Young v RSPCA NSW (No. 2)

[2019] NSWDC 754

District Court

New South Wales

Medium Neutral Citation:

Young v RSPCA NSW (No. 2) [2019] NSWDC 754

Hearing dates:

28 November 2019

Date of orders:

17 December 2019

Decision date:

17 December 2019

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) The claims against the first to third defendants for the “First Cause of Action” (malicious prosecution) and, as to the first defendant, the “Third Cause of Action” (defamation) are struck out and dismissed.
(2) The claims against the first to third defendants for the “Second Cause of Action” (abuse of process) are struck out but with leave to replead, such leave to be exercised by 3 February 2020.
(3) The costs of the plaintiff’s claim against the first to third defendants are reserved, with liberty to apply.
(4) The plaintiff’s claims against the fourth defendant in the “Third Cause of Action” (defamation) are struck out and dismissed.
(5) The plaintiff’s claims against the fifth defendant in the “Fourth Cause of Action” (defamation) are struck out and dismissed.
(6) The plaintiff is to pay the fourth and fifth defendants’ costs of this application and of the proceedings, with liberty to the parties to apply.
(7) The remaining proceedings for abuse of process as between the plaintiff and the first to third defendants are stood over for further directions, including a timetable for further argument, to the Defamation List on Thursday 6 February 2020.

Catchwords:

TORT – convictions of the plaintiff in 2012 for offences under the Cruelty to Animals Act 1979 (NSW) set aside in 2016 under s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) – plaintiff brings proceedings for malicious prosecution, abuse of process and defamation against parties asserted to be prosecutors, a broadcaster and Google Inc – defendants bring applications for summary dismissal of all claims

 

MALICIOUS PROSECUTION – whether s 32 orders amount to a termination in the plaintiff’s favour – whether rulings to this effect in Quirk v The State of New South Wales [2011] NSWSC 341; [2012] NSWCA 216 may be distinguished or are plainly wrong – whether pleadings so hopeless they should be struck out at the first opportunity

 

ABUSE OF PROCESS – when the cause of action accrued – whether a claim for abuse of process may be brought against a non-party – whether pleadings so hopeless they should be struck out at the first opportunity – whether generalised complaint about pleadings sufficient to warrant such an order

DEFAMATION – whether plaintiff could establish publication by any defendant within the limitation period - whether broadcaster’s fair report defence capable of summary determination – whether plaintiff’s defamation claims should be struck out on the principles of proportionality (Bleyer v Google Inc (2014) 88 NSWLR 670) – plaintiff granted leave to replead abuse of process claim but all other claims struck out and dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Community Protection Act 1994 (NSW)
Crimes Act 1900 (NSW), ss 338 and 556A
Defamation Act 2005 (NSW), ss 29 and 42
District Court Act 1973 (NSW), ss 127 and 203
Limitation Act 1969 (NSW), ss 14B and 56A
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Prevention of Cruelty to Animals Act 1979 (NSW), ss 5 and 6
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.15, 14.28, 14.30, 15.19 and 29.9

Cases Cited:

A v State of New South Wales & Anor (2007) 230 CLR 500
Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Liristis [2011] NSWDC 40
Armstrong v McIntosh [No 2] [2019] WASC 379
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263
Bleyer v Google Inc (2014) 88 NSWLR 670
Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB)
Buswell v Carles [2012] WASC 509
Cameron v James [1945] VLR 113
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682
Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676
Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288
Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850
Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Davis v Gell (1924) 35 CLR 275
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Derbyshire County Council v Times Newspapers Ltd [1993] AC 634
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93
Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575
Duke v New South Wales [2005] NSWSC 632
El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990
El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816
Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306
Emmerton v University of Sydney [1970] 2 NSWR 633
Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612
Feldman v Nationwide News Pty Ltd [2016] NSWSC 1890
Fleet v District Court of NSW [2002] NSWCA 25
Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB)
Ford v Nagle [2004] NSWCA 33
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Georgitsis v Lend Lease Interiors Pty Ltd & Ors (1989) 17 NSWLR 106
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595
Google Inc v Duffy (2017) 129 SASR 304
Grenning v Ware & Ors [2005] QSC 82
Hanrahan v Ainsworth (1985) 1 NSWLR 370
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hanson v Hunter [2015] NSWDC 220
Harvey v John Fairfax Publications [2005] NSWCA 255
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Howie v New South Wales Lawn Tennis Ground Ltd (1956) 96 CLR 132
Johnston v Nationwide News Pty Ltd & 1 Or [2005] NSWA 17
Kable v State of NSW (2010) 203 A Crim R 66
Leerdam & Anor v Noori & Ors [2009] NSWCA 90
Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27
Mantell v Molyneux [2006] NSWSC 955
McGinn v Peter Clisdell Pty Ltd (No. 2) [2018] NSWSC 1856
Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765
Mohareb v Kelso [2017] NSWCA 98
Mohareb v Kelso (No 2) [2017] NSWCA 173
New South Wales v Landini [2010] NSWCA 157
Palmer v Mohareb [2019] NSWSC 975
Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013)
Powell v Gelston [1916] 2 KB 615
QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245
Quirk v State of New South Wales [2011] NSWSC 341
R v Beydoun (1990) 22 NSWLR 256
Reilly v. Bissonnette, 2008 BCCA 167
State of New South Wales v Quirk [2012] NSWCA 216
Tamiz v Google Inc [2013] EWCA Civ 68
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253
Wickstead v Browne (1992) 30 NSWLR 1
Young v RSPCA NSW [2019] NSWDC 613

Category:

Procedural and other rulings

Parties:

Plaintiff: Gary Young
First Defendant: RSPCA NSW
Second Defendant: Jean Sprague
Third Defendant: Andrew Wozniak-Smythe
Fourth Defendant: Australia Broadcasting Corporation
Fifth Defendant: Google

Representation:

Counsel:
Plaintiff: In person
First, Second and Third Defendants: Ms S Chrysanthou
Fourth Defendant: Ms M A Cowden
Fifth Defendant: Mr M J Lewis

  Solicitors:
Plaintiff: In person
First and Second Defendants: Banki Haddock Fiora
Third Defendant: Mullane & Lindsay Solicitors
Fourth Defendant: ABC Legal
Fifth Defendant: Ashurst Australia

File Number(s):

2019/198201

Publication restriction:

None

Judgment

The applications by the parties

1. The following applications are before the court:

1. The first, second and third defendants’ applications for summary disposal of the claims brought for malicious prosecution, abuse of process and defamation (written submissions, 21 November 2019), supported by the following affidavits:

1. Affidavit of Tony Cavanagh sworn 20 November 2019;

2. Affidavit of Bruce Burke sworn 20 November 2019;

2. An application by the Australia Broadcasting Corporation (“ABC”), the fourth defendant, for summary dismissal of the plaintiff’s claim for defamation by reason of the likely success of the defence of fair report pursuant to s 29 Defamation Act 2005 (NSW) and/or by reason of pleading issues, supported by the affidavit of James Patrick Hoy affirmed 22 November 2019;

3. An application by the fifth defendant, Google LLC, supported by the affidavit of Imogen Elizabeth Niney Loxton affirmed on 25 November 2019 for summary dismissal of the plaintiff’s claim for defamation in relation to URLs that were returned as a result of Google searches;

2. The plaintiff, who appears for himself, opposes these applications and relies upon submissions and an affidavit in support served on Tuesday 26 November 2019.

An overview of these proceedings

3. The plaintiff, by statement of claim filed on 26 June 2019 (currently in the form of a Further Amended Statement of Claim filed on 23 October 2019), brings four claims against five defendants. The pleading comprises 51 typed pages with 21 annexures and the claims are listed numerically as “The First Cause of Action” and following. These claims may be summarised as follows:

1. “The First Cause of Action” (pp 1 – 16 of the further amended statement of claim): This is a claim for malicious prosecution. The first defendant is the Royal Society for Prevention of Cruelty to Animals (“RSPCA”). The second defendant is Inspector Jean Sprague, who was the prosecutor in relation to charges laid against the plaintiff pursuant to ss 5 and 6 of the Prevention of Cruelty to Animals Act 1979 (NSW), conducted in Goulburn Local Court, which resulted in his conviction. The third defendant, Mr Andrew Wozniak, is a partner in the law firm retained by the RSPCA for the prosecution. The plaintiff was convicted on 12 December 2012 but, on appeal, the conviction and fine were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which the plaintiff submits amounts to an acquittal.

2. “The Second Cause of Action” (pages 16 – 17 of the further amended statement of claim): This is a claim for abuse of process, based upon the same facts as those set out in 3(a) above and is brought against the same defendants.

3. “The Third Cause of Action” (pages 17 – 21 of the further amended statement of claim): This is a claim for “defamation by the defendants ABC and RSPCA”, according to the heading on page 17 of the statement of claim (the ABC is the fourth defendant). The matter(s) complained of is/are identified as a press release dated on or about 11 December 2012 which it is asserted the RSPCA subsequently “requested or took actions” for the ABC to publish. This is asserted to have resulted in the four-sentence trial report published by the ABC on 12 December 2012, which remained online “until 2019” (p. 18). Alternatively, the ABC is solely liable for “a continuous course of conduct” of publications over the period 12 December 2012 until the link was removed in 2019.

4. “The Fourth Cause of Action” (pages 23 – 51 of the further amended statement of claim): This is a claim for defamation for nine publications and is brought against Google LLC (the fifth defendant).

5. A defamation claim made against the sixth and seventh defendants was discontinued and is the subject of a gross sum costs order: Young v RSPCA NSW [2019] NSWDC 613.

4. The basis upon which the defendants seek summary dismissal of each of these claims may be summarised as follows:

1. The First Cause of Action (malicious prosecution): Although raising other issues (such as pleading problems and proportionality), the first to third defendants principally argue that the plaintiff did not obtain a successful termination of the prosecution.

2. The Second Cause of Action (abuse of process): The first to third defendants submit that the claim for abuse of process is so hopelessly pleaded that it should be struck out without leave to replead.

3. The Third Cause of Action (defamation): The first defendant submits there is no evidence of any publication by them either within the limitation period or at all. As to the 12 December 2012 publication by the fourth defendant, the first to fourth defendants submit that any claim reliant on this publication should be struck out on the basis that a defence under s 29 Defamation Act 2005 (NSW) is made out. Alternatively given the limited evidence of download, these defendants rely upon the proportionality issues developed by Mr Lewis, not only on behalf of the fifth defendant, but in relation to all defamation claims.

4. The Fourth Cause of Action (defamation): Google submits that there is no actionable publication. Alternatively, any publication capable of being identified as being downloaded within the limitation and after notification is so limited that the principles of proportionality enunciated in Bleyer v Google Inc (2014) 88 NSWLR 670 are made out. Mr Lewis’s submissions are also relied upon by the defendants in the Third Cause of Action and the first to third defendants also rely on these principles in relation to the claims the subject of the First and Second Causes of Action.

Summary dismissal of proceedings

5. The relevant principles for summary dismissal, as set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, constitute a high bar.

6. However, traditionally cautious judicial approaches to such applications appear to be changing as case management principles incorporated into legislation such as the Civil Procedure Act 2005 (NSW) carry increasing importance. An example of these changing views may be seen in the observations of Neave JA, in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at [41], where his Honour explained the importance of the role of “the over-arching purposes” of such legislation in Victoria as follows:

“[41] Nevertheless I am concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s 63 having little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s 1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposes of that Act, imposed by s 8.”

7. Similarly to the Victorian legislative regime, the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (NSW) flows through to the provisions of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 13.4 UCPR provides:

“13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

8. Rule 14.28(1) UCPR provides:

“14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

9. In addition, in relation to proportionality, UCPR r 12.7 provides:

“12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.”

Summary dismissal applications in defamation proceedings

10. Unlike some other areas of the law, where summary dismissal applications are rare, or may even be actively discouraged (see Supreme Court Practice Note SC Eq 3 at paragraph 62), applications for summary judgment for defamation (other than in the Federal Court) have become increasingly common. This is partly because of the requirement for plaintiffs to reach a “threshold” for online publications by identifying a specific downloading of the publication, partly by the availability of summary dismissal for certain defences (such as absolute privilege) and, over the past five years, because of the increasing number of applications for summary dismissal for proportionality reasons: Bleyer v Google Inc. All three of these bases for summary dismissal have been invoked in these applications.

11. However, the entitlement to strike out claims for non-defamation actions (such as malicious prosecution) on the basis of proportionality is, as I noted in my previous decision (Young v RSPCA NSW [2019] NSWDC 613), novel. The usual basis for such applications is poor pleading. However, courts generally exercise caution in striking out the whole action on such a basis, particularly where the defective pleading is being examined for the first time.

12. As to poorly pleaded defamation claims, it is not uncommon for applications for summary dismissal to be brought on the basis that, despite a number of attempts, the pleadings are insufficient: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. Whether or not summary dismissal is granted may be a question of the degree of delinquency involved, and the granting of such relief in terms of abuse of process is rare: Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 at [41] per Macfarlan JA. However, where there has been no proper identification of the matter complained of, in terms of content, timing and extent of publication, the courts have taken a firmer stance: Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306; Emmerton v University of Sydney [1970] 2 NSWR 633.

The circumstances leading to the bringing of this claim

13. The first defendant, a not-for-profit organisation, is empowered to prosecute offences under the Prevention of Cruelty to Animals Act 1979 (NSW). On or about 18 July 2011, the plaintiff was issued with five court attendance notices for offences under ss 5 and 6 of the Prevention of Cruelty to Animals Act 1979 (NSW). Those notices named the second defendant, Inspector Sprague, as the prosecutor on behalf of the RSPCA. The offences in question included a failure of the plaintiff to provide adequate food and treatment to a chestnut mare which was subsequently put down. An employed solicitor from the same law practice in which the third defendant was a partner instructed Mr Bodor QC on behalf of the RSPCA. The plaintiff gave evidence and was cross-examined. Magistrate Beattie delivered judgment on 11 December 2012, finding that the charges were proved beyond reasonable doubt.

14. The plaintiff appealed the convictions on that same day. The three-year delay between the judgment of Magistrate Beattie on 11 December 2012 and the judgment of Jeffreys DCJ on 25 July 2016 is not the subject of any complaint by any of the parties and, in particular, not by the plaintiff. It is Jeffreys DCJ who explains this delay in his judgment, where his Honour notes that the proceedings had been before the court for “some considerable time” to enable the obtaining of a series of medical reports, the “latest” of which was a report of Dr Williams of 16 June 2016.

13. Jeffreys DCJ set out the nature of the application before the court and the charges as follows:

“HIS HONOUR: This is an application for the consideration of s.32 of the Mental Health (Forensic Provisions) Act 1990. The appellant is charged with offences shortly described as cruelty offences. The facts, briefly, are that between 29 July and 31 August 2010 the appellant is charged with being in charge of a chestnut mare, did commit an act of cruelty upon it by failing to provide it with proper sufficient food, causing the mare hunger and distress and did fail to provide the mare with veterinary treatment for internal and external parasites and dental and tongue problems, thus contravening the provisions of s.5(1) and 5(3)(c) of the Prevention of Cruelty to Animals Act 1979 in a way that resulted in serious disablement of the mare.

He was also charged with three counts of failing to provide veterinary treatment in relation to lice, worm and bots and dental and tongue problems, and one count of failure to provide proper and sufficient food. Those four counts are effectively subsidiary to the principal charge and basically form the circumstances that set out the elements of the principal charge.

On 31 August 2010 some neighbours became aware of a horse they believed to be the appellant’s which was recumbent on a neighbouring property. They left a message for the appellant about the horse being down and then met him at the gate and drove into the property. There they observed the horse to be lethargic, in a poor condition, it appeared to have been down for quite a while and was dehydrated. They took the horse home for veterinary treatment and then called the vet, Dr Wright.

Dr Wright examined the horse the following day. He observed rain scald, heart murmur, urine building, a sunken rectal perianal area, extremely malnourished and emaciated, lice, ocular discharge, unsteady gait, worn teeth and ulcerated tongue. Ms Sprague, an inspector from the RSPCA, then attended at the vet’s request and made similar observations of the condition of the horse.

The following day, on 2 September, an equine vet, Mr Doherty, inspected the horse. At that stage the horse was standing and able to walk. He says it had been of very poor body condition. He had a guarded view which was to be taken day by day. By the following day the horse had gone down again and the RSPCA were notified. Dr Wright attended, saw the horse was in distress, unable to rise and gave it pain relief. He returned later in the day and he was accompanied by Dr Johnson. The horse was still recumbent and both were of the opinion that it was cruel to keep the horse alive and so it was euthanased.

They performed a post-mortem later that day and noted a heavy internal parasite burden, extremely worn teen, chronically ulcerated tongue and that this was a long term condition.”

16. Jeffreys DCJ set out the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and then explained:

“These proceedings are an appeal pursuant to the Crimes (Appeal and Review) Act against the convictions from the Magistrate. It is quite clear in my view, and the respondent to the appeal does not submit otherwise, that I am able to consider the provisions of s 32.”

17. Having noted Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93, his Honour went on to summarise the circumstances in which the plaintiff suffered a serious head injury after being kicked in the head by a horse on 12 April 2012, which resulted in major depression which the psychiatrist considered was a matter coming within s 32. It was as a result of this report and the subsequent treatment plan that Jeffreys DCJ noted the matter had been before him for some considerable time.

18. His Honour was satisfied that the plaintiff “still comes within s 32 of the Act” notwithstanding certain findings of the psychiatrist and went on to explain the sentencing process as follows:

“I have taken into account the seriousness of the offence when balancing the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating or regulating to the greatest extent practicable the conduct of individuals suffering from any of the mental conditions referred to in s.32(1). In my view, it is appropriate in this matter to divert the appellant from the criminal justice system.”

19. His Honour went on to make the following orders:

“Accordingly, the appeals are upheld. The convictions, bonds and orders made by the learned Magistrate are set aside. Pursuant to s.32(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I order the charges be dismissed and the appellant discharged subject to the following conditions:

. That he comply with and continue treatment with Dr Wiliams or such other medical practitioner as is recommended by Dr Williams.

. That he comply with any medical regime prescribed by Dr Williams or such other medical practitioner.

. That he attend counselling and other treatment as recommended by Dr Williams or other medical practitioner.”

The First Cause of Action – Malicious prosecution

20. The relevant principles for a claim for malicious prosecution are set out in A v State of New South Wales & Anor (2007) 230 CLR 500 at [1] as follows:

“[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.”

21. At paragraph 2 of the first to third defendants’ submissions, Ms Chrysanthou describes the plaintiff as making “claims in defamation and malicious prosecution against the defendants” for which summary dismissal is sought. She outlines the position of both of these claims in an intertwined fashion as follows:

“5. As to the claims for malicious prosecution and abuse of process, they are hopeless. In relation to the third defendant, Mr Wozniac, he clearly was not the prosecutor. Further, the plaintiff was not acquitted – the offences were in fact proved but the charges were dismissed, with conditions imposed, by reason of the operation of s.32 of the Mental Health (Forensic Provisions) Act 1990.

6. Finally, the FASOC, being the plaintiff’s third attempt at a pleading, is incomprehensible, and liable to cause expense and delay that is disproportionate to any potential benefit that the plaintiff will achieve if the proceedings are allowed to proceed.”

22. Ms Chrysanthou repeats these submissions in the following detail:

1. The pleading is “unintelligible” (written submissions, paragraph 27), in that the facts relied upon are not identified and consist of a “lengthy narrative” (written submissions, paragraph 27);

2. The prosecution did not terminate in the plaintiff’s favour (written submissions, paragraph 28);

3. The claim against the third defendant is “utterly hopeless” (written submissions, paragraph 29);

4. The tort is not complete unless evidence of damage is provided, which has not been done: New South Wales v Landini [2010] NSWCA 157 at [20].

23. The plaintiff’s general response to the criticism of his pleadings was that, as a litigant in person, he should be given more than one attempt to get the pleading right, for both the malicious prosecution and abuse of process claims.

24. In relation to the claim that he was not successful on appeal, the plaintiff relies on the language of the orders made by Jeffreys DCJ confirms that the convictions were in fact set aside. The plaintiff says that the orders flowing from this judgment amount to a finding that no crime has been proved and this is the equivalent of being convicted.

Were the proceedings determined in favour of the plaintiff?

25. The plaintiff draws my attention to the language of the sentencing judge, and in particular to the following:

1. “the appeals are upheld”;

2. “the convictions, bonds and orders made by the learned magistrate are set aside pursuant to [the relevant portions of the Act];

3. “I order that the charges be dismissed and the appellant discharged subject to the following conditions…”

26. Ms Chrysanthou submitted that the prosecutions did not terminate in the plaintiff’s favour, in that the facts set out in the sentence clearly demonstrate that the offences were proved beyond reasonable doubt.

27. I note generally the importance of analysis of the statute in question in relation to issues relevant to malicious prosecution generally: Kable v State of NSW (2010) 203 A Crim R 66 at [47] per Hoeben J, regarding the Community Protection Act 1994 (NSW); see also Reilly v. Bissonnette, 2008 BCCA 167 at [52]-[57]. For this reason, close attention must be paid to the language of the statute.

28. The convictions were set aside only on the basis of the finding under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which provides as follows:

“32 Persons suffering from mental illness or condition or cognitive impairment

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) cognitively impaired, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013 ,

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or

(ii) to enable the provision of support in relation to the defendant's cognitive impairment, or

(c) unconditionally.

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may:

(a) issue a warrant for the defendant's arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:

(a) issue a warrant for the defendant's arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section.

(6) In this section:

“cognitive impairment” means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following:

(a) intellectual disability,

(b) borderline intellectual functioning,

(c) dementia,

(d) acquired brain injury,

(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f) autism spectrum disorder.”

29. Ms Chrysanthou told the court that she had been unable to find any authority, either under the Mental Health (Forensic Provisions) Act 1990 (NSW) or similar legislation. This is incorrect. After I reserved, my researches led me to Quirk v State of New South Wales [2011] NSWSC 341, a claim for malicious prosecution, abuse of process and other claims, where the same argument Ms Chrysanthou put before me was rejected by Grove AJ.

30. In Quirk v State of New South Wales, Mr Bodor QC (who was coincidentally the prosecutor in the proceedings brought against Mr Young as well) submitted that a dismissal of charges under s 32 of the Act was not a favourable termination of proceedings for the purposes of malicious prosecution. Grove AJ gave the following reasons for rejecting this argument (at [80]-[82]):

“80 The defendant has submitted that the plaintiff has not pleaded (nor proven) favourable termination of the relevant charges. It is admitted on the pleadings that the charges were dismissed as above recounted on 2 November 2007 (sic 2 November 2006). At the risk of repeating comments made during the hearing about the quality of pleading, I am content to approach the issue on the basis that it was intended by the expression of dismissal to assert a relevant termination in the plaintiff's favour.

81 In support of its contention, the defendant drew attention to the remarks of Isaacs ACJ and Starke J in Davis v Gell (1924) 35 CLR 275 concerning proof of innocence where a prosecution had been brought to an end by the entry of a nolle prosequi. The observations in that case must be understood in the light of the later authority of Commonwealth Life Assurance Society v Smith (1938) 59 CLR 527 where it was noted (at page 540) that, before Davis v Gell, no one appears to have supposed that, where the prosecution broke down before a magistrate a plaintiff was in a less favourable position than a plaintiff who had been acquitted after trial. The joint judgment (Rich, Dixon, Evatt and McTiernan JJ) proclaims that, except in the case of a nolle prosequi, the guilt or innocence of a plaintiff is not an issue going to the cause of action in malicious prosecution (at page 543).

82 Given the structure of the mental health provisions above noted, the plaintiff is not in jeopardy of further prosecution and, to the extent that it might be sought to argue its relevance, the plaintiff possesses a presumption of innocence in respect of the charges. I am satisfied therefore that the plaintiff has established the element of the tort that the proceedings terminated in his favour.”

31. Grove AJ specifically referred to the provisions of s 32(4) as the basis for this finding, as it provides that the dismissal of the charges against the defendant “does not constitute a finding that the charges against the defendant are proven or otherwise”.

32. Mr Quirk failed in relation to other elements in the claim for malicious prosecution but succeeded on other claims, resulting in an appeal by the State of New South Wales in relation to the malicious prosecution findings: State of New South Wales v Quirk [2012] NSWCA 216 at [8]. One of those should have been the rejection of Mr Bodor QC’s submissions as to s 32 of the Act. However, Tobias AJA (with whom Beazley and Hoeben JJA agreed) commenced his judgment at [3]:

“On 1 and 7 March 2006 the respondent was arrested by police after encounters at Kingswood and in Sydney city respectively. Arising out of both incidents, the respondent was charged with various offences. The proceedings with respect of those offences were relevantly terminated in favour of the respondent. As a consequence, the respondent instituted proceedings in the Supreme Court against the appellant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988. At all material times the appellant was vicariously liable pursuant to ss 8 and 9 of the Law Reform (Vicarious Liability) Act 1983 for the alleged tortious acts of the police officers concerned.” [Emphasis added]

33. Was this issue canvassed in argument? Whether or not it was, the view of the Court of Appeal is clear. Whether or not this elevates Grove AJ’s findings as to s 32(4) to appellate level, both these judgments are directly on point (they are also relevant to the abuse of process claim, as Mr Quirk brought a claim of abuse of process in addition to the malicious prosecution claim).

34. Where parties have overlooked a decision of central relevance to the issues before the court, the appropriate course to take is that adopted by Walmsley DCJ in Ford v Nagle [2004] NSWCA 33, namely to relist the matter for argument or to seek further submissions. As there were problems with both the malicious prosecution and abuse of process claims, my associate contacted the parties to draw their attention to the relevant sections of the decision Quirk v State of New South Wales (at first instance) and State of New South Wales v Quirk (the decision of the Court of Appeal). I have now received replies from both parties in relation to these decisions.

35. Ms Chrysanthou argues that the finding by Grove AJ “appears to have turned on the fact that the plaintiff had never been convicted of the offence in question, and that the charges had been dismissed pursuant to s.32” (written submissions, paragraph 7) whereas, in the present proceedings, the plaintiff was convicted at first instance. Ms Chrysanthou, asserts that, on appeal, “the only issue in question was whether Mr Young came within the confines of s.32” (written submissions paragraph 8). In those circumstances, “[t]he presumption of innocence relied on by Grove AJ in Quirk is thus not relevant in this matter – Mr Young was in fact convicted” (written submissions paragraph 8). On this basis, it is asserted that a person found guilty of an offence at first instance who is diverted from the criminal justice system under mental health provisions on appeal has not had the criminal proceedings terminated in their favour, as the factual findings of Magistrate Beattie were “not disturbed (and indeed adopted) by Jeffries [sic] DCJ” (written submissions paragraph 9).

36. The plaintiff’s submissions are that the decisions of Grove AJ at first instance and the Court of Appeal on appeal are correct and that I should follow them.

37. Ms Chrysanthou’s explanation of Grove AJ’s reasoning overlooks his Honour’s careful analysis of s 32(4) which is the clear basis for his Honour’s finding, rather than the stage the proceedings had reached before the s 32(4) orders. Whether or not a plea had been entered (or for that matter, if the person coming before the court was actually “innocent”: Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Liristis [2011] NSWDC 40 at [20], citing Mantell v Molyneux [2006] NSWSC 955 at [39]), the whole purpose of s 32(4) is to ensure that a decision to dismiss charges does not constitute a finding that the charges against the defendant are proven or otherwise – which would mean that the judgment appealed from, which results in these orders, would similarly not stand as proof of anything.

33. These findings must turn on the words of the statute, and caution must be exercised when considering how other legislation which dismisses charges is to be interpreted. For example, charges dismissed under s 556A of the Crimes Act 1900 (NSW) are not viewed as meaning that there was no conviction, as otherwise the conviction could not be appealed (Fleet v District Court of NSW [2002] NSWCA 25 at [9]; see also Cameron v James [1945] VLR 113).

34. The section therefore operates to ensure that a decision to dismiss the charges under s 32 does not constitute a finding that the charges are proven. However, s 32(4) has some additional wording. What, then, is to be made of the additional words “does not constitute a finding that the charges against the defendant are proven or otherwise” (emphasis added)? I was not addressed on this issue by the parties.

35. The key is the words “or otherwise”. Orders under s 32 are a result, but are not proof of a result which can be regarded as one of success or failure by the plaintiff in the criminal proceedings, in terms of the requirement for a favourable termination. This is not a right restricted to the proving of the charges but to any finding, favourable or otherwise. The words “or otherwise” in s 32(4), in my view, deprive the plaintiff of that entitlement. The first to third defendants may not say that there is an unfavourable termination, but the plaintiff may not say that he has a favourable termination either.

36. The phrase “or otherwise” occurs in other statutes: see for example Georgitsis v Lend Lease Interiors Pty Ltd & Ors (1989) 17 NSWLR 106. While the interpretation of this phrase will depend upon its context, these words should not be regarded as mere surplusage. To the contrary, this phrase may be a term of the widest import; in Howie v New South Wales Lawn Tennis Ground Ltd (1956) 96 CLR 132 the High Court unanimously held that, where the phrase “whether by way of compensation, damages or otherwise" was used in an agreement, “the clear purpose seems to be to exclude all rights enforceable by action for damages or in any other way”.

37. There is no discussion of the words “or otherwise” in Quirk v State of New South Wales. Nor was this issue considered in any detail by the Court of Appeal, despite clearly being a significant issue at first instance as well as a matter of some importance, in that this interpretation has ramifications for the operation of s 32(4).

38. The plaintiff is entitled to rely upon both these judgments as being binding upon this court. Ordinarily, that would be the end of the argument.

39. However, I propose to follow the course taken by Hoeben J in Kable v State of New South Wales (albeit in relation to another element in the tort of malicious prosecution), namely to focus upon the language of the statute. For the reasons set out above, I accept that s 32(4) means what it says, namely that no conclusions or proofs arise at all where findings are made under s 32.

40. I am accordingly satisfied that Grove AJ was plainly wrong to reject the submissions of Mr Bodor QC and to determine that there had been a favourable termination. The Court of Appeal, if endorsing that approach, would similarly be wrong. If the Court of Appeal overlooked this issue entirely, as appears likely to be the case, its decision may be disregarded, or treated as plainly wrong for this reason.

41. In such circumstances, I am satisfied that the s 32 findings do not constitute proof of a successful termination and the plaintiff’s claim for malicious prosecution accordingly fails.

42. I propose to strike out this claim on the basis that favourable termination cannot be established. In the event that I have erred, I set out, in brief terms, my reasons for rejecting Ms Chrysanthou’s submissions that the malicious prosecution claim should be struck out on the basis that the pleading is hopeless.

Malice and absence of reasonable and probable cause

48. Ms Chrysanthou submits that, the pleading in relation to the remaining elements of the tort of malicious prosecution are so unintelligible that the proceedings should be struck out and dismissed without leave to replead.

49. This is the first time the court has been asked to rule on the pleading. In Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682 at [4], where an application of this kind was abandoned part-way through and leave to cure the deficiencies agreed to, Adamson J stressed the need for courts to balance the requirements of both parties:

“As a matter of general principle, it is important in the interest of justice that plaintiffs have an opportunity to put their claims properly and that proceedings not be dismissed lightly when there could well be reasonably arguable causes of action available. However, it is also important, in the interests of justice, that causes of action be properly pleaded. This is an aspect of procedural fairness in that a proper pleading not only enables a defendant to understand the case it has to meet, but it also enables the Court to appreciate what is in issue between the parties.”

50. I note similar observations by Hidden J in Duke v New South Wales [2005] NSWSC 632 and also in Reilly v. Bissonnette, where summary dismissal of the malicious prosecution on such grounds was set aside on appeal.

51. There are other reasons for reluctance. The extraordinary generality with which Ms Chrysanthou’s complaints were put would make it difficult for me to determine the issue in relation to each of the elements of malice and reasonable and probable cause. Beyond making the general complaint that the pleading is “unintelligible” in that it “repeatedly refers to judgments and transcripts in other matters without identifying what facts are relied on”, as well as containing a “lengthy narrative”, no further specifics are given.

52. That is not to say that the pleadings are in acceptable form. The first problem the plaintiff has is that he has run together the particulars of “lack of probable cause” and “deliberate malicious intent”, in paragraphs 5 to 84 of the statement of claim. While this pleading impermissibly intertwines lack of probable cause and malice (and would need to be repleaded for that reason alone), Ms Chrysanthou does not refer to this defect at all.

53. Despite the pleading defects, there is material set out which could amount to malice, such as prior hostility and ill-will from two prosecution witnesses, Mr and Mrs Cook, who were the subject of adverse findings by the magistrate in relation to credit in other proceedings brought against them by the plaintiff.

54. There is also material capable of establishing absence of reasonable and probable cause. For example, paragraph 84 sets out that the first to third defendants knew that the horse for whose treatment the plaintiff was prosecuted was not his at all, but was owned by the tenant who had been evicted from the property on which the horse was found. What is more, it is asserted that this “true owner” of the horse in question had been previously investigated by the RSPCA for cruelty to other animals on the same farm, only a few months prior to this horse being found. If any of these particulars is able to be demonstrated as true, there may be sufficient disputed issues of fact for such material, in properly pleaded form, to go forward to trial.

55. For the same reasons as those set out by Hidden J in Duke v New South Wales, the plaintiff would, if I have erred in relation to my finding as to absence of favourable termination, be permitted at least one more opportunity to plead his case properly. While the claim in its present form must be struck out, there is material that may potentially outline a claim for malicious prosecution; the real problem is the non-legal manner in which it had been presented.

56. The same is the case in relation to the first to third defendants’ complaint concerning the failure to plead special damage (Davis v Gell (1924) 35 CLR 275). The plaintiff has pleaded a claim for general, aggravated and exemplary damages but needs to identify proof of special damage and has not done so. This is not a basis for striking out the claim, but for permitting an amendment.

Is the third defendant a prosecutor?

57. Ms Chrysanthou submitted that, whether or not I accepted her arguments on other issues, the proceedings against the third defendant should be struck out as manifestly hopeless.

58. I do not propose to do so. First, the plaintiff is entitled to rely upon Davis v Gell as authority for the proposition that the informant does not have to be the prosecutor for the purpose of an action for malicious prosecution. In Davis v Gell, Isaacs ACJ explained the reasons for permitting a claim against a civilian complainant, although the prosecution had been conducted by the police, as follows (at 282-283):

“For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.”

59. In Duke v State of New South Wales, Hidden J similarly permitted a claim against not one, but a total of four, persons to go ahead on this basis (at [38] – [41]).

60. Second, there is also the general undesirability of summary dismissal against one of a number of defendants: see the discussion of Wickstead v Browne (1992) 30 NSWLR 1 and UCPR r 29.9 in Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 at [239]-[244], where Hamill J notes that this decision and these principles were approved in Ford v Nagle (at [240]).

61. Accordingly, I would not have been prepared to strike out the claim as against the third defendant at all, and certainly not without granting leave to replead.

The second cause of action

62. The second cause of action, set out on page 16 of the further amended statement of claim provides:

“Second cause of action Abuse of process by Rspca, Sprague, Wozniak

1.. Plaintiff incorporates every paragraph in the first cause of action herein as if fully set out in this cause of action

Defendant RSPCA, Sprague and Wozniak issued and served 5 Court attendance notices on plaintiff returnable at Goulburn Local Court on or about 24 August 2010. Plaintiff attended at the court and plead not guilty. Thereafter a trial took place and plaintiff was convicted on 11/12/2012

Thereafter plaintiff was successful on appeal as plead and the matters dismissed and the appeal upheld

2.. Defendants Rspca, Sprague and Wozniak abused the process of the court by wrongfully issuing the courts process for

A]……. An improper use of the court’s process; and for

B] ……. An ulterior or improper motive of the defendants in exercising such illegal/unlawful use of process;

C] ……. Continuing damages to the plaintiff has now resulted and is continuing from the abuse of the courts process

Further particulars see first cause of action

3.. The defendants one two and three issued the courts process to begin the malicious prosecution of plaintiff in Rspca v Young local Court Goulburn with an ulterior motive to severely damage and vilify plaintiff and not for the proper and lawful purpose and use of the courts processes and all of which actions have caused severe damages to plaintiff

Wherefore plaintiff claims-GENERAL DAMAGES-AGGRAVATED DAMAGES EXEMPLARY DAMAGES-as set forth in the first cause of action”

63. The instigation of the proceedings which are asserted to be the abuse of process is pleaded as commencing “on or about August 2010” and continuing until 12 December 2012, when the plaintiff was convicted. Thereafter, according to the pleading, the plaintiff prosecuted his appeal, but there is no particularisation of malicious continuation, or indeed any actionable conduct in relation to the appeal after that time. This could have ramifications in relation to the limitation period which runs from the accruing of the cause of action (12 December 2012) and not the date of the appeal and s 32 orders in 2016.

64. The only submissions made in relation to the claim for abuse of process are that this claim is “also unclear and should not be allowed to proceed for the same reasons” as the malicious prosecution (written submissions, paragraph 30). The orders sought, as for the malicious prosecution claim, are for this claim to be struck out without leave to replead.

65. In Quirk v State of New South Wales, a claim for abuse of process as well as a claim for malicious prosecution was brought (as Grove AJ notes at [15]). However, the plaintiff in those proceedings made the same mistake that the plaintiff in these proceedings had made, in that he considered that favourable termination was a necessary element of the claim. This is wrong; as Grove AJ stated in [73] of his Honour’s judgment:

“I turn to the action for malicious prosecution. To succeed upon such a cause of action the plaintiff must prove the institution of criminal proceedings by the defendant, the termination in favour of the plaintiff, the absence of reasonable and probable cause for the institution of proceedings and malice by the prosecutor in the sense of having a purpose other than that of carrying the law into effect. The distinction relevant to the pleaded alternative (abuse of process) lies in the misuse of legal process, even if properly obtained, for some improper purpose. I mention that no such improper purpose was sought to be identified nor was it evidenced.” (Emphasis added)

66. Although I drew this paragraph to the attention of the parties when requesting further submissions on Quirk v State of New South Wales, they appear to have overlooked this aspect of my request. It is obvious that the plaintiff does not understand that favourable termination is not a necessary factor for abuse of process and, given the observations set out in paragraphs 5 and 28 of the first to third defendants’ written submissions, this error has not been picked up by the first to third defendants.

The nature of a claim for abuse of process

67. Hunt J explained the nature of claims for abuse of process in R v Beydoun (1990) 22 NSWLR 256 as follows:

“Civil actions such as malicious prosecution and abuse of process are not precluded by the [witness immunity] rule, however, because they are based not directly upon statements made in the course of the judicial proceedings, but rather upon the instigation of the proceedings themselves (or upon their continuation), and notwithstanding that the plaintiff may seek to support his case by proving the falsity of statements made in those proceedings which form the basis of such a claim… The availability of such actions appears to me to accord satisfactorily with the twofold rationale of the rule which the cases have identified.” [Emphasis added]

68. It is “the instigation of the proceedings” (and any asserted continuation) that is actionable; whether or not the plaintiff was acquitted on appeal is not an issue for determination at the trial.

69. The history of the cause of action of abuse of process is comprehensively set out by Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 374-376, where his Honour notes (at 375E) “the fundamental differences between an action for damages for abuse of process and an action for damages for malicious prosecution”. Hunt J sets these out as follows:

“The difference principally relevant here is the need in the action for malicious prosecution, but not in the action for abuse of process, for the plaintiff to plead and to prove that the earlier proceedings have terminated in his favour. Thus there is not in the action for abuse of process (as there is in the action for malicious prosecution) necessarily an adjudication in the earlier proceedings in relation to the present plaintiff's entitlement to costs. If the earlier proceedings had terminated in favour of the present plaintiff, then his expenses would have been recoverable in those proceedings and they would not support his subsequent action for abuse of process. But, where those earlier proceedings have not so terminated in favour of the present plaintiff, I see no reason why his expenses in relation to those proceedings should not validly support his present claim.”

70. As already noted above, the first flaw in the abuse of process pleading is that the plaintiff sets out that he was successful on appeal, in the same way that he has set this out in relation to the malicious prosecution claim. As there is no requirement for a successful outcome for the tort of abuse of process, unlike the malicious prosecution claim, which requires a favourable outcome, the elements of the tort were complete in 2012, on the facts as pleaded. If so, the abuse of process claim may fall outside the limitation period (a problem overlooked by the parties, despite my referring to them to the observations of Grove AJ in Quirk v State of New South Wales at [73]).

71. What approach should the court take when a limitation issue arises in a claim of this kind? In Reilly v. Bissonnette, a similar problem arose in relation to a claim for negligent investigation by the police (at [59]-[75]). As was the case here, counsel for the respondents in those proceedings did not address this issue, including identifying any particulars of negligence which could be struck out as a result. The court was reluctant to decide on a summary basis that the plaintiff’s cause of action had become complete prior to his ultimate acquittal in those proceedings and to make a finding (at [72]) that the action was statute barred. The same should be the case here.

No plea of special damage

72. One issue which was raised by Ms Chrysanthou was whether the claim should be struck out by reason of failure to plead special damage. The absence of a pleaded claim for special damage was considered to be an issue capable of remedy in Hanrahan v Ainsworth (1990) 22 NSWLR 73. I also note observations by the Queensland Supreme Court in QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 as to whether evidence of special damage is in fact a prerequisite. Unfortunately, QIW Retailers Ltd v Felview Pty Ltd was not referred to by the New South Wales Court of Appeal in its comprehensive review of the law of abuse of process in Hanrahan v Ainsworth. Whichever decision is correct, any oversight in pleading special damage would not warrant striking the pleading out without leave to replead.

The hopelessness of the pleadings

73. I have set out, in paragraphs [21]-[22] above, the very limited submissions I have received in relation to abuse of process. A generalised claim is made that the pleading is hopeless without identifying any specific portion of the pleading.

74. Without some degree of specificity, I am reluctant to make any rulings in relation to the striking out of specific paragraphs of the claim for abuse of process, or to direct the plaintiff to provide particulars of conduct following the conviction of the kind which would fall within the limitation period prior to commencement of these proceedings. I note this approach was taken by the Court of Appeal for British Columbia in Reilly v. Bissonnette, where there was a failure to address the issues in question (at [73]-[75]).

75. That does not mean, however, that the pleadings in their present form are not hopeless. The following brief list is far from exhaustive:

1. The plaintiff cannot rely upon the same elements in the manner set out, as the elements of the two causes of action are quite different. In particular, there is no requirement for favourable termination. The necessary elements for the pleading are set out by Hunt J in Hanrahan v Ainsworth.

126. In Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), Tugendhat J added:

“233. Whether or not the scale of a website publication, and any resulting damage, is likely to be modest compared with that of the original publication, will depend on the facts of each case. But the judgment in Loutchansky was delivered eight years ago, in 2001. Since then the use of the internet, and in particular of internet search engines has increased. What has also increased is the amount of material on the internet. In 2001 there were relatively few years of back numbers of newspapers available on the internet. Since then each year's publications have been added. In most cases, as time passes, the original print publication will become increasingly difficult to access, and would be forgotten.”

127. The concept of “archived” publications, in terms of proportionality, received more detailed consideration in Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB) at [88]-[119]. Mr Budu had made a complaint about website articles some years beforehand and a note was placed online as an addition, containing the additional information he sought to be added (at [91]). There was then no further communication for a number of years, or in fact prior to the statement of claim being served (at [91]).

128. The principles discussed in this decision are particularly pertinent here, for two reasons. The first is because the plaintiff’s name is not included in the URL; it appears only in the downloaded publication, which makes any name-based search much harder. The second is because of the lengthy period of time between the initial publication (when, in proportionality terms, the damage is most likely to have been done) and the complaint. As to both of these important factors, Sharpe J captured the limited nature of the damage by describing the plaintiff’s cause of action as “a residual claim” (at [93]), in that the only claim which could be made would be for a portion of the time during which the matter complained of remained online. While noting the problems caused by potential continuing liability in respect of internet news archives as considered in Loutchansky v The Times Newspapers Ltd, her Honour noted, in the context of a challenge to the proportionality of the action, the special nature of residual claims, warranting a greater willingness to strike out the claim:

“[128] I am conscious that the abuse jurisdiction is exceptional. But if the Claimant were to succeed at trial in relation to a vestigial case, the cost of the exercise would in my judgment, have been out of all proportion to what had been achieved. If it were it necessary for me to do so, considering the matter "in the round" I would take the view that the BBC should not have to be put to the cost and trouble of defending these proceedings so many years after the initial publications, taking into account all the factors to which I have referred, including the potential prejudice to it in doing so; and that permitting this action to continue, on the facts of this case, would constitute a disproportionate interference with the BBC's article 10 rights and would be an abuse of the process.”

129. The plaintiff’s claim is (at best) based on publication to two or possibly more persons of the first matter complained of and, in respect to the remainder of publication, to his de facto partner, Ms Penney.

130. The added problem is that the statement of claim relates to publication only for twelve months prior to the further amended statement of claim, and residual claims of this nature must always attract additional attention in terms of proportionality issues, given the disproportionate costs to the parties and to the resources of the court.

131. The burden on court resources is particularly heavy where the opposing party is unused to the complexities of defamation. Statistical analysis of defamation actions confirms that defamation actions have long ceased to be claims brought by the well-off against the well-represented media. Increasingly, community organisations, charities and ordinary working families with no experience of complex litigation are the parties who find themselves caught up in trial-oriented court proceedings which are financially and emotionally destructive. Injustice through oversight is more likely to occur as a result, generally from delayed response and inadequate representation, as the saga of applications and appeals set out by Fagan in Palmer v Mohareb [2019] NSWSC 975 vividly demonstrates.

132. These errors are not just restricted to the parties; courts make mistakes as well. For example, some (perhaps all) of the appeals listed in Palmer v Mohareb may have been incompetent, for the reasons set out in Johnston v Nationwide News Pty Ltd & 1 Or [2005] NSWA 17. In Johnston v Nationwide News Pty Ltd & 1 Or at [22], the Court of Appeal unanimously held that a reference under s 203 of the District Court Act 1973 (NSW) is not a judgment or order under s 127(1) of that Act, and that any appeal against the refusal to make such a reference was incompetent. Mr Mohareb had no right to appeal at all in relation to the refusal to make orders under s 203 (his other appeals from the District Court’s refusal make orders under s 338(c) Crimes Act 1900 (NSW) may arguably have been similarly without basis, for the same reasons).

133. There are also additional burdens placed on both the courts and the parties when one of the parties is a litigant in person. This is because the first instance judge is expected not only to deal with the applications before the court but applications that the litigant in person might have brought, whether these issues are raised by the opponents or not: Mohareb v Kelso [2017] NSWCA 98 at [37] – [40]; Mohareb v Kelso (No 2) [2017] NSWCA 173 at [20] – [23]). The conduct of these proceedings has been a good example of such problems.

134. In addition to the issue of court resources and legal costs, there is the question of the damages likely to be awarded. The findings of fact, set out on the first two pages of the appeal, are stark. At trial, a certificate of conviction may be tendered in defamation proceedings under s 42 (although it is an interesting question of law, given the “proof” barrier in s 32(4), whether this step is even possible.) If so, that may be a strong factor in terms of mitigation of damages, which could be nominal or even derisory.

135. As to the publications asserted to have been made by the ABC and/or Google, whether all or only some can be established, I am satisfied that, in all the circumstances, this is one of those rare cases where any vindication to the plaintiff’s reputation would be wholly disproportionate to court resources and judicial time, let alone the cost to the parties: Bleyer v Google Inc at [62]-[63]; Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 at [5]. Although I was not addressed on Farrow v Nationwide News Pty Ltd in any detail, I consider the facts of the present case are almost identical, in that the plaintiff will seek to challenge the findings of fact set out in Jeffreys DCJ’s judgment.

136. In the event that I have erred in my findings that the first defendant did not make any publication of and concerning the plaintiff and/or are liable for any publication made by the ABC, the same findings concerning proportionality would apply.

137. Mr Lewis alternatively submits that the plaintiff’s claim is so hopelessly drafted as to invoke the warnings of the New South Wales Court of Appeal in Ghosh v NineMSN Pty Ltd for the following reasons:

1. The plaintiff’s claim contains inconsistent and embarrassing pleadings in respect of matters of substance such as publication and/or republication.

2. The plaintiff’s claim makes embarrassing allegations of worldwide publication: El-Mouhley v QSociety of Australia Inc (No. 2) at [8]-[9].

3. The plaintiff’s claim embarrassingly particularises publication to the plaintiff: Powell v Gelston at 619.

4. The plaintiff’s claim fails to distil any defamatory act or condition: Harvey v John Fairfax Publications [2005] NSWCA 255; McGinn v Peter Clisdell Pty Ltd (No. 2) [2018] NSWSC 1856.

5. The plaintiff’s claim contains a wholly inadequate claim for special damages: Hanson v Hunter [2015] NSWDC 220.

6. The plaintiff’s claim makes allegations at paragraphs 6(c), 12(c), 19(c), 25(c), 31(c) 37(c), 44(c), 50(c), 56(c) and 60(2)-(3) that are either scandalous within the meaning of UCPR r 14.15 and/or contrary to UCPR r 14.30(1).

138. Independently, such failures would not warrant the summary dismissal of the claim but, when taken into account with the issues raised in relation to proportionality, this would, in my view, be a sufficiently compelling case to warrant such summary dismissal.

139. As set out above in more detail, the same is the case in relation to the claims brought against the first and fourth defendants in the third cause of action.

The plaintiff’s subpoenae and notices to produce

140. I understand the plaintiff has sought production of what amounts to analytic reports from the fifth defendant, as well as other documentation. The entitlement of a party to bring such an application, even in terms of discovery, is an issue of controversy: El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816.

141. In light of my findings set out above, which effectively disposes of the whole of the case except for the abuse of process claim (to which the relevance of any application for these documents is moot), means that I do not propose to deal with this issue in this judgment, beyond noting that the practice of commencing proceedings and issuing notices to produce, subpoenae and the like to opponents is a practice which courts have, in relation to litigation in general and defamation in particular, expressed concern: Buswell v Carles [2012] WASC 509. Where the process of mutual discovery is available as a timetable step, parties should be discouraged from using subpoenae and notices to produce as a punitive and unilateral process, in the manner that has occurred here.

Costs and future listings

142. I was not addressed as to costs.

143. As to the first to third defendants, while some part of the costs should follow the event, it is arguable that other parts should not: Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital at [14]-[16]. I have accordingly reserved the issue of costs.

144. The proceedings against the fourth and fifth defendants have been dismissed in their entirety. I have made orders for costs to follow the event but granted liberty to apply.

145. All defamation claims have been struck out. The only remaining claim is the “Second Cause of Action” for abuse of process, which must be very substantially repleaded. I have struck this claim out but granted leave to replead but anticipate a further application by the first to third defendants for summary dismissal. It is a matter for the plaintiff to determine whether he can successfully plead this rarely successful and difficult to plead cause of action.

Orders

1. The claims against the first to third defendants for the “First Cause of Action” (malicious prosecution) and, as to the first defendant, the “Third Cause of Action” (defamation) are struck out and dismissed.

2. The claims against the first to third defendants for the “Second Cause of Action” (abuse of process) are struck out but with leave to replead, such leave to be exercised by 3 February 2020.

3. The costs of the plaintiff’s claim against the first to third defendants are reserved, with liberty to apply.

4. The plaintiff’s claims against the fourth defendant in the “Third Cause of Action” (defamation) are struck out and dismissed.

5. The plaintiff’s claims against the fifth defendant in the “Fourth Cause of Action” (defamation) are struck out and dismissed.

6. The plaintiff is to pay the fourth and fifth defendants’ costs of this application and of the proceedings, with liberty to the parties to apply.

7. The remaining proceedings for abuse of process as between the plaintiff and the first to third defendants are stood over for further directions, including a timetable for further argument, to the Defamation List on Thursday 6 February 2020.

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Decision last updated: 17 December 2019