[2015] HCA 19
Tame v New South Wales (2002) 211 CLR 317
[2002] HCA 35
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
Source
Original judgment source is linked above.
Catchwords
[2015] HCA 19
Tame v New South Wales (2002) 211 CLR 317[2002] HCA 35
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: On 23 May 2024, the Court as presently constituted heard oral submissions on the applicant's summons for leave to appeal from orders of the Common Law Division (Rothman J) summarily dismissing proceeding 2023/109930 and summarily dismissing the applicant's claim in proceeding 2023/122883 to the extent it related to professional negligence or work related injury or defamation. The primary judge otherwise struck out the amended statement of claim in proceeding 2023/122883 and gave the plaintiff leave to file a further amended statement of claim confined to a claim for invasion or breach of privacy (Cavar v Campbelltown Catholic Club Ltd (No.2) [2023] NSWSC 1272).
After the conclusion of oral submissions, the Court took a short adjournment. On resumption, Meagher JA advised the parties that the Court was in a position to give judgment. His Honour invited White JA to give the first judgment. At that point the applicant asked to be told what orders the Court proposed to make and indicated that she did not intend to remain in court if the Court proposed to dismiss her summons for leave to appeal.
We stated that the orders of the Court were:
(1) Dismiss the applicant's summons for leave to appeal from the orders of Rothman J of 27 October 2023.
(2) Dismiss as incompetent:
(a) A notice of appeal filed 4 January 2024 in proceeding 2023/445442; and
(b) Amended notices of appeal filed on 19 January 2024 in proceedings 2023/445154 and 2023/445442.
(3) Order that the applicant pay the respondent's costs of each proceeding.
The applicant left the courtroom whilst these orders were being read out. Counsel for the respondent indicated that the respondent was content that the Court provide the parties with written reasons for the orders.
These are those reasons.
After the orders had been made and the hearing concluded, the Court ascertained that order (2) contains a slip. Review of the files disclosed that the document described as "notice of appeal" stamped as received in the Registry on 4 January 2024 was not filed on that date. Instead, a notice of appeal and a document called "Amendment of Notice of Appeal" were filed in proceeding 2023/445154 on 19 January 2024. Also on 19 January 2024 a notice of appeal was filed in proceeding 2023/445442. This was a document in the same terms as the document described as "Amendment of Notice of Appeal" in proceeding 2023/445442 in the White Folder.
Accordingly, later on 23 May 2024, the Court on its own motion corrected order (2) by vacating that order and substituting the following:
(2) Dismiss as incompetent:
(a) The notice of appeal filed on 19 January 2024 in proceeding 2023/445154; and
(b) The notice of appeal filed on 19 January 2024 in proceeding 2023/445442.
We also amended orders (1) and (3) for greater clarity. The corrected orders as entered are as set out on the cover sheet to these reasons.
On 31 March 2023, the applicant commenced proceedings against the respondent in the Common Law Division (proceeding 2023/109930).
The statement of claim was amended on 21 April 2023. Apart from amending the name of the respondent to its proper name, the allegations were materially the same.
The applicant claimed general damages for non-economic loss for pain and suffering and damages for economic loss and loss of income. Under the heading "Relief Claimed" she stated:
"Combine the matter for tort of defamation and breach of privacy matter with matter for professional negligence in one proceeding as most effective based on facts and evidence which are relevant for both matters and most inexpensive for both parties of these proceedings."
The amount claimed was $164,574 plus interest and costs.
Notwithstanding this claim, on 17 April 2023 the applicant filed a further statement of claim in the Common Law Division (proceeding 2023/122883) in which she sought damages of $90,000 plus interest. This claim is described as a claim in defamation and for breach of privacy.
The applicant was employed by the respondent as a security officer from 16 September 2022 until her employment was terminated on 20 January 2023. She commenced proceedings against the respondent in the Fair Work Commission. Those proceedings were settled. Terms of settlement were signed by the respondent on 1 March 2023 and by the applicant on 3 March 2023.
The terms of settlement recorded:
"4. In addition to any money the Respondent has previously paid to the Applicant, the Respondent will pay to the Applicant $8,500 gross, taxed as per applicable law.
5. The Respondent will pay this amount to the Applicant within 7 working days of the Applicant and the Respondent signing this agreement.
…
7. On the Respondent complying with clauses 4, 5 and 6, the Applicant releases and discharges the Respondent and its directors, officers and employees from all claims, actions and liability:
to which the Respondent may now be subject, or to which the Respondent may, but for this agreement, have become subject in the future, and
that relate to the Applicant's employment by the Respondent or the termination of that employment.
…
9. Despite clause 7, this agreement does not affect any claims or actions the Applicant may have at any time:
under workers' compensation legislation or common law for a work-related injury, illness, disease or death…"
That sum (less a deduction of $1,445 for tax) was paid on 14 March 2023. 14 March was seven working days after 3 March 2023.
The primary judge rightly observed (at [21]) that even on the most generous reading of the pleadings, they are difficult to understand. His Honour observed that the allegation of negligence arose from the termination of the applicant's employment and that she alleged that the respondent owed her a duty of care which was breached when she was terminated in her role. His Honour said:
"[23] 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."
His Honour also observed that the claims for defamation and breach of privacy were even more opaque. His Honour extracted two paragraphs from the pleading by way of illustration, which need not be repeated here; see primary judgment [24].
The amended statement of claim in each proceeding referred to the terms of settlement. The applicant pleaded:
"13. Letter of demand has been rejected and I plaintiff commencing these proceeding 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."
Neither in her pleading nor in her submissions in this Court, nor, so far as appears from the primary judge's judgment, in submissions before the primary judge (the applicant did not include her submissions below in the White Folder), did the applicant make any submission that the terms of settlement would not be enforceable in accordance with their terms. In so far as she claimed damages for loss of her employment, the claim is clearly barred by the release in clause 7.
The terms of settlement were not a bar to the applicant's claiming damages for a work injury and in her pleading she claimed damages for pain and suffering. She alleged (para 7) that failure of the respondent to follow its Social Media Policy and to provide counselling or to take disciplinary action against others caused her to suffer mental distress, depression and anxiety from 22 January 2023. The primary judge considered that the pleading could be read as extending to a claim for psychiatric harm arising from the conditions of her employment, such as by being exposed to harassment by patrons of the respondent's business (at [82]).
No damages may be awarded in respect of a work injury unless the injury results in a degree of permanent impairment of the injured worker of at least 15% (Workers Compensation Act 1987 (NSW), s 151H). The primary judge held that a claim for psychiatric injury could not be maintained because the applicant had not obtained an assessment of permanent impairment of at least 15%. In the absence of such an assessment or agreement by the respondent, court proceedings for work injury damages may not be commenced (Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 254, 260, 313, 315) (at [84]-[88]).
In relation to the claim in defamation, the primary judge held that the pleading did not identify any publications or imputations relied upon or any serious harm suffered (at [90]) and did not come close to defining the issues in dispute or the case that the respondent should meet. They were so imprecise and contained such a multiplicity of irrelevant allegations that they were embarrassing (at [95]). We agree. It is impossible to discern from the pleadings what defamatory matter it is said the respondent published, let alone what imputations arise from it or what harm they caused.
The primary judge did not give leave to replead the claim in defamation because the proceeding had been commenced without the applicant's complying with Pt 3, Div 1 of the Defamation Act 2005 (NSW), which requires a concerns notice to be given prior to the commencement of proceedings (at [96]).
In relation to the claim for breach of privacy, the primary judge allowed the claim to be repleaded rather than summarily dismissing the claim because his Honour could not determine, on the basis of what was pleaded and said by the applicant in her affidavits, what the complaint was. No material fact that might give rise to such a cause of action had been pleaded. His Honour noted the respondent's submission that any such claim would be precluded by the release in cl 7 of the terms of settlement and said:
"[113] 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."
There is no application for leave to cross-appeal against the primary judge's refusal summarily to dismiss the claim for breach of privacy.
The applicant provided a draft notice of appeal in each proceeding. She also purportedly filed notices of appeal on 19 January 2024 in each proceeding. The notices of appeal are incompetent. The legal effect of an order for summary dismissal of proceedings or part of proceedings is interlocutory and not final.
The draft notice of appeal does not comply with the rules for a notice of appeal. It does not state succinctly but specifically the grounds relied on. One ground appears to be that the cause of action (presumably in defamation) was the publishing of a private note "handwritten for one particular person, by respondent on media" which note:
"…has been hidden by respondent and published by respondent to appellant on unknown publisher web or media, and in regards to that fact primary judge has made error of law implementing Part 3, Division 1, section 12A - Concerns notice of Defamation Act 2005 which relates to publisher unknown and not in relation to the appellant because the respondent has published the note, not appellant for purpose to harm his [sic] reputation and to terminate his [sic] employment unreasonable."
This proposed ground of appeal is unintelligible. Division 1 of Part 3 of the Defamation Act 2005 applies if a person publishes a matter that is, or may be, defamatory of another person (the aggrieved person) (s 12).
Section 12B(1) provides that an aggrieved person cannot commence defamation proceedings unless the person has given the proposed defendant a concerns notice in respect of the matter concerned, the imputations to be relied on by the aggrieved person in the proposed proceedings are particularised in the concerns notice, and the applicable period for an offer to make amends has elapsed. Section 12A specifies the requirements of a concerns notice.
The applicant did not give a concerns notice. She was not entitled to commence proceedings against the respondent for defamation.
In her summons seeking leave to appeal, the applicant states that s 12A is not relevant. Apparently this is because:
"The appellant has not published/placed on media pure private note with content of security issue to be resolved between appellant and to the patron, and publisher as unknown to the appellant and has not been relevant."
We do not understand the contention. When read with the applicant's summary of argument it appears that the applicant does not know who published the allegedly defamatory matter. It is unclear whether the alleged defamatory publication was of a private note apparently written by the applicant, or something else. In her summary of argument at para 4 the applicant stated that there should be orders for preliminary discovery for potential commencement of proceedings against a non-party. No such claim was made in her statements of claim.
In short, the primary judge was clearly correct summarily to dismiss her defamation claim as it had been commenced in contravention of s 12B(1)(a).
The proposed notice of appeal then asserts that the primary judge erred by not taking into account what she called an expert report. This was a document prepared by the applicant herself, said to be made pursuant to r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW). That rule requires that, unless the Court otherwise orders, a person commencing a professional negligence claim (other than a claim against a legal professional) must file and serve with the statement of claim an expert's report addressing the matters referred to in r 31.36(1).
There was no occasion for the primary judge to refer to the document called "Expert's Report". It was irrelevant to the respondent's notice of motion that the proceedings be summarily dismissed. This is for a number of reasons. First, notwithstanding the way the applicant styled her pleading, her pleading is not for professional negligence. Secondly, the document is not an expert's report. It is the applicant's own submission. Thirdly, it does not contain expert opinion but a recitation of alleged facts and submissions which, so far as they are intelligible, are directed to her claim of unfair dismissal.
The draft notice of appeal then contained two pages of a narrative statement of asserted facts which, so far as it is intelligible, appears to be directed to events concerning a patron called Sam, his being abused by girlfriends, and the applicant's being targeted by criminal gangs. These matters are irrelevant to the grounds on which the primary judge proceeded and do not show any arguable error.
The draft notice of appeal contended that the requirements of the Workers Injury Management and Workers Compensation Act 1998 were irrelevant to her claim, which was not a claim for workers compensation. But Chapter 7 of the Act is applicable to claims for work injury damages. There was no attempt to comply with the requirements of that chapter, which must be complied with before a claimant can commence proceedings for work injury damages.
The applicant pleaded (paras 12 and 22) that she suffered pain and that she had "got mental disorder" (para 17). Damages are not recoverable at common law for distress not amounting to a recognised psychiatric illness (Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35; 329 [7] (Gleeson CJ); 339 [44] (Gaudron J); 382 [194] (Gummow and Kirby JJ); Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22; 70 [20] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, and Bell JJ); King v Philcox (2015) 255 CLR 304; [2015] HCA 19; 318 [18] (French CJ, Kiefel and Gageler JJ)). Only damages for past or future economic loss are recoverable as damages in respect of an injury to a worker caused by the negligence or other tort of the worker's employer (Workers Compensation Act, ss 151E and 151G). Moreover, if the applicant's claim were not for work injury damages, then the release provided to the respondent by cl 7 of the terms of settlement would apply as cl 9 would not be engaged.
The applicant also contended that she was denied procedural fairness. There is no basis for that contention. The respondent's notices of motion for summary dismissal were listed for hearing on 30 June 2023 and adjourned to 10 July 2023 because the applicant was absent. She was also absent on the adjourned date and the primary judge determined to resolve the applications on written submissions. At an earlier directions hearing held on 26 May 2023, the applicant objected to the judge's entertaining the notices of motion at all and said:
"I am not going to do any reply and I don't accept any time to lodge because this is abuse of process and causing unnecessary costs.
They can go straight ahead with the matter for hearing on the paper. I don't care. Anyway, if you give that full favour to the defendant, I am going on the appeal. Simple as that."
In her summons for leave to appeal, the applicant contended that she had been denied procedural fairness because the primary judge, as well as denying her a hearing, was biased by rejecting her application to issue subpoenas to witnesses to give evidence.
Assuming that the judge made that decision, it could not connote bias.
In her summary of argument, the applicant submitted that the primary judge was corrupt apparently because he rejected her contention that her claim was true and not deniable. That submission was scandalous. It should not have been made. No foundation was demonstrated.
The proposed appeal does not raise any question of principle or of general public importance. Nor does it raise any issue which goes beyond that which is merely arguable. Indeed it does not raise any arguable issue at all. It would be futile to grant leave to appeal as an appeal would have no prospects of success.
It is for these reasons that we ordered that the purported notices of appeal be dismissed as incompetent with costs and that the summons for leave to appeal be dismissed with costs.
[3]
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: 24 May 2024
Parties
Applicant/Plaintiff:
Cavar
Respondent/Defendant:
Campbelltown Catholic Club Ltd
Legislation Cited (6)
(Workers Compensation Act 1987(NSW)
(Workplace Injury Management and Workers Compensation Act 1998(NSW)