Cavar v Campbelltown Catholic Club Limited - [2023] NSWSC 1272 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Cavar v Campbelltown Catholic Club Limited

[2023] NSWSC 1272

Supreme Court of NSW|2023-07-10|Before: Rothman J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-07-10

Before

Rothman J

Catchwords

[2006] HCA 55 Cox v Journeaux (No 2) (1935) 52 CLR 713
[1935] HCA 48 Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
[1991] HCA 31 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[1964] HCA 69 McGuirk v University of New South Wales [2009] NSWSC 1424 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556

Source

Original judgment source is linked above.

Catchwords

[2006] HCA 55 Cox v Journeaux (No 2) (1935) 52 CLR 713[1935] HCA 48 Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78[1991] HCA 31 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125[1964] HCA 69 McGuirk v University of New South Wales [2009] NSWSC 1424 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556[1968] HCA 74 Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211[1999] NSWCA 416 Seidler v Carrol & O'Dea [2013] NSWSC 338 Spellson v George (1992) 26 NSWLR 666[1992] NSWCA 254 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602(1961) HCA 35 Wattyl Australia Pty Limited v McArthur (2008) 74 NSWLR 229

Judgment (28 paragraphs)

[1]

Background

The following facts are drawn from the Affidavits of the plaintiff and the solicitor for the defendant, Mr Haslam. It has been a little difficult to ascertain with particularity some of the facts which underpin these matters.

[3]

Procedural Background

On 31 March 2023, the plaintiff filed a Statement of Claim commencing the Professional Negligence Proceeding and, on 17 April 2023, filed the Statement of Claim commencing the Defamation Proceeding. The defendant to each of those proceedings was styled as "Catholic Club Campbelltown".
On 18 April 2023, Mr Haslam of Gilchrist Connell filed a Notice of Appearance on behalf of the defendant in both proceedings. He also wrote a letter to the plaintiff on that date which asked that both Statements of Claim be amended to identify the defendant correctly as "Campbelltown Catholic Club Limited".
Mr Haslam also indicated that the Notices of Appearance had been filed without prejudice to the defendant's position that the claims as pleaded were wholly deficient, foreshadowing further correspondence in respect of that matter.
On 24 April 2023, the plaintiff caused Amended Statements of Claim to be filed in each proceeding which correctly identified the defendant as Campbelltown Catholic Club Limited. On 5 May 2023, Mr Haslam filed further Notices of Appearance in response.
On 11 May 2023, Mr Haslam again wrote to the plaintiff regarding what the defendant saw as the significant defects in the Amended Statements of Claim. Those matters included, but were not limited to, the fact that the proceedings were a frivolous and vexatious attempt to re-litigate matters that were the subject of the Settlement Agreement, as well as the fact that the pleadings themselves were lacking in material facts, particulars, or a reasonable cause of action, and included scandalous and irrelevant allegations. A separate letter was sent in relation to each of the Professional Negligence Proceeding and the Defamation Proceeding.
On 11 May 2023, the plaintiff sent an email to Mr Haslam which did not respond substantively to the matters raised in Mr Haslam's letters.
The matters were listed before the Court, as presently constituted, as Defamation List Judge on 26 May 2023, having been allocated to the Defamation List as a result of each Amended Statement of Claim referring to defamation as one of the causes of action. The Club sought leave to file the Motions, which was granted.
Due to the plaintiff's inability to attend Court for the hearing of the Motions on 30 June 2023 and again on 10 July 2023, the Court directed that the Motions be dealt with on the papers. Each party has submitted written submissions and evidence to which the Court has had regard in the preparation of this Judgment.

[5]

The Professional Negligence Proceeding

The Amended Statement of Claim in the Professional Negligence Proceeding states that the type of claim is as follows: "I. This amendment of statement of claim is made under rule 19.5 of UCPR 2005 because of technical error occurred in Statement of claim dated 30 March 2023. I. Tort-Professional Negligence - pursuant to UCPR 2005, under rule 15.5, 15.7, 15.8, 35.01 and 45.5, Personal Injury Proceedings Act 2002. II. Tort of Defamation - at general law pursuant to Defamation Act 2005 under section under sections [sic]: 6, 35 - Defamation for non-economic loss limited and section 40.(1)(2)(a) Costs and point 3-optional with settlement offer, III. Breach of privacy pursuant to Privacy Act 1988 and Privacy and Personal Information Protection Act 1998- Part 2. IV. Scott schedule pursuant to r 15.2 of UCPR 2005 relevant to breach of privacy." (Emphasis in original.)"
The pleading claims relief in the form of general damages relating to non-economic loss for pain and suffering, special damages for economic loss, costs, as well as a request that the proceeding be "combined" with the Defamation Proceeding. The relief is sought in the amount of $164,574 plus interest and costs.
The body of the pleading is some 24 paragraphs. Even on the most generous reading, those paragraphs are difficult to understand.
It seems from paragraphs 1 to 12 of the Amended Statements of Claim that the allegation of professional negligence arises from the termination of the plaintiff's employment by the defendant. She alleges that the defendant owed her a duty of care which was breached when she was terminated in her role.
The allegations of breach seem to be predicated on a failure by the defendant to adhere to its internal policies in investigating a breach by the plaintiff of the defendant's "Social Media Policy", relying on the "false accusation" that the plaintiff's performance was not up to standard in order to terminate her employment, and failing to protect the plaintiff from verbal assault or sexual harassment by a patron.
The claims of defamation and breach of privacy are even more opaque. I extract below the following samples by way of illustration as to the nature of the document: "16. Tort of Defamation claim for damage of reputation are based on these comments/harassment and sexual harassment by patron S. and his girlfriends Simone-manager at venue, Tracy and Theresa both unknown: (i) he is drinking because of the plaintiff, (ii) she dominates on him/control him, (iii) plaintiff has married him, (iv) to his ex girlfriend Tracey comment by Sam was: 'cited no engagement until plaintiff is back,' so revenge occurred by Tracy putting some substance in drink which causes Sam's hallucination and unstoppable drinking…." (Emphasis in original.) "23. The plaintiff under section 62 of Privacy Act 1988 relevant to corruptive [sic] conduct for intentionally disclosure of plaintiff's personal information by defendant's officers for purpose of preparation of plaintiff's removal without his fault, and Sam's unreasonable misbehaviour and his actions under pressure and instruction of his three girlfriends and under influence of alcohol and recently on drugs, according to his swallen [sic] body and scaring [sic] face what plaintiff witnessed on 05 March 2023, forced the plaintiff to send Special report to Parliament under section 65 of Privacy Act 1988." (Emphasis in original.)

[7]

Defendant's Submissions and Evidence

In support of each of the Motions the defendant has filed an Affidavit of Mr Haslam, sworn 26 May 2023, in identical terms. The Affidavit is procedural and exhibits documents going to the factual and procedural history of the matters.
The defendant's primary written submissions contend that while the plaintiff has alleged various forms of misconduct and breaches in connection with her employment at the defendant, the claim is impossible to respond to meaningfully. In support of this proposition, the defendant outlined the following: 1. The grammar and syntax of the language in the pleadings is very difficult to understand. 2. Significant portions of the pleadings are irrelevant or are submissions or statements of belief rather than fact. 3. The allegations of any claim for negligence are wholly inadequate and no facts are identified to establish duty, breach, or causation. The plaintiff has also not engaged with the Civil Liability Act 2002 (NSW). 4. To the extent any claim is made for worker's compensation or work injury damages (and presumably by extension, any work-related injury) the plaintiff has commenced proceedings without complying with the mandatory processes of the Workers Compensation Act 1987 (NSW). 5. The defamation claim is patently defective, without any particularisation of the publication relied upon, the imputations relied upon, and the serious harm suffered. 6. As to the claim for breach of privacy, there is no explanation as to how the privacy legislation relied upon is said to vest the plaintiff with a private cause of action against the defendant. 7. A reference is made by the plaintiff to a breach of the Fair Work Act 2009 (Cth) without any particularisation. 8. Many allegations appear to relate to third parties without explanation for how this conduct is said to be sheeted home to the defendant. 9. The two Amended Statements of Claim traverse substantially the same factual material and causes of action. 10. The pleadings are embarrassing and the allegations are not properly pleaded such that they are not capable of being understood.
The defendant submits that both sets of proceedings are liable to dismissal pursuant to r 13.4 of the UCPR on the basis that they are frivolous or vexatious, do not disclose a reasonable cause of action, or are an abuse of process.
The defendant relies on the terms of the Settlement Agreement, in particular the release of liability granted by the plaintiff to the defendant in respect of all claims, actions, and liability that relate to the plaintiff's employment by the defendant or the termination of that employment. The defendant says that it is at least clear that the plaintiff's complaints relate to her employment and termination, and as such she is not permitted to re-agitate these issues.
The defendant also submits that to the extent any claim for work-related personal injury is put forward, the claim has no prospects of success as the provisions of the Workers Compensation Act 1987 have not been the subject of compliance. The Workers Compensation Act requires persons who have been injured at work to undergo a specific assessment process to determine if their permanent impairment is in excess of 15% before a claim for common law damages may be brought. [1] The defendant relies on the authority in Wattyl Australia Pty Limited v McArthur [2] ("Wattyl") where the Court of Appeal stated that a common law claim is not maintainable unless that assessment process has taken place. [3]
In the alternative to a dismissal of the proceedings, the defendant seeks that each of the Amended Statements of Claim be struck out pursuant to r 14.28 of the UCPR. The defendant says that the pleadings do not allow the plaintiff's case to be understood and fail to provide a connection between material facts and any cause of action. The defendant says that the pleadings are so defective that mere particularisation would not remedy these issues, and as such, they are liable to be struck out.

[8]

Plaintiff's Submissions and Evidence

In response to the defendant's Motions the plaintiff provided written submissions and a variety of documents. As with the Amended Statements of Claims, the documents are difficult to understand.
While the Affidavits of the plaintiff were technically not filed with respect to the Motions and were instead lodged in relation to each proceeding generally, I shall treat them as if on the Motions. They are dated 30 March 2023 and 5 April 2023, respectively. As with the Amended Statements of Claim, the contents of each Affidavit are largely identical.
The Affidavits canvass the circumstances of the plaintiff's dismissal from employment with the defendant, the making of a claim to the Fair Work Commission, and the entry by the parties into the Settlement Agreement. Unfortunately, the Affidavits are not written in clear language and do not shed any further light on the relevant circumstances in addition to what is canvassed in the Amended Statements of Claim.
A significant portion of the written submissions relate to the plaintiff's attempt to issue a Subpoena upon an employee of the defendant whom the plaintiff alleges is a key witness in her case. The plaintiff's position seems to be that this Subpoena was issued to comply with an order that she serve evidence and submissions in response to the Motions. On 13 June 2023, leave to issue a Subpoena was refused by the Principal Registrar of the Court on the basis that the Motions to dismiss or strike out the proceedings were pending.
In respect of the Motions, the plaintiff submits that the defendant is in breach of r 19.4 of the UCPR in that the Motions were filed more than 14 days after the filing of the Amended Statements of Claim. The plaintiff submits that in granting leave for the Motions to be filed, the Court as presently constituted gave favour to the Club and procedural unfairness to the plaintiff.
Attached to the submissions is a letter sent by the plaintiff to the Attorney General of New South Wales in respect of this matter. That letter alleges that the Court as presently constituted has a "politically motive to protect persons from specific ethnic backgrounds and traditional relationship with that part of community members" [sic] and further that I have acted with prejudice, unfairness, dishonestly, and recklessness. The plaintiff requested that I be "exempted" from these matters. No material was adduced in support of such a claim; the "ethnicity" was not identified; the relevance to these proceedings was neither identified nor obvious; and, as more fully dealt with later, the "request" is denied.
The plaintiff also submits that the Motions and Affidavits filed by the defendant are "all false allegations". She contends that the Motions have no legal ground [sic]. In support of this contention, the plaintiff says that the Affidavit of Mr Haslam, to which earlier reference has been made, must be struck out as it was witnessed in Perth, Western Australia and not in New South Wales. She also states that the correspondence annexed to that Affidavit is absurd and does not have any legal ground [sic].
The remainder of the plaintiff's written submissions and the documents attached thereto otherwise do not meaningfully engage with the issues raised in the Motions.

[12]

Leave for Motions to be Filed

As stated above, the plaintiff is critical of the Court as presently constituted for granting leave for the Motions to be filed, given that such leave was granted more than 14 days after the Amended Statements of Claim had been filed. She relied on r 19.4 of the UCPR in support of this criticism.
Rule 19.4 relates to the disallowance of amendments to pleadings. In full, the rule reads as follows: "19.4 Disallowance of amendment (1) If a party amends a pleading, as referred to in rule 19.1(1) or (2), the court may, by order, disallow the amendment. (2) Unless the court orders otherwise, notice of motion for such an order must be filed within 14 days after the date on which the amended document was served on the applicant. (3) If, on the hearing of an application for an order under this rule, the court is satisfied that, had an application for leave to make the amendment been made, it would not have granted leave to make the whole or some part of the amendment, the court must disallow the amendment or that part, as the case may be."
The plaintiff's reliance on this rule is misplaced. The Motions filed by the defendant are not Motions to disallow the amendments made in the Amended Statements of Claim pursuant to r 19.4(2); they are Motions to strike out or dismiss the proceedings under r 13.4 and/or r 14.28. As such, the 14-day timeframe in r 19.4(2) is not applicable.
In accordance with paragraph 14 of Practice Note SC CL 4, at the first listing of a matter in the Defamation List, the parties will be expected to be ready to argue any objections to the Statement of Claim. The defendant sought the orders for the filing of the Motions at the first listing of the matters before the Court. The defendant had notified the plaintiff of its intention to do so in written communication exchanged prior to the listing. The plaintiff has not identified any particular prejudice or forensic disadvantage arising from the grant of leave other than an unfounded assertion of procedural unfairness and a "lack of administration of justice".
I do not find that the plaintiff's criticisms relating to the decision to grant leave are made out, such that they should be taken into account in the determination of the Motions.

[13]

Bias

The plaintiff's written submissions also raise the issue of my impartiality in these proceedings. While no formal Motion has been filed seeking that I disqualify myself, I accept that such an application may be made in the absence of that formality. [4] For abundant caution, I propose to address this issue briefly.
The test which I must apply when considering if I should disqualify myself in a situation such as this was set out in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11] as follows: "It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." (Footnotes omitted.)
As summarised at [40] above, the plaintiff has contended that I have a political motive to "protect persons from specific ethnic backgrounds" due to a "traditional relationship" with "that part of community members". The plaintiff states that this motive is evidenced in the grant of leave for the filing of the defendant's Motions.
As will already be evident, Ms Cavar's assertions on this issue are not legally compelling. She has not identified a factual basis for any alleged actual or apprehended bias, other than the fact that leave was granted in circumstances where she opposed it. The plaintiff has also not identified the "persons from specific ethnic backgrounds" with whom I am alleged to be in a "traditional relationship", and how this is said to relate to the matter at hand.
As such, and as already stated, I am not convinced that the plaintiff has shown, nor provided material that could show, that a fair-minded lay observer might apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the matters I am required to decide, and I do not consider it appropriate to disqualify myself from dealing with this matter. Disqualification applications are not for the purpose of forum shopping and an officer allocated a hearing is required to sit and determine the matter unless the law requires otherwise. [5]

[20]

The Dismissal Claim

The allegations regarding this aspect of the claim are set out in paragraphs 1 to 9 (both inclusive) and paragraph 11 of each Amended Statement of Claim. The plaintiff alleges that the defendant owed her a duty of care which it breached when her employment was terminated. She alleges, inter alia, that the defendant failed to follow its internal policies, dismissed her based on a "false accusation", failed to reconsider its decision to terminate her employment, and failed to accept CCTV evidence as proof that the plaintiff performed her shifts.
The defendant's argument that claims of this nature do not disclose a reasonable cause of action in light of the Settlement Agreement is compelling. Clause 7 of the Settlement Agreement provides as follows: "On the [defendant] complying with clauses 4, 5, and 6, the [plaintiff] releases and discharges the [defendant] and its directors, officers, and employees from all claims, actions and liability: to which the [defendant] may now be subject, or to which the [defendant] may, but for this agreement, have become subject in the future, and that relate to the [plaintiff]'s employment by the [defendant] or the termination of that employment." [17]
Clause 9 of the Settlement Agreement further provides as follows: "Despite Clause 7, this agreement does not affect any claims or actions the [plaintiff] may have at any time: under worker's compensation legislation or common law for a work-related injury, illness, disease or death; or for unpaid superannuation guarantee contributions."
Each of the plaintiff's Amended Statements of Claim contain a pleading as follows: "Letter of demand has been rejected and I plaintiff commencing these proceedings on additional legal ground Terms of Settlement made on 01 March 2023 and signed by both parties on 03 March 2023 under point 9 relevant to common law."
I take this pleading as a statement of the plaintiff's understanding, broadly consistent with her written submissions, that the carve out in cl 9 of the Settlement Agreement entitles her to take common law action against the defendant, howsoever arising.
Having considered the terms of the Settlement Agreement and the parts of the plaintiff's claim I have just described, I am of the view that to the extent any claim is made about the lawfulness of the defendant's decision to terminate the plaintiff's employment, that claim falls squarely and unambiguously within the terms of the release provided by the plaintiff. The Settlement Agreement is a matter to which I will return later in these reasons.

[21]

The Psychiatric Harm Claim

The Amended Statements of Claim also raise a claim for psychiatric harm resulting from the termination of the plaintiff's employment as well as events which took place during her employment. Those claims, as I understand them, are most clearly defined in paragraphs 7, 10, 18, 19, and 20 of each Amended Statement of Claim.
To the extent that those paragraphs make it clear, the plaintiff alleges that she has suffered mental stress, depression, and anxiety as a result of the termination of her employment, as well as psychiatric harm arising from the conditions of her employment, such as being exposed to harassment by patrons of the defendant's business.
As I have already summarised, the defendant contends that insofar as any claim for work-related injury is put, such a claim would fall within the ambit of the Workers Compensation Act and is therefore not maintainable in this jurisdiction until the requirements of that Act have been satisfied. While the plaintiff stated that the Workers Compensation Act does not apply to her claims, she did not specify why that was said to be the case. No reference has been made to s 11A of the Workers Compensation Act or any like provision limiting liability for psychiatric injury arising from termination.
Section 9(1) of the Workers Compensation Act stipulates that a worker who has received an injury shall receive compensation from the worker's employer in accordance with that Act. "Injury", for the purposes of the Act, is defined in s 4(a) as personal injury arising out of or in the course of employment. Section 151H(1) provides that no damages [18] may be awarded by a Court unless the injury results in at least 15% permanent impairment.
Furthermore, s 313 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) specifically mandates that in the absence of an agreement or assessment of permanent impairment of at least 15%, court proceedings for work injury damages [19] may not be commenced. [20]
It is against this statutory context that the following comments of Beazley JA (as her Honour then was) in Wattyl must be considered: "… it is difficult to perceive of a circumstance where a court would not accede to a defendant's application to strike out proceedings that did not comply with the procedural requirements of the [Workplace Injury Management and Workers Compensation Act], unless there was some conduct of the defendant that was relevant to the exercise of the discretion." [21]
It seems fairly plain that the psychiatric harm alleged by the plaintiff is said to have arisen out of or in the course of her employment with the defendant. As such, I do not consider that - in the absence of compliance with the Workers Compensation Act or the Workplace Injury Management and Workers Compensation Act - claims for damage relating to that harm are maintainable in this Court.
Put another way, I do not think that the claims for psychiatric injury as pleaded in either Amended Statement of Claim disclose a reasonable cause of action. As the matter currently stands, those claims are destined to fail.

[22]

The Defamation Claim

I turn then to the claim for defamation, which is pleaded in substantially the same way in each Amended Statement of Claim but I understand is principally propounded by the plaintiff in what I have referred to in accordance with the plaintiff's nomenclature as the Defamation Proceeding.
The defendant submits that the pleadings relating to defamation are wholly inadequate, in that they do not identify any publications or imputations relied upon, or any serious harm suffered. This submission is accurate.
On my reading, the following passage of the Amended Statements of Claim is the clearest articulation of what may be said to be a publication made by the defendant: "14. The defendant has made defamatory damages towards the plaintiff by the way of damaging his reputation, performance, his skills and his relationship with his friends, assaulting plaintiff as visitor at venue on 05 March 2023 by manager Simone at the front of one security guard. On 20 Jan 2023 Simone has abused power and placed on media note sent to plaintiff's friend called Sam/patron and president of ball club regardless stalking on plaintiff with hurting comments by his friends or his girlfriends out of workplace. Pure private matter and not related to any workplace issue is a defendant's breach of plaintiff's privacy pursuant to Privacy Act 1988." (Emphasis in original.)
In addition, the Amended Statements of Claim particularise further apparent "comments" said to be made by "patron S", "his girlfriends" and "Simone", which I have partially extracted at [24] above.
The nature of the "media note" referred to is not pleaded, nor are any relevant details of to whom the note or the "comments" are said to have been directed or by whom they were read (if anyone). There is also a failure to plead any alleged imputations said to arise from these "publications" (if that be a term which could encompass the "media note" or the "comments" - the pleadings as they stand do not allow a determination of that issue) which does not comply with the requirement in r 14.30(2) of the UCPR. Further, if some of the "comments" were made by patrons of the defendant's business, it is difficult to understand how the defendant could be liable for them even if they were defamatory, which liability is not addressed in the pleadings.
The purpose of pleadings is to define the issues in dispute and the case that must be met. [22] Further, and as earlier stated, a pleading is embarrassing if it is incomprehensible, or so vague that it deprives the opposing party of proper notice of the real substance of the claim or defence. [23]
The plaintiff's case on defamation as currently pleaded is patently inadequate. Even when affording the plaintiff every latitude in interpreting the Amended Statements of Claim (as I have attempted to do), the pleadings do not come close to defining the issues in dispute or the case that the defendant must meet. Further, they are so imprecise and contain such a multiplicity of irrelevant allegations that they are embarrassing.
Over and above the foregoing, the defamation claim has purportedly been commenced without complying with Pt 3, Div 1 of the Defamation Act 2005 (NSW), which requires a concerns notice prior to the commencement of proceedings.

[23]

The Breach of Privacy Claim

Finally, the last matter raised in the Amended Statements of Claim, as far as I can determine, is a claim relating to an alleged breach of the plaintiff's privacy by the defendant. The plaintiff has identified the Privacy Act 1988 (Cth) and the Privacy and Personal Information Protection Act 1998 (NSW) as being referable to her claim. These Acts operate, respectively, at a Federal and State level to regulate the management of personal information.
In respect of this claim, there is a complete absence of material facts which would enable the defendant to understand the nature of the claim put against it. The pleadings do not identify the personal information which is said to have been disclosed or to whom. The paragraph of the Amended Statements of Claim that I have extracted at [24] above is representative of the ambiguous language utilised in respect of this claim.
The plaintiff does specifically rely on s 62 of the Privacy Act, which provides as follows: "62 Enforcement of determination against an agency (1) If an agency fails to comply with section 58, an application may be made to the Federal Court or the Federal Circuit Court for an order directing the agency to comply. (2) If the principal executive of an agency fails to comply with section 59, an application may be made to the Federal Court or the Federal Circuit Court for an order directing the principal executive to comply. (3) The application may be made by: (a) if the determination was made under subsection 52(1) - the complainant; or (b) the Commissioner. (4) On an application under this section, the court may make such other orders as it thinks fit with a view to securing compliance by the agency or principal executive. (5) An application may not be made under this section in relation to a determination under section 52 until: (a) the time has expired for making an application under section 96 for review of the determination; or (b) if such an application is made, the decision of the Administrative Appeals Tribunal on the application has come into operation. (6) In this section: complainant, in relation to a representative complaint, means a class member."
Section 58, which is the basis for s 62, reads as follows: "58 Obligations of agencies If this Division applies to a determination and the determination applies in relation to an agency, the agency: (a) must not repeat or continue conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(i) or paragraph 52(1A)(a); and (b) must take the steps that are specified in a declaration included in the determination under subparagraph 52(1)(b)(ia) or paragraph 52(1A)(b) within the specified period; and (c) must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c)."
The Division of the Privacy Act within which both ss 58 and 62 fall relates to determinations made by the Privacy Commissioner. While the plaintiff alleges that she has made a complaint to parliament pursuant to s 65 of the Privacy Act, the pleadings do not contain any indication that the Privacy Commissioner has made any determination relevant to the issues complained of, such that the section of the Privacy Act relied on by the plaintiff would have relevance. Even if such relevance were established, s 62(a) stipulates that any resultant proceedings ought to be brought in the Federal jurisdiction, and not in a Court of New South Wales.
The plaintiff's claim for breach of privacy is difficult to understand and, on its face, lacks any apparent cause of action in this Court. The Court is not determining that there is no common law cause of action for breach of privacy, as the issue has not been raised and no material facts that could possibly give rise to such a cause of action, were it to exist, have been pleaded.

[24]

Dismissal or Strike Out

As the foregoing comments make clear, I am not satisfied that either Amended Statement of Claim, as they currently stand, disclose a reasonable cause of action. I am satisfied that to varying extents they are embarrassing and/or an abuse of process as I have outlined. It therefore falls to me to determine whether to exercise the Court's discretion to dismiss the proceedings or to strike out the Amended Statements of Claim.
I have noted that the dismissal of proceedings at an interlocutory stage is an extreme step, which is only taken in the clearest of circumstances. I am also mindful that it is preferrable to allow amendment, if such a course would cure the deficiencies identified by the Court. Further, as stated by McCallum J (as her Honour then was) in Seidler v Carrol & O'Dea, [24] it may be appropriate to afford a degree of flexibility to a self-represented litigant, although the Court must also be vigilant to ensure it does not become a forum for the agitation of grievances which lack any juridical foundation. [25]
I am satisfied that the claims in negligence resulting from the plaintiff's dismissal or any alleged personal injury arising from her employment are not maintainable as a result of the Settlement Agreement and the applicable worker's compensation legislation, as earlier outlined. That is not a matter which could be remedied by amendment of the pleadings. To allow the plaintiff to reformulate these claims in this jurisdiction would only serve to expend further resources of the parties and the Court on a futile endeavour.
The claims for defamation and breach of privacy do not presently disclose any reasonable cause of action. At the moment, the pleadings are so vague and difficult to understand that it is impossible to determine conclusively that there is not an underlying cause of action which has not been appropriately expressed. While the pleadings in respect of those claims are currently wholly deficient, to the extent that they seek to commence defamation proceedings, without the service of a concerns notice, the proceedings are also bad and cannot be remedied by amendment.
In respect of the claim for defamation, the pleadings raise the possibility that there has been some kind of publication by the defendant relating to the plaintiff which may be defamatory but which, without a concerns notice, cannot be commenced. Further, it may be, if and when the facts are known, that the claim will be covered by the release in the Settlement.
In respect of the claim for breach of privacy, while I have reservations as to application of the statutes cited by the plaintiff in a case such as this, the High Court has left open the possibility that a cause of action for breach of privacy may be open to natural persons. As recently explained by McNaughton J in Baini v Liberal Party of Australia NSW Division: [26] "[11] To date, in Australia, a tort of breach of privacy has yet to be clearly recognised. The most recent statement on this issue in the High Court appears in Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14 at [86] where it was stated by Kiefel CJ, Bell and Keane JJ: 'The real difficulty for the respondent in Lenah Game Meats, Gummow and Hayne JJ observed, was that it did not raise a recognised cause of action. That is not to say that one might not be available with respect to an invasion of privacy, but the development of the law in that regard will benefit only natural persons, not companies such as the respondent in that case. Their Honours went on to say that the debate about the tort of privacy should not be regarded as foreclosed including by the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.' (Footnotes omitted and emphasis added.)"
The effect of the foregoing is that I do not feel that the claim for breach of privacy should be foreclosed without affording the plaintiff some opportunity to reformulate it.
One final aspect arising from that conclusion requires comment. It is the defendant's contention that the release provided by the plaintiff in the Settlement Agreement would extend to all of her claims against it, including the defamation and breach of privacy claims, with the exception of the claim for work-related injury (which I have already found is not presently maintainable in this Court). The defendant relies on the broad wording of cl 7 of the Settlement Agreement, where the plaintiff agreed to: "releases and discharges the [defendant] and its directors, officers, and employees from all claims, actions and liability… that relate to the [plaintiff]'s employment by the [defendant] or the termination of that employment."
The defendant says that the words "that relate to" should be read widely, and relies on the Court of Appeal's commentary in Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211; [1999] NSWCA 416, where Fitzgerald JA said at [56]: "The width of the phrase 'relating to' is undoubted. Lord Macnaghten stated that '[t]here is no expression more general or far-reaching', IRC v Maple & Co (Paris) Ltd (1908) AC 22, 26."
However, in that very paragraph his Honour went on to say: "Taylor J observed that '… the expression "relating to" … is … vague and indefinite …' and '… leaves unspecified the plane upon which the relationship is [to be] sought and identified.' Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620."
Put simply, the plaintiff's claims relating to defamation and breach of privacy are, at present, so difficult to understand that I am unable to make any findings about whether, how, and to what extent they relate to her employment or the termination of her employment. There is clearly some connection between the matters she complains of and her employment with the defendant, but the nature of that connection and whether it falls within the scope of cl 7, is not an issue I am currently prepared to determine on an interlocutory application, such that I would be prepared to dismiss the claims on that basis.

[28]

Endnotes

Workers Compensation Act 1987 (NSW), ss 151C, 151H.
Wattyl Australia Pty Limited v McArthur (2008) 74 NSWLR 229; [2008] NSWCA 326.
Supra, at [52] per Beazley JA; [174] per Young CJ in Eq.
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117].
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 31.
Clarke v GEO Australia Pty Limited [2023] NSWSC 716 at [92].
P W Taylor SC, Ritchie's Uniform Civil Procedure NSW (looseleaf, Lexis Nexis Australia) at [UCPR 13.4.2].
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at [8]-[9].
Ibid, at CLR 134.
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48.
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 631; [1968] HCA 74.
Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254.
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.
McGuirk v University of New South Wales [2009] NSWSC 1424 at [21]-[35].
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.
The word "Applicant" has been replaced with the word "plaintiff" and the word "Respondent" with "defendant" for ease of reference by the reader of this judgment.
The word "damages" for the purpose of s 151H includes damages for an injury to a worker caused by a tort of the worker's employer: Workers Compensation Act 1998 (NSW), s 151E.
"Work injury damages" includes damages recoverable from a worker's employer in respect of an injury to the worker caused by the negligence of other tort of the employer: Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250(1).
See also Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 280A which requires a claim for lump-sum compensation pursuant to the Workers Compensation Act to be made before or concurrently to any claim for work injury damages.
Wattyl Australia Pty Limited v McArthur (2008) 74 NSWLR 229; [2008] NSWCA 326 at [88].(Beazley JA).
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296 and 302-303; [1990] HCA 11.
McGuirk v University of New South Wales [2009] NSWSC 1424 at [21]-[35].
Seidler v Carrol & O'Dea [2013] NSWSC 338.
Ibid at [8]-[10] per McCallum J.
Baini v Liberal Party of Australia NSW Division [2023] NSWSC 837. 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: 06 November 2023

Cavar v Campbelltown Catholic Club Limited

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