ABC v Parsonage; ABC v Commissioner of Corrective Services

1. [1]

   This judgment concerns two sets of proceedings commenced by the plaintiff. The first matter I will call “the care-related proceedings” and the second matter I will call “the Corrective Services proceedings”.

Orders to protect children

1. [2]

   As will become clear, the present proceedings are related to proceedings brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the CYP Act) in respect of some four of the children of the plaintiff. The plaintiff’s husband has been charged with sexual offences concerning another of the children.

2. [3]

   Section 105 of the CYP Act relevantly provides:

3. [4]

   The solicitor for the fifth defendant sought suppression orders by virtue of s 105 of the CYP Act. He also annexed to his affidavit correspondence between the plaintiff and the fifth defendant during the care proceedings. He asked for the exhibit containing the correspondence to be marked as confidential, in the sense that the exhibit be disclosed only to the Court and the parties but to no-one else.

4. [5]

   In those circumstances, orders will be made that the plaintiff is to be referred to as ABC, and the plaintiff’s husband will be referred as XYZ. The name of the care-related proceedings will be changed to “ABC v Parsonage” and the name of the Corrective Services proceedings will be changed to “ABC v Commissioner of Corrective Services”. These orders will be made pursuant to the inherent jurisdiction of the Court by reason of s 105 of the CYP Act.

5. [6]

   A non-publication order will also be made with respect to Ex MJC 1 pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground contained in s 8(1)(a) of that Act.

6. [7]

   The plaintiff had sought that a very large volume of documents (over 3000 documents) associated with the care proceedings be included in the Court Book. For practical reasons, only the index to those documents was included in the Court Book and was identified as Ex A. The plaintiff had provided a hyperlink to those documents. Ultimately no reference was made by the plaintiff to those documents. Nevertheless, the same order made in relation to Ex MJC 1 should be made in relation to the documents referred to in Ex A.

The care-related proceedings

1. [8]

   On 1 October 2021 the plaintiff filed a statement of claim naming 12 defendants. She seeks compensatory damages and aggravated damages of $950,000.00 per defendant. She also seeks an “apology order” and costs.

2. [9]

   The section of the statement of claim headed “Pleadings and Particulars” reads as follows:

3. [10]

   Each of the defendants (except the seventh defendant) seeks by notice of motion summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), alternatively, that the pleading be struck out pursuant to r 14.28 of the UCPR. On 3 November 2021 judgment was given for the seventh defendant with no order as to costs.

4. [11]

   The background to these proceedings appears to be this.

5. [12]

   On or about 16 December 2020, a delegate of the Secretary of the Department of Communities and Justice took steps under s 44 of the CYP Act to assume care responsibility for five of the plaintiff’s children. The basis for the application made by the delegate included:

6. [13]

   Four of the five children were then placed in authorised foster care pending further assessment, with attempts made to contact the fifth child's biological father.

7. [14]

   On about 23 or 25 November 2020, the plaintiff made an application at a Local Court to have the ADVO revoked so that XYZ could return to the household. On or about 9 December 2020, a provisional ADVO in respect of XYZ was made by a detective senior constable in the Child Abuse Unit of the NSW Police and by the twelfth defendant as the applicant officer pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

8. [15]

   The twelfth defendant was the informant in relation to charges brought against XYZ. The seven offences include aggravated sexual assault of a child.

9. [16]

   On 18 December 2020, a care application in respect of the five children was made to the Children's Court by the fourth defendant as delegate of the Secretary of the Department of Communities and Justice pursuant to ss 45 and 61(2) of the CYP Act. A report in support of the care application, and produced to the Court, was signed by the first and fourth defendants. The fourth defendant swore an affidavit dated 14 January 2021 in support of the care application and proceedings held in the Children's Court on 15 January 2021. Affidavits were also sworn in the Children's Court in relation to the care application by the first and third defendants.

10. [17]

    The first, third, fourth, eighth, ninth and tenth defendants all relevantly held positions concerned with child protection as managers or caseworkers in the Department. The fifth defendant was a solicitor in private practice who acted for the Secretary of the Department in the care proceedings.

11. [18]

    The second defendant was employed as a caseworker by Challenge Community Services, a not-for-profit organisation responsible for assisting and supporting children in care.

12. [19]

    The sixth defendant was a Legal Aid solicitor, but how she was involved in the proceedings was not elucidated.

13. [20]

    The eleventh defendant was the Magistrate who heard the care proceedings.

14. [21]

    The twelfth defendant, as noted above, was the informant in relation to the charges brought against XYZ, and was the applicant in relation to the provisional ADVO in respect of him.

15. [22]

    No allegations are made at all about the sixth and tenth defendants.

The course of the hearing

1. [23]

   The first, third, fourth, sixth, eighth, ninth, tenth, eleventh and twelfth defendants were represented by the Crown Solicitor, and Mr Ian Harvey of counsel appeared for those parties. The Commissioner of Corrective Services was also represented by the Crown Solicitor with Mr Harvey briefed to appear.

2. [24]

   Each of the second and fifth defendants was separately represented, and Ms Amy Reid and Mr Daniel Farinha, both of counsel, appeared for those parties respectively. Only the second defendant had filed a defence, and that defence denied that any reasonable cause of action had been pleaded against her.

3. [25]

   The plaintiff filed an affidavit in relation to each motion, and submissions in relation to the care-related proceedings. The plaintiff addressed briefly, but had the understandable difficulty as a litigant in person in distinguishing the substantive complaints which she had from the procedural and legal issues raised by the notices of motion. I endeavoured to focus the plaintiff’s attention on those matters whilst she was addressing, but her submissions generally did not come to grips with the issues being determined on the motions. In particular, she found it difficult to accept that judges, lawyers and witnesses had immunity from suit in respect of court proceedings, particularly when she considered that those parties had not acted honestly or properly.

4. [26]

   The claim the plaintiff makes in the care-related proceedings appears to be in defamation, although in relation to the twelfth defendant a claim of misfeasance in public office may be being made. This is discussed later in the judgment. The claim in the Corrective Services proceedings appears to be for breach of privacy.

Summary judgment

1. [27]

   In Robinson v State of New South Wales [2021] NSWSC 1571 I summarised the principles dealing with summary dismissal of proceedings:

2. [28]

   Where the determination of summary dismissal turns on the resolution of matters of law, it will be easier to obtain orders for summary dismissal. In Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210, Macfarlan JA said at [75]:

3. [29]

   In Ugur v Attorney General for New South Wales [2019] NSWCA 86, White JA said (Meagher and Brereton JJA agreeing) at [70]:

4. [30]

   Each of these defendants was a witness in the care proceedings or had prepared documents preparatory to those care proceedings. To the extent that they are identified in the statement of claim, they are alleged to have done the following:

5. [31]

   In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said at [39]:

6. [32]

   In Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 270, Beazley JA (with whom Mason P and Young CJ in Eq agreed) said:

7. [33]

   Further, s 27 of the Defamation Act 2005 (NSW) relevantly provides:

8. [34]

   The documents which the plaintiff claims are defamatory of her were all documents prepared for the care proceedings, or were affidavits sworn by a number of the defendants in those proceedings. The documents are contained in what is described as Ex A in the Court Book. So much is made clear by email correspondence between the plaintiff and Ms Holly Turner, the solicitor for the second defendant.

9. [35]

   The matters complained of were published in the course of the proceedings of an Australian court. In those circumstances a defence of absolute privilege is available to those defendants.

10. [36]

    In addition, the defendants who swore affidavits or gave oral evidence in the care proceedings are immune from suit in respect of that evidence, by reason of the principles set out above in Griffiths and Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41.

11. [37]

    In those ways, the proceedings against those defendants do not disclose a reasonable cause of action, and are an abuse of the process of the Court.

The second defendant

1. [38]

   The pleading against the second defendant can be summarised as follows:

2. [39]

   What is pleaded in par 6 is incapable of constituting a defamatory statement about the plaintiff. Accordingly, the only specific allegation against the second defendant is contained in par 7 of the statement of claim. The position of the second defendant is relevantly the same as for the other defendants who are caseworkers, dealt with above. There is a defence of absolute privilege by reason of the publication of the matter to the court in the care proceedings. Moreover, as best as can be discerned from the pleading of the statement of claim when understood in the context of the background to the care proceedings, any statement about abuse of the children could only be a statement about XYZ and not about the plaintiff.

3. [40]

   The second defendant also has an immunity from suit with regard to the documents prepared by her that form part of the evidence in the care proceedings. It is clear from the communications between the plaintiff and Ms Turner that all of the documents identified in Ex A, and which are part of the documents contained in the hyperlink already referred to, are the documents prepared for the care-related proceedings.

4. [41]

   No reasonable cause of action is disclosed against the second defendant, and the proceedings constitute an abuse of the process of the Court.

5. [42]

   The fifth defendant was the solicitor acting for the Secretary of the Department in the proceedings. The statement of claim pleads against the fifth defendant the following matters:

6. [43]

   In the case of D'Orta-Ekenaike v Victoria Legal Aid the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said:

7. [44]

   As the solicitor appearing in court in the care proceedings, the fifth defendant is immune from suit whether for negligence or otherwise.

8. [45]

   Further, the fifth defendant has a defence of absolute privilege under s 27 of the Defamation Act. Words spoken by the fifth defendant constitute a “matter” referred to in s 27(2)(b). The word “matter” is defined in s 4 of the Act as follows:

9. [46]

   In Quail v Gibson [2021] FCA 1115 the plaintiff alleged defamation against the prosecutor in the plaintiff’s trial for attempted murder, in relation to the conduct of trial. Although the proceedings were dismissed for want of jurisdiction, Abraham J said that the proceedings would otherwise have been summarily dismissed for a number of reasons. The first reason was that the proceedings offended the finality principle. Her Honour then said:

10. [47]

    To the extent that the statement of claim suggests that the fifth defendant was “prejudiced and biased” against the plaintiff’s husband, the plaintiff cannot make a claim on behalf of her husband for defamation. It is an essential part of the cause of action for defamation that “the words are defamatory of the plaintiff”: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705.

11. [48]

    No reasonable cause of action is disclosed against the fifth defendant, and the proceedings constitute an abuse of the process of the Court.

12. [49]

    These defendants are not mentioned in the pleading section of the statement of claim, and no relief is sought against them other than the general claim for damages. In those circumstances, they have been wrongly joined to the proceedings, and should be removed as defendants.

13. [50]

    The eleventh defendant was the magistrate who heard the care proceedings. The allegations pleaded against her are these:

14. [51]

    It may be observed that both allegations concern the eleventh defendant’s role and actions as the judicial officer presiding over the care proceedings. As a judicial officer she was entitled to judicial immunity.

15. [52]

    In Fingleton v R (2005) 227 CLR 166; [2005] HCA 34, Gleeson CJ said at [38]:

16. [53]

    In Donaldson v State of New South Wales [2019] NSWCA 109, the plaintiff had sued the State of New South Wales as a result of a judgment I had given against him: Donaldson v Commonwealth of Australia [2011] NSWSC 423. Justice Hamill struck out the claim, and the plaintiff sought leave to appeal to the Court of Appeal. In its judgment, the Court of Appeal (Macfarlan and Meagher JJA) said:

17. [54]

    In Stankovic v State of NSW [2016] NSWSC 18, the plaintiff brought proceedings against the State of New South Wales and the Land and Environment Court claiming damages as a result of what was said to be a tortious liability of one of the judges of that Court. In my judgment I said:

18. [55]

    The Court of Appeal dismissed a summons for leave to appeal against that decision: Stankovic v State of New South Wales [2016] NSWCA 168.

19. [56]

    The Judicial Officers Act 1986 (NSW) relevantly provides:

20. [57]

    Two things are apparent from s 44A. First, that section is not the source of judicial immunity; rather, the position is, as Gleeson CJ said in Fingleton at [38], that the immunity is conferred by the common law. Secondly, the section acknowledges the existence of the common law doctrine.

21. [58]

    No reasonable cause of action is disclosed against the eleventh defendant, and the proceedings against her are an abuse of the process of the Court.

22. [59]

    The twelfth defendant is a police officer. The claim against him is pleaded in this way:

23. [60]

    Section 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) relevantly provides:

24. [61]

    On 27 October 2021 the Crown Solicitor’s Office wrote to the plaintiff drawing her attention to the provisions of s 9B above, and saying:

25. [62]

    The plaintiff submitted that the right of a plaintiff to name a police officer as a defendant was upheld by the Court of Appeal in Burton v Babb [2020] NSWCA 331.

26. [63]

    In Burton v Babb the plaintiff brought proceedings against two defendants who were the Director of Public Prosecutions and the head of the Department of Communities and Justice claiming damages for malicious prosecution. The primary judge had removed those parties from the proceedings and had joined the State of New South Wales as a party. The Court of Appeal set aside those orders. The basis for doing so turned on s 8 of the Vicarious Liability Act and r 6.24 of the UCPR. The case was not concerned with police officers who are specifically dealt with in s 9B of the Vicarious Liability Act.

27. [64]

    Section 9B concerns a matter of pleading and procedure. A pleading filed in contravention of that section could not justify summary dismissal of the proceedings. Such a pleading might be struck out pursuant to r 14.28 UCPR, but the more likely outcome would be an order removing the named officer as a defendant and substituting the State of New South Wales in lieu.

28. [65]

    It is necessary, therefore to consider if any reasonable cause of action is disclosed regardless of the procedural error.

29. [66]

    For reasons already given in relation to the first, second, third, fourth, eighth and ninth defendants, what is contained in pars 1, 2 and 14 of the statement of claim does not disclose a reasonable cause of action because the twelfth defendant has the protection of immunity as a witness in the proceedings.

30. [67]

    The other allegation made against the twelfth defendant is what is contained in par 3 of the statement of claim which reads:

31. [68]

    It is not clear if this alleged behaviour is said to be ancillary to the claim for defamation or if it stands alone. If it is ancillary to defamation, it could only be defamation concerning XYZ because the statement is said to relate to abusive behaviour by XYZ and not the plaintiff. If it is an additional and separate cause of action, there must be doubt about what such cause of action was available. Mr Harvey of counsel for (inter alia) the twelfth defendant quite properly suggested that, taken at its highest, it might amount to misfeasance in public office.

32. [69]

    One of the essential elements of the tort of misfeasance in public office is that the relevant act causes harm to the plaintiff: Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 357 per Brennan J and 370 per Deane J; Ea v Diaconu [2020] NSWCA 127 at [36].

33. [70]

    Taking what is contained in par 3 of the statement of claim at its highest for the plaintiff, the person who was injured by what Detective Bateman is alleged to have done is XYZ and not the plaintiff. It seems clear that what Detective Bateman was allegedly trying to do was to obtain evidence from the plaintiff against XYZ that XYZ had “hurt” her. There is the further difficulty that the plaintiff (on the pleading) did not do what Detective Bateman was alleged to have tried to make her do, that is, to sign the statement. In those circumstances, neither the plaintiff nor XYZ suffered loss from the wrongful act.

34. [71]

    I do not consider that the pleading identifies any reasonable cause of action in par 3.

The Corrective Services proceedings

1. [72]

   On 12 October 2021 the plaintiff filed a statement of claim naming as defendant Kevin Corcoran, Office of the Commissioner, Corrective Services. She seeks compensatory damages and aggravated damages of $950,000. She also seeks an “apology order” and costs.

2. [73]

   The section of the statement of claim headed “Pleadings and Particulars” reads as follows:

3. [74]

   By notice of motion filed 5 November 2021 the defendant seeks, first, an order in these terms:

4. [75]

   The background to this claim is contained in an affidavit of the plaintiff filed in response to the defendant’s notice of motion. In that affidavit, and an annexed statement, it is said that the plaintiff’s husband XYZ was arrested and charged in December 2020 with a number of serious sexual assault offences related to the plaintiff’s daughter DE, who was at the time of the alleged assault aged 12 years. XYZ was refused bail and was incarcerated at Goulburn Gaol where he had been held since February 2021 after being transferred from Silverwater Gaol.

5. [76]

   The plaintiff alleges that her husband has been beaten and mistreated and deprived of human rights by Corrective Services. She alleges that a Corrective Services Officer named Denny had told inmates what her husband’s charges were, and subsequently her husband was assaulted by two inmates. He suffered from head injuries and, according to the plaintiff, was refused any medical care.

6. [77]

   It seems that the matter was investigated by a person named John Purcell, who took a statement from the plaintiff. The plaintiff alleges that Mr Purcell told her that he would make sure that the officer was dealt with for breaching the privacy of an inmate and for denying her husband his human rights. She also alleges Mr Purcell said that he would ensure that her husband was moved, and that the inmates concerned were charged.

7. [78]

   The plaintiff alleges that Mr Purcell subsequently rang her and told her that the Commissioner told Mr Purcell not to act upon the report, and that her husband’s complaints were to be dismissed because he was a prisoner.

8. [79]

   The plaintiff also alleges that prison officers had stolen her husband’s property and food.

9. [80]

   The Commissioner submitted that any cause of action identified in the pleading in the statement of claim could only be based on a breach of XYZ’s privacy. The Commissioner submitted that there was not yet a recognition of any tort of privacy in Australia, although he accepted that the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [107] left the door open for the incremental development of such a tort. However, he submitted that the standing to bring such an action would lie only with the person whose privacy had been affected.

10. [81]

    In any event, the Commissioner submitted, in a statement of the plaintiff made to Mr Purcell (put into evidence by the plaintiff) she said that the prison officer Denny had denied making the statement to the other inmates that XYZ was a paedophile, and that XYZ had told Denny that no threats had been made to him.

11. [82]

    In Kostov v Nationwide New Pty Ltd (No 1) [2018] NSWSC 1822, I discussed at [61] to [67] what I saw as the state of the law touching any tort of privacy at that time. I said at [66] that no Australian superior court had recognised a generalised tort for breach of privacy. Subsequently, the High Court discussed the matter in passing in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 502; (2020) 94 ALJR 502 at [78] to [90], [155] and [240] to [244], whilst also speaking of the concept of privacy in the context of a breach of confidential information in equity. Smethurst did not establish that a tort of privacy is recognised in Australia.

12. [83]

    It is not necessary to dwell on the question of whether such a tort is recognised, or whether any doctrine of equity could be called in aid. What is very clear is that, if such a tort were available, it would be XYZ who would have to bring the action. If any rights are being infringed, they are his rights, not those of the plaintiff.

13. [84]

    When I put to the plaintiff that she could not sue on behalf of her husband she told me that she held his power of attorney, and that the things that were said were also said about her as well as her husband. There was no evidence of any power of attorney. The suggestion that defamatory things were also said about the plaintiff was well outside anything pleaded in the case against the Commissioner, which was confined to alleged statements about XYZ by a prison officer to other inmates.

14. [85]

    The Commissioner submitted that the proceedings should be dealt with pursuant to r 4.10 of the UCPR. That rule relevantly provides:

15. [86]

    This rule was discussed by Johnson J in Bendigo and Adelaide Bank Limited v Chowdhury [2012] NSWSC 592. That was a case where a defence had been filed with nothing contained in the section of the defence headed “Pleadings and Particulars”. The document contained only the parties and the affidavit sworn in the usual form.

16. [87]

    Justice Johnson said:

17. [88]

    Significantly, however, his Honour also said:

18. [89]

    The statement of claim in the present case is not obviously on its face, to a non-lawyer including a member of the registry staff, fundamentally defective in the way the defence was in Chowdhury. Deciding that the present statement of claim was defective in a legal sense, rather than not complying with the correct form, would involve an exercise of judgment, or an evaluation of wording, to see whether it complies with the UCPR, whether by reason of r 13.4 or r 14.28.

19. [90]

    I do not consider that the circumstances of this case make application of r 4.10 appropriate. Determination of the matter involves a consideration of the principles relating to summary dismissal, or principles of pleading at the very least.

20. [91]

    In my opinion, for the reasons given earlier, the proceedings against the Commissioner disclose no reasonable cause of action and are an abuse of the process of the Court.

Pleading of the claim

1. [92]

   In the light of my conclusions that no reasonable causes of action have been shown, it is not necessary to deal at any length with issues of pleading. It is sufficient to say that, if I am wrong in my conclusions, the statements of claim in each of the matters do not comply with the rules of pleading, particularly rr 14.7 and 14.30.

Conclusion

1. [93]

   Accordingly, I make the following orders: