Calabro v Zappia

(1) Plaintiffs' application for an extension of time to commence proceedings out of time is dismissed. DECISION: (2) Plaintiffs' statement of claim struck out and dismissed. (3) Plaintiffs pay defendant's costs of these proceedings save for 29 April 2010, for which no order for costs is made by reason of the failure of counsel for the defendant to attend court.

CATCHWORDS: TORT - action by six family members for defamation - one plaintiff surreptitiously obtains statutory declaration sent by defendant to persons involved in litigation with another of the plaintiffs - application to commence defamation proceedings out of time - whether not reasonable to have commenced proceedings within time - abuse of process - whether action for defamation based on document surreptitiously taken from a file left in the court foyer is an abuse of process - application to extend time refused and action found to be an abuse of process

Civil Procedure Act 2005 (NSW), ss 56 - 62 Crimes Act 1900 (NSW), Part 4 Defamation Act 1974 (NSW), s 13 Defamation Act 2005 (NSW) Defamation Amendment Act 2002 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW), ss 84 and 138 Limitation Act 1969 (NSW), ss 14B and 56A Limitation of Actions Act 1974 (Qld), s 32A Oaths Act 1900 (NSW) The Civil Procedure Rules 1998 (UK), Part 1 and Part 3 r 3.4 Uniform Civil Procedure Rules 2005 (NSW), Part 13 rr 13.4 and 14.8

AG Australia Holdings Ltd v Burton & Ors (2002) 58 NSWLR 464 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Al-Shennag v Statewide Roads Ltd [2006] NSWSC 1226 Bunning v Cross (1978) 141 CLR 54 Coulthard v State of South Australia (Supreme Court of South Australia, 19 January 1995, unreported) Currabubula Holdings v State of NSW (Supreme Court of NSW, Einstein J, 30 March 1999) Duke of Brunswick v Harmer (1849) 14 QB 185 Emanuele v Hedley (Supreme Court of the Australian Capital Territory, Higgins J, 7 March 1997) Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306 Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566 Grant v Rafferty (2001) 34 MVR 136; [2001] NSWCA 244 Grech v Illawarra Newspaper Holdings Pty Ltd (2005) 2 DCLR (NSW) 169 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 Ibrahim v Wadworth [2009] WASC 317 Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb); [2005] EWCA Civ 75; [2005] QB 946; [2005] 2 WLR 1614; [2005] EMLR 353 Jones v Sutton (No 2) [2005] NSWCA 203 CASES CITED: Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 Lewandowski v Lovell (Supreme Court of Western Australia, Kennedy J, 8 March 1993) LonZim Plc & Ors v Sprague [2009] EWHC 2838 (QB) Lord Ashburton v Pape [1913] 2 Ch 469 McGuirk v University of New South Wales [2010] NSWCA 104 Moevao v Department of Labour [1980] 1 NZLR 4 Murphy v Lewis [2009] QDC 37 National Coal Board v England [1954] AC 403 Nominal Defendant v Manning (2000) 50 NSWLR 139; (2000) 31 MVR 524; [2000] NSWCA 80 Noonan v MacLennan [2010] QCA 50 Packer v Meagher [1984] 3 NSWLR 486 Radio 2UE Sydney Pty Ltd & Anor v Habib [2010] HCATrans 98 Schellenberg v British Broadcasting Corporation [2000] EMLR 296 Stone & Rolls (in liquidation) v Moore Stephens (a firm) [2010] 1 All E R 125 Wallis v Valentine [2002] All ER (D) 275 (Jul); [2002] EWCA Civ 1034; [2003] EMLR 175 Williams v MGM Ltd [2009] EWHC 3150 (QB) Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; (1992) 66 ALJR 585; (1992) 61 A Crim R 431

First Plaintiff: Salvatore Calabro Second Plaintiff: Antonino Calabro Third Plaintiff: Francesca Calabro PARTIES: Fourth Plaintiff: Caterina Calabro Fifth Plaintiff: Anthony Calabro Sixth Plaintiff: Elizabeth Calabro Defendant: Bruna Zappia

COUNSEL: Plaintiffs: Ms S Chrysanthou Defendant: Mr R Rasmussen

SOLICITORS: Plaintiffs: Goldsmiths Lawyers Defendant: Hancock Alldis & Roskov

[1] This is an application for extension of the limitation period to commence an action for defamation, brought by way of notice of motion filed on 13 January 2010.

[2] The six plaintiffs, who are members of the same family, commenced proceedings for defamation by statement of claim filed 8 September 2009. The matter complained of is pleaded to be a publication made by the defendant to a Mrs Loconte on or about 17 June 2008 and "others, particulars of whom will be provided after discovery and inspection of documents and interrogatories".

[3] The publication in question is the first page of a statutory declaration by the defendant. Her daughter, Lisa, had married Mr Salvatore ("Sam") Calabro (the first plaintiff) in or about 15 April 1995 and they separated two years later. According to the matter complained of, during this short marriage, Lisa "suffered at the brutal hands of Sam Calabro (husband) and other members of the Calabro family". After she left her husband, the Zappia family was "harressed [sic]" to the extent that they had to move. Then, in August 2005, the defendant's daughter passed away. According to the final sentence of the statutory declaration: "[a]n autopsy failed to find a reason, but I believe in my heart, that the Calabro family frightened [sic]"

I should explain that the matter complained of stops abruptly in mid-sentence. The text of the matter complained of is set out as a schedule to this judgment.

[4] It should be noted that apart from Sam Calabro, the only other named member of the Calabro family is Antonino Calabro, Mr Sam Calabro's father; where a plaintiff is not named or otherwise clearly identified, particulars of identification must be provided: Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 at 192.

[5] The imputations pleaded as arising from the matter complained of may be summarized as follows: (a) that each plaintiff victimized the defendant; (b) that each plaintiff was brutal to Lisa Zappia; (c) that each plaintiff harassed the defendant and her family; (d) that each plaintiff threatened the defendant, her husband and Lisa Zappia; (e) that each plaintiff frightened Lisa Zappia to death. The identification of these imputations is of significance in this application, as the explanation for delay relates essentially only to imputation (e).

[6] This is not the plaintiffs' first application to extend time. The plaintiffs brought an earlier application by notice of motion filed on 8 September 2009. Only one of the six plaintiffs, Mr Salvatore Calabro (the first plaintiff) swore an affidavit for that application, which was heard by Puckeridge DCJ, sitting as the Defamation List Judge, on 2 October 2009.

[7] In the course of an ex tempore judgment, his Honour Puckeridge DCJ noted that Mr Salvatore Calabro's affidavit of 4 September 2009 stated that he became aware of the publication only in March 2009, "at a certain apprehended violence order proceedings" commenced by the estranged husband of another member of the Calabro family, Elizabeth (who is the sixth plaintiff in these proceedings).

[8] No explanation for commencing proceedings out of time was put forward by any of the other plaintiffs, and Puckeridge DCJ noted that the explanation was acknowledged not to be complete. His Honour noted the plaintiffs' submission that the broad and flexible nature of the discretion should take into account the absence of asserted prejudice and the lack of awareness by the plaintiffs of the publication until March 2009. His Honour, however, accepted the respondent's complaint that in the absence of any explanation, the court could not find whether the explanation was "reasonable" for the purposes of s 56A(2) Limitation Act 1969 (NSW). In addition, his Honour noted the plaintiffs did not seek legal advice at the relevant time, and that there was no explanation as to why the statement of claim was not filed until 8 September 2009. Accordingly, Puckeridge DCJ dismissed the first application by the plaintiffs for an extension of time with costs.

[9] The plaintiffs filed a second notice of motion seeking an extension of time on 13 January 2010. It was listed for hearing to Friday 12 March 2010 as a two hour matter, but was adjourned to Friday 16 April 2010 as a half to one day argument, as notice was given to each of the plaintiffs to attend for cross-examination (this request was later restricted to cross-examination of the fifth plaintiff only) and then 29 April 2010, when Mr Rasmussen did not attend.

[10] The fifth plaintiff, the only plaintiff to be cross-examined, swore two affidavits in support of this application. In the affidavit of 15 December 2009, he says he "became aware" of the matter complained of at the apprehended violence proceedings; in the second affidavit, sworn 2 March 2010, he says he "obtained a copy of the matter complained of" and describes its location as "outside the courtroom".

[11] On 16 April, counsel for the defendant cross-examined the fifth plaintiff and then made an application for the proceedings to be struck out as an abuse of process. In written submissions, the defendant had foreshadowed an argument as to the admissibility of the matter complained of pursuant to s 138 Evidence Act 1995 (NSW). The hearing of the defendant's application was opposed by counsel for the defendant.

[12] The abuse of process application covers the same ground as the attack pursuant to s 138 Evidence Act on the admissibility of the matter complained of by reason of it having been obtained improperly. This is the second application by the plaintiffs to commence proceedings out of time. An application for extension of time is a request for indulgence from the court; a second application, the more so. I have accordingly have heard these applications together.

[13] I shall first deal with the application for extension of time, and set out the relevant passages from each of the affidavit of the plaintiffs, together with portions of the cross-examination of the fifth plaintiff.

[14] The first plaintiff, who was married to Lisa Zappia, was the sole plaintiff to file an affidavit in the unsuccessful application brought before Puckeridge DCJ on 2 October 2009. In that affidavit, he stated that he and the other plaintiffs were unaware of the contents of the statutory declaration until the AVO hearing. No other explanation was offered.

[15] In his affidavit of 14 December, which is relied upon in these proceedings, he states he obtained a copy of the matter complained of "at an AVO hearing on 12 March 2009". As a result of his concern about its contents, he instructed a solicitor, Mr Doherty, to obtain a death certificate for his ex-wife Lisa some time between 3 and 15 April. Mr Doherty wrote to him on 23 April 2009. Enquiries were then made in South Australia and finally in Queensland, resulting in the obtaining of a death certificate on 7 August 2009. (The death certificate is annexure B to an affidavit of Mr Doherty, the solicitor who carried out these enquiries, sworn 21 December 2009. All that death certificate does is to state the cause of death as "Combined effects of obesity and coronary artery disease").

[16] According to paragraph 11 of the first plaintiff's affidavit dated 14 December 2009: "I had always believed that neither I nor any member of my family had caused or contributed to Lisa's death. The causes of death set out in the death certificate led me to the view that the statutory declaration that is the matter complained of was defamatory."

[17] Mr Calabro states that he never sought advice from Mr Doherty about whether he had been defamed, and Mr Doherty has confirmed this in his affidavit.

[18] The explanation for delay between 11 August 2009, when Mr Calabro received a copy of the death certificate, and 8 September 2009, when proceedings were commenced, was that on 12 August 2009 he, his father and brother met with Mr Goldsmith solicitor to obtain advice and that any delay in these weeks was due to the need to confer with the other family members who are also plaintiffs.

[19] It was common ground that he and the other plaintiffs all obtained the matter complained of from Anthony Calabro, the fifth plaintiff. The circumstances in which Mr Anthony Calabro obtained the document are set out below.

[20] No explanation is put before the court for this information, which was in his possession when the first application for extension of time, was not put before Puckeridge DCJ, a matter the defendant submits is relevant concerning the reasonableness finding on the limitation issue: Nominal Defendant v Manning (2000) 50 NSWLR 139; (2000) 31 MVR 524; [2000] NSWCA 80.

[21] Mr Antonino Calabro, the father of Sam and four of the other plaintiffs, is the only other plaintiff who is named in the matter complained of. He was attending the AVO hearing on 12 March 2009, when he "became aware of the statutory declaration". He was also waiting to see what the death certificate for Lisa said, as he wanted to "see what the cause of death was". He also says he "was not aware that there was a 12 month limitation period within which to commence a defamation action".

[22] The third plaintiff is the wife of the second plaintiff and the mother of the other plaintiffs. She became aware of the publication on or about 12 or 13 March 2009, but in her affidavit does not say how or in what circumstances she obtained it. She gives the same explanation for failure to commence proceedings.

[23] The fourth plaintiff became aware of the statutory declaration, and specifically the first page of it, which is the matter complained of, "on or about 12 or 13 March 2009" (affidavit of Caterina Calabro, sworn 15 December 2009, paragraph 4), but does not say what those circumstances were. Her affidavit is otherwise conformable with the other plaintiffs' explanations.

[24] Anthony Calabro, an accountant, is the fifth defendant. He became aware of the publication "at the AVO hearing" on 12 March 2009 (affidavit of Anthony Calabro, sworn 15 December 2009, paragraph 4). His affidavit is otherwise conformable with the other affidavits.

[25] The fifth plaintiff says, in his further affidavit sworn 2 March 2010, that he was present at the Liverpool Local Court on 12 March 2009. He goes on to say: "I obtained a copy of the matter complained of whilst I was present at the Liverpool Local Court. I obtained the document outside of the Courtroom. The defendant was not present on that occasion."

[26] The circumstances in which he "obtained" the document were given in evidence as follows: "A. … Basically I saw the document there. I left the courtroom. The documents were there sitting on a seat outside in the foyer of the courtroom and I went over, looked at them and picked them up (T 17 - 18)

Q. I wasn't there, if you could help me - can you just give me a picture. Just tell me what you saw and what you did? A. Basically it was there in a bundle of documents and I picked it up and looked at it and obtained it that way.

Q. So this file containing statutory declaration in the bundle of documents was sitting next to Mr Tony Williams. You agree with that or not? A. Can you define what sitting next to is?

Q. Didn't you say that it was placed on a chair? A. Yes.

[27] Mr Calabro picked up the file of documents and read its contents: "Q. The first time you saw the statutory declaration was when you picked up the file, took it away from where it was sitting and you opened it up and looked through the documents. Is that right? A. Well yes. That's correct, yes.

Q. So when you approached and picked up the file you had no idea what was in it, did you? A. No, not at that point.

Q. When you leafed through the documents you found a statutory declaration, is that right? A. That's correct, yes.

Q. What did you then do with the statutory declaration? A. Well, I read it and was deeply upset with the contents in it. Attached to that declaration was an express post envelope which determined the source of that - such a declaration.

Q. Yes, but what did you do with it? A. I obtained a copy of it.

Q. So you took it and photocopied it, is that right? A. That's correct.

Q. In fact, you had the whole file and bundle of other documents with you, didn't you? A. That's correct.

Q. You took it away from the courtroom? A. That's correct.

Q. Took it outside of the courthouse? A. That's correct.

Q. You took it somewhere for photocopying, is that right? A. That's correct."

[28] Mr Calabro then returned the file he had taken from the seat in the waiting room outside the court, where the hearing was still in progress: "Q. You then returned the file with the documents in it to the police station, didn't you? A. I personally didn't return the file, no.

Q. But you arranged for it to be returned to the police station, didn't you? A. That's correct.

Q. Sir you knew that there were people at the police station who were expecting the return of that file, didn't you? A. No, that's not true.

Q. How did you know to return it to the police station? A. I believe there was a source that I could trust those documents not to go missing and that they'll be returned to whoever owned those--

Q. How did you arrange for them to be returned? A. Like I mentioned earlier I arranged for someone to drop them off to the police station.

Q. You don't remember who that person was? A. Honestly I do not know that person." [29] Mr Calabro looked at the other documents in the file: "A. That's correct. There was also a video in that file and that video was of my brother's marriage back in 1995. l don't know how a video relating to my family would've been there in the courtroom with people that were not involved with the marriage of my eldest brother.

Q. You looked through the other documents in the file, yes? A. Yes.

Q. And the reason that you were at the Liverpool Local Court was because there was an application for an AVO by a Mr Benjamin Laconte [sic] against your sister, is that right? A. That's correct.

Q. So you were there to support your sister? A. That's correct.

Q. And the documents that were contained in that file had reference to the Lacontes [sic] in it, didn't it? A. Sorry, can you repeat the question."

[30] Mr Calabro explained why he did not return the file to Mrs Nerida Loconte: "Q. Sir why didn't you give it back to her? A. I just preferred to give it to a neutral place.

Q. But why? A. Because I felt that it would be in the best interest to make sure the property got back safely.

Q. What, give it to some unknown member of the public? A. No. I asked this person to drop it off at the police station for me.

Q. Sir, this person that you don't remember, who you indicated to us a little bit earlier was a member of the public? A. That's right.

Q. Whose name you don't remember. What did you tell this person to do with the file and its contents? A. I will tell you exactly what I did and I'm telling you the truth. I walked out across the road from the courthouse and there was a young man and I asked him politely if he could please return this to the police station and he did so willingly and he returned it to the police station.

Q. Did you tell him what to do when he got to the police station? A. I don't know, I just told him to return it to the police station.

Q. So your purpose in doing so was to make sure that it got back to the rightful owners, is that right? A. That's correct.

Q. And yet knowing the contents of this file, you asked an unknown person - a person not known to you to return it to the police station with no more instructions and please return it to the police station? A. I made sure that he returned it to the police station.

Q. I'm having trouble understanding. Was there somebody's name on the front of this file? A. No your Honour.

Q. Well how would the police know who to give it to? A. At that time I would think that - that's a good question, I really don't know.

Q. Well of course Nerida Laconte [sic] was present in the precincts of the court and on your understanding of what you'd seen, the statutory declaration was addressed to her? A. As far as the - I don't know, I don't think the statutory declaration has any person's title on it.

Q. You said it was attached to an Express Post envelope? A. Express Post envelope, yes.

Q. Addressed to Nerida Laconte [sic]? A. That's correct.

Q. Why didn't you take that document, that is, the Express Post envelope and the statutory declaration, to Nerida Laconte [sic] and say, look, I think this might be yours? A. I don't know why, I just - that day it's the way I acted.

Q. Did it occur to you that you might take the video to her and say, look, I saw this in the file, does this belong to you? A. Once again, I don't know.

Q. But instead you gave it to a member of the public with instructions only to return it to the police station and no more? A. That's correct.

Q. Sir, you read that statutory declaration? A. That's correct.

Q. The statutory declaration, you photocopied the whole thing, didn't you? A. Whatever I've photocopied, I've photocopied." (T-23 line 21 to T-25 line 20)

[31] Mr Calabro was asked why the matter complained of was only the first page of the document: "Q. Just the one page. Do you have a copy of the statutory declaration with you at all? A. No, I do not. Yes, I do, sorry.

Q. Can you see the last line? The last sentence appears to read this, and correct me if I get it wrong, "An autopsy failed to find a reason, but I believe in my heart that the Calabro family frighten", and that's the end of it? A. That's correct.

Q. There's nothing after that, is there? A. (No verbal reply)

CHRYSANTHOU: There's signatures, so that's not quite correct.

HER HONOUR: Well, yes, but they're at the bottom of the document and there's no typed words after, that's what he means, yes.

Q. Did it occur to you that there might have been other pages to this statutory declaration? A. Perhaps.

Q. When you had the statutory declaration which you took from the file, you had the opportunity to photocopy all of it, didn't you? A. I'm not sure, really. I'm not sure if I had an opportunity to.

Q. You're not sure. Well, you photocopied that and you photocopied the Express Post envelope, didn't you? A. That's correct.

Q. The only other document that was in there was a newspaper, and you're not going to photocopy that, are you? A. Maybe I wanted to, I don't know." (T-25 line 45 to T-26 line 33)

[32] The circumstances in which this document was obtained by the fifth plaintiff are the facts relied upon for the application to hold that the document is inadmissible under s 138 Evidence Act and to have the proceedings dismissed as an abuse of process.

[33] Elizabeth Calabro is the sixth plaintiff. She was the defendant in the domestic violence application which was listed for hearing on or about 12 March 2009. She says that she became aware of the statutory declaration "on about 12 March 2009".

[34] The sixth plaintiff sworn an additional affidavit dated 2 March 2010 in which she says in paragraphs 5 and 6: "I refer to the copy of what appears to be the first page of a statutory declaration and which is the matter complained of in these proceedings. A copy of that statutory declaration was not served upon me during the course of the proceedings referred to in paragraph 7 of Sam's first affidavit nor was it tendered in evidence in the proceedings before the Liverpool Local Court. Its contents are irrelevant to the allegations that were being made in those proceedings.

I have not seen or spoken to the defendant since 1996 and to my knowledge she had no knowledge of the matters the subject of the AVO."

The law relating to applications to commence proceedings out of time

[35] The limitation period for defamation actions commenced pursuant to the Defamation Act 2005 (NSW) is one year: s 14B Limitation Act 1969 (NSW).

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."

[37] The limitation period can be extended in the circumstances described in s 56A Limitation Act 1969 as follows: " 56A Extension of limitation period by court

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."

[38] The limitation period of one year was introduced by the Defamation Amendment Act 2002 (NSW) and applies to all actions commenced from 17 February 2003 (date of commencement of the limitation period is 17 February 2003 according to the Government Gazette dated 14 February 2003, page 1588: see Grech v Illawarra Newspaper Holdings Pty Ltd (2005) 2 DCLR (NSW) 169). The test is an objective one.

[39] Section 56A, as amended, applies to publications after 1 January 2006: Al-Shennag v Statewide Roads Ltd [2006] NSWSC 1226 at [15]. The issue for determination, according to Noonan v MacLennan [2010] QCA 50, is not whether a court is satisfied that it was reasonable for the plaintiff to commence proceedings only after the limitation period has expired, but whether it was not reasonable to commence the action during that period.

[40] In Noonan, Holmes JA at [30] considered the provision of s 32A Limitation of Actions Act 1974 (Qld) to be an "unusual provision" in that it required an applicant must "go further and establish something rather more difficult", namely that it would not have been reasonable for him to commence an action during that period.

[41] The plaintiffs submit that the test for s 56A is that set out in Murphy v Lewis [2009] QDC 37. Murphy was one of a series of judgments concerning applications to extend time which were considered by the Queensland Court of Appeal in Noonan v Maclennan [2010] QCA 50. The court's analysis of these cases is a helpful guideline, because the plaintiff's explanation for delay in several of the cases under consideration (including the respondent in Noonan) was the pursuit of other inquiries or investigations, which is similar to the claim that is put here.

[42] The Court in Noonan considered that time should not be extended, and applied the test as follows: " [58] To succeed in his application the respondent had to show that he should not have commenced proceedings in time. I do not mean to gloss the statute but I think that is the import of the statutory test: that it was not reasonable to commence an action within the year.

[59] One must therefore examine the circumstances to identify why it would have been unreasonable to sue in time. The facts show only that the respondent chose to pursue redress through the university's internal procedures. Accepting that the respondent believed he could not at the same time pursue a remedy in court the conclusion is that the respondent chose one procedure over the other. His preference for the private remedy did not make it unreasonable for him to commence legal proceedings. He understood he had a choice, and he made it. It is not apparent why it would be unreasonable for him to accept the consequences of the choice.

[60] In any event he took no steps to ascertain the correctness of his own view that he could not litigate if he put the university's grievance procedures in motion. It is not, on its face, reasonable to form an opinion about the availability of legal remedies without taking legal advice.

[61] I agree with Judge Kingham's opinion that a plaintiff who wishes to claim damages for defamation does not act reasonably (if no more is shown) in delaying the start of proceedings while some investigative or disciplinary proceeding, affecting the parties to, and the subject matter of, the defamation, is undertaken.

[62] Even if it be assumed that the respondent was justified in withholding proceedings until the university had completed its inquiries, and took whatever measures it thought fit, the respondent would not have demonstrated it was unreasonable to begin his action within the limitation period. That period expired in April 2008. The respondent knew in October 2007, six months earlier, that the university would not provide him with any adequate remedy against the applicant's attacks on his reputation. He knew then, if not before, that he could sue. He did nothing to protect his position in the six months remaining for that end.

[63 ] In February 2008 he resolved to sue. He was even then within time. He did not seek legal advice but set about the self imposed task of compiling what he believed to be the relevant materials.

[64] The case is thus one of the pursuit, for six months, of a private remedy followed by a period of inaction which is not identified but which exceeded six months in which the respondent refrained from commencing legal proceedings while he satisfied himself that he "had a sound and reasonable case".

[65] The test which appears in s 32A(2) is an objective one. It must have been unreasonable for the respondent to have commenced proceedings in time. The test is not satisfied by showing that an applicant believed he had good reason not to sue. This is all that is shown in this case.

[66] Even if one assumes, contrary to my opinion, that it would have been unreasonable for the respondent to commence proceedings while the university's grievance procedures were being pursued the conclusion would not assist the respondent. He lost, on that ground, six months. Assuming that the court was satisfied of what s 32A(2) required, time had to be extended. The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued. In this case that would have produced an extension of time of six months, to October 2008. Such an extension would not assist the respondent who did not commence proceedings until a further eight months had elapsed.

[67] It is apparent from the amendment to the Limitation Act that Parliament has identified some public interest in the speedy commencement and determination of actions for defamation. The limitation period is short. The public interest so identified should not be undermined by too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year."

[43] This case is very similar in factual terms to Ibrahim v Wadworth [2009] WASC 317. The plaintiff and his former de facto wife were involved in proceedings in the Family Court. The defendant was the solicitor who acted for the plaintiff's former de facto wife. The plaintiff obtained a copy of an email on the court file which he said defamed him and he commenced proceedings for defamation concerning this email and also some statements made by the defendant after the plaintiff had left the court. The alternative claim of misleading and deceptive conduct was not time barred.

[44] Le Miere J struck out the claim in its entirety. At [7], his Honour noted the effect of s 40 as being that "if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, the court must extend the time in which the action can be commenced. That is, if the court is satisfied of the required condition then the court does not have a discretion not to extend the time."

[45] Applying the test set out in these authorities (and as propounded by Ms Chrysanthou for the plaintiffs) to the facts in these proceedings, the inquiries made by the plaintiffs for the death certificate were not only a futility (in that the reasons stated for the case of death are referred to in the matter complained of) but irrelevant to the other, equally significant allegations in the matter complained of, namely the conduct of the members of the Calabro family which caused the deceased to be frightened (i.e. stalking her). There were defamatory imputations conveyed by the matter complained of regardless of whether or not the distress caused by the Calabro family's conduct was a cause or contributing factor to her demise, as four of the five imputations set out in paragraph (5) of this judgment demonstrate. No explanation is given for the failure to commence proceedings in relation to these.

[46] The explanation put forward - a delay while seeking a death certificate - is implausible. The plaintiffs knew, well within the time for commencing proceedings, that the matter complained of contained meanings along the lines of the first four of the five imputations they now plead. They also knew, from the matter complained of, that the official cause of death did not refer to any conduct of any of the plaintiffs. There was no need to obtain the death certificate for Lisa Zappia in order to commence proceedings for defamation. It is an excuse I find the more difficult to accept by reason of it not being proffered to Puckeridge DCJ when the first application for extension of time was made.

[47] The limitation period still had three months to run when the plaintiffs obtained the matter complained of. They had plenty of time to obtain legal advice concerning their rights. A solicitor was consulted, but only to obtain a death certificate, a document which at best went to issues relevant to the defence of the claim by the defendant, and thus to issues such as the success of the claim.

[48] The plaintiffs submit that they were unaware of the limitation period. In this regard I respectfully adopt and follow the Queensland Court of Appeal's comments in Noonan at [19] - [20]: " [19] On Mr Noonan's behalf it was said that when s 32A(2) refers to "the circumstances" it means to include the subjective understandings of the plaintiff even if those understandings are mistaken, and unreasonably so, in an objective sense. In my respectful opinion, this argument does not reflect a correct interpretation of s 32A(2) of the Act. In Robertson v Hollings , Dutney J referred with evident approval to the observations of Kingham DCJ in Murphy v Lewis where her Honour said:

There is no evidence the plaintiff was aware of the limitation period until it expired and I accept he was not. That is not to the point. There is no evidence he made any attempt to obtain advice about or explore his rights of redress. He was not hampered from doing so. His assumption an investigation was under way, even if accepted, is not determinative. It would not preclude other action and he took no steps to keep abreast of its progress. The view I have formed from the plaintiff's evidence as a whole is that his choice not to explore legal redress earlier is explained by what his priorities were at the time. It is perfectly understandable that he would rate the complaint low on his list of priorities. That does not establish it was not reasonable to commence proceedings within time. Given the clear legislative intention behind the very restrictive limitation period applied to such actions by s 10AA, the plaintiff has not discharged the onus he bears in this application and it is refused.

[20] I respectfully agree with these views. The test posed by s 32A(2) is an objective one. When s 32A(2) refers to "the circumstances", it means the circumstances as they appear objectively to the court and not "the circumstances which the plaintiff believed, however unreasonably, to exist"."

[49] Taking all of the above into account, I am satisfied, in relation to each of the plaintiffs' explanations, that each of the plaintiffs has failed to establish it was not reasonable in the circumstances to have commenced the proceedings in time, and I dismiss the application with costs.

[50] In the event that I have erred in finding that the plaintiffs have failed to satisfy the burden of proof upon them to demonstrate that it was not reasonable to commence proceedings in time, I set out my findings concerning the application by the defendant to stay or dismiss these proceedings as an abuse of process.

[51] This application is brought pursuant to s 60 Civil Procedure Act 2005 (NSW) and Part 13 rr 13.4 and 14.8 Uniform Civil Procedure Rules 2005 (NSW).

[52] Section 60 provides: " Proportionality of costs

In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute."

[53] The requirement of proportionality, viewed in light of the overriding purpose contained in s 56 Civil Procedure Act 2005 for the administration of justice to be "just, quick and cheap", requires a degree of proportionality of costs to the subject matter in dispute.

[54] There is now a substantial body of authority in England based upon similar legislation with a similar purpose, namely Part 1 and Part 3 r 3.4 The Civil Procedure Rules 1998 (UK). These rules are very similar in content to the provisions of the Civil Procedure Act and the UCPR, as the following extracts demonstrate: " Part 1 - OVERRIDING OBJECTIVE

1.1 - (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable -

(a) ensuring that the parties are on an equal footing;

(c) dealing with the case in ways which are proportionate -

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

Application by the court of the overriding objective

1.2 The court must seek to give effect to the overriding objective when it -

(a) exercises any power given to it by the Rules; or

1.3 The parties are required to help the court to further the overriding objective.

1.4 - (1) The court must further the overriding objective by actively managing cases.

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution(GL) procedure if the court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

3.4 - (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court -

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(a) the court has struck out a claimant's statement of case;

(b) the claimant has been ordered to pay costs to the defendant; and

(c) before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out, the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.

(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case."

[55] These provisions had been the basis of a series of successful applications to the English courts to seek orders that, where the court is not satisfied that a substantial claim, reasonably proportional to the likely cost, complexity and duration of the proceedings is involved, the action may be dismissed as an abuse of process.

[56] In Schellenberg v British Broadcasting Corporation [2000] EMLR 296 Eady J rejected a submission that the overriding objectives of The Civil Procedure Rules was irrelevant, saying at 318: "Even in a jury action it is regarded under the CPR as a judge's duty to take a realistic and practical attitude. He or she is expected to be more proactive even in areas where angels have traditionally feared to tread.

I have seen nothing to suggest that the CPR are to be applied any less rigorously, or the judges are to be less interventionist, in litigation of the kind where there is a right to trial by jury. That important right is sometimes described as a 'constitutional right', although the meaning of that emotive phrase is a little hazy. Nevertheless I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile."

[57] While Schellenberg v British Broadcasting Corporation was the first case to bring such an application in the context of civil procedure rules, concern about the misuse of court proceedings, especially defamation proceedings, for the ancillary dominant improper use of suing or putting pressure upon another party (sometimes described as SLAPP suits, "libel shopping" or the like: see Brian Walters SC, "Slapping on the Writs", University of NSW Press, 2003) has been the subject of extensive academic debate and public discussion for many years. The refusal of such relief in Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566 discouraged further applications for many years. However, the rise in the number of defamation actions against individuals, or for publications to one or a handful of persons, in circumstances where there was unlikelihood of harm to reputation, led to a reconsideration of the principles of abuse in England.

[58] I note in passing that, in Australia, the landmark case of AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 extensively reviews the law relating to abuse of process from a case management point of view, as French CJ noted in the course of argument in Radio 2UE Sydney Pty Ltd & Anor v Habib [2010] HCATrans 98, and that the Court of Appeal considered the applicability of s 61 Civil Procedure Act in McGuirk v University of New South Wales [2010] NSWCA 104 for orders relating to a purported abuse of the court process. Although the NSW Court of Appeal held that sending voluminous, bizarre and threatening correspondence in litigation did not warrant the making of restraining orders, the Court (at [12] - [14] (per Giles JA), [49] - [52] (per Young JA) and at [140] - [148] per Sackville A-JA) explained the role played by the case management provisions of ss 56 - 62 Civil Procedure Act generally.

[59] I now return to the development of recent English case law on abuse of process. It is against this background of rising concern as to the misuse of proceedings that the Court of Appeal in Wallis v Valentine [2002] All ER (D) 275 (Jul); [2002] EWCA Civ 1034; [2003] EMLR 175 considered proceedings in which a publication was to one person, and where it was found that the claimant's reputation was unlikely to have suffered any harm as a result. The court noted at [26] that the claimant was pursuing a vendetta, in which the award of damages was modest and the legal costs high.

[60] The court set out the criteria for striking out proceedings as an abuse at [31]: "31. The relevant principles when considering strike out for abuse of process have recently been stated in the judgment of Simon Brown LJ, with whose judgment Nourse and Waite LJJ agreed, in Broxton v McClelland and Another [1995] EMLR 48 5 at 497-498:

"(1) Motive and intention as such are irrelevant (save only where 'malice' is a relevant plea): the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. As was said by Glass JA in Champtaloup v Thomas (1976) 2 NSWLR 264, 271 (see Rajski v Baynton (1990) 22 NSWLR 125 at p.l 34):

'To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.'

(2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process:

(i) The achievement of a collateral advantage beyond the proper scope of the action - a classic instance was Grainger v Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ's judgment in Goldsmith v Sperrings Limited at page 503 D/H.

(ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.

(3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.""

[61] The Court of Appeal went on to note, at [32], that this abuse "includes the initiation of the claim itself", citing Goldsmith v Sperrings Limited, and noting that this and other decisions had been decided prior to The Civil Procedure Rules.

[62] In Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb); [2005] EWCA Civ 75; [2005] QB 946; [2005] 2 WLR 1614; [2005] EMLR 353 proceedings were brought for a very limited publication. The Court of Appeal stayed the action, noting at [67]-[70] the likely length, cost and complexity of the trial, as well as the extremely limited extent of publication and the prospect that the likely level of vindication would be out of proportion to the costs involved.

[63] Mr Rasmussen referred me to a series of passages in Jameel, noting in particular the court's observations concerning Duke of Brunswick v Harmer (1849) 14 QB 185: "40 We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant's resort to English jurisdiction or to seek to strike out the action as an abuse of process. We are shortly to consider such an application.....

54 … An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. …

55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.

56 We do not believe that Duke of Brunswick v Harmer 14 QB 185 could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process....

66. ... It is … not legitimate for the claimant to seek to justify the pursuit of these proceedings by praying in aid the effect that they may have in vindicating him in relation to the wider publication....

69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

70 If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR". [64] These passages from Jameel were referred to in a more recent decision, LonZim Plc & Ors v Sprague [2009] EWHC 2838 (QB). Tugendhat J at [18], in the course of striking out proceedings as an abuse of process, where his Honour noted at [31]: "31 I am at a loss to understand what vindication the Claimants might obtain from the verdict of a court, or why, or on what grounds, this claim in slander is being brought at all. The professional people and (I shall assume) the one or two shareholders of LonZim, to whom the alleged slanders were spoken, were at the AGM to vote, or attend upon the vote, in respect of resolutions, including that proposed by AMB. Mr Lenigas and Mr White won on the resolutions which were eventually put to a vote at an EGM of LonZim held on 30 July 2009. This dispute is already history. I cannot imagine why the opinions of any of alleged publishees concerning the Claimants would be influenced one way or another by any verdict on these matters to be given by a jury or judge. Any such verdict could only be given many months after the underlying dispute had been resolved. It has in practice been resolved through the votes in the meetings of LonZim, and the subsequent disposals by AMB of their shareholdings. What Mr Sprague is alleged to have said is clearly opinion, and whether his opinions were right or not will be proved (if at all) by the gains or losses that may eventually be made by LonZim on the assets in question. The publishees themselves were as well placed as Mr Sprague to form their own opinions. The meanings complained of do not relate to the personal reputations of Mr Lenigas and Mr White (LonZim, as a corporation, has no personal reputation for this purpose), but only to their professional judgment or competence."

[65] LonZim Plc & Ors v Sprague was cited with approval and followed by Eady J in Williams v MGM Ltd [2009] EWHC 3150 (QB). Eady J noted at [22]: "22 The abuse of process doctrine has not been used very much in libel cases, at least successfully, but a recent example is to be found in the judgment of Tugendhat J in LonZim Plc & others v Sprague [2009] EWHC 2838 (QB). Having considered the Court of Appeal's decision in Jameel , he went on to strike out the claim, holding that there was no evidence of any substantial tort committed within the jurisdiction. He observed at [34]:

"It is the duty of the court to bring to an end proceedings that are not serving the legitimate purpose of defamation proceedings, which is to protect the claimant's reputation. I have no hesitation in categorising this part of the claim as an abuse of the process of the court. The claim is vexatious."

He also took into account, at [31], the fact that the opinions of any of the alleged publishees would be unlikely to be influenced one way or the other by any verdict to be given by a jury or a judge. Any damages could in the circumstances only be very small. They would be totally disproportionate to the very high costs that any libel action involves. The judge added, at [33], that the fact of being sued at all is a serious interference with freedom of expression. In the light of the modern jurisprudence following the enactment of the Human Rights Act 1998, that is clearly an important consideration for the court to have in mind on any abuse application. It is one that is closely linked to Ms Jolliffe's submission that the Defendant would be likely to incur very substantial costs in mounting a defence and that it would be most unlikely ever to recover them in the event of success."

[66] No proceedings have been struck out on this basis in Australia. Courts have merely expressed concern at the disproportionate costs as opposed to vindication in very limited publications where the parties know each other well.

[67] The degree of disproportion can be seen from an examination of the facts in Jones v Sutton (No 2) [2005] NSWCA 203. Having set aside the trial judge's finding in favour of the defendant on the defence of unlikelihood of harm (s 13 Defamation Act 1974 (NSW)), the Court of Appeal took into account issues of proportionality in a long and careful analysis of what costs to award for one publication (with a republication claim) by one councillor to another and a further publication was to three fellow councillors of the plaintiff and defendant. The appellant sought an order for costs as he had offered to settle for $2,000 plus $80,000 costs and had been awarded $5,000 costs. The Court of Appeal noted with concern the disproportionate costs to the small amount of damages. The appellant's application for indemnity costs was refused, and the costs he was entitled to claim were reduced.

[68] The proceedings in Jones v Sutton led to a private member's bill in the NSW Parliament to impose costs penalties for very limited publications. Mr David Barr MLA, said in Parliament on 12 October 2005: "…. For example, the case of Jones v Sutton, in my neck of the woods, went for more than 11 days in a two-part trial. The damages awarded were $5,000 but the costs amounted to well over $1 million between the two parties.

The [Jones v Sutton] costs were massively out of proportion to the damages. One of my pet issues in the whole defamation debate is costs. All the various royal commissions, inquiries and whatever in many jurisdictions have focused on the complexities of the law - what tests should apply and so on - but none has dealt with costs in any significant manner. I introduced the Defamation Amendment (Costs) Bill 2002 to restrict cost orders comparative with the amount of damages awarded, but the House did not support it. The view of the Government and the Opposition was that it was too prescriptive. My view was that it was one way of discouraging the rich and powerful from engaging in frivolous actions because they would not be able to get costs." (Parliament of New South Wales, Hansard, Defamation Bill , 12 October 2005, p 18518)

[69] In Australia, as in England, concern about the chilling effect on defamation in relation to freedom of speech has been a significant public concern for parliamentarians, and it is relevant, when considering the "just, cheap and quick" provisions of the Civil Procedure Act to take those concerns expressed about abuse of process in defamation proceedings into account.

What factual matters would be relevant to the exercise of discretion in these proceedings?

[70] The matters relied upon by the defendant in these proceedings are: (a) The matter complained of appears to have been published to one person (Nerida Loconte);

(b) That person was the mother of the man (Benjamin Loconte) who was seeking an apprehended violence order against one of the plaintiffs (Elizabeth Calabro);

(c) The man seeking the order was married to one of the plaintiffs (Benjamin Loconte; Elizabeth Calabro);

(d) The defendant (Bruna Zappia) was the mother of Lisa Zappia (now deceased) who was married to one of the plaintiffs (Salvatore (Sam) Calabro);

(e) The matter complained of speaks of the treatment of the deceased at the hands of two of the plaintiffs (Salvatore (Sam) Calabro and Antonino Calabro);

(f) The matter complained of does not support the contention that all of the plaintiffs would have been identified from the matter by the ordinary reasonable reader;

(g) There are no extrinsic facts to support the identification of the other plaintiffs who are not named;

(h) The cause of action is amenable on the current facts to the defences of common law comment, honest opinion, common law qualified privilege and or unlikelihood of harm, rendering the prospects of a short trial to be small;

(i) The manner in which the plaintiffs obtained the matter complained of renders it liable to be not admitted at the hearing of the claim pursuant to s.138 of the Evidence Act or pursuant to the general law (see: Bunning v Cross (1978) 141 CLR 54) (the "Section 138 matter"), reducing significantly the prospects of success of the proceedings;

(j) The costs of the previous application still remain unpaid;

(k) The factual matrix behind the matter complained of (arising out of a domestic relationship of some years) is likely to be complex and range over a considerable period of time;

(l) The time and expense involved in the proceedings will be disproportionately large compared to the likely verdict if the plaintiffs are successful, particularly so if either side exercises its right under the Defamation Act to have trial by jury.

[71] The defendant submits: (a) The likely burden upon the defendant of defending these proceedings is out of all proportion to the seriousness of the claim and its likely result;

(b) The matters in paragraph (a)-(e), (i) and (j) point to the plaintiffs commencing these proceedings for an ancillary dominant improper purpose, namely revenge, rather than for the purpose of vindicating their reputation in the eyes of Mrs Loconte ( Wallis v Valentine , supra ) and that this dominant improper purpose is a well-known justification for dismissal ( Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; (1992) 66 ALJR 585; (1992) 61 A Crim R 431); and,

(c) There is justification for dismissal in circumstances where the form or content of the proceedings will be to "poison the fountain of justice": Packer v Meagher [1984] 3 NSWLR 486 at 494. This is a reference to the principal basis upon which the defendant seeks the striking out of the claim, namely the circumstances in which the fifth plaintiff took the document surreptitiously from a file of documents belonging to a person on the opposing side to litigation involving the sixth plaintiff, the fifth plaintiff's sister.

[72] This brings me to a consideration of the manner in which the matter complained of was obtained.

Can there be a defamation action where the matter complained of has been improperly obtained?

[73] I shall first consider whether there is any merit in the claim that the matter complained of was improperly obtained. Section 138 Evidence Act 1995 (NSW) provides for the exclusion of material obtained improperly. Section 138(3) sets out, without limitation, the matters which the court should take into account when deciding whether to exclude the evidence under s 138(1).

[74] The circumstances in which the fifth plaintiff obtained the documents are summarised by the defendant as follows: (a) Mr Anthony Calabro attended the Liverpool Local Court on 12 March 2009, on which occasion his sister, Elizabeth Calabro was defending an AVO application made on behalf of her then husband, Benjamin Loconte. (T-22)

(b) He left the courtroom and saw a manila folder sitting on a bench seat outside the courtroom not far from Tony Williams (an elder of the Christian Congregation of Jehovah's Witnesses). He went over, opened the manila folder and looked at the documents therein. (T-18 line 25 to T-19 line 5)

(c) He then took the manila folder away from the court, opened the file and looked through the documents. He found the Statutory Declaration which is the matter complained of. (T-19 line 5 to T-19 line 15)

(d) He observed that the Statutory Declaration was attached to an Express Post envelope addressed to Nerida Loconte. (T-20, T-22)

(e) He then photocopied the matter complained of and asked a member of the public to return the manila folder and its contents to the Police Station. He did not know the member of the public to whom he gave this direction. (T-23, T-24)

(f) He admitted that Mrs Nerida Loconte was at court on 12 March 2009 (T-23 line 5) and had no explanation as to why he did not return the manila folder to her (T-23 lines 15-30).

(g) Nerida Loconte is the mother of Benjamin Loconte the applicant in an AVO proceedings against Elizabeth Calabro (T-22 lines 35-50)

[75] The defendant in written submissions (paragraph 20) submits that Mr Anthony Calabro's failed to set this information out in his affidavit in these proceedings despite an adjournment was allowed to enable him to do so, and that this information was not provided to Puckeridge DCJ in the first application. If the fifth defendant had not been cross-examined, the circumstances in which he obtained these documents surreptitiously would not have come to light. The defendant submits that the fifth plaintiff was less than frank with the court in his affidavits in both applications to the court.

[76] The defendant further submits that the conduct of the fifth plaintiff in improperly obtaining documents belonging to a third party with a legitimate interest in court proceedings to which the subject document may have been relevant was "improper" for the purposes of s 138 Evidence Act and may amount to theft (referring to Crimes Act 1900 (NSW) in "Part 4 - Offences relating to property").

[77] As to the conscious knowledge of the fifth defendant that he was dishonestly obtaining the document, Mr Rasmussen referred to the notes made by the fifth plaintiff (Exhibit 1), namely: "knew there was something since Sam Loconte was flashing documents in the back gallery of the court room to me - [illegible]? - obtained in foyer - picked up the file - walked out of the court room - reviewed what was in the file - discovered the statutory declaration about me and my family - and then organized for the file to be returned to the adjoining police station to the Court House."

There are further notes, which are not easy to read, and which were not the subject of cross-examination.

[78] The circumstances in which courts will exclude material which has been improperly obtained are explained in Bunning v Cross (1978) 141 CLR 54 at 79 per Stephen and Aickin JJ. Information obtained by unfair means can cover a wide variety of circumstances falling short of an offence under the Crimes Act. It might apply, for example, to a publication obtained under torture; I note the passing reference to this in Bunning v Cross and to the discussion of exclusion of evidence (although pursuant to s 84 Evidence Act) in Habib v Nationwide News Pty Ltd [2010] NSWCA 34. In criminal proceedings, the courts have held that the court process should not lend itself to participating as an instrument of oppression (Moevao v Department of Labour [1980] 1 NZLR 464 at 30-40 per Richardson J).

[79] Ms Chrysanthou submitted that s 138 was a section designed to get evidence in, rather than to exclude it, and thereby irrelevant to this application. However, the cases relied upon by Mr Rasmussen go well beyond the issues of admissibility, and deal with fundamental issues concerning the basis for maintaining the action at all, and I have dealt with the application for summary judgment on this wider basis, as the defendant's complaint is really that the proceedings are an abuse of process, not simply that they are hopeless, but because the matter complained of could never be tendered as evidence.

[80] Are the New Zealand Court of Appeal's concerns with the need to maintain public confidence in the court's processes and ability to fulfill its function as a court of law (Moevao at 40) applicable in a civil context? Courts have not permitted surreptitiously obtained documents to be used in bankruptcy proceedings (Lord Ashburton v Pape [1913] 2 Ch 469 at 475; see the discussion of these principles in AG Australia Holdings Ltd v Burton & Ors (2002) 58 NSWLR 464 at 501 - 511). Public confidence must extend to both civil and criminal proceedings.

[81] However, is the mere fact that a document is obtained surreptitiously enough for there to be abuse of process? In practical terms, journalists routinely obtain documents from leaks or whistleblowers.

[82] Has an action for defamation concerning a document obtained surreptitiously ever been brought before? I could only find one example of a defamation action commenced over a document obtained surreptitiously. In Coulthard v State of South Australia (Supreme Court of South Australia, 19 January 1995, unreported) a confidential report was stolen from a safe by an unknown person, probably in the employ of the defendant. The case turns on other issues, but King CJ, having first noted limitations concerning liability for inadvertent publications, explained the principles upon which a person can be sued for defamation if a document is obtained surreptitiously: "In Pullman v Hill [1891] 1 QB 524 at 527 Lord Esher MR expressed the same principle stating that, if the writer of defamatory material locks it up in his desk and a thief comes and breaks open the desk and takes away the material and makes its contents known, that would not constitute publication of the material for which the writer was liable. I do not think that it is necessary that defamatory material should be under lock and key for a defendant to escape liability. In Huth v Huth , the letter which was opened was sent in an unsealed envelope. If the defamatory material is stored in a safe place to which access may be gained only for authorised purposes, the writer of the material should not be liable if the material is wrongfully taken for an unauthorised purpose. In other words, the writer of defamatory material and the employer of the writer are entitled to act on the footing that people will not act unlawfully."

[83] The issue in Coulthard was whether publication by the person from whom the property was stolen had occurred (see also Currabubula Holdings v State of NSW (Supreme Court of NSW, Einstein J, 30 March 1999)). There are no cases which deal with a situation where, to use Lord Esher MR's analogy, namely where the thief who takes the letter from the locked drawer then sues for defamation. (I note cases on the defence of illegality (Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339) are also of no assistance as they deal with actions where the plaintiff's reputation concerns the carrying on of an illegal trade.)

[84] In oral submissions, Mr Rasmussen characterised the plaintiffs' claim as hopeless by reason of being founded on illegality, which I interpret as being a claim of ex turpi causa non oritur action. The precise ambit of this principle in tort law is uncertain (as opposed to contract law: see the discussion of the "two highwaymen" case in Stone & Rolls (in liquidation) v Moore Stephens (a firm) [2010] 1 All E R 125 at [187]). There is a reference to this example in Emanuele v Hedley (Supreme Court of the Australian Capital Territory, Higgins J, 7 March 1997) where Higgins J struck out a number of causes of action, including defamation, on the basis of this maxim (at p. 22), noting: "in relation to the enforcement or otherwise of tortuous liability involving criminal conduct, the seriousness of the illegality and the public policy in favour of denying recovery must be weighed against the right said to be violated and the consequences of that violation."

[85] What is clear, however, is that "only in the rarest of cases can the doctrine of ex turpi causa non oritur actio be involved successfully in actions in tort": Lewandowski v Lovell (Supreme Court of Western Australia, Kennedy J, 8 March 1993) at 9, citing National Coal Board v England [1954] AC 403 at 428.

[86] The defendant also submits extremely limited nature of the publication is also a factor to take into account (see Jameel), and may, in exceptional cases, warrant the striking out of proceedings as an abuse of process.

[87] What makes these proceedings exceptional, and in my view would, if my finding concerning the limitation period had been in favour of the plaintiffs, warrant the action being struck out, is the extraordinary circumstances in which the document was surreptitiously taken, in a court foyer during other court proceedings, from a person who was there to support the opposing side, who later was less than frank with the court about it. It is not simply that the document was taken surreptitiously; it is irrelevant whether the act was criminal or not; it is not to the point whether the document is admissible. It is that the document was taken surreptitiously from the opposing camp's documents during a court hearing, in circumstances which would have a chilling effect upon the administration of justice generally, since the entitlement of parties to bring confidential material to court should not be undermined by the fear that this material could be stolen and sued upon.

[88] If the statement had been used in court proceedings, or discovered in court proceedings, any claim for defamation would be struck out either as an abuse of process, or for reasons of absolute privilege, or both. The same principles should apply to a document taken surreptitiously from a supporter of an opponent in court.

[89] I agree with Kennedy J in Lewandowski that only in exceptional cases would the court strike out proceedings and deny a party a remedy. Where a party comes before the court seeking damage for injury to reputation, he or she is entitled to a hearing on the merits. However, the facts in this case are almost unprecedented in defamation law, in that the very subject matter of the litigation has been taken surreptitiously from the camp of the opponent during court proceedings.

[90] The court should, for the reasons explained by the New Zealand Court of Appeal in Moevao v Department of Labour, and Higgins J in Emanuele, consider the public confidence in justice should prevail over the private right of the individual to vindication of reputation in such circumstances, and strike out the proceedings as an abuse of process. To do otherwise is to diminish the court's ability to fulfill its function as a court of law.

[91] Accordingly, I would hold, in the event that the plaintiffs were entitled to an extension of the limitation action to bring these proceedings, that the action should be struck out as an abuse of process.

[92] I note the defendant's alternate submission that if the plaintiffs are to be permitted to continue their cause of action, the causes of action for those plaintiffs not identified by name should be struck out for lack of particularisation. While the court generally resolves disputes about inadequate particularisation by making orders concerning particulars, the identification of a party who is not named being such an essential part of the action that otherwise it may be struck out (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188).

[93] These are proceedings which were commenced out of time. The circumstances in which the court will permit amendments of such a fundamental nature when the claim is out of time are rare: see Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306.

[94] Accordingly, if I have erred in holding that all actions should be struck out, then the only two persons in the matter complained of who are named (Salvatore and Antonino Calabro) should be permitted to proceed, as there are no extrinsic facts to support the identification of the unnamed four other plaintiffs.

[95] I note the claim in the plaintiffs' affidavits that they have suffered shunning in the Mormon community as a result of the matter complained of being published. There is no objective evidence to support the claim that this is as a result of publication of the matter complained of in the Mormon community generally, and the Statement of Claim provides no particulars of any such publication.

[96] Where an application for extension of time is made, the moving party usually pays the costs, the extension of time being an indulgence. If I have erred in my findings, and the matter should proceed, I would make the costs order sought by the defendant in paragraphs 31 to 33 of Mr Rasmussen's written submissions.

[97] As I have found in favour of the defendant, costs should follow the event. There is, however, one further order I should make. There is nothing to stop the plaintiffs bringing a further application for an extension of time before another judge, or in another court: Grant v Rafferty (2001) 34 MVR 136; [2001] NSWCA 244; Nominal Defendant v Manning. The costs of the hearing in 2009 before Puckeridge DCJ remain unpaid. My power to make an order staying further action on these proceedings is not a matter upon which the parties have addressed me. If the plaintiffs do bring a third application to commence proceedings out of time, these will be matters for consideration by the judge hearing that application.

[98] Mr Rasmussen offers to pay personally the costs of 29 April 2010, the date on which he failed to appear. It is my view that the appropriate order for the costs of that day should be that no order for costs should be made.

Orders (1) Plaintiffs' application for an extension of time to commence proceedings out of time is dismissed. (2) Plaintiffs' statement of claim struck out and dismissed. (3) Plaintiffs pay defendant's costs of these proceedings save for 29 April 2010, for which no order for costs is made by reason of the failure of counsel for the defendant to attend court.

1 "STATUTORY DECLARATION 2 NSW OATHS ACT 1900

3 I, Bruna Zappia 4 of 27 Yuroka Cres St. Georges Basin 5 in the State of NSW 6 do hereby solemnly declare and affirm that:-

7 I have been victimized by the Calabro family in the 8 past. From [sic] 1995 until my daughters [sic] death in Aug 2005 9 aged 32 yrs. During their relative [sic] short marriage of 10 2 yrs, my daughter Lisa suffered at the brutal hands 11 of Sam Calabro (husband) & other members of the Calabro 12 family. After her separation, our family was harressed [sic] 13 by telephone calls which would hang up when we answer 14 along with Sams' [sic] father Antonino, stalking our south coast 15 home near Nowra, while he was on holidays [sic] this made 16 myself, my husband & my daughter Lisa feel very threat- 17 ened & intimedated [sic]. We sold our family home & moved 18 interstate, so we could get some peace & my daughter 19 Lisa could try & get her life started again. My daughter 20 was extreamly [sic] traumatized by the whole situation & 21 needed to go on anti-depressants to calm her shattered 22 nerves. Only 8 months after moving my Lisa passed 23 away. An autopsy failed to find a reason, but I 24 believe in my heart, that the Calabro family frightened …[matter complained of terminates in mid-sentence] 25 [Signature of Justice of the Peace] [Signature of Bruna Zappia] 26 JUSTICE OF THE PEACE

27 NOTE THE BACK OF THIS PAGE MUST ALSO BE SIGNED IN FULL"

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