Baini v Liberal Party of Australia NSW Division & Anor

Judgment (9 paragraphs)

[1]

Solicitors: Harpur Phillips (First and Second Defendant) File Number(s): 22/361372 Publication restriction: Nil

[2]

JUDGMENT

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.
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.
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.

The "breach of privacy" allegation

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.
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: "The real difficulty for the respondent in Lenah Game Meats, Gummow and Hayne JJ observed, was that it did not raise a recognised cause of action. That is not to say that one might not be available with respect to an invasion of privacy, but the development of the law in that regard will benefit only natural persons, not companies such as the respondent in that case. Their Honours went on to say that the debate about the tort of privacy should not be regarded as foreclosed including by the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor." (Footnotes omitted and emphasis added.)
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. That any information was in fact imparted to Mr Finkelstein; 2. That the second defendant provided information of any kind to Mr Finkelstein; 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. 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.
The applicants also contend that the pleadings are embarrassing.
As stated in McGuirk v The University of New South Wales [2009] NSWSC 1424 ("McGuirk") at [30]-[35] (Johnson J): "A pleading is embarrassing where it is 'unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him': Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15]. In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of 'embarrassment' with respect to pleadings: 'Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.' A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6). Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114. Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186. It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55]." (Emphasis in original.)
As also noted by Johnson J in McGuirk at [149]: "In Northam v Favelle Favco Holdings Pty Limited at 5-6, Bryson J said that 'what is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth'. The Plaintiff has not done this." (Emphasis in original.)
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.
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.
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.

"Injurious falsehoods"

The tort of injurious falsehood has been defined in Ratcliffe v Evans [1892] 2 QB 524 at 527-528 as comprising: "written or oral falsehoods […] where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage […] To support it, actual damage must be [shown], for it is an action which only lies in respect of such damage as has actually occurred."
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]: "In Palmer Bruyn at [57], Gummow J (with whom Gleeson CJ agreed) approved the statement in Ratcliffe v Evans [1892] 2 QB 524 at 527-528 that: 'an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage …' Gummow J continued at [73]: '… Where it is established by evidence that the defendant intended to cause the harm that eventuated, and provided the other elements of the tort are satisfied, the defendant will generally be held liable for that harm. …' His Honour said at [75]: '… At least in the context of injurious falsehood, the question of whether there is a sufficient relation between the damage "intended" and the damage suffered will generally depend upon whether the damage suffered was the "natural and probable result" of the false statement.' Gummow J stressed the significance of the concept of 'natural and probable result' in [81] where his Honour said: 'Where there is a finding that the wrongdoer "intended" a certain consequence, the issue of whether the wrongdoer should be liable for a consequence different in kind will depend largely … upon the relation of that which the wrongdoer intended to the consequences which actually resulted. This relation will generally be assessed by asking whether the damage was the "direct and natural result" of the publication of the falsehood.'"
It was also observed by Adamson JA at [298]: "I am not persuaded that Palmer Bruyn provides any support for the proposition that it is enough for a plaintiff to prove that the loss in fact sustained was intended by the maker of the injurious falsehoods in circumstances where the plaintiff cannot show that the loss was the natural and probable consequence of the injurious falsehoods and, indeed, a substantial cause."
In the ASOC, the injurious falsehood allegations appear to be able to be separated into two parts.
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").
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.
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.
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".
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.
Ms Baini alleges that the first defendant, on the second defendant's authority, "repeated the One-night stand allegation". Such repetition was: "malicious in that it was made for the predominantly improper purpose of falsely damaging the reputation of [Ms] Baini to prevent her from having any future role in politics with the Liberal Party including as the Member for Reid".
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.
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.
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].
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.
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.
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.
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.
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.
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.
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.
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.
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.

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Judgment (9 paragraphs)

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