Bartlett v Roffey

Outcome 9 Mr Bartlett has demonstrated the basis for leave to be given to bring the further defamation proceedings against the respondents in this Court. However, it is also the case that the respondents have demonstrated that the bringing of the proceedings in this Court is an abuse of process. Consequently, a grant of leave would facilitate an abuse and be contrary to the administration of justice. The present case is one in which the abuse arises by reason of a particular state of affairs, the significance of which may be redressed by the making of orders as to the future conduct of the proceedings. In those circumstances, in the exercise of the Court's jurisdiction to regulate its own procedures in order to prevent an abuse, it is appropriate (a) to condition the grant of leave upon Mr Bartlett demonstrating that he has satisfied the liability to costs consequent upon his discontinuance of the Supreme Court proceedings; and (b) to transfer these proceedings to the Victoria Registry of the Court.

Matters of common ground 10 It is common ground between the parties that (a) leave is required; and (b) leave may be given now as if it had been given before the proceedings were commenced in this Court, that is nunc pro tunc. 11 As to the ability for leave to be given nunc pro tunc, the common ground as between the parties reflects the state of authority: see Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90, applied in Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750; (2015) 237 FCR 127 at [26] (White J), decisions concerned with a similarly worded provision in the Defamation Act 2005 (NSW). 12 However, as to the need for leave, the position is somewhat more convoluted. Provisions like s 23 of the Defamation Act (WA) (and the similar provision in s 23 of the Defamation Act (Vic)) are accepted as having their origins in s 9(3) of the Defamation Act 1974 (NSW) which was introduced to give effect to a law reform recommendation in that State. It was a recommendation that arose from the potential for the same defendant to face a multiplicity of proceedings arising from the same publication by reason of the nature of a cause of action in defamation: see the explanation in Massarani v Kriz [2022] FCA 80 at [66]-[68] (Katzmann J). Common law causes of action in defamation arise in respect of each publication and imputation thereby creating the possibility of multiple concurrent proceedings. There is also the possibility for a successive application to be brought in respect of any further publications of a similar kind to an earlier publication. The further publication might occur at about the same time as the initial publication or it may occur much later, say after proceedings in respect of the earlier publication have been concluded. In short, there are many ways in which the nature of a cause of action in defamation means that there is the potential for a multiplicity of proceedings in respect of the publication of the same or a like matter. 13 There is a possibly relevant distinction between concurrent multiplicity and successive multiplicity. The statutory provisions apply where a person 'has brought' proceedings in respect of a publication. It requires leave before such a person can bring 'further proceedings' against the same defendant in respect of 'the same or like matter'. It might be said that the use of the present perfect form of words, namely 'has brought', indicates that the provision applies to an action in the past that has a connection with the present. That is to say, it refers to proceedings brought in the past that have significance for present events, say because those very proceedings are ongoing. 14 A focus of the provision upon instances where there are two sets of proceedings that are being pursued at the same time (rather than upon successive proceedings) might be thought to be reinforced by the use of the term 'further' to describe the additional proceedings. If indeed it was intended that leave would be required in those cases where there were proceedings that had been brought but were no longer continuing (and had not been conducted to an adjudicated conclusion of ongoing and present significance) then you might expect the provision to refer to 'other proceedings'. 15 Therefore, it might be said that an ordinary grammatical reading of the provision would lead to the conclusion that it is concerned with instances where the first proceedings (those that the person 'has brought') are ongoing (or have ongoing significance because they have been adjudicated and, in that sense, continue to speak rather having been terminated before then) and the person is also seeking to advance other proceedings (the 'further proceedings'). 16 Against such a construction based upon the ordinary meaning of the words used is the breadth of the phrase 'against the same defendant in relation to the same or any other publication of the same or like matter' and the absence of any express language confining the need for leave to instances of concurrency in multiple proceedings. These matters, together with the breadth of circumstances in which the nature of a cause of action in defamation means that multiple proceedings are possible suggest that the leave requirement was intended to apply in all instances where a second set of proceedings are sought to be advanced against the same defendant as to the publication of 'the same or like matter' (irrespective of whether the first set of proceedings are still on foot and, if not on foot, irrespective of the circumstances in which the first proceedings came to an end). 17 As to these matters, it has been held that provisions like s 23 of the Defamation Act (WA) will require leave even where there is no concurrent multiplicity. For example, it has been held that leave is required before commencing fresh proceedings in respect of a republication of imputations which were found to be defamatory in the initial proceedings, though views have differed: see the review of the authorities by Wigney J in Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 at [33]-[43]. 18 The New South Wales Court of Appeal has also considered the merits of the proposition that the provision in that State was not engaged where there had been earlier proceedings brought as to the same publication, but those proceedings had terminated: Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90. In that instance, leave was sought to advance that proposition on appeal even though it had been accepted at first instance that leave was required. The Court of Appeal refused leave. In reasoning to that conclusion, the proposition that the appellant sought to advance was described by Basten JA as being one which though 'not untenable' was not a proposition that was 'clearly correct': at [14]. That is to say, the proposition that leave under a provision akin to s 23 was not required if the first proceedings had been terminated was arguable. 19 In separate reasons, Simpson JA said (at [64]-[65]): Moreover, even if the proposed construction were accepted, it would not necessarily be of great comfort to the applicant. It was accepted on her behalf that the publications on which she now seeks to sue the respondents were all the subject of the dismissed proceedings. What she seeks to do, by pleading continuing publication, is to revive the earlier claims, and avoid the consequences of s 23 by relying on publication post-dating the judgment of Gibson DCJ. Nevertheless, as I have indicated above, there is some semblance of an issue of principle involved. That does not, of itself, justify a grant of leave. The present case does not present a suitable opportunity to explore the reach of s 23. 20 It appears from the above passage that the circumstances in Ghosh were different to the present case in that the earlier proceedings had been dismissed whereas here they have been discontinued. However, it is difficult to see the basis upon which the statutory language would require leave in the case of a dismissal but not in the case of a discontinuance. At the very least, Ghosh seems to accept the possibility that it is arguable that there will be circumstances in which leave is not required to pursue successive proceedings. 21 Before Wood J in Lakaev v McConkey [2023] TASSC 48, it was argued that the equivalent provision in the Defamation Act 2005 (Tas) was confined to instances where there were 'multiple extant defamation proceedings' and was not concerned 'with proceedings that have been determined': at [8]. As to that contention, her Honour expressed the view that the requirement for leave conferred an 'unfettered discretion' and it should be seen as 'a gateway which can be opened readily and promptly in response to the justice of the case': at [9]. After reviewing the authorities, including the reasons of the members of the Court of Appeal in Ghosh, and noting differences in approach amongst single judges dealing with leave applications under equivalent provisions (including Rush), her Honour then concluded that the submission that the requirement for leave only applied where there were concurrent actions should not be accepted: at [22]. 22 A further contention in Lakaev v McConkey to the effect that leave was not required for successive proceedings unless there had been a ruling in the earlier concluded proceedings that the matter was not defamatory was rejected on the basis that it was an 'implied restriction' which was 'unsupported by authority': at [26]. 23 Therefore, there is some support, but no firm basis, for the common position of the parties that leave is required. However, by reason of the state of existing authority, the precise construction of s 23 on which each of the parties acted in adopting the common position that leave is required is not clear.

Should leave to commence the proceedings be given in the present case?

The competing contentions 24 The proper construction of the statutory provisions assumed some significance when it came to the way in which the submissions in support of the leave application were put for Mr Bartlett. Senior counsel for Mr Bartlett contended that the only issue that arose on the application was whether leave should be given for the statutory purposes of s 23 of the Defamation Act (WA). Those purposes were said to be concerned only with whether a party would be exposed to having to defend a multiplicity of defamation proceedings in relation to the publication of the same matter. Senior counsel for Mr Bartlett described the 'mischief' to which the leave requirement was directed as arising from the nature of defamation law and to prevent being sued in multiple jurisdictions successively or the bringing of a multitude of actions in such cases. 25 On that foundation, it was submitted that in considering whether to grant leave under the statutory provisions which applied only to defamation proceedings, the Court would only refuse leave if there was multiplicity of some kind. It was further submitted that in considering whether to grant leave the Court was not concerned with whether there might be other reasons why there is some form of abuse of process. On that basis it was submitted that as there was no concern about ongoing multiplicity (because the Supreme Court proceedings have been discontinued) then there was no reason to refuse leave. 26 Therefore, the position of Mr Bartlett was that leave is required even where there are successive proceedings, but in considering whether to grant leave to bring the second proceedings the Court should confine its consideration to whether allowing the proceedings in this Court to continue would expose the respondents to a multiplicity of proceedings that arose because of the nature and characteristics of defamation proceedings (that is, the availability of a separate cause of action in respect of each publication, including successive or later publications as well as publications in different places of the same matter). 27 As has been indicated, in opposing the application for leave, the respondents sought to rely upon an alleged abuse of process that was not connected with the particular nature of defamation proceedings. They maintained that in considering whether to grant leave the Court was concerned with all of the circumstances and was required to exercise a discretion that could have regard to all matters relevant to the integrity of the administration of justice by the Courts, as expressed in the established principles concerned with abuse of process. 28 The respondents' particular concern in the present case is with an alleged form of abuse of process that might arise in respect of any type of claim. They seek to invoke general principles related to abuse of process as being relevant for considering whether to grant leave for the purposes of the Defamation Act provisions. In addition, they raise aspects of the way the claim is pleaded and a contention that part of the claim as now pleaded is statute barred as reasons why leave should be refused or conditioned.

The proper construction of the statutory provisions 29 In my view, there is merit in the submission advanced for Mr Bartlett that the question whether leave should be granted for the purposes of s 23 of the Defamation Act (WA) (and its Victorian equivalent) should be determined by reference to the characteristics of defamation proceedings and whether, in effect, there is good reason why a second or further defamation claim should be allowed in respect of the publication of the same or like matter to the publication the subject of the first proceeding. 30 This conclusion is supported by regard to the report by the law reform commission that led to the introduction of the requirement for leave now expressed in s 23 of the Defamation Act (WA) (and its equivalent in other Australian jurisdictions). The report includes notes on a proposed defamation bill: Law Reform Commission (NSW), Report 11 (1971) - Defamation, Appendix D - Notes on Proposed Bill and Rules. The notes concerning the reasons for the leave provision began with the following observation (para 36): There are difficult distinctions, unserviceable distinctions, and areas of doubt on the identification of the cause or causes of action which arise where one man defames another. It is unavoidable, except by drastic changes in the law, that there will often be a multitude of causes of action. Thus, if a man prints and sells by retail a defamatory book, there will be a cause of action for each sale of the book. The purpose of section 9 is to put the matter on a rational basis and to meet the difficulties which inhere in the multiplicity of causes of action. 31 The report then outlined the reasons why, given the state of law at the time, there may be a multitude of causes of action, explaining the approach in the cases to identifying each defamatory publication. It then expressed the following conclusions (paras 50-53): We think that the solution most likely to promote an analysis which will lead to just results, is to provide that a person defamed has a separate cause of action for each defamatory imputation published of him and for each person to whom the publication is made. The solution proposed in [the above] paragraph shares, and indeed, aggravates, the defects of the present law, arising because of the multiplicity of causes of action which may attend the dissemination of defamatory matter. The defects include problems of the extent to which more than one action can be brought against the same defendant in respect of the same, report, article, speech or other problems of prolixity in pleadings, and problems relating to verdicts and assessment of damages. We, think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose. Thus, if defamatory matter is published in a newspaper, judgment in an action for publication to residents of Sydney would not bar a second action for publication to residents of Newcastle. The second action might be stayed as vexatious, but it is perhaps a strong use of that power to stay proceedings on an undoubted cause of action which has not been litigated. We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court. We think that the restriction proposed in paragraph 52 should have effect whether the first action was brought in New South Wales or elsewhere … 32 The report also proposed a single award of damages in respect of all publications by the one defendant made by 'the same report, article, speech or other matter', with power to assess separately in an appropriate case (para 56). 33 The statutory provision proposed by the law reform commission provided expressly for a separate cause of action for each publication but then provided: Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same matter, except with the leave of the court in which the further proceedings are to be brought. 34 The proposed provision concluded with the following: This section does not affect- (a) any law or practice relating to special verdicts; or (b) the powers of any court in case of vexatious proceedings or abuse of process. 35 Therefore, as originally proposed, the requirement for leave was intended to deal with special problems posed by the nature of claims in defamation and was intended to apply alongside (and without affecting) the powers of the court in relation to abuse of process. 36 It follows, in my view, that upon an application for leave, the Court is to have regard to whether, by reason of the nature of defamation proceedings and their particular potential to produce a multiplicity of actions (including as to later publications of the same matter), leave should be refused. It is not an occasion for the Court to consider, by reference to aspects of the particular circumstances that are not derived from the fact that the proceedings advance defamation claims, whether leave should be given. To do so would be to bring to account matters which are outside the evident purpose for which the leave requirement was imposed. It would create the potential for the statutory requirement for leave to advance defamation proceedings to be used in a broader way to cover the territory of long-established principles concerning the finality of litigation and abuse of process. Regard to the terms of the legislation, its subject matter and the contextual matters to which I have referred does not support such a conclusion as a matter of construction of the statutory language.

Leave should be given for the purposes of the Defamation Acts in the present case 37 Approaching the present application on the basis I have described, the proceedings brought by Mr Bartlett in this Court give rise to multiplicity in only a very limited sense. There is no concurrent multiplicity because the Supreme Court proceedings were discontinued before proceedings were commenced in this Court. There has been no substantive determination of the merits of the defamation cause of action that was advanced in the Supreme Court and is now to be advanced in this Court. The Supreme Court proceedings were terminated by the discontinuance at an early stage. This is not a proceeding concerned with a further publication that has been the subject of an earlier adjudication in Court proceedings. The respondents point to no particular aspect of the nature of the claims in defamation that Mr Bartlett seeks to advance which would make it unfair or unreasonable to grant leave. Rather, the focus of the submissions for the respondents is upon an alleged form of abuse of process that would arise in any case where a party sought to do what Mr Bartlett seeks to do in the present case, irrespective of the nature of the causes of action involved. 38 In those circumstances, subject to due consideration of the separate contention advanced for the respondents as to abuse of process (addressed below) I am satisfied that leave should be given nunc pro tunc for the purposes of s 23 of the Defamation Act (WA) and s 23 of the Defamation Act (Vic).

Should leave be refused on the basis of the respondents' abuse of process contentions? 39 The question that remains is whether it is appropriate, in the context of the present application for leave, to consider the issue of abuse of process raised by the respondents. Although it was submitted for Mr Bartlett that the contentions advanced by the respondents were a matter for a further application if leave as sought by Mr Bartlett was given, senior counsel advanced submissions in response to the abuse of process point in the event that his submissions in that regard were not accepted. Further, it seems to me that where the making of an interlocutory application, by its nature, seeks to embark upon a course that the responding party considers involves an abuse of process, then it is appropriate for the responding party to oppose the application on that basis. In substance, that is what was done by the respondents. They maintained that it was an abuse of process for Mr Bartlett to bring the application to seek leave to proceed in this Court because the bringing of proceedings in this Court in respect of the same publications that had been the subject of the Supreme Court proceedings was an abuse of process in the particular circumstances that have been described. In consequence, to seek leave to bring those proceedings was itself an abuse of process. 40 The alternative submission made for Mr Bartlett if the abuse of process contentions of the respondents were entertained was that there could not be an abuse of process where (a) Mr Bartlett had a right to discontinue the Supreme Court proceedings; (b) Mr Bartlett had exercised that right and had accepted the consequence which was a liability to costs of the proceedings; and (c) in consequence, the respondents did not face the prospect of two proceedings in different courts advancing the same claims. 41 In response, the respondents submitted that neither literal compliance with matters of procedure in the Supreme Court nor the absence of concurrent multiplicity meant that there was no abuse of process. Rather, it was necessary to consider whether the conduct of Mr Bartlett exhibited one of the typical characteristics that lead the Court to characterise conduct as an abuse of process. Reliance was placed upon the following statement of Kiefel CJ, Bell and Keane JJ in UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 at [1]: … The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. … (footnote omitted) 42 It is well established that determining whether there is an abuse requires close regard to the particular circumstances and that there is no confined or closed class of conduct that will amount to an abuse of process. 43 For the following reasons, I am satisfied that it is an abuse of process for the applicant to seek leave to advance proceedings in this Court. 44 It was Mr Bartlett who commenced the Supreme Court proceedings. He maintained them in the face of a transfer application. Considerable costs were incurred by the respondents in advancing the interlocutory application to transfer the proceedings. Only when Mr Bartlett failed in his opposition to the transfer of those proceedings (and found that he could not appeal) did he discontinue them. That is to say, only when he knew that the outcome on the application had been determined adversely to him did he then seek to circumvent the interlocutory determination by starting afresh in this Court. He says that he did so due to the personal pressures that he had advanced before Solomon J in opposition to the application to transfer the Supreme Court proceedings to Victoria. However, those matters were advanced before Solomon J and brought to account by his Honour in reaching the conclusion that the proceedings should be transferred. Therefore, they are not collateral or new matters that were not in issue before Solomon J. 45 It may be accepted that, generally speaking, discontinuance of proceedings does not give rise to any form of finality of a kind that the Court would protect by the various principles that have been developed in that regard: as to the relevant distinctions see Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [27]-[34] (Allsop CJ, Moshinsky and Colvin JJ). Indeed, the significance of discontinuance is that it does not result in any adjudication of a kind that would prevent the commencement of ordinary proceedings on the basis of the Court's principles concerning finality. 46 However, in the particular circumstances of the present case, the discontinuance was not accurately described as the exercise of a right to discontinue proceedings and then subsequently commence proceedings as to the same matters. It was a discontinuance made for the purpose of rejecting the Supreme Court's authority to manage its own procedures. It occurred only after Mr Bartlett had subjected the respondents to a substantial contested interlocutory application in which he maintained that they should be required to answer the proceedings in the Supreme Court of Western Australia rather than have them transferred. Only when the outcome was adverse to his position did he seek to change tack. 47 In a federal system where there is substantial concurrent jurisdiction, it brings the administration of justice within such a system into disrepute if a party is able to switch from one court to another simply because the party did not like the outcome of an interlocutory application. It also oppresses the other party unjustifiably. It does so because to allow Mr Bartlett to start again would mean that if the respondents wish to maintain the position that they advanced before Solomon J (successfully) they will have to bring a further application to the same effect in this Court. They will have to marshal the materials and incur the costs in circumstances where Mr Bartlett has made plain that he will seek to have the present proceedings conducted in Perth (although it was intimated that it may be possible for arrangements for some evidence to be taken in Melbourne). The fact that Mr Bartlett must bear costs on a party and party basis of the Supreme Court proceedings by reason of the discontinuance does not salve the burden to the defendants of now having to bring again that application. The essence of the abuse lies in the failure to respect the adjudication of the Supreme Court as to the proper place for the determination of the defamation claims that Mr Bartlett seeks to bring. 48 It follows in my view that the application for leave to commence the proceedings in this Court is an abuse of process and, on that basis, subject to what follows concerning allowing the application on the basis of conditions, I would refuse the application.

Nevertheless, should leave be granted subject to conditions? 49 The final matter that arises for consideration is whether it would be appropriate to grant leave subject to conditions. The respondents advanced submissions in the alternative as to that possibility. 50 Given the conclusion that I have reached concerning the grant of leave it would not be proper to consider the possibility that any leave to commence the proceedings for the purposes of the provisions in the Defamation Acts should be conditioned in some way. That flows from my earlier conclusion that the grant of leave under the Defamation Acts is not concerned with whether there is an abuse of process by reason of matters unrelated to the character of the defamation claims. 51 However, there remains the question whether the Court should exercise its jurisdiction to regulate its own proceedings to ensure that there is not an abuse of its processes by imposing some form of conditions as to how these proceedings may continue or whether it should refuse the interlocutory application on the basis that it seeks leave in order to advance proceedings that are an abuse. 52 In my view, the possibility of conditions is to be approached on the basis that the consequence of a refusal of leave would mean that Mr Bartlett would be left without recourse for the claims that he seeks to advance. Generally speaking, legal principles call for caution when considering whether to grant relief which, in practical terms, will deny a party access to the courts. 53 In the circumstances of the present case, it is the attempt to circumvent the considered decision of the Supreme Court to which Mr Bartlett submitted, and only once the outcome was known to be adverse to Mr Bartlett, that is at the heart of the abuse. If, in substance, the decision of Solomon J was to be given effect in the future conduct of these proceedings, then concerns in relation to abuse of process fall away. That will be the case if these proceedings were to be transferred to the Victoria Registry of this Court. Mr Bartlett will be liable for the costs consequences that arise from his discontinuance and there will be no additional burden on the respondents in having to again apply for orders as to the proper or appropriate place for the conduct of the proceedings. The Supreme Court proceedings had not reached the stage of filing a defence so there will be no duplication of costs in that regard. 54 Nevertheless, in my view, it is appropriate to require a party who has discontinued proceedings in one court and commenced proceedings in another court for the purpose of circumventing the procedural orders of the first court to have to satisfy any costs liability that has arisen in the earlier proceedings. 55 I have considered the written submission for the respondents that the transfer should be to the Supreme Court of Victoria if the leave sought is given. There is no formal application for the transfer of the proceedings by this Court to the Supreme Court of Victoria. The implied suggestion was that I could exercise the statutory power conferred by cross-vesting legislation to effect that transfer and I could do so on the basis that Solomon J had determined that such a course was appropriate. Issues arise as to whether I would need to form that view for myself in order to make such an order. If I approached the matter on that basis then I would be undertaking a course that would manifest the abuse of process. 56 Further, an order for transfer to the Supreme Court of Victoria is likely to be productive of further delay. 57 Oral submissions for the respondents were directed only to the alternative course that these proceedings be transferred to the Victoria Registry of the Court. There was not said to be any significant difference between proceedings in the Supreme Court of Victoria and proceedings in this Court conducted on the basis that Victoria was the proper place for those proceedings. The decision by Solomon J was to the effect that Victoria was the proper place. I consider that is a matter that I can bring to account in considering whether to transfer these proceedings to the Victoria Registry. 58 In all the circumstances, in my view the concerns in relation to abuse of process would not arise if there were orders transferring these proceedings to the Victoria Registry of this Court and orders requiring the applicant to discharge his liability to costs in the Supreme Court of Western Australia before taking further steps in these proceedings. Therefore, I propose to make orders to that effect and, on that basis, give the leave sought on the interlocutory application. 59 The respondents also sought to have any leave conditioned on the basis that certain aspects of the claims must be withdrawn because they are statute barred. I am not persuaded that it is appropriate to adjudicate the claims made in that regard for the purposes of determining the interlocutory application for leave. They are matters that the respondents ought to advance by way of defence or an appropriate interlocutory application. Counsel for the respondents accepted as much in the course of oral submissions.

What is the appropriate order as to costs? 60 As to costs, I consider it appropriate to afford the parties a further opportunity to make short written submissions (supported by any necessary affidavit) before determining the appropriate costs order on the interlocutory application. I will make directions as to the time for providing those documents and, subject to further order, will deal with that aspect on the papers. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.