YZ v Amazon (No 7)

[2016] NSWSC 637

Supreme Court

New South Wales

Medium Neutral Citation:	YZ v Amazon (No 7) [2016] NSWSC 637
Hearing dates:	13 May 2016
Date of orders:	20 May 2016
Decision date:	20 May 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Proceedings permanently stayed
Catchwords:	DEFAMATION – allegation that prosecution of cause of action amounts to an abuse of process – where plaintiff seeking to re-litigate matters determined against her in other proceedings – where reputation unable to be vindicated due to statutory prohibition on identification of plaintiff.   PROCEDURE – where plaintiff impecunious – conduct of proceedings in a manner oppressive to defendants – proportionality – whether procedural abuse.
Legislation Cited:	Crimes Act 1900 (NSW); s 86, s 249K, s 249K(2) Family Law Act 1975 (Cth); s 65Y, s 65Z, s 121, s 121(9), s 121(9)(g)
Cases Cited:	B v R [2015] NSWCCA 103 B v The Queen [2015] HCA SL 187 Batistatos v RTA of New South Wales (2006) 226 CLR Besser v Kermode [2011] NSWCA 174 Bleyer v Google [2013] 88 NSWLR 670 Freeburn v The Cake Decorators Association of NSW Inc (No 2) [2014] NSWDC 173 Gardiner v Nationwide News Pty ltd [2007] NSWCA 10 O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 P101 v Cambridge University Press [2015] NSWSC 1005 Rogers v The Queen (1994) 181 CLR 251 Smith v Lucht [2014] QDC 302 Swefford & Tarbell [2013] FamCA 233 Tyler & Sullivan [2014] FamCA 178 Walton v Gardiner (1993) 177 CLR 378 William v Spautz (1991) 174 CLR 509 YZ v Amazon [2013] NSWSC 1522 YZ v Amazon (No 2) [2014] NSWSC 415 YZ v Amazon (No 3) [2015] NSWSC 1130 YZ v Amazon (No 4) [2015] NSWSC 1346 YZ v Amazon (No 5) [2015] NSWSC1539 YZ v Amazon (No 6) [2015] NSWSC 1951
Category:	Procedural and other rulings
Parties:	YZ (Plaintiff) Amazon (1st defendant) Smashwords Inc (2nd defendant) OP (3rd defendant) QRS (4th defendant) WX (6th defendant)
Representation:	Counsel No appearance by the plaintiff S Chrysanthou (first defendant) No appearance for the second defendant R Potter, D Woods (third and fourth defendants) No appearance by the sixth defendant   Solicitors: Plaintiff self-represented HWL Ebsworth Lawyers (first defendant) Dwyer Bruce Legal (third and fourth defendants) Sixth defendant self-represented
File Number(s):	2013/178073
Publication restriction:	Note: Some of the parties in these proceedings are the subject of pseudonym orders.

Judgment

1. HER HONOUR: These are proceedings for defamation arising out of the publication of an electronic book. There are four active defendants to the proceedings, three of whom seek orders that the proceedings be dismissed or permanently stayed as an abuse of process. This judgment determines those applications.

2. The proceedings have a sad and complex history. [1] The plaintiff and the sixth defendant were married and had a child. The plaintiff is the mother of the child; the sixth defendant is the father. When the child was quite young, the mother formed a belief, based on the child’s conduct and things the child had said, that the father had sexually assaulted the child. The mother immediately left the father, taking the child with her.

   1. The summary of the relevant background set out at [2]-[6] of this judgment is drawn in part from the judgment of the Family Court published under the pseudonym Swefford & Tarbell [2013] FamCA 233 at [12]-[25].

3. The father commenced proceedings in the Family Court seeking parenting orders in respect of the child. While those proceedings were pending, the mother took the child out of Australia to a location unknown to the father, without his consent or an order of the Court. That was an offence contrary s 65Z of the Family Law Act 1975 (Cth).

4. Shortly after the mother’s disappearance, the father obtained an order ex parte that the child live with him until further order. It appears the Family Court also made a “recovery order” at that time requiring the return of the child to the father, as allowed under s 67Z(1) of the Family Law Act. The mother continued to conceal her whereabouts. The father commenced what was to be a lengthy search for the child.

5. As might be supposed, the Family Law Act seeks to protect the identity of parties to Family Court proceedings, making it an offence to give any account of such proceedings that identifies a party to the proceedings or a person who is related to or associated with a party to the proceedings: s 121 of the Family Law Act. That section imposed an obvious constraint on the father’s search. To address that problem, the Family Court made a “publication order” permitting publication of certain information about the mother and the child in aid of the father’s search, as allowed under s 121(9) of the Family Law Act.

6. After more than two years, the father located the mother and the child in an overseas country. The mother was arrested and the child was returned to the care of the father. The mother was ultimately extradited to Australia where she was charged under s 65Z. She spent over eight months in custody, both overseas and in Australia, before being released on bail in Australia. She has since been convicted and sentenced for the offence under s 65Z.

7. The publication order was vacated on 28 February 2011. So far as the material before this Court reveals, from that date, s 121 of the Family Law Act imposed an unqualified prohibition on giving any account of the Family Court proceedings between the mother and the father that identified a party to those proceedings or a person related to a party to the proceedings.

8. Over a year later, in July 2012, the book sued on in these proceedings was published. The book gives a detailed account of the events described above, necessarily including an account of the Family Court proceedings.

9. Although the title of the book, “Have you seen my child; the quest to recover a stolen child”, being expressed in the first person, suggests the book was written by the father, it was in fact written by a person who does not appear to have had any connection with the family. The author of the book is the fourth defendant in these proceedings. The mother nonetheless contends that the father must have participated in the publication of the book and is liable for the alleged defamation. The father denies having any involvement in the publication of the book; his defence pleads that, prior to its publication on the internet, he had no knowledge that it was being written.

10. The mother has taken a number of steps in the Family Court to restrain the publication of the book, recorded in a number of judgments of that Court handed up by Mr Potter. For present purposes, it is enough to record that the Family Court accepted that the book did identify the child and that it was not in the child’s best interests to have the book accessible on the internet. However, the relief sought by the mother was denied on discretionary grounds.

11. It is plain that the mother has a prima facie cause of action for defamation arising from the publication of the book, subject to the defences raised. However, the pursuit of that cause of action presents something of a conundrum. In the Family Court proceedings, the mother maintains (to this day) that publication of the book breaches s 121 of the Family Law Act because it reveals her identity and that of the child. However, in suing on the book in these proceedings, the mother invokes a remedy the efficacy of which can only be achieved in a manner that does just that. Any judgment in these proceedings that did not identify the plaintiff would scarcely serve the purpose of vindicating her reputation.

12. At an early stage of these proceedings, I came to the view that it would be an offence to give any account of the proceedings (which necessarily rehearse the issues determined in the Family Court proceedings) in terms that identified the plaintiff, the sixth defendant or the child. For that reason, I made suppression and non-publication orders and an order that some of the parties (including the plaintiff) be referred to by anonyms: YZ v Amazon [2013] NSWSC 1522.

13. It is unusual, but not unheard of, to see an action for defamation in which the plaintiff cannot be named. The only other decision of which I am aware in which that has occurred is P101 v Cambridge University Press [2015] NSWSC 1005, also a case involving an account of Family Court proceedings. The conundrum lies in the fact that any real vindication of a plaintiff’s reputation in such a case is precluded by the very events giving rise to the alleged defamation. The significance of that complexity is considered further below.

Applications determined in this judgment

14. The defendants’ applications were brought by two notices of motion. The first (dated 15 March 2016) was filed by the third and fourth defendants, the author of the book and the company through which she operates as a publisher. That motion came before me in the defamation list on 18 March 2016. The plaintiff, who appears for herself, was present on that date. Directions were made for the service of evidence and the motion was listed for hearing at 9.30am on 13 May 2016. The directions required the plaintiff to file and serve any evidence on the application on or before 22 April 2016. She filed no evidence.

15. On 27 April 2016, the first defendant, Amazon.com Inc, filed a separate notice of motion seeking the same relief as that sought by the third and fourth defendants. Amazon is sued as a distributor of the book.

16. The sixth defendant (the father of the child) brought no separate application and did not appear at the hearing of the two motions. Through Mr Potter, who appears with Ms Woods for the third and fourth defendants, he communicated his general support for their application. The only other remaining defendant in the proceedings is Smashwords Inc, the second defendant. Smashwords has filed a defence but has not recently taken an active part in the proceedings. It took no part in the present applications.

17. When the proceedings were called at 9.30 am on 13 May 2016, there was no appearance by the plaintiff. Since she had been present when the matter was fixed for hearing and in the absence of any prior communication from her, I determined to hear the applications in her absence. As the defamation list sometimes commences at 2.00 pm rather than 9.30 am, I took the precaution of calling the matter again at 2.00 pm on 13 May 2016. There was still no appearance by the plaintiff at that time.

18. At 5.14 pm on 13 May 2016 (after I had heard the applications and reserved my decision), my Associate received an email from the plaintiff in the following terms:

I have left Australia - temporarily - due to a severe and worsening physical health condition for which I was unable to obtain assistance in Australia. Until I have resolved that issue I will be - temporarily - unable to continue my legal proceedings.Given the problem is not my fault but the result of crime, I request your understanding and an adjournment of legal proceedings. I am not yet in a situation where I can provide evidence of my circumstances and I do not have sufficient access to the internet or the capacity to prepare legal documents currently. I do not have a fair chance of representing myself in Court under the circumstances and therefore I am currently unfairly and unjustly disadvantaged if proceedings continue.

I am requesting an immediate adjournment of legal proceedings until I can - safely - return to Australia or to a location from which I can continue to represent myself.

19. I have reconsidered the appropriateness of determining the defendants’ applications in the plaintiff’s absence in light of the content of that email. The plaintiff’s explanation, which is expressed in oblique terms and is not substantiated, has not persuaded me that there should be a further hearing. In my view, the interests of justice require that the applications be determined now, notwithstanding the plaintiff’s request.

Relevant procedural history

20. The proceedings were commenced by statement of claim filed on 11 June 2013. A series of interlocutory disputes primarily concerning the form of the statement of claim have been determined in my earlier judgments in YZ v Amazon [2013] NSWSC 1522; YZ v Amazon (No 2) [2014] NSWSC 415; YZ v Amazon (No 3) [2015] NSWSC 1130; YZ v Amazon (No 4) [2015] NSWSC 1346; YZ v Amazon (No 5) [2015] NSWSC1539 and YZ v Amazon (No 6) [2015] NSWSC 1951. The pleadings are now (finally) closed and the proceedings are listed for trial without a jury commencing on 6 February 2017 with an estimate of three weeks.

21. The current version of the statement of claim was filed in October 2015. It is neither necessary nor appropriate (having regard to the sensitivity of the issues raised and the importance of protecting the identity and interests of the child) to set out the imputations specified in the pleadings. I have had regard to all of the imputations in determining these applications. It is enough for present purposes to note that the imputations sued on by the plaintiff include an imputation that she kidnapped her child (imputation A) and an imputation that she committed crimes as a result of which she faced up to 13 years in prison (imputation N).

22. The defences pleaded by the defendants include defences of truth and contextual truth. Amazon has also pleaded the defence of innocent dissemination.

Grounds relied upon by the defendants for having the proceedings stayed

23. The defendants filed detailed written submissions addressing the grounds for their applications. The points raised may be summarised as follows:

1. the proceedings are an abuse of process because the plaintiff sues on imputations she knows to be true;

2. the proceedings are an abuse of process because they are brought by the plaintiff for improper purposes, namely, to re-litigate matters determined against her in other proceedings and, in doing to, to repeat damaging allegations she makes against a number of individuals. I will refer to that, in shorthand, as the finality issue;

3. the proceedings are an abuse of process because the plaintiff’s interest at stake is vastly disproportionate to the resources required to be expended to try the action. I will refer to that as the proportionality issue;

4. as an aspect of ground (c) above, the proceedings are an abuse of process because the plaintiff’s persistence in bringing unmeritorious interlocutory applications and her impecuniosity combine to produce an oppressive burden on the defendants. I will refer to that as the oppression issue.

24. It is well-established that superior courts have power to stay proceedings which constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 392 to 393 per Mason CJ, Deane and Dawson JJ; Rogers v The Queen (1994) 181 CLR 251 at 255 per Mason CJ; at 286 per McHugh J. McHugh J said:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.

25. That passage was cited with approval by the majority in Batistatos v RTA of New South Wales (2006) 226 CLR 256 at 267, [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ, their Honours adding:

To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.

26. Where it is established that the processes of the court are being abused the power to prevent that from occurring is one the court is duty bound to exercise: William v Spautz (1991) 174 CLR 509 at 519-520.

Suing on imputations known to be true

27. The contention that the plaintiff has knowingly sued on true imputations is based on the plaintiff’s sworn answers to interrogatories sworn on 18 February 2016. The defendants submit that those answers reveal she has knowingly sued on two true imputations, imputation A and imputation N.

28. Imputation A is that the plaintiff kidnapped her child. The answers to interrogatories include admissions by the plaintiff that she took the child out of Australia without prior notice to or consent from the child’s father (the sixth defendant) or the Family Court; that she deliberately concealed her location from the sixth defendant for a period of over two years and that she was ultimately extradited to Australia to face a charge under s 65Z of the Family Law Act, of which she now stands convicted.

29. Imputation N is that the plaintiff committed crimes as a result of which she faced up to 13 years in prison. The defendants do not suggest that the offence under s 65Z of the Family Law Act exposed the plaintiff to “up to 13 years in prison”. The maximum penalty for that offence is imprisonment for 3 years. However, the plaintiff’s answers to interrogatories include an admission that she sent a letter to the sixth defendant, a copy of which was in evidence before me (annexure A to the affidavit of the sixth defendant sworn 29 March 2016). The letter contained a threat by the plaintiff to make public her allegations concerning the sixth defendant unless he consented to give her sole custody of the child and to agree to certain other conditions concerning access to the child.

30. The defendants contend that the sending of the letter amounted to an offence of attempted blackmail contrary to s 249K of the Crimes Act 1900 (NSW). That section provides:

249K Blackmail offence

(1) A person who makes any unwarranted demand with menaces:

(a) with the intention of obtaining a gain or of causing a loss, or

(b) with the intention of influencing the exercise of a public duty,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence.

Maximum penalty: Imprisonment for 14 years.

31. Since the accusation threatened against the sixth defendant in the letter is an accusation that he has engaged in conduct that would amount to a serious indictable offence (sexual assault of the child), the sending of the letter (if it amounted to blackmail or attempted blackmail) would accordingly be the aggravated form of the offence, carrying a maximum penalty of imprisonment for 14 years, as provided in s 249K(2). There is a strong basis for inferring that the letter was indeed sent to a journalist, since its contents were the subject of an article published in The Australian on 2 February 2009 (annexure C to the affidavit of the sixth defendant sworn 29 March 2016).

32. Ms Chrysanthou, who appears for Amazon, submitted that, if the plaintiff has knowingly sued on true imputations, that in itself is an abuse of the Court’s processes. She submitted that the position is no different from the position of a plaintiff who, for example, deliberately sues on a true imputation so as to prevent the defendant from being able to plead that imputation as a contextual imputation, taking advantage of the principles considered in the decision of the Court of Appeal in Besser v Kermode [2011] NSWSC 174 (reported as Fairfax Media Publications Pty Ltd v Kermode 81 NSWLR 157) at [88]-[89]. Certainly, if it were established that the plaintiff had deliberately sued on imputations she knew to be true for a purpose ulterior to the purpose of vindicating her reputation (such as for the purpose of excluding a plea of contextual truth to other imputations), that would, in my view, amount to an abuse of process.

31. The difficulty in the present case is that I do not think the plaintiff “knows” imputations A and N to be true.

32. I cannot conclude, on the evidence before me, that imputation N is true (that the plaintiff committed crimes as a result of which she faced up to 13 years in prison), let alone that the plaintiff has brought these proceedings knowing that imputation to be true. On the contrary, she maintains that it is false (by reference to the matters set out at paragraphs 222-230 of her reply to the defences filed by the first, third and fourth defendants). It is perhaps beside the point to observe that there might be an issue at the trial as to whether evidence concerning the alleged blackmail letter could be used for the purpose of proving the truth of imputation N. In my understanding, that imputation was drawn from parts of the book that discuss the mother’s removal of the child from Australia, not any alleged offence of blackmail. I accept that the evidence would be relevant to one of the contextual imputations pleaded by the defendants.

33. More importantly, I apprehend the plaintiff would strenuously deny that the letter she sent to the sixth defendant made any demand that was “unwarranted” within the meaning of s 249K of the Crimes Act. It is clear from past events and from her conduct of these proceedings that the plaintiff genuinely (whether or not reasonably) believes in the truth of her threatened allegations against the father and the need to protect her child. So much is clear from the terms of her pleadings (for example, paragraphs 118-147 of the reply to the defences filed by the first, third and fourth defendants).

34. There must also be doubt as to whether it can be concluded that the plaintiff knows imputation A to be true (that she kidnapped her child). Certainly, her answers to interrogatories establish that she committed the offence of taking a child to a place outside Australia contrary to s 65Z of the Family Law Act. Whether that is an act of “kidnapping” in the ordinary or commonly understood sense of that term might be debatable; certainly it is an issue as to which respectable competing arguments might be put to the tribunal of fact. It is clear from the paragraphs 118-147 of the reply to the defences filed by the first, third and fourth defendants that the plaintiff does not believe she has committed the offence of kidnapping under s 86 of the Crimes Act 1900 (NSW).

35. I am not persuaded that the plaintiff’s answers to interrogatories establish that the proceedings are an abuse of process on the basis that the plaintiff is knowingly suing on true imputations for a purpose ulterior to the proper purpose of defamation proceedings.

The finality issue

38. The defendants submit that the proceedings are an abuse of process because they are brought by the plaintiff not to vindicate her reputation but for the improper purpose of re-litigating matters determined against her in other proceedings.

39. The circumstances in which the re-litigation of concluded proceedings will amount to an abuse of process were considered in a different context by the Court of Appeal in O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315. In that case, a magistrate sued a radio presenter for defamation over comments he made concerning her decisions as a magistrate. In particular, the radio presenter said that the magistrate had delivered “the most diabolical and wrong decisions in law”. The plaintiff specified a number of imputations including an imputation that she had failed in her duties as a magistrate by delivering diabolically bad decisions and that she had failed in her duty as a magistrate by delivering decisions which were wrong in law. The defendants pleaded the defence of truth to those imputations, raising the prospect that a different tribunal of fact would be called upon to consider the correctness of the decisions in question.

40. After a careful review of the authorities, Beazley P said (at [112]):

As the discussion of the authorities demonstrates, proceedings, or an aspect of proceedings, may be found to be an abuse of process if the matter complained of will bring the administration of justice into disrepute. There is a suggestion in O’Halloran that, where it is alleged that an issue has been decided in earlier proceedings, then, in order for there to be an abuse of process, at least one party to the earlier proceedings must be a party to the subsequent proceedings that are said to constitute the abuse, and that party must have failed on the issue that is sought to be re-litigated.

41. In the present case the plaintiff was a party to the earlier proceedings in question.

42. The Court in O’Shane also noted at [111] that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution.

43. The defendants’ submissions on this issue rest principally on the content of the plaintiff’s reply to their defences, which runs to some 77 pages. I accept, as submitted by Mr Potter, that it is appropriate to determine the present applications on the premise that the issues raised in the reply are issues the plaintiff will seek to raise at the trial. The defendants submit that the reply reveals that the plaintiff is pursuing the proceedings for a whole range of disconnected reasons, which may be summarised as follows:

1. to justify her actions in removing her child from Australia without the consent of the child's father or the Family Court by:

1. reasserting her allegations against the sixth defendant;

2. scandalising the Family Court of Australia;

3. claiming that international law offers no protection for women and children as diplomatic ties are more important to member countries than the safety of women and children;

2. claiming that the father’s application in the Family Court proceedings for access and contact with the child was unjustly upheld, accusing the judge at first instance of perverting the course of justice and turning a blind eye to the father’s alleged conduct; further claiming that the judgment on appeal to the Full Court of the Family Court miscarried and was “founded on suppression of evidence and misrepresentation of the facts”; and claiming that the refusal of special leave by the High Court also miscarried;

3. claiming that the authorities of an overseas country made orders for the child’s return to Australia as a result of false information provided by employees of the Australian Government;

4. gratuitously defaming a number of the independent psychiatrists appointed by the Family Court to prepare reports concerning the plaintiff's allegations against the sixth defendant;

5. claiming that the plaintiff’s proceedings in the Family Court against the fourth and sixth defendants (seeking, inter alia, an injunction restraining publication of the matter complained of and an order compelling the Australian Federal Police to investigate whether any indictable offence has been committed under s 121 of the Family Law Act) were wrongly dismissed; further that the Full Court of the Family Court repeatedly delayed her appeal and the High Court 'unjustly and wrongly' dismissed her application for special leave; and

6. claiming that she was wrongfully convicted of the offence under s 65Y of the Family Law Act and that her subsequent appeals to the Court of Criminal Appeal and to the High Court were wrongly decided against her.

44. Mr Potter provided a schedule of the relevant parts of the reply relied upon to establish that those are the issues the plaintiff seeks to ventilate in these proceedings. The schedule is a helpful document but I have also had regard to the whole of the reply.

45. It is very clear from the content of the reply that the plaintiff will, at the hearing, seek to litigate the issues identified by Mr Potter. The defendants submit that those issues are “wholly irrelevant” to these proceedings. I do not accept that submission. An attempt by the plaintiff to justify her actions in removing the child from Australia, for example, would be relevant to the vindication of her reputation against the imputation that she kidnapped the child.

46. However, it is equally clear from the content of the reply that many of the contentions pleaded in the reply have been determined against the plaintiff in other forums. Further, the matters pleaded by the plaintiff in justification of her actions plainly have the tendency to scandalise other Courts, particularly the Family Court. For example, paragraph 245 of the reply accuses that Court of “intentional and systematic misrepresentation and suppression of evidence”. Similarly, paragraph 254 of the reply asserts that the Family Court, in effect, fails to protect children, causing parents to flee from the Court with their children and that the Court “consistently and blindly forces shared parenting in cases where one parent is a sex offender or abusive” and that “this is resulting in the deaths of children during periods of court ordered contact”.

47. The allegations pleaded in the reply also have the tendency to scandalise and defame a number of individuals, apparently gratuitously (that is, in terms not apparently relevant to the issues properly arising in the proceedings). However, without having heard from the plaintiff as to how certain allegations might relate to the issues raised by the imputations and the truth defence, I have not relied on that material or the defendants’ submissions on that issue in determining the present applications.

48. The reply also reveals that, rather than accepting the jury’s verdict and seeking to explain why she committed an offence, the plaintiff proposes to contend, at the hearing of these proceedings, that she was wrongly convicted of the offence against s 65Y of the Family Law Act and that her subsequent appeals to the Court of Criminal Appeal and to the High Court were wrongly decided. For example, at paragraph 34 of the reply, she asserts that she was convicted “but only by withholding my evidence from the jury unlawfully”. Although she has exhausted all rights of appeal, the plaintiff asserts that she is “currently seeking a review of the High Court’s decision to dismiss my application for special leave to appeal”.

49. At paragraph 378 of the reply the plaintiff contends that the courts are not implementing the law (evidently a reference to s 65Y) as intended but are implementing it “in order to support a recent and harmful ideology that has swept family law”. She contends:

Shared parenting works for normal families but not for families ending up in the Family Court where invariably one parent is abusive.

50. The reply also reveals that the plaintiff, by these proceedings, seeks to canvass the correctness of decisions of the Family Court in proceedings brought by the plaintiff against the fourth and sixth defendants to restrain the publication of the book sued on in these proceedings.

51. I am satisfied that, by these proceedings, the plaintiff seeks to re-litigate the matters determined against her in at least the following decisions:

1. the verdict of the jury in the District Court of New South Wales in which she was found guilty of an offence of removing the child from Australia contrary to s 65Y of the Family Law Act;

2. the decision of the Court of Criminal Appeal dismissing her appeal against that conviction: B v R [2015] NSWCCA 103 (an application for special leave to appeal against that decision has been refused by the High Court: B v The Queen [2015] HCA SL 187);

3. the decision of the Family Court of Australia dismissing her application for an injunction to restrain the ongoing publication of the book and related orders: Swefford v Tarbell [2013] FamCA 233.

52. It is clear enough that the plaintiff will also seek to canvass the correctness of many of the findings made by the Family Court in its determination of the parenting orders that should be made in respect of the child. The terms of the reply in these proceedigns rehearse many of the matters raised by the plaintiff in those proceedings, as recorded in a lengthy judgment of the Court (published under the pseudonym Tyler & Sullivan [2014] FamCA 178 with the approval of the Chief Justice of the Family Court pursuant to s 121(9)(g) of the Family Law Act). The defendants did not expressly rely on that judgment because the orders are not final in the relevant sense. However, the fact that the plaintiff proposes in these proceedings to repeat allegations determined against her in those proceedings, and the terms in which she does so, have the tendency to scandalise the Family Court.

53. As already noted, the plaintiff enjoyed a measure of success in her application in the Family Court to restrain publication of the book. The Court at first instance rejected the author’s contention that the book “de-identifies” the child and considered that there was an argument, based on the child’s welfare, for removing it from publication. The plaintiff’s failure to obtain the relief sought rested on discretionary considerations: published under the pseudonym Swefford v Tarbell [2013] FamCA 233.

54. The defendants’ submissions have persuaded me that, by these proceedings, the plaintiff seeks to set up the very issues that have been determined against her in a series of other proceedings and, further, that she seeks to re-ventilate those issues in a manner that will scandalise the courts in which those issues have been determined. It follows, in my view, that the court's procedures are being invoked for an improper purpose and that the proceedings have the tendency to bring the administration of justice into disrepute.

55. That conclusion is enough to dispose of the defendants’ applications in their favour. However, in case my conclusion is wrong, I will proceed to consider the remaining grounds relied upon by the defendants.

Proportionality and oppression

56. The defendants submitted that the Court should stay the proceedings on the basis that the resources required of the Court and the parties to determine the claim are vastly disproportionate to the interests at stake, relying on my decision in Bleyer v Google [2013] 88 NSWLR 670 at [51]. An aspect of the submission in the present case is that the combination of the plaintiff’s admitted impecuniosity and the manner in which she is conducting the proceedings is occasioning costs to the defendants to an extent that is oppressive. As already noted, it is accepted in the authorities that the use of the court's procedures in a manner that is unjustifiably oppressive to one of the parties is a species of procedural abuse.

57. For completeness, Ms Chrysanthou noted that Bleyer has been applied in the District Court of New South Wales by Gibson DCJ in Freeburn v The Cake Decorators Association of NSW Inc (No 2) [2014] NSWDC 173 but not followed by the District Court of Queensland in Smith v Lucht [2014] QDC 302 per McGill DCJ. Smith v Lucht was a case in which the plaintiff, a solicitor, sued his ex-son-in-law for referring to him as Denis Denuto (a reference to the fictional character in the film The Castle). The Court in that case held that there is no requirement in Queensland for proportionality, the question being whether the plaintiff has a good cause of action. The decision holds that a plaintiff who has a good cause of action in Queensland is entitled to pursue it: at [25]. It may be noted, by way of post script, that the plaintiff’s claim in that case was ultimately dismissed on the basis that the defendant had succeeded in establishing the defence of triviality: Smith v Lucht [2015] QDC 289 at [42].

58. In the present case, the proportionality argument is strongest in the case of Amazon due to the apparent strength of its defence of innocent dissemination. Ms Chrysanthou submitted, and I accept, that it is likely that the plaintiff’s claim against Amazon will be confined to publication of three copies of the book (being the number of copies downloaded after Amazon was put on notice that the book was alleged to defamatory).

59. There will in that context be a real question as to whether the publication was “of and concerning” the plaintiff. In her written submissions, Ms Chrysanthou referred to the authorities relating to the issue of identification of an applicant in a defamatory publication in which he or she is not named, summarised by Bryson JA (with whom Mason P and Tobias JA agree) in Gardiner v Nationwide News Pty Ltd [2007] NSWCA 10 at [43]-[46] and [50]. Ms Chrysanthou submitted that since, in the present case, the plaintiff is not named but only pictured, it will be necessary for her to call evidence from the three people who bought copies of the book after Amazon was put on notice of the plaintiff’s contention that it is defamatory. She submitted that, owing to the very limited scope of Amazon’s potential liability (three books) and the fact that those copies could have been downloaded anywhere in the world, this is not a case in which the element of identification could be proved by inference. There is much force in those submissions.

60. Separately, Ms Chrysanthou relied upon the principles relating to mitigation of damages, contending that the contextual imputations relied upon by the defendants concerning the plaintiff’s conviction for removing the child and the alleged blackmail will substantially mitigate any damage to the plaintiff’s reputation by reason of the remaining imputations, such that any award of damages against Amazon is likely to be nominal.

61. The third and fourth defendants also addressed the question of mitigation on the grounds of the allegedly demonstrable truth of serious imputations in detail in their written submissions. I do not think this is a case which lends itself, within the framework of an application to have proceedings permanently stayed on the strength of the principles considered in Bleyer v Google, to an assessment of the likely weighing of true imputation against false imputation. That is a misconception of the principles considered in Bleyer and comes dangerously close to summary judgment under another guise. The remaining imputations (those not contended by the defendants to be demonstrably true) are serious. Accordingly, I have not had regard to that consideration in favour of the defendants in determining the present issue.

62. The two most pertinent considerations relied upon by the defendants in respect of the proportionality issue are the fact that public vindication of the plaintiff’s reputation is not available (by reason of the prohibition on publication of any account of the Family Court proceedings in terms identifying her, the father or the child) and the oppressive combination of the plaintiff’s impecuniosity and the manner in which she is conducting the proceedings, which is such as to occasion substantial costs to the defendants.

63. The fact that the plaintiff cannot be named may not necessarily mean that the proceedings are automatically an abuse of process or that the proportionality issue is automatically to be determined in favour of the defendants. But it is a significant factor to be weighed in the balance in considering the proportionality of the plaintiff’s interest at stake with the costs likely to be expended by the defendants in defending the claim. An affidavit filed by the fourth defendant in support of her application (sworn 29 March 2016) establishes that she has suffered a significant burden of costs already in the proceedings, largely due to the manner in which the plaintiff has conducted her case. The plaintiff is not to be punished for the fact that she is representing herself, but it has a consequence for the defendants to which the Court must have due regard.

64. As demonstrated even in the present applications, there has throughout the proceedings been a pattern of conduct in which the plaintiff consents to a course, or else fails to appear, only to seek later to re-argue a matter already determined. Some of the many indulgences she has been granted are recorded in my earlier judgments in these proceedings cited above (see for example the first judgment at [9]-[17], the whole of judgment (No 2), judgment (No 3) at [3]-[10] and judgment (No 4) at [2]-[5] and [10]-[11]).

56. In all the circumstances, I am satisfied that the conduct of the proceedings on the plaintiff’s part is a species of procedural abuse. I am further satisfied that the plaintiff’s interest at stake is so disproportionate to the resources that will have to be expended to determine the claim as to amount to an abuse of process.

57. None of the foregoing should be taken to indicate a view one way or the other as to the very sad circumstances underlying these proceedings. Regrettably for the plaintiff, her cause of action in these proceedings cannot address her palpable grief.

58. I am nonetheless satisfied for the reasons set out above that the proceedings must be permanently stayed.

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Endnote

Decision last updated: 20 May 2016