Woolf v Brandt

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

10. [10]

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

11. [11]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

    5. (5)

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

12. [12]

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

The primary judge’s reasons

1. [13]

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

2. [14]

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

3. [15]

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

Ground 1: alleged denial of procedural fairness

1. [16]

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

2. [17]

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

3. [18]

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

4. [19]

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

5. [20]

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

6. [21]

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

7. [22]

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

8. [23]

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

9. [24]

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

10. [25]

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

11. [26]

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

12. [27]

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

13. [28]

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

14. [29]

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

15. [30]

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

Ground 2: the ulterior purpose finding was erroneous

1. [31]

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

2. [32]

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

3. [33]

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

4. [34]

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

5. [35]

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

6. [36]

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

7. [37]

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

8. [38]

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

9. [39]

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

10. [40]

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

11. [41]

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

12. [42]

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

13. [43]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

14. [44]

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

15. [45]

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

16. [46]

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

17. [47]

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

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

1. [48]

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

2. [49]

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

3. [50]

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

Ground 4: alleged erroneous application of Hanna v Maks

1. [51]

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

2. [52]

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

3. [53]

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

Ground 5: alleged Anshun estoppel against the respondent

1. [54]

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

2. [55]

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

3. [56]

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

4. [57]

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

5. [58]

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

6. [59]

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

7. [60]

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

Conclusion

1. [61]

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

2. [62]

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