Cavar v Campbelltown Catholic Club Limited (No 3)

Representation: Counsel:
J Sukkar (Defendant)
Solicitors:
Gilchrist Connell (Defendant)

File Number(s): 2023/122883

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: The plaintiff, Celija Cavar, initially filed two Statements of Claim, one which substantially dealt with a claim in negligence and another which purported to deal with a claim in defamation and breach of privacy. By a notice of motion, the defendant, Campbelltown Catholic Club Limited (hereinafter “the Club”) moved to dismiss the proceedings.

2. By judgment on 27 October 2023, the Court, as presently constituted, summarily dismissed proceedings number 2023/109930, being the “Professional Negligence Proceeding”. The Court also struck out the Statement of Claim in the current matter, which was referred to as the “Defamation Proceeding” and granted leave to file a Further Amended Statement of Claim confined to a claim for invasion or breach of privacy. [1]

3. The judgment of the Court on 27 October 2023 (hereinafter “the earlier judgment”) was the subject of a purported appeal for which leave was not sought, but the Court of Appeal dismissed the appeal as incompetent and dismissed the applicant’s summons for leave to appeal. [2]

4. The judgment of the Court of Appeal was the subject of an application for leave to appeal to the High Court of Australia, for which an extension of time was needed, and on 7 November 2024, the application for special leave to appeal was refused. [3]

5. The matter came on for directions on 24 November 2023, on which date the Court made further orders that created a timetable and listed the matter in the defamation list on 15 December 2023. Ultimately, it came on for hearing before the Court on 23 February 2024 at which time the plaintiff did not appear and the defendant sought an adjournment until the conclusion of the appeal process. The matter was listed nominally for mention and directions on 22 March 2024.

6. The matter was adjourned on a number of occasions pending the determination of the applications for leave to appeal and/or appeals.

7. Eventually the matter came on for hearing before the Court on 29 November 2024. Again, there was no appearance for the plaintiff. The Court made orders, pursuant to s 61 of the Civil Procedure Act 2005 (NSW), requiring the plaintiff to put on written submissions dealing with the defendant’s motion for summary dismissal. The submissions were to be filed by 5pm, 9 December 2024. Any response to any such submission was to be filed by 12 December 2024.

8. Apparently, on 9 December 2024, the plaintiff filed in the Registry submissions purportedly in the form of an affidavit and annexing an “Expert’s Report” purportedly relating to professional negligence, the tort of defamation and breach of privacy. This is a document upon which the plaintiff had relied earlier in the proceedings, which was initially filed on 12 December 2023. It is also the report to which the Court of Appeal referred. [4]

9. The defendant notified the Court that it did not seek to reply or respond to the document. It did so on 9 December 2024. However, the document filed in the Registry on behalf of the plaintiff was not brought to the attention of the judge.

10. The earlier judgment, being the judgment of 27 October 2023, permitted the plaintiff to file an amendment to the pleadings to plead only invasion or breach of privacy. The Further Amended Statement of Claim, purportedly pursuant to the leave granted by the Court, was filed on 7 December 2023 and the appeals against the judgment allowing the Further Amended Statement of Claim and confining it to the issues of invasion or breach of privacy then proceeded.

11. The defendant, who moves on an amended motion filed 1 December 2023, relies on affidavits from its solicitor, Alexander Haslam, sworn 1 December 2023 and 31 May 2024. The plaintiff purports to rely on all of the affidavits previously filed.

12. In the earlier judgment of the Court, the Court described the earlier iteration of the Statement of Claim as, “on the most generous reading, … difficult to understand”. [5] The Court of Appeal confirmed that observation. [6] The Further Amended Statement of Claim upon which the plaintiff now seeks to rely is similarly difficult to understand.

13. The earlier judgment, in relation to that which remains to be pleaded and for which leave was granted, noted:

“106 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.

…

108 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:

‘[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.)’” [7]

14. As stated in the earlier judgment, the basis upon which the Court did not dismiss the statement of claim in relation to the breach of privacy is that the plaintiff ought not to be foreclosed from proceeding with that which may be arguable, albeit novel, and for which there is some authority that the cause of action may exist.

15. The plaintiff was given the opportunity to reformulate the claim. The attempt at the Further Amended Statement of Claim does not properly or at all reformulate a claim for invasion of privacy or breach of privacy.

16. Over and above the substantive (if that be a correct description) issue, the Further Amended Statement of Claim contains internal inconsistencies, misconceives a number of statutory provisions and their effect and asserts conclusions without pleading material facts on which the plaintiff relies, or which form the basis for such assertions. Those assertions, which are in many respects scandalous in nature, refer to the “corrupted system”, “corrupted judges” and organised crime. The pleading also contains rhetorical questions and opinions. Moreover, the Further Amended Statement of Claim seeks to reiterate claims in negligence, defamation and misconceived breaches of the Privacy Act 1988 (Cth).

17. Notwithstanding the opportunity given to the plaintiff to reformulate a claim in common law for breach or invasion of privacy, such a claim has not been pleaded, and the Further Amended Statement of Claim does not disclose a reasonable cause of action. Further, the Court is of the view that to continue the proceedings would be an abuse of process.

18. In the earlier judgment, the Court reiterated the principles associated with dismissal of proceedings and remarked that an order striking out or dismissing a proceeding or pleading is not made lightly. [8] The principles are set out in the earlier judgment. [9] I adhere to the comments there made.

19. Despite being given ample opportunity, the plaintiff has failed properly to plead or proceed with that which may be open to her and there is no reasonable basis upon which the plaintiff could succeed on the claims pleaded.

20. The Privacy Act upon which the plaintiff seeks to rely has been relied upon in a manner which is unauthorised by the statute. The statute does not enact a tort of privacy invasion. [10] Nor does the plaintiff plead or attempt to plead common law tort of invasion or breach of privacy. The plaintiff’s claim as pleaded is wholly misconceived.

21. As to the plaintiff’s reliance on a handwritten note, to the extent that it is a claim that is not otherwise embarrassing and improperly pleaded, there are, among other reasons, two substantive reasons why the claim has no merit. First, the so-called privacy or confidentiality associated with the handwritten note is, on the pleading itself, unavailable. The note was voluntarily disclosed by the plaintiff to at least two persons and has not previously been characterised as “confidential”.

22. More fundamentally, there is no relationship between any disclosure by the defendant of such a note or the information therein and any loss suffered by the plaintiff. The note contained the plaintiff’s phone number, but there is no suggestion that the number was abused or that the disclosure of the phone number caused the plaintiff any economic or non-economic loss.

23. Moreover, there is no relationship pleaded between the disclosure of the handwritten note and the employment of the plaintiff, which is said to have given rise to the so-called duty of care.

24. The Court is satisfied that no reasonable cause of action is disclosed by the pleading or in the proceedings. The Court is further satisfied that the pleadings represent an abuse of process. Each of those findings rely upon and apply the principles relating to such issues adumbrated by the Court in the earlier judgment.

25. The Court makes the following orders:

26. Pursuant to the Uniform Civil Procedure Rules, r 13.4, the Court dismisses the proceedings.

27. The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

**********

Endnotes

Cavar v Campbelltown Catholic Club Limited (No 2) [2023] NSWSC 1272.

Cavar v Campbelltown Catholic Club Limited [2024] NSWCA 126 (Meagher and White JJA).

Cavar v Campbelltown Catholic Club Limited [2024] HCASL 274 (Gordon and Steward JJ).

Cavar v Campbelltown Catholic Club Limited [2024] NSWCA 126 at [35]-[36].

Cavar v Campbelltown Catholic Club Limited (No 2), supra, at [21].

Cavar v Campbelltown Catholic Club Limited [2024] NSWCA 126 at [17].

Cavar v Campbelltown Catholic Club Limited (No 2), supra, at [106] and [108].

Ibid, at [64].

Ibid at [66]-[73].

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 248; [2001] HCA 63 at [106] (Gummow and Hayne JJ).