Burns v Gaynor

Background

1. The plaintiff has brought a number of proceedings in the NSW Civil and Administrative Tribunal ("NCAT") against Mr Gaynor (the first defendant in these proceedings) and others with similar views concerning homosexuality and gay marriage. In an earlier application in these proceedings (Burns v Gaynor [2018] NSWDC 358 at [4]), counsel for Mr Gaynor's written submissions (18 October 2018) identified 36 complaints resulting in 70 separate legal actions, "none of which have been successful", brought under the Anti-Discrimination Act 1977 (NSW). This included an appeal to the High Court: Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386, the subject matter of which judgment then led to publication on the first defendant's Facebook account of the matters complained of which are the subject these proceedings. Mr Gaynor resides in Queensland and this is of relevance to the likelihood (or otherwise) of any further claims being brought against him by the plaintiff under the Anti-Discrimination Act 1977 (NSW).
2. This is the first time the plaintiff has brought a defamation action. The plaintiff's statement of claim filed on 22 May 2018, initially against Mr Gaynor only, arising from postings on his Facebook page made on or about 19 April 2018 for his own statements as well as his liability for posts made by four persons, one of whom was a Mr Blair Smith. (In circumstances set out in more detail below, the plaintiff's claim against the first defendant was settled on 6 December 2018.) An amended statement of claim filed on 18 June 2018 joined the second defendant, Mr Smith, for specific posts he made on Mr Gaynor's Facebook page. Mr Rasmussen's submissions of 18 October 2018 noted that no notice was given to the first defendant in relation to the offending posts and no attempt was made to flag the posts in accordance with the conditions of use of Facebook Inc's software.
3. The extent of publication for Mr Smith's publication was limited; the plaintiff identifies four other persons participating in the debate by making their own postings as being the persons who downloaded the publication, in which he is identified as "Garry". Only one of those persons resides in New South Wales. The posts remained online for a very short period, being taken down shortly after the plaintiff contacted the first defendant, namely 28 April 2018. On that same day, the plaintiff made a complaint to the Anti-Discrimination Board which related not only to the second defendant's posts but also to a post made by "Struth", who was one of the downloaders of the publication according to the plaintiff's particulars.
4. The plaintiff withdrew his complaint to the Anti-Discrimination Board on 19 June 2018 and on 20 June 2018 amended his claim to include Mr Smith as the second defendant. He continued with his claim against Mr Smith (who resides in Tweed Heads, New South Wales, thus not being caught by the High Court's interpretation of the relevant legislation) in the NCAT.
5. Mr Gaynor brought an application for summary dismissal of the claim against him, which was unsuccessful: Burns v Gaynor [2018] NSWDC 358. The claim for defamation between the plaintiff and Mr Gaynor was subsequently resolved on 6 December 2018 between them, in terms which included "a statement" on Mr Gaynor's Facebook page. The plaintiff's claim against Mr Smith in the NCAT resulted in a judgment for $10,000: Burns v Smith [2019] NSWCATAD 56. The plaintiff's defamation action also remained on foot against Mr Smith.
6. Mr Smith, who is a litigant in person, has filed a defence, which I set out in full: "(1) I submit these proceedings be dismissed as the Plaintiff has already received a ruling on the exact same complaint in another legal forum: (2019) NSWCATAD 56 (2) The above case awarded the Plaintiff the same monetary damages as he seeks in his case. (3) I assert this is double jeopardy (4) At no time did I state the Plaintiff was a paedophile (5) The Plaintiff is a serial litigant and a Vexatious Litigant and should be declared one"
7. In a court appearance via telephone on 1 August 2019, the second defendant explained this as meaning, firstly, that at about the same time as the defamation claim was brought, the plaintiff also brought a claim under the Anti-Discrimination Act against him in the New South Wales Civil and Administrative Tribunal ("NCAT"). This judgment resulted in the following orders: 1. The complaint alleging unlawful vilification is substantiated. 2. The Respondent is ordered to pay the sum of $10,000 to the Applicant within 28 days of the date of this decision.
8. The second basis is that the plaintiff is asserted in the Defence to be "a serial litigant", which apparently refers to the claims brought by the plaintiff against himself and the first defendant under the Anti-Discrimination Act 1977 (NSW) as well as the claim against the first defendant in this court. He was describing the continuation of these proceedings after the plaintiff was awarded the sum he asked for in the NCAT judgment as being "vexatious".

What are the applications before the Court?

1. The plaintiff by notice of motion brings an application for summary dismissal of the defence, entry of judgment in his favour and a listing of these proceedings for assessment of damages.
2. The plaintiff has provided an outline of submissions dealing with the issue of estoppel, which he considers to be the basis upon which the second defendant's argument is brought. At my request, he has provided further submissions considering the issues of abuse of process I referred to in my earlier judgment in these proceedings ([2018] NSWDC 358).
3. The second defendant did not comply with orders for the provision for written submissions. At the case management directions hearing where he appeared by telephone, he advised that he was in no position to do so, and asked the court to treat his defence as a summary dismissal application because he had no funds to prosecute the defence further.
4. There are thus two applications before the court for summary judgment from each of the parties against the other.

The relevant principles of law and statutory provisions

1. The relevant provisions of the Civil Procedure Act 2005 (NSW) are ss 61 and 67. These provisions are relevant both to summary dismissal and to the proportionality principles discussed in Bleyer v Google Inc (2014) 88 NSWLR 670 at [51], as are rr 12.7 and 13.4 Uniform Civil Procedure Rules 2005 (NSW).
2. The burden of proof in relation to any applications for summary judgment lies on the moving party, and it is a significant burden: Ewing v Times Newspapers Ltd [2011] NIQB 63 at [32]. The use of summary procedure to strike out pleadings should only be carried out in plain and obvious cases and the court should be particularly cautious in any developing field of the law where the court is asked to determine such points where there are not only inadequately pleadings but also inadequate submissions.
3. The approach the court should take when asked to make a determination of complex legal issues where the parties are all litigants in person has been the subject of a number of judicial observations, most recently in Bailey v Bottrill (No 2) [2019] ACTSC 167 at [4]. I set out some of these difficulties in Burns v Gaynor at [91] and [94] as, even though Mr Gaynor was represented for that application, the emotive claims and positions of both parties, including their expectations from the bench, made the conduct of such claims difficult. That has been the case in this application as well, as both parties have had difficulties controlling their dislike for each other. This has not been helpful in terms of case management.

The issues for determination

1. Although Mr Smith has specifically referred to the award of damages in other proceedings, his claim is essentially one of abuse of process, along similar lines to the arguments put forward unsuccessfully by Mr Gaynor and, since the plaintiff has had the benefit of having these issues already canvassed in Mr Gaynor's application, they should be considered in relation to this application as well.
2. As noted above, the plaintiff seeks the striking out of the defence which has been filed, as well as the entry of judgment and the listing of these proceedings for assessment of damages. The difficulty is that the issues raised by Mr Smith, although poorly articulated, touch upon two increasingly important areas of change in the law in general and defamation claims in particular, namely the circumstances in which the bringing of the claim is disproportionate to the remedy sought and when the bringing of multiple proceedings may amount to an abuse of process.
3. The first step is to identify the real issue between the parties, namely whether these proceedings amount to an abuse of process, whether by reason of being amounting to a final determination between the parties as asserted by Mr Smith, or on some other basis. In those circumstances, the appropriate way to deal with these applications is to determine Mr Smith's application first.
4. The categories of abuse of process are not closed. As I understand the application made by Mr Smith (reflecting the similar application made by Mr Gaynor), the areas of abuse of process which should be considered are as follows: 1. Whether proceedings against the same party in a second forum amounts to an abuse of process (Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 at [90], citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). 2. Whether these proceedings form part of relief which should have been sought in the same proceedings: UBS AG v Tyne (2018) 360 ALR 184. 3. Whether these proceedings amount to some form of Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) of the issues between the parties, or action or issue estoppel (Bajramovic v Calubaquib [2015] NSWCA 139). 4. Whether any provisions of the Defamation Act 2005 (NSW) (such as s 23) and/or doctrines of relevance to defamation actions such as proportionality (Bleyer v Google Inc) are applicable.

Abuse of process and multiple proceedings

1. The mere commencement of a second proceeding in a different forum in relation to the same subject matter as the first proceeding is, prima facie, an abuse of process: Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 at [28]-[29]). However, multiplicity of proceedings does not automatically amount to an abuse of process (Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor [2013] ACTCA 37 at [35]; Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; Smits & Ors v Roach & Ors [2002] NSWSC 241) and caution must accordingly be exercised, particularly in defamation actions, as online publication can result in many publications by many different publishers.
2. In Kermani v Westpac Banking Corporation [2012] VSCA 42 at [97], Robson AJA helpfully summarises the relevant principles both as to abuse of process generally (at points 1 - 10) and (at points 10 - 14) as to the potential for abuse when more than one proceeding has been commenced: "97 […] (1) The court possesses an inherent jurisdiction to stay its proceedings as an abuse of process if the proceedings are unjustifiably oppressive and vexatious or manifestly unfair or otherwise bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner; Rogers v R and PNJ v R; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd. (2) The jurisdiction should only be exercised in exceptional cases or sparingly with the utmost caution: Jago v The District Court (NSW). (3) The jurisdiction to stay for abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing: Walton v Gardiner; Rogers v R. (4) The circumstances in which abuse of process may arise are extremely varied and the courts have refrained from limiting the circumstances to fixed categories: Hunter v Chief Constable of the West Midlands Police; Rogers v R; Batistatos v Roads and Traffic Authority (NSW). (5) In considering whether to grant a stay as an abuse of process, the court should undertake a weighing process involving a subjective balancing of a variety factors and considerations: Walton v Gardiner. (6) Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Walton v Gardiner. (7) These principles apply to civil penalty proceedings: Gill v Walton. (8) The rationale underlying the principle against double jeopardy, in that an individual should not be vexed twice for the same cause, is a factor properly to be taken into account in the weighing exercise: Walton v Gardiner. (9) It is prima facie vexatious to bring two extant civil actions where one will lie: Moore v Inglis; Thirteenth Corporation Pty Ltd v State. (10) This prima facie rule applies whether or not the two proceedings are in separate courts or one: Branir Pty Ltd v Wallco Pastoral Co Pty Ltd. (11) The prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. (12) The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle: Moore v Inglis. (13) In considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like: Thirteenth Corporation Pty Ltd v State. (14) The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to: (a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding; (f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process: Rippon v Chilcotin Pty Ltd."
3. More than one cause of action may arise in proceedings justiciable in the same court without necessarily having to be brought at the same time. An example not dissimilar to the present case is Gibbs v Kinna [1998] VSCA 52. The circumstances in those proceedings were that a dismissed employee brought proceedings for wrongful termination under the Industrial Relations Act 1988 (Cth) and later commenced proceedings against the same party for misleading and deceptive conduct. The first instance judge dismissed the action on the basis that it should have been brought in the same tribunal as the wrongful dismissal claim, as that tribunal also had jurisdiction. No Anshun estoppel accordingly arose. However, if the court is of the view that the two causes of action should have been determined at the same time and in the same court, the claim may amount to an abuse: UBS AG v Tyne.
4. The jurisdictional issue in this case is, however, very different. In the present case, the District Court has no jurisdiction to hear claims under the Anti-Discrimination Act and the NCAT does not have the jurisdiction to hear defamation claims, as it has itself held: Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra [2018] NSWCATAP 142; Liang v University of Technology, Sydney [2018] NSWCATAP 285. Similar views have been expressed in Queensland (Toogood v Cassowary Coast Regional Council [2018] QCAT 319; More (atf Cleopatra Skin Discretionary Trust) v Ford [2018] QCAT 19; Payne v APN News & Media [2016] QCATA 140; Singh v AusHomes Pty Ltd [2018] QCAT 312). I am aware of differing views being held by the ACT Civil and Administrative Tribunal: GP v Mackenzie & Ors [2018] ACAT 96; GP v Mackenzie & Ors [2019] ACAT 32, which is illustrative of the dangers created where jurisdiction for defamation is unsettled. However, I prefer to accept the NCAT's rulings in Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra and Liang v University of Technology, Sydney, and agree that it was not open to the plaintiff to commence proceedings for defamation in the NCAT. In practical terms, that is the end of any complaint of the UBS AG v Tyne kind.

Double jeopardy and estoppel

1. Regardless of whether the action should be in the same court, Mr Smith complains of "double jeopardy", a term suggestive of the principles in Walton v Gardiner (1993) 112 ALR 289 at 296, where they were applied to disciplinary proceedings, as Robson AJA points out in Kermani v Westpac Banking Corporation at 97 (set out above), referring to Gill v Walton (1991) 25 NSWLR 190. I have interpreted this in a general sense as being a complaint of abuse of process of the kind identified by Robson AJA in his Honour's careful summary.
2. The provisions in the relevant legislation for each cause of action proceed on different grounds and are dealt with in a different way by the courts. The amount of damages awarded to the plaintiff in the NCAT proceedings was simply the sum the plaintiff requested (at [79]); there is no award of damages in claims under the anti-discrimination legislation comparable to the provisions of ss 34 and 35 Defamation Act 2005 (NSW) (although the term "hatred and serious contempt" appears in the NCAT order); there is no availability of aggravated damages. In addition, while the plaintiff has again volunteered he could accept a second award of $10,000, the fact remains that capped damages for defamation are available up to the sum of $407,500 (Gazette No 55 of 31.5.2019, p 1665) and, where aggravated damages are awarded, on current interpretations of the legislation, the cap no longer applies and damages are unlimited: Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521; Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154.
3. The plaintiff's claims the second defendant is asking the court to consider the issue of "estoppel" but it is difficult to tell, from his written submissions, what kind of estoppel he is talking about. I assume that he is responding to a claim of Anshun estoppel, on the assumption that the second defendant's argument is that the bringing of a claim under the Anti-Discrimination Act over the same publication precludes the bringing of any defamation claim continuing after judgment in the NCAT proceedings is handed down. That is not what the second defendant is saying; he is saying that the plaintiff is a vexatious and serial litigant.
4. Neither double jeopardy nor estoppel is relevant here. As is noted below, it is entirely possible for a party to bring a claim under the Anti-Discrimination Act which may fail as a claim for defamation (for example, if the publication is deemed to be merely vulgar abuse) and vice versa. Just as the causes of action are different, the damages regimes and the purposes of those damages are different. There are, however, some damages overlap issues which could create novel problems in relation to the assessment of damages, which are discussed in more detail below.
5. The plaintiff also points to the fact that he was successful in the proceedings under the Anti-Discrimination Act proceedings, which he considers relevant to his entitlement for the summary dismissal of the defence. He in fact sent a copy of this judgment to the court prior to this application on this basis.

Is winning or losing the concluded proceedings a relevant factor?

1. When determining issues such as proportionality and multiple litigation, is success or failure in the previous proceedings relevant?
2. Where a plaintiff has already lost an action and is considered by the court to be seeking to relitigate issues decided unsuccessfully in that earlier litigation, a claim of abuse of process will more readily be made out. In in Giles v Jeffrey & Ors [2019] VSC 562, Daly AsJ helpfully set out a series of decisions where this occurred: "83 Recently, in the decision of Ganesh v Dobrowolski, published while my decision in these applications was reserved, I had cause to consider the question of whether a party seeking to relitigate issues decided in an earlier proceeding should be precluded from doing so on the grounds that the bringing of the later proceeding was an abuse of process, stating as follows (omitting footnotes): When a proceeding is brought which seeks to relitigate issues determined in an earlier proceeding, where the parties in the two proceedings are identical, the later proceeding may be dismissed or stayed on the grounds that the principles of res judicata (also known as cause of action estoppel), issue estoppel, or Anshun estoppel apply. Alternatively, the later proceeding may be dismissed where none of the above apply, but the proceeding may otherwise be held to be an abuse of process. A party who is not a party to the earlier proceeding may also be barred from bringing claims with respect to the subject matter of the first proceeding where that party is a 'privy' of a party to the first proceeding, or where it is otherwise an abuse of process for the non‑party to seek to litigate the issues in the first proceeding in a subsequent proceeding. There are some differences in the legal underpinnings and operation of the above principles, but underlying each of them is the public interest in the finality of litigation. A cause of action estoppel arises where the causes of action raised in the earlier proceeding have been the subject of final determination, such that the causes of action merge into the final judgment given in the first proceeding and no longer exist independently. There is limited scope for evaluative judgment in relation to whether the cause of action in a later proceeding has been extinguished by the earlier judgment. The current case is one of those relatively rare instances where there is some scope for debate, given that Ms Ganesh's claims against the defendant were raised by way of defence to the defendant's debt claim, rather than being advanced by way of a counterclaim. An issue estoppel arises where the earlier proceeding has determined an issue necessary for the determination of the claims in the earlier proceeding. As stated by the Court of Appeal in Commissioner of State Revenue v Mondous: ... the prior determination of an issue of fact or law legally indispensable to the decision is held to have disposed of the issue once and for all, so that it cannot be raised afterwards between the same parties or their privies. An Anshun estoppel may arise where a claim or issue could have been litigated in a previous proceeding, and should have been, but was not litigated in the earlier proceeding. The question of whether the claim or issue should have been litigated in the prior proceeding involves a consideration of the circumstances relevant to why the issue was not litigated in the prior proceeding, and as such, requires an evaluative judgment. The test is whether it was unreasonable for the party not to have raised the issue in the previous proceeding. Further, as stated by Kenny JA in Gibbs v Kinna: First, the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding. 84 Further, in Champerslife Pty Ltd v Manojlovski and anor, Allsop P cautioned against a finding that just because a matter or issue could have been raised in a previous proceeding, it should have been, stating: Rather, [the matter] has to be so relevant as to make it unreasonable not to raise it. 85 In Angeleska v Victoria, the Court of Appeal conducted an extensive survey of the authorities concerning when an abuse of process could be found to arise when issues litigated in an earlier proceeding were raised in a subsequent proceeding even where no estoppel arises, referring to the following statement of McHugh J in Rogers v The Queen: Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purposes; (2) the use of the court's procedures in unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. 86 What has commonly been found to be an abuse of process falling within the third category referred to by McHugh J are proceedings which are intended to, or have the effect of, mounting a collateral attack on a determination in a previous proceeding. As stated by Lord Diplock in Hunter v Chief Constable of West Midlands Police, a decision referred to repeatedly in the Australian decisions concerning this issue: The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made." (Footnotes omitted)
3. However, even if the proceedings in the NCAT had been struck out as an abuse of process, this would not necessarily render the commencement of fresh proceedings an abuse. In Herron v HarperCollins Publishers Pty Ltd [2018] FCA 1495, Drs Herron and Walton (the same plaintiffs as in Gill v Walton) brought defamation proceedings against a book publisher for an account of the court proceedings and related events and the defendant applied for summary dismissal as an abuse of process. This was refused despite earlier proceedings for publication of the imputations by a whistle-blower and the media being struck out as an abuse of process (Gill v Eatts [1999] NSWSC 1056). (I note that s 23 would not have been relevant, as the defendants in the 2018 action were not the same as the 1999 action, but the definition of "proceedings" in s 23 (which includes proceedings "elsewhere") is arguably so broad that proceedings prior to the uniform legislation may be included, which may mean that Nationwide News Pty Ltd and the Australian Broadcasting Commission would be entitled to rely on s 23 as requiring leave if the plaintiffs brought proceedings for publication of "like matter".)
4. However, in the present case, the plaintiff has successfully brought a claim in the NCAT against Mr Smith, and has successfully defeated a challenge by the first defendant to the claim against that defendant being considered an abuse of process: Burns v Gaynor [2018] NSWDC 358. Following that success, there was a settlement which I understand include some form of apology or retraction. I regard that as being another success for the plaintiff.
5. What is to stop the plaintiff from going on being successful? Is a plaintiff, for example, entitled to bring not one but a dozen claims for defamation in relation to posts by these defendants, or to issue a dozen concerns notices seeking apologies and other remedies? A central feature of abuse of process is not that the proceedings are hopeless, but that there is some basis for them which is outweighed by the factors relevant to the abuse: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2016) 243 FCR 474.
6. When does the cost of litigation become disproportionate to the value of the remedy sought, whether the plaintiff has been successful in the other litigation or not?
7. The real question is not whether the bringing of multiple proceedings may amount to abuse of process, even if those proceedings are successful, or whether there is estoppel arising from such conduct. The real issues are whether there are provisions either in the Defamation Act or in case management of defamation proceedings principles relevant to determine whether the burden on court and party resources caused by the continuation of the plaintiff's claim for damage to his reputation is disproportionate to the relief sought. The circumstances where the damages award in the NCAT and the settlement against the first defendant are factors, but not determinative of such an exercise, which is a largely fact-based finding and where the bar to such relief being sought is set very high. This is, in other words, the application of the doctrine of proportionality to the litigation which is asserted to be an abuse of process.

Provisions in the Defamation Act 2005 (NSW)

1. Before embarking on a consideration of proportionality, I first note provisions in the Defamation Act which are relevant to this issue.
2. By reason of s 38, the settlement of the plaintiff's proceedings against the first defendant is a relevant factor in terms of the damages awarded. Given the first defendant's role as the Facebook page account holder, this will have a significant impact on the damages, if any, to be awarded for the second defendant's single contribution to the site.
3. As to s 38, it is an interesting question of law as to whether or not an award of damages for the identical publication under the Anti-Discrimination Act 1977 (NSW) would require to be taken into account for the purposes of s 38, but it is not one I intend to consider. I also note that the law relating to the adjustment of damages to avoid overlapping heads of reputation damage (for example, claims for defamation and wrongful imprisonment, or defamation and injurious falsehood), even when pleaded together, is far from clear: Cruddas v Calvert [2015] EWCA Civ 171.
4. I do not consider there is any requirement for leave to be sought under s 23 Defamation Act 2005 (NSW) to bring a fresh cause of action against the same defendant for defamation where the previous cause of action was for a claim other than defamation. Even if both claims were defamation claims, the requirement for leave under s 23 is restricted to the "further proceedings", not to the original proceedings for defamation.

Proportionality and Bleyer v Google Inc (2014) 88 NSWLR 670

1. The first application of the Jameel principle (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946) in Australia by a superior court of record occurred in Bleyer v Google Inc. With one notable exception (Grizonic v Suttor [2008] NSWSC 914), earlier attempts to invoke these principles, both at appellate level (Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Bristow v Adams [2012] NSWCA 166) and at first instance in New South Wales (Ehiozee v EDO Nigerian Association of New South Wales Incorporated [2012] NSWSC 239 at [30]; Leech v Silvester & Ors [2012] NSWSC 1367, Manefield v Child Care NSW [2010] NSWSC 1420) and other jurisdictions (for example Vizovitis v Ryan [2012] ACTSC 155), were unsuccessful. Although judgments in inferior courts referred to the desirability of such principles (Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19 at [45]) and even sought to apply them (Calabro v Zappia [2010] NSWDC 127; Allstate Pumbing Pty Ltd v Crouch Developments Pty Ltd [No 2] [2011] WADC 60; Everett v Neale [2012] NSWDC 73), these judgments are of no interest or assistance to higher courts. Judicial interest in the concept of proportionality has developed slowly, and even after the decision of Bleyer v Google Inc was handed down, the principles it discussed were either challenged, or distinguished, or both: Smith v Lucht [2014] QDC 302; Smith v Lucht [2016] QCA 267.
2. The facts in Bleyer v Google were as follows. Mr Bleyer brought a claim over seven items published as Google search results to three persons, two of whom resided in Victoria and one of whom was in New South Wales. After the first two downloads, the plaintiff contacted Google to put Google on notice about allegedly defamatory search results, which was one of the reasons why the extent of publication was so limited. After proceedings for defamation were commenced, Google applied for a permanent stay or dismissal of the proceedings as an abuse of process, which squarely raised the issue of whether the Jameel principle should be recognised in New South Wales. It was the granting of that application which opened the door to proportionality claims.
3. The same limited extent of publication occurred in Jameel, where there were only five downloads in England of the matter complained of, three of which were by agents or associates of the claimant.
4. McCallum J first determined that Jameel was not distinguishable on the basis that the decision was founded upon particular requirements of the Human Rights Act 1998 (UK) which had no analogue in New South Wales.
5. I pause to note that, while that means that I do not need to determine any such issue for the purposes of these proceedings, any view to the contrary is contrary the strong statements of law as to the availability of such requirements and principles (in relation to "the Derbyshire principle") by Gleeson J in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 689-690.
6. McCallum J next considered whether the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) provided the relevant power, posing the question: "[C]an it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake?" (at [51]).
7. McCallum J further held that the defence of triviality did not operate as a bar to the Australian courts from applying the approach in Jameel, although this had been one of the reasons for its rejection in Bristow v Adams (at [41] per Basten JA).
8. No appeal was lodged, and no appellate court has yet determined whether the proportionality concepts developed by McCallum J are in fact available. However, there is strong obiter from Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 in support of McCallum J's decision, and it would appear that proportionality is a concept of law the time for which has finally arrived.

The relevant factual material

1. The relevant facts identified by the plaintiff, in relation to issues of proportionality, are as follows: 1. The matter was published from 7 to 15 May 2018; 2. Immediately following the second defendant's comment is a comment by a person identified only as "Struth" who says "Good to see a photo of this excrement… copy it and keep it folks - you can show your kids what such a person looks like."
2. Mr Smith refers only to other proceedings brought by the plaintiff, from which I infer he refers not only to the award against him in the NCAT but also to the settlement between the plaintiff and the first defendant. The terms of settlement which are reflected in non-confidential court orders of 6 December 2018 are as follows: 1. Proceedings dismissed against the first defendant. 2. All prior costs orders in these proceedings be vacated. 3. Each of the plaintiff and first defendant pay his own costs of these proceedings. 4. First defendant will publish in his Facebook page the attached statement. 5. The plaintiff agrees to indemnify the first defendant against any claim that may be made by the second defendant against the first defendant.
3. Other factors which I consider to be relevant, but which were not referred to by either party are: 1. While the plaintiff particularises that the matter complained of published by Mr Smith was viewed by four named persons (one of them is identified as "Struth"), it is also relevant to note that all the persons who are particularised as downloaders are also participating in the online debate. "Lorraine Pearsall" states at paragraph 8 "Makes me laugh. Israel gets pilloried for what he said, but when Mundine had his rant nothing much was said." "Craig Russell" similarly comments at paragraph 29 "Lawfare - only the cashed up can continue". In other words, these are other participants in the debate in which the plaintiff also participates. 2. The plaintiff was an active participant in the online debate, as can be seen from the posts. For example, he responds at paragraph 12 as follows: "What's Un-Australian is Gaynor's obsession with all things homosexual. Why can't he live and let live?" Further, the plaintiff responds at paragraph 14 as follows: "Thank you Mr Bayley but your statement is misconceived. Australian in 2018 does not reflect a minority view of 1956 when Ms Davis was strutting across the silver screen chain smoking. I feel sorry for Mr GaYnor [sic] because he's children have to live in this world. What is one of his own children was a homosexual? Would Mr GAYnOr [sic] still be sprouting his intolerance online like a mad banshee on heat?" This is a debate where both sides put their views.
4. I accept that the imputations are serious, and that this is an important issue in terms of proportionality. The plaintiff's submission is that it is not a futile exercise to bring these proceedings, because the matter complained of published by Mr Smith "implied criminal conduct of a high level in relation to the plaintiff" and that the contents were neither truth nor trivial. He submits he is entitled to seek vindication "because his reputation has been damaged" (written submissions, paragraph 3(a)(vi)) and that he seeks an acknowledgement from the court to this effect. He further submits that the second defendant has not outlined any submissions supporting an argument as to abuse of process and that a one line paragraph by the second defendant in his defence should not be a basis for the dismissal of the plaintiff's claim on the principles set out in Bleyer v Google Inc.
5. The defendant's submission (as per his telephone appearance at the directions hearing) is that he has had enough. The post was taken down after a discussion he had with the first defendant and since then he has been the subject of an NCAT judgment for $10,000. He is aware the case against the first defendant, Mr Gaynor, has been settled, and of other proceedings brought by the plaintiff, and says he is a vexatious litigant.

Proportionality issues and the facts of this case

1. The proportionality principle is a case management tool of significance. It has been described as "home-grown proportionality principle emerging from the cradle comprising the CPA ss 56-62, 67 and the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), supplemented by the well accepted 'proposition ... that the just allocation of the finite resources of the court is a relevant consideration of the court's authority, at least in civil matters'" (Gould, K., "Locating a 'Threshold of Seriousness' in the Australian Tests of Defamation" [2017] SydLawRw 15; (2017) 39(3) Sydney Law Review 333). Viewed as a case management tool, issues such as multiple litigation (successful or not, overlapping or not), costs issues and court resources must now be seen as being of greater relevance to proportionality in courts issues, rather than human rights issues, particularly given the observations of the High Court as to abuse of process in UBS AG v Tyne.
2. There are significant correlations between the extent of publication in this publication and that in Bleyer v Google. Particulars of downloading refer only to four other members of the debate, one of whom ("Struth") was the subject of the plaintiff's complaint to the Anti-Discrimination Board and whose contribution was also taken down.
3. While Mr Burns submits that the first defendant has several thousand followers on Facebook, the likelihood that they read Mr Smith's post amongst the many others (including those of the plaintiff himself, who participated in the debate) needs to be considered in light of the fact that it was one of many and online for approximately a week after notification. The law in relation to liability for the Facebook posts of others is a complex area of competing decisions, the most recent being Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766.
4. Another fact of relevance to proportionality is the size of the damages. The proceedings against the first defendant were settled in terms of an acknowledgement being published on his social media Facebook page. I propose to assume (in the absence of submissions) that the defendants are concurrent tortfeasors (Cutler v McPhail [1962] 2 QB 292), so this settlement is relevant only to the issue of the assessment of damages by reason of the Defamation Act 2005 (NSW), s 38.
5. While a settlement with one defendant would not of itself amount to a reason for the dismissal of proceedings on proportionality principles, judgment against the other defendant in another tribunal, for the same publication, raises the stakes rather higher. This is all the more the case where both the extent of publication and readership are already well within the parameters of Bleyer v Google.
6. However, there are two further issues to consider.
7. The first is that the mere bringing of other proceedings is not enough. It was considered insufficient in Josh Massoud v Harbour Radio Pty Limited; Josh Massoud v Fox Sports Australia Pty Limited; Josh Massoud v Australian Radio Network Pty Limited; Josh Massoud v Nine Entertainment Co Holdings Limited; Josh Massoud v Nationwide News Pty Limited [2019] NSWDC 403, where an application for summary dismissal on the same basis failed, despite s 38 damages issues also coming into play. However, the defendants in those proceedings could not point to the kinds of settlements and awards arising from the same publication, unlike the case here.
8. The second is that superior courts have warned that such applications should succeed only rarely. In Bleyer v Google, McCallum J emphasised: "[63] It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine cases properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation."
9. In Feldman v Daily Beast LLC [2017] NSWSC 831, her Honour repeated this statement of caution, but went on to identify circumstances where this "rare" event will happen. The conduct in question was the bringing of many proceedings, which was "a powerful consideration" (at [49]) warranting caution by the courts: "[57] The multiplicity of causes of action and the Court's interest in the efficient management of multiple causes of action is, if not unique to the Defamation List, at least a concern which it seems likely arises most commonly in this list. It is necessary for me to have regard to that consideration in the context that defamation is a cause of action for which damages are capped. There is no claim for special damages pleaded in the present case. Most importantly, it is necessary for me to have regard to the fact that the existence of the other proceedings is a factor upon which the defendants in all proceedings are entitled to rely in accordance with the provisions of s 38 of the Defamation Act."
10. The imputations pleaded in Feldmann v Daily Beast LLC were of equal seriousness (and in fact very similar) to those pleaded here. While in the present case the other asserted "numerous" proceedings have sought different remedies from different courts, Mr Smith's publication here is not only identical to the publication the subject of the claim in the NCAT but also part of the claim against the first defendant that was settled.
11. The plaintiff has the benefit of a comprehensive and sympathetic judgment from the NCAT which is available on the Caselaw website. According to the settlement he has with Mr Gaynor, he has a statement on Mr Gaynor's Facebook account. He seeks a hearing of his defamation claim against Mr Smith as well, because he says he needs further vindication. Mr Smith says that enough is enough.
12. As to court resources, the plaintiff tells the court that these proceedings will be conducted quickly, because Mr Smith is unlikely to attend and he only wants a modest sum.
13. As noted in paragraphs [91]-[94] of my earlier judgment in these proceedings, that has not been how I have seen this litigation being conducted to date. Court directions hearings have been emotional and prolonged. The court resources involved in hearing this claim would be considerable, not least because I would be reluctant to strike out the defence without granting leave to replead at least once, and Mr Smith's entitlement to attend (by telephone if necessary) to put his submissions as to what damages (if any) should be awarded should not be dismissed lightly. Even if Mr Smith did not attend or take part in these proceedings, the trial judge would still be obliged to consider a series of damages issues, in circumstances where the self-represented parties would be unlikely to be able to provide significant assistance.
14. Some of these problems have already been adverted to, and would include: 1. Mitigation issues and s 38 factors (in relation to the settlement against the first defendant). 2. Whether there are overlapping issues arising from the damages awarded in the NCAT (in relation to the second defendant) or from any of the findings of fact, such as the finding that the name "Garry" identified Mr Burns and not a Mr Dowsett (Burns v Smith at [64] - [65]), which is relevant to the sum to be awarded, the references to distress and hurt to feelings (at [77]) and whether the subsequent conduct of Mr Smith (at [64] - [67]) overlaps with the plaintiff's claim for aggravated damages. 3. The court's obligation under s 34 to have regard to damages having a rational proportionality to the claim means that, unlike the NCAT, a plaintiff cannot simply ask the court to award a set sum - or does it? That would be a novel question for the trial judge. An appropriate award for a publication online for a short period of time which was downloaded only by four of the participants in the debate, who clearly had their own views, may well be nominal in the circumstances. 4. Whether the plaintiff's participation in that debate was relevant to the issue of mitigation of damages (among other mitigation issues arising). This is a novel issue.
15. There are other difficulties in accommodating claims under the Anti-Discrimination Act and defamation, such as the entitlement of the plaintiff in NCAT proceedings to return for further orders including additional damages and corrective publications (which is not possible for defamation proceedings) which suggests that awards to nail the damage for future defamation claims would be impacted. The High Court's decision in Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386 opens the door to the bringing of claims in defamation against those publishers who are not within the jurisdiction of the Anti-Discrimination Act. These are all novel questions of law which the trial judge may consider need determining.
16. Individually, the settlement against the first defendant, the damages award against the second defendant in the NCAT and the difficulties involved in assessing damages in the remaining claim would be insufficient to amount to a basis for the summary dismissal of these proceedings.
17. However, applying the case management principles identified by McCallum J as the source for the proportionality principle, the combined effect of such a limited publication, in circumstances where the plaintiff already has a judgment and award of damages as well as a settlement, must give raise to the question as to whether the costs in terms of court resources, as well as the resources of the parties, warrant the continuation of proceedings in relation to a claim of such limited publication.
18. The continued case management and hearing of these proceedings is, in all the circumstances, a significant commitment of court resources, and one which is disproportionate to the vindication sought. For the reasons explained by McCallum J in Feldmann v Daily Beast LLC, I am satisfied that this is one of the "rare" examples of the costs of this litigation in terms of court resources that would warrant the dismissal of proceedings as an abuse of process.
19. Accordingly, the claim should be dismissed as an abuse of process pursuant to ss 61 and 67 Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4(1) Uniform Civil Procedure Rules 2005 (NSW).

The plaintiff's application for summary judgment

1. As the defendant's application has been successful, I briefly note that, if I had not made the orders sought, I would have refused his application. I would have granted the defendant leave to file a further defence and, even if he had not done so, endeavoured to find him pro bono assistance in relation to s 38 and other damages issues, including offers of apology he indicated during his telephone call that he had attempted to make to the plaintiff. I have not, however, made any orders to this effect as it is an alternative finding.

Costs

1. I was not addressed on any costs issues.
2. As both the plaintiff and the second defendant are litigants in person, they are entitled to disbursements only. In the circumstances, I consider that the appropriate order should be that no order is to be made in relation to the disbursements of either the plaintiff or the second defendant. I shall, however, grant liberty to apply.

Orders 1. Pursuant to ss 61 and 67 Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4(1) Uniform Civil Procedure Rules 2005 (NSW), these proceedings are dismissed as an abuse of process. 2. Noting that the plaintiff and second defendant are litigants in person, each of them is to bear his own disbursements and related costs in relation to these proceedings, with liberty to apply to vary this order, such liberty to be exercised in seven (7) days.

Amendments 10 October 2019 - Paragraph 48(b) - "plaintiff's comment" replaced with "second defendant's comment" 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. Decision last updated: 10 October 2019