 74) and suspected autism (ibid 74). So extensive are the plaintiff’s efforts to destroy the self-esteem of the defendant that he includes photocopied extracts of pages from a psychology textbook, with post-it notes telling the defendant to read it so the defendant could see how damaged he was (ibid 88 onwards).

3. The plaintiff abuses the defendant. For example, he calls him a “liar and a cunt” (ibid 79), a “narcissistic piece of shit” (ibid 80) and “a total psychopath” (ibid 82). He also descends into a rant about the defendant:

“You are the world’s biggest hypocrite: a deluded, confabulating, narcissist, whose deep-seated shame causes you to devalue and project blame and shame onto others. You are a psychopath, a criminal, a liar, a cheat and a fraud. You simply don’t know the meaning of true friendship, reciprocity, the social contract, or simply how to be a decent human being. Your callous indifference and utter disregard for everything that is good, and decent, and proper, has rocked the very foundation upon which our society is built.”

38. I do not know how much more material of this kind there is, but Mr Smartt submits that these examples point to a series of attempts to punish, intimidate and harass the defendant to force him to stay in touch when he does not wish to do so. He points not only to the commencement of defamation proceedings after over a year of abusive messages and phone calls of this kind but also to the July 2022 complaint to the police about the defendant’s conduct, which Mr Smartt submits is similarly motivated.

The plaintiff’s response

39. Mr Rasmussen submits that these pages of text messages asserted to be stalking and harassing communications have been “carefully curated” (submissions, paragraph 4) and “not as bad as they look”. He points to the fact that the plaintiff reported the defendant to the police on 22 July 2022 as putting “a different complexion” on this series of text messages and letters. He did not dispute Mr Smartt’s description of the phone text messages over the relevant period as being an accurate representation of their contents, but was critical of the exclusion of Facebook posts between the parties where the plaintiff had asked, in a reasonable fashion, for the deletion of the matter complained of the subject of this application.

40. Mr Rasmussen was also critical of the defendant’s conduct in making posts to Pornhub containing videos of the plaintiff and defendant having sex during the period of time that they were in a relationship.

41. However, there is no intersection, in terms of time, date or conduct, between the messages and letters attached to Ms Richardson’s affidavit and the plaintiff’s complaints to the police some years after the posting of videos of the plaintiff and defendant having sex. The complaint to the police concerned the uploading of videos by the defendant to Pornhub, during 2019 and 2020, of the plaintiff naked and having sex, as well as a Snapchat photograph posted in 2018 and a photograph posted on Twitter in August 2021. The plaintiff said he did not consent to the uploadings in 2019 and 2020, and that he later asked for them to be taken down.

42. I have taken these matters into account as requested by Mr Rasmussen, but all that these do is to make the matter worse. Even if there were some kind of connection between the defendant’s Pornhub activities and the conduct engaged in by the plaintiff, that does not alter the content of the messages and letters attached to Ms Richardson’s affidavit being evidence of considerable weight of conduct amounting to stalking and harassment.

43. Mr Smartt relies upon the plaintiff’s text messages and letters to submit that the evidence provided by the defendant is so incontrovertibly true that a defence of justification must succeed.

Are there special rules relating to the striking out of justification evidence?

44. While acknowledging that claims may be struck out as an abuse of process if the necessary compelling evidence of conduct amounting to abuse can be established, Mr Rasmussen submits that no court would ever strike out proceedings because of the strength of a defence of justification, no matter how strong the defendant’s particulars of justification may appear to be.

45. I agree that it would only be in an extreme case that evidence of justification would be looked at on an interlocutory application and considered to be a basis for the striking out of a defamation claim. It must be acknowledged, however, that this has not been the case for defendants who have weak justification defences; the failure to provide proper particulars of justification has, in a number of cases, resulted in the striking out of defences of justification where the particulars of the defence are insufficient: Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [12]-[13]; MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347; Fogarty v Nationwide News Pty Ltd [2013] WASC 477; Saraceni v Mentha [2013] WASC 95 at [50]; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448–449. If courts have been prepared to strike out justification defences on an interlocutory basis as being hopeless, should they also be prepared to consider striking out a claim on the basis that any challenge to the particulars is similarly hopeless?

46. The plaintiff replies that the conduct in question, while needing to be seen in context, is as described, but that the defendant is in no position to complain. The “context” in this case is that the defendant filmed video of the plaintiff and defendant having sex (with the plaintiff’s consent) and placed it on Pornhub (without the plaintiff’s consent) and the defendant’s own conduct in stalking the plaintiff on one occasion for two weeks. Again, this is an appeal to “stereotypic” thinking of the kind warned against in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) at [2190].

47. Both parties’ submissions are misconceived. Disputed issues of fact are matters which should be determined at trial, not summarily. The plaintiff’s conduct needs to be considered in the context of the conduct of both parties, but that is for the reasons explained by Besanko J in his Honour’s analysis of the evidence in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41), and not for the reasons put forward by Mr Rasmussen and his client. Justification should remain a trial issue.

48. I would have made such a finding whether the plaintiff provided his belated evidence or not, but this evidence is of considerable – indeed, crucial – importance in relation to abuse of process.

The Williams v Spautz abuse of process argument

49. The principal claims for summary dismissal for abuse of process are the commencement and continuation of this litigation, not to prosecute it to completion, but to use them as a means of harassment or some other collateral advantage beyond the remedies that the court offers (Williams v Spautz at 526 – 527) in circumstances where the action is part of an asserted vendetta.

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.

51. 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.

52. 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. Neologisms such as “lawfare” and “oligarch litigation” have been used in the United Kingdom, in order to encapsulate the developing nature of these kinds of abuse, with members of parliament expressing concerns about it (see the debate in the House of Commons on 20 January 2022 The introduction of a serious harm test (s 1 of the Defamation Act 2013 (UK)) had earlier sought to achieve a similar result for trivial claims; this has now been added to by further legislation in the United Kingdom during 2022.

53. However, that is not the case in Australia. As confidently predicted in Aleksandrov v Dimovski [2005] NSWDC 19 at [45], Australian courts displayed no interest, prior to McCallum J’s landmark judgment, in proportionality or the Jameel principle (Dow Jones & Co Inc v Jameel (Yousef Abdul Latif) [2005] EWCA Civ 75 at paras [52], [55] and [69]). Other English judgments on this point, notably Wallis v Valentine, have been referred to in Australian courts only in the briefest terms, or as a footnote (Rock v Henderson [2021] NSWCA 155 at [46]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [154]). 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, but even this modest reform has been criticised in some quarters: Selkirk v Hocking [2023] FCA 432.

54. 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.

The evidence relied on in relation to abuse of process

56. Mr Smartt made the following general submissions in support of all four grounds on which he submitted the action was an abuse:

“21. The Court should also stay the proceedings because they are an abuse of process. The plaintiff is plainly prosecuting these proceedings with the improper purpose of punishment, intimidation or revenge instead of vindication of reputation. That is to be inferred from the facts:

a. The plaintiff is obsessed with causing psychological harm to the defendant. Not only did he stalk and harass the defendant before commencement of the proceedings, but he spent what appears to be days writing letters designed to make the defendant believe he was psychologically damaged...

b. The plaintiff has been found by this Court to commence litigation against the defendant with parts that is so lacking in merit that it has been dismissed at a very early stage of the proceedings: Woolf v Brandt [2022] NSWDC 623 at [71].

c. After the Court struck out half of the plaintiff’s claim, the plaintiff has chosen to keep hopeless claim on foot against the defendant. That claim has no utility whatsoever. There is no damages or reputational vindication to be claimed by the plaintiff. Notwithstanding that, he appears willing to spend hundreds of thousands of dollars to sue the defendant over triviality from years ago.

d. The plaintiff has done nothing to advance the proceedings towards a trial since filing a statement of claim complying with Gibson DCJ’s orders in December last year.

e. The plaintiff knows that the defendant is a young man in his 20s with no or a trivial amount of money. As Gibson DCJ recorded in her Honour’s judgment, the defendant was told prior to the commencement of these proceedings that at the time the plaintiff was unemployed with no likelihood of employment in the near future, as well as thousands of dollars in debt owed to credit agencies and the government: Woolf v Brandt [2022] NSWDC 623 at [30]. The plaintiff has never sought to argue that the defendant – a man in his early 20s – is well-resourced.”

57. Although Mr Smartt made those submissions in relation to the first matter complained of, I have interpreted them as if the second matter complained of were also before the court.

58. The first part of the claim of abuse, as articulated by Mr Smartt, is that the plaintiff has a hopelessly weak case which he has prosecuted in a dilatory fashion against an impecunious defendant. Those arguments, without more, would not be sufficient for these proceedings to be a Williams v Spautz abuse of process.

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 vAttorney 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.

Disproportionality

66. Mr Smartt submitted that this is a case where the “resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest”: Bleyer at [62]. That is because:

1. The plaintiff has suffered no reputational damage. He is suing over a post that his ex-boyfriend made on Facebook more than two years ago and which was only ever online for about ten days. Furthermore, he is only able to name three people who read it and those who read it (as has been found) would have known that the defendant was posting about the plaintiff after a relationship breakdown. As a result, the plaintiff has not suffered any reputational damage of any substance.

2. The defendant has high prospects of proving the imputations true. As is comprehensively set out in paragraph 8 of these submissions, the plaintiff stalked (imputation (a)) and harassed (imputation (b)) the defendant in text messages and calls to him before the matter complained of was published. This conduct should be reported to the police, as it is an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (imputation (c)).

3. Even if the imputations were not true, and the plaintiff succeeded, the plaintiff’s reputation will be destroyed by these proceedings. All of his conduct relevant stalking and harassment can be put before the Court in mitigation, in accordance with the principle that the conduct of a plaintiff proven during the trial can be relied on in mitigation of damages if it is relevant to the part of the plaintiff’s reputation capable of being harmed by the defamatory material (with that part sometimes being called the “sector” of reputation): Rayney v The State of Western Australia [No 4] [2022] WASCA 44 at [159]-[161]. In this case, the plaintiff’s conduct towards the defendant is so disgusting that it would likely result in a nominal damages award, even if he is technically successful.

4. The plaintiff will very likely receive no damages and will destroy his reputation by maintaining these proceedings.

5. Despite the fact that the plaintiff stands to gain nothing from these proceedings – only reputational self-immolation – he apparently expects the parties to expend hundreds of thousands of dollars on bringing this case to trial, and the Court to expend a significant amount of judicial resources in hearing the case. Such a use of the court’s processes is an affront to taxpayers: Feldman v The Daily Beast Company LLC [2017] NSWSC 831 at [18]. Their resources should not be committed to “disproportionately small ends” in defamation cases brought by an ex-partner against another.

67. Mr Rasmussen objected (as to (d) and (e)) that there was no financial evidence provided and that submissions about the costs of legal proceedings needed to be supported by an affidavit by a solicitor with recognised expertise in defamation who could be cross-examined on its contents. He warned that any attempt by me to make such an estimate would be contrary to my judicial obligations to have regard to the necessary evidentiary requirements. He submitted that I should draw an adverse inference from the plaintiff’s failure to provide an affidavit. He also expressed confidence in the success of any application to extend time for the second matter complained of, given the generosity of recent decisions on limitation issues, and in the litigation in general, and argued that no claim of proportionality could succeed as the number of persons who read the second matter complained of was very high in that, although published to the same persons as the first matter complained of, there would be a substantial grapevine effect for both publications.

68. In practical terms, while there remains uncertainty over whether the plaintiff will in fact bring an application to this Court (or another court) to bring fresh proceedings in relation to the second matter complained of, it is too early to decide this point. If only the first matter complained of were before the court, a challenge to proportionality for a publication which was online for 10 days read by three known persons would appear to have some prospects of success, but it is too soon to determine, if further publications are added. Accordingly I do not propose to make any determination of the issue of proportionality at the current time.

Setting aside extensions of time to serve the defendant

69. Mr Smartt submits that the plaintiff’s former legal representatives have been found to have made a material non-disclosure to a judge of this Court on an ex parte application: Woolf v Brandt [2022] NSWDC 623 at [56].

70. In Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, the High Court said that:

“Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. The ordinary consequence in such a case is that the orders be dissolved. In the absence of an order extending time for service, the Court should simply dismiss the proceedings.”

71. Mr Smartt submits that, in exercising the discretion under r 12.11, the Court should consider the following factors:

“1) The proceedings, if successful, will only result in the plaintiff receiving nominal or trivial damages.

2) The plaintiff has very little chance of being successful.

3) The plaintiff waited until near the end of the limitation period to commence these proceedings.

4) The plaintiff has not advanced an adequate explanation for the delay in commencing the proceedings and then requiring two extensions to the time for serving the proceedings.

5) The parties will have to expend an enormous amount of resources for these proceedings to be heard.”

72. The purpose of r 12.11 is to obtain an extension of time where one is required. It is not akin to an application for an injunction, where there must be full disclosure: Thomas A Edison Limited v Bullock; Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 at 543; Elton v Cavill (1994) 34 NSWLR 289. The real question is the asserted failure of the plaintiff to tell the court that the proceedings were out of time and/or that proceedings had been commenced within the 28-day notice period; the other complaints are matters which can be dealt with when both parties are before the court.

73. The circumstances in which orders extending time may be set aside generally arise where the statement to the court about knowledge of the proceedings or some aspect of service are the relevant misstatement. While the consequences to a party of serving a stale writ where the limitation period had expired can be the loss of the whole of the action (Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80), that does not require the party seeking to extend time to advise that if the order is not made, they will or will not be in that position.

74. This ground for striking out the plaintiff’s application for extension of time (and thus the proceedings) is not made out.

Estoppel and the restoration of the second matter complained of

75. In response to the defendant’s application for summary dismissal of the first matter complained of, the plaintiff raised two issues. The first was a claim of estoppel and the second was a request to revisit the striking out of the second matter complained of.

Estoppel

76. Mr Rasmussen submitted that the defendant was estopped from bringing this application by Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41) because this application should have been made at the same time as the application to strike out each of the claims in my previous judgment.

77. Were the orders I made on that occasion interlocutory or final? In Re Luck [2003] HCA 70; 203 ALJ 1 at [9], the High Court held:

“An order is an interlocutory order … when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.”

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.

The application to reinstate the second matter complained of

81. This was not the subject of submissions by counsel, but an additional matter raised by the plaintiff in the submissions he sent after the hearing of the application was concluded.

82. For the reasons set out in Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49], the provision of unsolicited further submissions after judgment has been reserved is conduct which “should not have occurred” (Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 at [34]) and I am not obliged to answer them. I do, however, formally reject the submission that these two publications have a “synergistic effect” (plaintiff’s submissions, paragraph 3) which meant that early commencement of the second matter complained of was justified under s 12B(3) of the Act (or, for that matter, that the second publication is governed by the previous law by reason of its asserted similarity to the first matter, which I suspect is the argument the plaintiff is trying to put). The correct approach for the plaintiff to have taken was to seek leave to appeal, and not to bring such an application before me: Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244.

83. For the same reasons, I do not propose to descend into the particularities of the additional matters raised by the plaintiff in his second set of unsolicited written submissions dated 6 June 2023.

Costs and other orders

84. The defendant has been successful on the Williams v Spautz application (on Hanna v Maks principles), but not otherwise. The plaintiff has been unsuccessful in the Anshun estoppel claim and I have refused to entertain his belated application to reopen my earlier judgment in relation to the striking out of the second matter complained of.

85. In paragraph 26 of his written submissions, Mr Smartt seeks an order for costs on the ordinary basis.

86. I consider the plaintiff should not receive any discount in the costs orders. Costs generally follow the event, but there are two additional reasons for making such an order. First, the circumstances in which the plaintiff has forewarned of an application to restore the second matter complained of but not done so not only does not reflect well on his desire to vindicate his reputation but has added complication to this application. Second, the circumstances in which an affidavit was handed up to the court after argument had ended and submissions on a wide range of topics for which leave had not been given were sent unilaterally to the court do not reflect well on the fairness principles identified in s 56 of the Civil Procedure Act 2005 (NSW).

87. Mr Rasmussen did not ask me to make any order for the preservation of the filing fee, such as asking me to stay the making or entry of orders dismissing the proceedings so that the plaintiff could bring his fresh application to restore his claim in relation to the second matter complained of. I have accordingly struck out the whole of the proceedings, with costs.

Orders:

1. The plaintiff’s claim for defamation for the publication made on 11 May 2021 is struck out and the proceedings are dismissed.

2. The plaintiff is to pay the defendant’s costs of the proceedings unless otherwise ordered previously.

3. The affidavits and submissions relied upon by the parties are to remain with the file until further order.

**********

Decision last updated: 07 June 2023