Al-Shennag v Statewide Roads Pty Limited & Anor

LEGISLATION CITED : Defamation Act 1974 Uniform Civil Procedure Rules 2005

Adam v Ward [1917] AC 309 Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472 Al-Shennag v Statewide Roads Ltd [2010] NSWSC 366 Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760 CASES CITED : Bennette v Cohen [2009] NSWCA 60 Day v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 Megna v Marshall [2010] NSWSC 686 Roberts v Bass (2002) 212 CLR 1 Spencer v Commonwealth of Australia [2010] HCA 28

PARTIES : Abdullah Al-Shennag (Plaintiff) Bill Woodcock (2nd Defendant)

COUNSEL : In person (Plaintiff) M. S. White (2nd Defendant)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2005/269387 ABDULLAH AL-SHENNAG v STATEWIDE ROADS LIMITED & ANOR

JUDGMENT 1 McCALLUM J: These are proceedings for defamation brought by Mr Abdullah Al-Shennag, an engineer formerly employed by Bankstown City Council. Some of the history of the proceedings is set out in my earlier judgments in Al-Shennag v Statewide Roads Ltd [2010] NSWSC 366 and Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760. 2 The matter complained of is a report commissioned by the Council to assess the validity of conditions placed by Mr Al-Shennag on three separate development applications that had been lodged with the Council. The report concluded that the matters analysed disclosed a series of mistakes and errors on the part of Mr Al-Shennag underlined by poor engineering judgment. 3 The only remaining defendant to the proceedings is the author of the report, Mr Bill Woodcock. In 2007, Walmsley AJ found that Mr Woodcock's report conveyed five imputations defamatory of Mr Al-Shennag: see Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472. It remains for the Court to determine the defences raised by Mr Woodcock to those imputations and the amount of damages (if any) that should be awarded to Mr Al-Shennag: see s 7A(4) of the Defamation Act 1974 (now repealed).

4 The defences raised by Mr Woodcock are the defence of qualified privilege at common law and under s 22 of the Defamation Act 1974 (NSW) and the defence of consent (paragraphs 16 and 17 of the defence filed 12 November 2009). By paragraph 18 of the defence, Mr Woodcock has also pleaded the defence of unlikelihood of harm but it has been indicated on his behalf that he does not press that defence. Mr Woodcock also raises a number of matters in mitigation of any damages for which he may be found liable to Mr Al-Shennag (paragraph 19 of the defence). 5 The application presently before the Court is an application by Mr Al-Shennag to have those defences struck out. The application is made by amended notice of motion filed in Court on 23 September 2010. Mr Al-Shennag represents himself in the proceedings and the appearance of the notice of motion reflects that fact. As indicated to Mr Al-Shennag at the hearing of the motion, I determined not to consider some of the relief sought since it duplicates issues previously agitated by Mr Al-Shennag and determined by me in Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760. The substance of the application is for summary judgment under rule 13.1 of the Uniform Civil Procedure Rules 2005 and, alternatively, an order striking out paragraphs 16 and 17 of the defence. I propose to determine the application on that basis. 6 It is trite law that a defendant will not be deprived of a contested hearing on the merits unless the absence of a defence is clearly demonstrated. The authority most often, if not invariably, cited in support of that proposition is the decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.4 per Barwick CJ. Indeed, it is not unlikely that General Steel is the authority most often cited in all litigation in this jurisdiction, or at least in this division of the Court. 7 It is also trite law that it is inappropriate for the Court to determine a matter summarily if there is a real question to be determined: Day v Victorian Railway Commissioners (1949) 78 CLR 62 at 91. 8 The stringency of those fundamental principles was acknowledged and implicitly endorsed in the recent decision of the High Court in Spencer v Commonwealth of Australia [2010] HCA 28 at [53] to [55]. 9 Mr Al-Shennag's application for summary judgment reflects either ignorance of or misconception as to those principles. The hopelessness of the present application can be explained briefly by reference to the two defences relied upon by Mr Woodcock.

Defence of qualified privilege 10 It is well-established that there is a defence at common law to a claim for defamation that the publication was made on an occasion of qualified privilege, that is, on an occasion where the person making the communication was under an interest or duty, legal, social or moral, to make it to the person to whom it was made, and the person to whom it was made had a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. 11 As explained by Simpson J (with her Honour's usual clarity) in Megna v Marshall [2010] NSWSC 686 at [50] to [51], determination of the defence involves three strands of inquiry: whether there was a privileged occasion; whether the communication sued on was relevant or sufficiently connected to that occasion; and (if each of those matters is determined in favour of the defendant) whether the occasion was used for an improper purpose. The first two matters are elements of the defence, as to which the onus of proof lies on the defendant. The third is a matter of reply to the defence, as to which the onus of proof lies on the plaintiff. 12 It is common ground in the present case that Mr Woodcock was expressly retained by Bankstown City Council to prepare a report concerning aspects of three building applications lodged with Bankstown City Council relating to proposed developments that had been assessed and processed by Mr Al-Shennag in his capacity as a senior engineer employed by the Council (see paragraph 7 of the amended statement of claim filed 29 May 2007). 13 It must be doubtful, in those circumstances, whether there is even any contest in the present case as to the existence of a privileged occasion. There appears to be little scope for dispute as to the proposition that Mr Woodcock was under a duty to communicate information on the matters the subject of his retainer to the party that retained him. If that is a matter in issue, it is plainly a triable issue so far as Mr Woodcock is concerned. 14 Further, there is plainly a triable issue as to the existence of a reciprocal interest in the people to whom the report was published. Indeed, in his outline of submissions provided in support of the present application, Mr Al-Shennag appears to acknowledge (in paragraph 6(v)) that, at the very least, Mr Bullock, a staff member of the Council's Civic Services Group, had an interest or apparent interest in receiving the report. 15 Mr Al-Shennag appears to contend that the report was published or republished to people other than Mr Bullock who had no interest or duty to receive the information but plainly that is a matter for determination at trial. 16 The critical issue raised by the present application appears to be the contention that what was published was foreign to the privileged occasion. On that issue, Mr Al-Shennag sought to derive some support from a series of principles collected in the judgment of Ipp JA in the decision of the Court of Appeal in Bennette v Cohen [2009] NSWCA 60 at [25]. 17 The particular statements of principle relied upon by Mr Al-Shennag appear to have been drawn, verbatim, from the headnote of that decision. The statements quoted by Mr Al-Shennag include the following: "The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement". "In order for the occasion to be protected by qualified privilege, there must be a significant connection between the imputation and the privilege [sic] occasion". 18 The first of those statements is derived from the judgment of Ipp JA at [16], where his Honour said: "The next criterion to which I wish to refer is the requirement that 'the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement': Roberts v Bass per Gaudron, McHugh and Gummow JJ (at [62], 26)." 19 The full passage from Roberts v Bass (2002) 212 CLR 1 there cited states: "The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement" (per Gaudron, McHugh and Gummow JJ). 20 In my view, it is clear that the reference in Roberts v Bass at [62] to the "condition" that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement is a reference to impropriety of purpose, or malice, as it is commonly described. 21 The second statement of principle relied upon by Mr Al-Shennag is derived from the judgment of Ipp JA at [19], where his Honour said: "Closely allied to the requirement that the occasion must not be used for a purpose foreign to the interest that protects the making of the statement, is the requirement that there be a significant connection between the defamatory material and the privileged occasion: Bashford at [191]-[196], (434-436); Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [73] per McClellan CJ at CL." 22 The reference to a requirement for a "significant connection" between the defamatory material and the privileged occasion appears to be a typographical error. The term consistently used in reference to the relevance requirement in the authorities, including Bashford at [7], [27], [167], [193] and [197] and Aktas at [41], [72] and [76], is to a requirement for a "sufficient connection" or that the communication be "sufficiently relevant" or "sufficiently germane" to the subject matter of the privileged occasion. 23 Care must be taken to draw a distinction between impropriety of purpose and the requirement that there be a sufficient connection between the defamatory material and the privileged occasion. To the extent that those concepts are grouped together in the judgment of Ipp JA in Bennette v Cohen, there is scope for confusion. In a statement collecting the relevant principles, his Honour said (at 25): "The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion". 24 A literal reading of the full passage in which that statement is contained suggests that impropriety of purpose is a matter to be disproved by a defendant as a circumstance relevant to the identification of a privileged occasion. If that is what his Honour intended to suggest, I respectfully disagree. As already explained, while Mr Woodcock bears the onus of proving the existence of an occasion of qualified privilege and that the content of his report was sufficiently connected to that occasion, impropriety of purpose or malice is a matter that arises in defeasance of the defence, the onus of proof whereon rests with Mr Al-Shennag. 25 Mr Al-Shennag relied on the contents of four affidavits sworn by him on 4 November 2009, 10 November 2009, 8 July 2010 and 22 September 2010. I have considered the contents of those affidavits. If anything, they demonstrate the ample scope of the factual disputes between the parties in the present case. It would plainly be contrary to the principles stated in General Steel to deprive Mr Woodcock of the opportunity to have those issues ventilated in the ordinary way at a contested hearing on the merits.

Defence of Consent 26 It is a defence to the tort of defamation that the plaintiff consented to the publication: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369D; Monson v Tussauds Ltd [1894] 1 QB 671. As noted by Hunt J in Jones, proof of consent must be clear and unequivocal. 27 Mr Woodcock relies on the fact that, at a meeting on 31 May 1999, Mr Al-Shennag and his union representative, Ms Sonia Terpstra, agreed to the appointment of an independent engineer to independently assess the conditions imposed by Mr Al-Shennag in the relevant development applications. 28 That there was such a meeting is confirmed in Mr Al-Shennag's own material relied upon in support of the present application. In his affidavit sworn 22 September 2010 (affidavit number four), Mr Al-Shennag states (at paragraph 38): "In the same meeting on 31.5.99 there was an agreement, between the plaintiff (myself) and Ms Terpstra on the one hand and Ms Margot Gallagher the Human Resource Manager of the CSG on the other hand that: 1. To appoint an independent engineer experienced in the process of Developments Approval to investigate and prepare an independent engineering report in respect of the issues of disputes between the plaintiff and his manager Mr K Kerzinger regarding the validity of the engineering assessment of the drainage plans and related engineering conditions of approval for the said two development sites (i.e. 106 Lang Street Padstow; and at 45 Sherwood Road, Revesby) that were assessed and imposed by the plaintiff at the Building Application Stage in his role as a development engineer in the council." 29 Mr Woodcock relies on material suggesting that he was chosen from three suggested engineers put forward by the Council to Mr Al-Shennag (via the union representative) (but compare paragraph 43 of Mr Al-Shennag's affidavit number four, where he asserts that he had no choice but to accept Mr Woodcock). 30 It is apparent, however, that Mr Al-Shennag contends that his agreement to that process was conditional and that the conditions were not complied with (see for example paragraph 47 of affidavit number four). 31 The argument that, in those circumstances, Mr Al-Shennag must be taken to have consented to the publication of Mr Woodcock's report is perhaps less straightforward than, say, the circumstances that arose in Monson v Tussauds. In that case, Mr Monson sued the proprietors of an exhibition of wax figures which depicted him holding a gun after he had been charged with murder by shooting with a gun and the jury had returned a verdict (not known in this jurisdiction) of "not proven". 32 An interlocutory injunction granted at first instance was discharged on appeal following the admission of further evidence suggesting that Mr Monson had sold the right to exhibit his effigy with his own clothes and gun, possibly changing his mind at a later stage. 33 Whether Mr Al-Shennag's provision of his consent to the process of the Council's retaining an independent engineer and reporting upon aspects of Mr Al-Shennag's performance of his duties as an employee of Council amounts to the same as consent to the publication of the report in due course prepared by that engineer is a different question. In my view, however, it is an issue which must plainly go to trial in light of the principles to which I have referred. 34 For those reasons the application must fail. 35 The orders are: 1. The plaintiff's amended notice of motion filed 23 September 2010 is dismissed. 2. The plaintiff is to pay the defendant's costs of the application. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.