JE v Central Coast Local Health District

THE COURT: The applicant, who is unrepresented, seeks to appeal from orders of the District Court (Gibson DCJ) striking out and dismissing proceedings she commenced against the respondent defendants, respectively Central Coast Local Health District (Local Health District), the State of New South Wales (State), Australian Communications and Media Authority (ACMA) and Nationwide News Pty Ltd (Nationwide News): JE v Central Coast Local Health District and Others [2022] NSWDC 31. The applicant requires leave to appeal because those orders were interlocutory (Supreme Court Act 1970 (NSW), s 101(2)(e)).

The applicant has been a party to a number of other proceedings in this court. Most have related to disputes concerning the care and protection of two of her daughters. In those proceedings she has been referred to by the pseudonym “JE” to preserve their anonymity in accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act). We will continue to use that pseudonym in these reasons.

As the primary judge records at [4] the events which JE maintains justify her claim in defamation have their beginning in or before May 2012 with the removal of two of her daughters from her care. For present purposes, those events and the various proceedings which followed are sufficiently summarised in the judgment of this Court in JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 at [11]-[42].

The decision to remove the children was made because the Director-General of the Department of Community Services suspected that they “are in need of care and protection, and are not subject to the supervision or control of a responsible adult, and are living in or frequenting a public place” ([2019] NSWCA 162 at [13]-[14]).

The relevant removal order also stated:

That removal was followed (as required by s 45 of the Care and Protection Act) by an application for a care order made by the Director-General to the Children’s Court at Wyong. That Court made final orders in August 2013 allocating parental responsibility for each daughter to her maternal grandparents until she reached the age of 18 years. The applicant appealed to the District Court from those orders. Although that appeal was allowed it did not result in JE having any responsibility for the care and protection of either daughter: [2019] NSWCA 162 at [18].

In June 2016, JE commenced proceedings against the “Department of Community Services” in the District Court claiming damages. Her statement of claim did not identify the basis for that claim. It merely announced that the claim was for: “(1)Medical negligence (trauma) – Gosford Hospital” and “(2)Medical discrimination – Department of Community Services”. Gibb DCJ dismissed those proceedings on 9 November 2016 and a very late application for leave to appeal to this Court was also dismissed: [2019] NSWCA 162 at [19]-[20], [23] and [64]-[66].

In April 2018 the Children’s Court made an order allocating parental responsibility for the older daughter to her father. She had previously been in the care and protection of her maternal grandparents. The applicant appealed to the District Court from that order. The defendants included the Local Health District. Relevantly, for present purposes, as was noted in [2019] NSWCA 162 at [37], the relief sought against that defendant included orders directed to JE’s complaint “that the children were removed in 2012 because the Area Health Service and the Gosford Hospital gave false information to the Department”. It would appear that information related to JE’s “medical condition” as referred to at [4] above.

Returning to the underlying proceedings, they were commenced by a statement of claim filed on 5 July 2021. As the primary judge noted at [10], the defendants’ applications to strike out or dismiss the proceedings were made following correspondence drawing JE’s attention to substantial deficiencies in the original statement of claim. At [10] the primary judge also identified those deficiencies as including:

It followed that the statement of claim did not comply with the requirements of Uniform Civil Procedure Rules 2005 (UCPR), r 15.1(1) that a pleading “give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”. In an action for defamation, particulars answering that description necessarily include the identification of the alleged defamatory publication and the defamatory imputations said to arise.

It also followed that the pleading did not contain any of the particulars specifically required by UCPR r 15.19(1) when pleading an action for damages for the publication of defamatory material, including –

In early November 2021, JE produced an amended form of statement of claim. It was not filed and the primary judge treated it as being the subject of an application to amend (at [1]).

Whilst that draft pleading is more extensive in its narrative of the “facts and assertions” relied on, it is no more informative in identifying a cause of action in defamation against any of the named defendants. It suffers from the same deficiencies identified in relation to the filed pleading and does not comply in any respect with either of UCPR rr 15.1(1) or 15.19(1).

In the course of argument the primary judge addressed with JE the identification of any defamatory publication upon which her claim was said to be based:

In recording the submissions of each of the defendants (at [21]-[29]) the primary judge noted that although “the precise date of any… publication is difficult to ascertain, the relevant events all appear to have occurred over a decade ago” (at [21(f)]); that none of the publications referred to by JE were publications made by Nationwide News (at [25]); and that the claim against ACMA did not identify any publication actually made by ACMA (at [27]).

At [2] and [35] the primary judge identified the provisions under which the defendants’ strike out and summary dismissal applications were made as being, in the case of each defendant, UCPR rr 13.4 and 14.28. Nationwide News and ACMA also sought orders that they be removed as parties to the proceedings under UCPR r 6.29. Those rules are extracted by the primary judge at [31], [33] and [35] and need not be repeated here.

Having done so, the primary judge concluded:

JE’s application for leave to appeal was opposed and could not on its face be dealt with by the court in the absence of the public and without the attendance of any person (see UCPR r 51.15) because neither JE nor Nationwide News consented to that course.

In addition to relying on her written submissions dated 27 June 2022, JE addressed the court orally. In those written submissions and her oral argument JE does not identify any arguable error in the primary judge’s analysis and conclusions. Nor does she identify any defamatory publication upon which her claim, if repleaded, might be based.

At one point in her oral argument, JE seemed to be suggesting that there were reasons why she could not identify any alleged defamatory publication, including because the publications may contain reference to the names, dates of birth and addresses of her children (who were minors and whose identities were protected from publication under the Care and Protection Act). JE gave as a reason for why she could not “present” those publications that she “didn’t have a previous approval from the Court to do so. From the Supreme Court, not the District Court”. That was plainly not a good reason for JE not identifying any such publication, and no material which answered that description was identified.

Ultimately, as we understood JE’s argument, it was, as she contended before the primary judge, that notwithstanding that she had not identified any publications in either pleading (as the primary judge records at [22]) she nevertheless regarded the existing pleading as sufficiently identifying information which was the subject of unidentified publications:

In the result the primary judge undoubtedly concluded correctly that the existing pleading should be struck out and the proceedings dismissed. There is no arguable error in her Honour’s analysis or conclusions. It follows that the summons seeking leave to appeal should be dismissed.

There remains the question of costs. After we reserved, Nationwide News and ACMA indicated that they do not seek any order for costs. There is no reason why JE should not be ordered to pay the costs of the State and Local Health District who were represented by the Crown Solicitor and counsel. Those parties consented to the appeal being dealt with in chambers. JE did not. And in conducting their response to JE’s application there is no suggestion that they did more than was necessary in the interests of those parties.

For these reasons, the Court makes the following orders: