Baini v Liberal Party of Australia NSW Division & Anor

1. [1]

   By way of Notice of Motion filed on 16 February 2023, the Liberal Party of Australia NSW Division (“the first defendant”) and Mr Christopher Stone (“the second defendant”) (together “the applicants”) seek an order, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), to strike out the Amended Statement of Claim (“ASOC”) filed against them on 23 December 2022 by the plaintiff, Ms Natalie Baini. Ms Baini claims relief for breach of privacy and injurious falsehoods. Ms Baini seeks general, aggravated, exemplary and special damages, interest, and costs.

2. [2]

   Ms Baini is a former member of the first defendant. The first defendant is an unincorporated association and a political party registered under State and Federal legislation. The second defendant holds the position of State Director of the first defendant.

3. [3]

   On 30 November 2022, Ms Baini filed the original Statement of Claim against the first defendant alone. On 14 December 2022, the solicitors for the first defendant wrote to Ms Baini indicating that the first defendant could not be sued because it was an unincorporated association and therefore the proceedings should be dismissed. On 23 December 2022, Ms Baini served the ASOC which was almost identical to the original Statement of Claim except for the addition of the second defendant. The ASOC sought to continue to maintain the claim against the first defendant, notwithstanding the letter that had been sent to Ms Baini indicating the difficulty with that course.

4. [4]

   The applicants apply to strike out the entirety of the ASOC as set out below.

First defendant is not a proper party

1. [5]

   The applicants contend that the first defendant is not a party capable of being sued in tort because it is an unincorporated association: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 at [47]; Green v Bradbury (2011) 191 FCR 417; [2011] FCA 71 at [2], [61] (Emmett J); Diaz v Ruddock; Attie v Ruddock [2021] NSWSC 881 at [10]-[12] (Kunc J).

2. [6]

   Ms Baini submitted orally that the first defendant remained on the ASOC because she believed it was not fair that it could avoid being sued in light of the other activities it could purportedly undertake as an entity, including, for example, calling for nominations for preselection. Ms Baini accepted, however, that the applicants’ argument was correct.

3. [7]

   No cogent legal basis was put, nor could it have been, against the applicants’ proposition that the first defendant is not capable of being sued. On this issue, the law is clear. Accordingly, the claim against the first defendant is struck out.

The pleading does not disclose any cause of action and/or is embarrassing

1. [8]

   The applicants submit that whilst the ASOC raises a range of complaints and grievances, it does not plead the necessary elements of a cause of action known to law.

2. [9]

   Notwithstanding the traversing of a range of matters in the ASOC, Ms Baini only alleges two matters which caused her loss and damage, namely:

   1. (1)

      A “breach of privacy”; and

   2. (2)

      “Injurious falsehoods”.

3. [10]

   The “breach of privacy” is alleged to be constituted by the acts of “the Party and Stone” as set out in paragraphs [18]-[20] of the ASOC. The basis for those allegations is apparently that “the Party and Stone” permitted Mr Yaron Finkelstein (the then Liberal Prime Minister’s Principal Private Secretary) a “material role in the preselection roundtable process”. Ms Baini further pleads that she did not authorise her “confidential nomination data” to be provided to Mr Finkelstein.

4. [11]

   To date, in Australia, a tort of breach of privacy has yet to be clearly recognised. The most recent statement on this issue in the High Court appears in Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14 at [86] where it was stated by Kiefel CJ, Bell and Keane JJ:

5. [12]

   Whilst not submitting that Ms Baini is necessarily precluded from pleading breach of privacy, the applicants contend that the current pleadings in any event fail to allege:

   1. (1)

      That any information was in fact imparted to Mr Finkelstein;

   2. (2)

      That the second defendant provided information of any kind to Mr Finkelstein;

   3. (3)

      Why the mere involvement of Mr Finkelstein in the preselection process gives rise to a cause of action for loss and damage against the second defendant; and

   4. (4)

      What comprises the confidential nomination data – whether it is the fact of the nomination, and/or details such as a date of birth or some other sensitive information, or whether it is information already in the public domain.

6. [13]

   The applicants also contend that the pleadings are embarrassing.

7. [14]

   As stated in McGuirk v The University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [30]-[35] (Johnson J):

8. [15]

   As also noted by Johnson J in McGuirk at [149]:

9. [16]

   I agree that as the pleading currently stands, no cause of action is shown. Ms Baini has purported to plead a tort which has not clearly emerged in Australia and in its current form, it fails to disclose any reasonable cause of action. It is also embarrassing in the sense explained in McGuirk. The pleading does not inform the second defendant of the case he needs to meet, nor allow him to assess what evidence he would need to adduce at the trial. It is more in the form of a generalised complaint.

10. [17]

    Notwithstanding this, however, I am of the view that at this early stage of the proceedings Ms Baini should not be precluded from attempting to reformulate this claim. I will give her the opportunity to replead. It will, of course, be necessary for her to comply with the rules of pleading.

11. [18]

    As I indicated to Ms Baini at the hearing, whilst she may be an articulate and educated person who is also a lawyer, it would be advisable for her to try to obtain expert legal assistance if at all possible, especially given the novel claim she is attempting to make.

12. [19]

    The tort of injurious falsehood has been defined in Ratcliffe v Evans [1892] 2 QB 524 at 527-528 as comprising:

13. [20]

    The Court of Appeal in CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 (Adamson JA, Ward P and Mitchelmore JA agreeing) has recently set out the following useful summary of the law in Australia relating to this tort at [301]-[304]:

14. [21]

    It was also observed by Adamson JA at [298]:

15. [22]

    In the ASOC, the injurious falsehood allegations appear to be able to be separated into two parts.

16. [23]

    First, paragraph [23] alleges that statements were made to the media by the first defendant “on [Mr] Stone’s authority” which falsely suggested Ms Baini was under investigation by the Australian Federal Police (“the AFP allegation”).

17. [24]

    This allegation is entirely devoid of detail. It fails to include who made the statements, when they were made, what the content of the statements was, to whom they were made, what, if anything, the “media” did with the statements such as whether they were published, and if so, when and how, and by which media outlet. It fails to allege malice. It discloses no cause of action in its current form.

18. [25]

    The paragraphs following the AFP allegation, namely paragraphs [24]-[27], appear to deal with other separate statements to the media made by the first defendant, on the authority of the second defendant, indicating that “the matters raised by the Plaintiff had been ‘investigated’ and closed”. It is not immediately apparent what those “matters” refer to. There is then an allegation purporting to allege a denial of an opportunity to be heard or the provision of any procedural fairness in relation to these investigations. There is also a reference to an attempt by Ms Baini to “mitigate her loss of opportunity by running as a self-funded Independent in the electorate of Reid at the 2022 Federal Election”. It is not clear that these paragraphs are relevant to any particular claim being pursued.

19. [26]

    The second allegation is in paragraph [28] and relates to “the One-night stand allegation” as defined in that paragraph. This statement is attributed to Mr Craig Laundy, who is not a named defendant in the present matter. It is pleaded that Mr Laundy “on dates unknown to the plaintiff spoke words [to the effect of the allegation] to numerous people within the Liberal Party, the Prime Minister’s Office and various members of the media”.

20. [27]

    It is also alleged that the second defendant “in particular” knew the One-night stand allegation was false because of various factors about which the second defendant was aware.

21. [28]

    Ms Baini alleges that the first defendant, on the second defendant’s authority, “repeated the One-night stand allegation”. Such repetition was:

22. [29]

    It is alleged that the repetition was made with the intention that Ms Baini would “suffer financial loss by not becoming the member for Reid or obtaining other paid employment”. Malice is evidenced, it is alleged, by the second defendant’s knowledge of the falsity of the One-night stand allegation.

23. [30]

    The applicants point to a number of problems with this allegation. They note that there is no express allegation that Mr Laundy communicated the One-night stand allegation to the second defendant. They also point to an internal inconsistency in the allegation. On the one hand, Ms Baini accuses Mr Laundy of having disseminated the One-night stand allegation “far and wide”. It is thus difficult to discern, without any material facts, how it was the second defendant who authorised the repetition of the One-night stand allegation. There is also a causation problem. On Ms Baini’s own case, this allegation was being communicated widely within the first defendant and to the media by someone other than the second defendant. Further, it is not even alleged that the second defendant himself repeated the One-night stand allegation. Nor is it set out when, how or to whom the allegation was repeated on the authority of the second defendant, nor by whom.

24. [31]

    Further, neither of the allegations of injurious falsehood set out the actual words said to have been published in each instance with the requisite authority or at all: Collins v Jones [1955] 1 QB 564 at 571-572; Baker v Mutton [2014] VSCA 302 at [10], [16].

25. [32]

    The applicants are also highly critical of Ms Baini alleging malice on the part of the second defendant without pleading any material facts to support it. The applicants point to Ms Baini’s affidavit where she indicates she does not have any evidentiary basis for the allegation against the second defendant other than her assertion that it is “infeasible to accept that the [first defendant] communicated this [allegation] publicly without [the second defendant’s] knowledge or authorisation”. The applicants contend that given Ms Baini’s case as to the width of dissemination by Mr Laundy, this assertion does not hold up to scrutiny.

26. [33]

    Although in her written submissions Ms Baini contended that there was sufficient detail in the ASOC, and that the applicants had in any event made no request for particulars, in the hearing before me, Ms Baini indicated she was prepared to provide more detail in relation to the claims.

27. [34]

    The applicants also criticise the Statement of Particulars filed by Ms Baini on 28 February 2023, pointing to the injuries set out there as having been diagnosed before the alleged breach of privacy and the injurious falsehoods. The applicants also point to the identical nature of the particulars of injuries set out in the ASOC as compared with the Statement of Claim filed in separate proceedings against Mr Laundy alleging trespass. Such “cutting and pasting” of the details of the injuries together with the failure to plead properly the elements of the cause of action are contended to be legally embarrassing.

28. [35]

    In response, Ms Baini submitted that her injuries set out in the Statement of Particulars in this matter were exacerbated by the torts alleged against the applicants, and the injuries suffered by her were as a result of a combination of events, including the trespass alleged against Mr Laundy together with the matters the subject of the ASOC.

29. [36]

    The applicants contend that this response invites scrutiny as to the way causation is pleaded in the ASOC, and how Ms Baini alleges a causal nexus between the cause of action and the loss and damage suffered. The applicants submit that this makes it difficult to respond to issues of causation let alone make forensic decisions about what evidence is required to meet the allegation of loss and damage.

30. [37]

    Finally, the applicants also point out that although the second defendant has been joined, possibly to overcome Ms Baini’s inability to sue the first defendant, the ASOC does not plead any material facts which allege that the second defendant is somehow universally liable for the acts of one or more members of the first defendant. However, nor does the ASOC plead a case which renders the second defendant personally liable if made out.

31. [38]

    In my view, the applicants’ criticisms of the claims of injurious falsehoods have real force for the reasons they have identified, and which have been set out above.

32. [39]

    The pleading in relation to both claims of injurious falsehood are so lacking in specificity and complicated by irrelevancies that they are fundamentally defective as well as embarrassing in the sense referred to in McGuirk. In their current state, it is impossible for the second defendant to ascertain the case he has to meet.

33. [40]

    Again, however, as with the breach of privacy allegation, I am of the view that Ms Baini should not be precluded, at this stage of the proceedings, from attempting to reformulate this claim, and I will give her the opportunity to replead these claims.

Costs

1. [41]

   Given Ms Baini was on notice in relation to the first defendant’s inability to be sued prior to the hearing of the Notice of Motion, it is appropriate that Ms Baini pay the costs of the first defendant. Otherwise, I am of the view that costs should be costs in the cause.

Orders

1. [42]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the Amended Statement of Claim against the first defendant is struck out.

   2. (2)

      Pursuant to Rule 14.28 of the UCPR, the whole of the pleadings in the Amended Statement of Claim against the second defendant are struck out with liberty to replead.

   3. (3)

      The plaintiff is to pay the first defendant’s costs of the Notice of Motion.

   4. (4)

      The costs of the second defendant of the Notice of Motion are costs in the cause.