Chan v Perry

Supreme Court of NSW|2009-11-19|Before: McCallum J, Callum J

DECISION : (1) Pursuant to rule 13.4(1) of the UCPR, the proceedings are dismissed. (2) The plaintiff is to pay the defendant's costs of the proceedings.

CATCHWORDS : PROCEDURE - application to have proceedings dismissed pursuant to rule 13.4(1) UCPR - conspiring to injure - conspiracy - defamation - failure by plaintiff to identify in pleading the material facts relied upon - mere speculation - proceedings dismissed

LEGISLATION CITED : Defamation Act 2005 Uniform Civil Procedure Rules 2005

Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 Chan v Reynolds; Chan v Department of Housing & Anor [2009] NSWSC 792 CASES CITED : East-West Airlines (Operations) Ltd v Commonwealth (1983) 57 ALJR 783 Favell v Queensland Newspapers Pty Limited [2005] HCA 52 Gordon v Amalgamated Television Services [1980] 2 NSWLR 410 Hamod v State of New South Wales (No 12) [2009] NSWSC 242

PARTIES : Yau Hang CHAN (Plaintiff) Barbara PERRY (Defendant)

COUNSEL : In Person (Plaintiff) Mr M Lynch (Defendant)

17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HER HONOUR: These are proceedings brought by Mr Yau Hang Chan against Ms Barbara Perry arising out of a letter sent by Ms Perry to Mr Chan in December 2007 under the letterhead of the Premier of New South Wales (then Mr Morris Iemma). 2 By notice of motion dated 22 May 2009, Ms Perry seeks to have the proceedings dismissed pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005. That rule states: "Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim." At the time the notice of motion was filed, the statement of claim had been amended twice. The motion sought, in the alternative, to have each of the three pleadings that have been filed struck out pursuant to rule 14.28 of the UCPR on similar grounds. 3 Since the filing of the notice of motion, three further versions of the statement of claim have been served, but not filed. One was served on the morning of 16 November 2009, just before the proceedings were called for hearing. The proceedings were subsequently stood over for hearing later in the week, for reasons identified in my judgment given 19 November 2009. 4 The fifth version of the pleading (MFI 2) was served on the morning of 19 November 2009, before the hearing of the defendant's motion. The sixth was served during argument on that day (MFI 3). 5 At the outset of the hearing of the defendant's motion, Mr Chan informed me that he was unhappy with the latest version of the pleading on the Court file (filed 15 May 2009). He confirmed that he was content to have the present application determined by reference to the fifth version of the pleading (MFI 2). 6 When Mr Chan handed up the sixth version of the pleading, I was under the impression that the only amendment made by that document was the addition of new particulars of publication in paragraph 15. Accordingly, I indicated that I proposed to determine the defendant's application on the basis agreed to by Mr Chan, that is, on the basis that MFI 2 was the pleading he wished to propound, subject to the addition of the further particulars provided in MFI 3. I refer to MFI 2 in this judgment as "the pleading". 7 Upon closer examination, however, it has come to my attention that the sixth version of the pleading adds a new allegation to which Mr Chan did not refer during argument. Accordingly, for abundance of caution, the new allegation is also addressed in this judgment. 8 As already indicated, Mr Chan's claim arises out of a letter sent to him by Ms Perry. The pleading identifies two causes of action in respect of that letter, the tort of conspiracy and the tort of defamation.

The claim in conspiracy 9 The law relating to the tort of conspiracy is neatly summarised by Harrison J in Hamod v State of New South Wales (No 12) [2009] NSWSC 242. His Honour stated at [182] to [183]: "182 The tort of conspiracy may take two forms: (a) An agreement or combination between two of more persons to commit a lawful act with the predominant purpose of injuring or damaging the plaintiff, and the act is carried out and the purpose achieved: McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 362 per Dixon J; Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 717 per Dixon J. (b) An agreement or combination between two or more persons to commit an unlawful act with an intention to injure the plaintiff, and the act is carried out and the intention achieved: Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 78 and 122. 183 In either case the plaintiff must prove the following elements: (a) a combination or agreement between two or more individuals (required for both types of conspiracy); (b) an intent to injure the plaintiff (required for both types of conspiracy but must be shown as the predominant purpose for "lawful means" conspiracy); (c) pursuant to the combination or agreement and with the intention to injure, certain acts were carried out; and (d) resulting loss and damage to the plaintiff." 10 The letter which has given rise to Mr Chan's claims is a reply to some complaints addressed by him to the New South Wales Government. The letter begins: "Thank you for your letters dated 15 September, 26 September and 4 October 2007, concerning the conduct of the New South Wales Police Force, and your legal proceedings. I have sought advice on these matters from the Minister for Police, the Hon DA Campbell MP, and the Attorney General, the Hon J Hatzistergos MLC." 11 The letter proceeds to set out a series of responses to the complaints presumably made by Mr Chan in the correspondence referred to. 12 The pleading does not allege that the sending of the letter was an unlawful act. However, after I reserved my decision in this matter, Mr Chan sent written submissions (without leave) in which he suggests that the sending of the letter may have been an unlawful act. The basis for that suggestion is speculation on Mr Chan's part that Ms Perry may not have had the authority of the Premier to send the letter. No facts or circumstances are identified to found such speculation. In any event, for present purposes, I am prepared to proceed on the assumption that Mr Chan's claim is based on alternative allegations of either a lawful act or an unlawful act. 13 Mr Chan contends that Ms Perry's letter contains false or misleading information. His claim in conspiracy derives from his belief that the recording of such false or misleading information is a manifestation of a deliberate plot to injure him. In paragraph 9 of the pleading, he alleges: "Since about 11 December 2007, the defendant has conspired with other people ("Conspirators") with the sole or predominant purpose to injure the plaintiff by deliberately corrupting Government records about the plaintiff ("Conspiracy") with the letter dated 11 December 2007." 14 The first objection to the pleading made on behalf of Ms Perry is that the conspirators are not identified. The particulars state: "(1) Said Conspirators (other than the defendant) are presently unknown to the plaintiff. (2) Mr John Hatzistergos (Attorney General at all material times) and Mr David Campbell (Police Minister as of 11 December 2007) are probably two of the said conspirators. (3) Further particulars on the identity of said Conspirators to be provided after discovery, subpoenas etc." 15 I do not think the failure to identify the alleged co-conspirators is a problem in itself. One can imagine a claim properly brought in conspiracy in which the plaintiff could point to matters establishing the existence of an agreement without being able to identify the parties to the agreement (other than the defendant). 16 The vice of the pleading, however, is that it fails to identify any facts, matters or circumstances capable of establishing the existence of any agreement whatsoever. There is no identification of the nature of the agreement alleged, and no identification of any circumstance from which the existence of an agreement could sensibly be inferred. 17 A separate problem is that the pleading fails to identify any facts, matters or circumstances from which a purpose or intention to injure Mr Chan may reasonably be inferred. The corruption of the record complained of by Mr Chan is the statement "You were convicted of assault in Burwood Local Court on 27 September 2007". (The pleading identifies seven additional allegedly false or misleading statements in the letter, but none of those is alleged to have resulted in any loss or damage to Mr Chan). 18 Mr Chan tendered part of a print-out from the records of Burwood Local Court which shows that a conviction was indeed recorded against him on 27 September 2007, but that it was annulled on 30 November 2007. He contends, on that basis, that it was false or misleading as at 11 December 2007 to say that he had been convicted on the earlier date without also referring to the annulment. 19 Mr Chan sought to sustain the allegation of purpose or intent to injure principally by reference to the inclusion of that statement in the letter. He relied on paragraph 8 of the pleading, where he has pleaded the fact that the defendant is a Minister of the New South Wales Government. He submitted that, by reason of that status, Ms Perry has access to a lot of funding and information including information as to the annulment of his conviction. Mr Chan contended that Ms Perry would have accessed the records of Burwood Local Court before sending the letter, and that there is "no possibility that she did not know about the annulment of the conviction". It is on the strength of those contentions that Mr Chan seeks to establish that Ms Perry has conspired with others to pretend that the conviction was standing when she in fact knew that it had been annulled. 20 I do not consider that to be a rational basis for the allegation of purpose in paragraph 9 of the pleading. As submitted by Mr Lynch on behalf of Ms Perry, her purpose in sending the letter is disclosed on its face as being to respond to Mr Chan's complaints. No rational basis has been identified for speculating as to the existence of any other purpose. 21 Mr Chan stated that he has plenty of evidence to establish the existence of the conspiracy. He stated that the present claim is just a minor part of it. In support of that contention, Mr Chan reminded me of my decision given 13 August 2009 in the matter of Chan v Reynolds; Chan v Department of Housing & Anor [2009] NSWSC 792. Mr Chan's claims in those proceedings had their origin in a dispute with the Department of Housing over a smoke detector. Mr Chan submitted in the present case that any reasonable person would wonder why a dispute over a smoke detector would find its way into the Supreme Court. He explained that that is also a conspiracy. He acknowledged that, without the background information, it is not easy to understand the claim, but said that with that information, his claim can be put in proper context. He submitted that, similarly, his present claim is not a trivial case, as it appears. 22 In my view it is clear from those submissions that Mr Chan's claim in conspiracy derives from a paranoid belief for which no objective foundation has been identified, either in the pleading or during argument. 23 A further difficulty with the claim in conspiracy relates to the requirement to establish loss or damage resulting from the acts complained of. The particulars of damage in paragraph 10 of the pleading state: "(1) As a result of the Defendant's writing in the said letter concerning the Plaintiff that " you were convicted of assault in Burwood Local Court on 27 September 2007 " without mentioning at the same time the said conviction has already been annulled on November 2007, some other people are and will continue to be misled to believe that the Plaintiff's said conviction on 27 September 2007 is a standing conviction when it is in fact not. As a result, the Plaintiff has suffered and will continue to suffer damages due to his unlawful or prejudicial treatment by the police and other people (eg. potential employers) who have been or will be misled by the said letter. (2) As a result of the same (as said in (1) above), the Plaintiff out of the high probability that his applications would have been futile due to the said letter has already been prevented from submitting many applications for jobs to certain government agencies/departments that he would have applied to if not for the publication/republication of the said letter. Said high probability is true because said Conspirators is frequently if not constantly monitoring (note: a simpler description to that effect is the Plaintiff is under some sort of surveillance of said Conspirators) the Plaintiff's job applications in order to sabotage or manipulate the Plaintiff's job applications to the Plaintiff's detriment. The Plaintiff has thus suffered a loss of potential income opportunities." 24 I accept, as submitted on behalf of Ms Perry, that those contentions are irrational, illogical and incapable of being established. I am satisfied that there are incurable defects in Mr Chan's claim in that the facts set out in the pleading are incapable of establishing a reasonable cause of action in conspiracy.

The new allegation 25 As already noted, the sixth version of the pleading (MFI 3 handed up during argument) seeks to add a new allegation in paragraph 9. The new allegation appears under the heading "Particulars of Defendant' (sic) Role In Said Conspiracy". It states: "11 On 19 November 2009, The Defendant has conspired with other Conspirators to cause Mr. Mark Lynch to tender to the Justice McCallum the Plaintiff's letter dated 16 December 2007 to the NSW Premier's Office containing a Premier's Office receipt date stamp of 14 December 2007 known to the Defendant to be false in order to conceal the true date of receipt of that letter dated 16 December 2007 by the Premier's Office, in order to prevent the Plaintiff and Justice McCallum from knowing the actual date of receipt by the Premier's Office, so that said Conspiracy can be better concealed by the Defendant or said Conspirators." 26 The letter referred to is a letter sent by Mr Chan to Ms Perry after he received the letter sued on in these proceedings. It is true that it was tendered by Mr Lynch on 19 November 2009. The purpose of the tender (as identified by Mr Lynch) was to establish that, to the extent that the letter sued on was incorrect (in so far as it referred to Mr Chan's conviction without referring to its annulment), Mr Chan's letter stated the true position, so that any alleged "corruption of the record" has been rectified. 27 Mr Chan's letter was dated 16 December 2007, but the copy tendered by Mr Lynch bore a "received" stamp dated 14 December 2007. Plainly, both dates cannot be correct. In my view, however, the theory that the date stamp was deliberately falsified so as to better conceal the conspiracy is absurd. Mr Chan's reliance on the tender of that document as a particular of Ms Perry's role in the alleged conspiracy is speculative and irrational. Leave should not be given to Mr Chan to file a pleading including that allegation. 28 I note that, although I admitted the letter into evidence, I have not ultimately taken it into account in determining the present application, since I am satisfied that the pleading discloses no reasonable cause of action. The letter is irrelevant to that conclusion. 29 Since the matters pleaded by Mr Chan disclose no reasonable cause of action in conspiracy, his claims for relief on that ground should be dismissed.

The claim in defamation 30 The second cause of action relied upon by Mr Chan is defamation. The first matter to be noted is that, for the purpose of that claim, Mr Chan does not rely on the whole of the letter sent by Ms Perry. The matter complained of is the following words in the letter: "You were convicted of assault in Burwood Local Court on 27 September 2007".

31 Although the defendant has not taken this point, I doubt whether it is permissible for Mr Chan to plead only those words as the publication sued on. The question of defamatory meaning must be determined by reference to the whole of what has been published. For that reason, a plaintiff who sues for defamation is required to plead every passage which materially alters or qualifies the complexion of the imputations complained of: Gordon v Amalgamated Television Services [1980] 2 NSWLR 410 at 413 per Hunt J; approved in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 at [26] per Tobias JA, Hodgson and Ipp JJA agreeing. 32 In the present case, that principle would require Mr Chan, in my view, to plead the whole of the letter or, at the very least, the first three paragraphs. The first two paragraphs are set out in [10] above. The third states: "In relation to the incident on 8 March 2007, I am advised that attempts were made to serve a Court Attendance Notice on you in person, to answer a charge of common assault. As these were not successful, the Notice was posted to you. I understand that staff at Burwood Local Court explained to you that you were required to attend Court, as this matter is entirely separate to the progress of your complaints against police. I note that you were convicted of assault in Burwood Local Court on 27 September 2007." 33 Assuming that Mr Chan would be prepared to adopt the course of pleading that material as part of the matter complained of, it is appropriate to consider the matters raised by Ms Perry as to the problems faced by Mr Chan in relation to his claim in defamation. The first, which is critical, is that there is no cause of action in defamation for publication of defamatory matter to the plaintiff himself without publication to a third person. As already noted, the matter complained of in the present case is a statement that was included in a letter from Ms Perry to Mr Chan. 34 Mr Chan does not identify any specific instance of publication. He seeks to rely on two separate matters to ground an inference that the letter has been published to third parties. First, he relies on the likelihood that the letter was published as a result of its being brought into existence and filed. Paragraph 15 of the pleading states: "The publication and republication of the said letter to other persons in New South Wales is a natural and probable consequence of the existence and the filing of the said letter within various parts of the New South Wales government. PARTICULARS OF PUBLICATION/REPUBLICATION (1) The said letter has been published/republished to various persons in New South Wales. (2) Particulars to be provided after discovery, subpoenas, etc.."

35 Secondly, Mr Chan asserts that the letter would have been copied to a number of people involved in the matters about which he originally complained. As already noted, the sixth version of the statement of claim propounded during argument (MFI 3) provides new particulars of publication as follows: (1) The said letter is expected to have been published/republished to all the offices of the persons or agencies identified on the said letter, that is, Mr. Peter Schell, Mr. (sic) Megan Greenwood, Mr. John Hatzistergos, Mr. David Campbell, officers of the Fraud Squad of NSW Police, officers of the Complaint Management Team of State Crime Command of NSW Police, Ms. Brenda Ibbotson (Registrar of Burwood Local Court). (2) The said letter is also expected to have been published/republished to various other persons in New South Wales, including Mr. Matt Brown (former Minister for Housing), Mr. Michael Allen and his six other Executive Directors in the Department of Housing and many staff or former staff of any Members of Parliament named so far in this (2) and the above (1)."

36 Beyond the identification by the plaintiff of his expectation that the letter sent to him would have been published to the people identified, no facts are identified in the pleading to sustain that contention. 37 In order to disclose a reasonable cause of action, a pleading must identify the material facts relied upon to establish each element of the relevant cause. Speculation on the part of a plaintiff is not a proper basis for a claim for relief: East-West Airlines (Operations) Ltd v Commonwealth (1983) 57 ALJR 783 at 784 per Dawson J. 38 Publication is an essential element of the cause of action of defamation. I accept, as submitted by Mr Lynch on behalf of the defendant, that Mr Chan's assertion of an assumption or expectation as to publication is an insufficient foundation for the present claim. Accordingly, the further particulars proposed in MFI 3 are embarrassing and ought not be permitted to be included in the pleading. 39 Separately, as already noted, paragraph 15 itself asserts that re-publication of the letter to other persons is a natural and probable consequence of the existence and filing of the letter. In my view, that assertion does identify a sufficient factual foundation for an inference that the letter may well have been seen by the person or persons within the Premier's office who typed and filed it. In my view, however, a claim in defamation based on that publication alone would be frivolous, and liable to be dismissed on that basis. Further, that claim would plainly be defensible on the grounds of qualified privilege. 40 Mr Chan submitted that there is no question that publication can be proved in the present case. I do not think, however, that it is permissible for a plaintiff to prosecute a speculative claim on the strength of such an assertion. The elements of the claim must be pleaded by reference to facts known to the plaintiff and inferences that may properly be drawn from the known facts. No such facts have been pleaded in the present case. 41 The second objection to the statement of claim put on behalf of Ms Perry is that the imputations relied on by Mr Chan are not capable of being conveyed by the matter complained of. A defendant who seeks to have an imputation struck out on that basis faces an onerous task. The test is whether the imputation objected to is reasonably capable of being conveyed by the matter complained of. As stated by the High Court in Favell v Queensland Newspapers Pty Limited [2005] HCA 52, the question is ultimately what a jury could properly make of it: at [17] per Gleeson CJ, McHugh, Gummow and Heydon JJ. 42 The imputations relied upon by Mr Chan are: "(a) As of 11 December 2007, the Plaintiff has a standing criminal conviction of assault in New South Wales. (b) As of 11 December 2007, it was proven in the Burwood Local Court on 27 September 2007 that the Plaintiff had assaulted another person. (c) As of 11 December 2007, it was a fact proven in a court that the Plaintiff was a violent person." 43 Those imputations are alleged to arise from the words complained of "in its natural and ordinary meaning together with certain extrinsic facts". The pleading by reference to extrinsic facts is misconceived in several respects. First, it is confusing, in my view, to assert that a meaning arises in the natural and ordinary meaning of the words together with the extrinsic facts. If the meanings arise in the natural and ordinary meaning of the words, there is no need to rely on any extrinsic fact. To the extent that there is a need to rely on extrinsic facts, the meanings do not arise in the natural and ordinary meaning of the words. 44 Further, an extrinsic fact, properly pleaded, is a fact the knowledge of which lends a defamatory meaning to an otherwise innocent statement. To cite a common example, a statement that a man was seen climbing out the window of a house one evening would not be defamatory in its natural and ordinary meaning. However, the same words might be defamatory if published to a person who knew, separately, that the man's former business partner had been found murdered in those premises ten minutes later. 45 The extrinsic facts relied upon by Mr Chan do not reflect those principles. The facts pleaded include the following: "(2) Said conviction of 27 September 2007 was annulled on 30 November 2007 by Magistrate Jane Barkell in the same Burwood Local Court. (3) The matter complained of is at its best a half-truth that is false or misleading, and at its worst simply false, for the defendant to mention said conviction of 27 September 2007 without mentioning its annulment on 30 November 2007 at the same time." 46 Knowledge of those facts, rather than lending a defamatory meaning to an otherwise innocent statement, would tend to ameliorate the risk of the words published by Ms Perry being understood in a defamatory sense. 47 An additional complaint made by the defendant in respect of the case pleaded on the basis of extrinsic facts was that the pleading as to the people alleged to have known the extrinsic facts (in paragraphs 17 and 18 of MFI 2) was irrelevant and embarrassing, since it was not asserted that the matter complained of was published to those people. Mr Chan sought to address that complaint by the inclusion of the additional particulars of publication already referred to. However, that amendment could not cure the problems discussed above. Accordingly, to the extent that the claim is based on true innuendo by reference to the extrinsic facts set out in the pleading, the manner in which the claim has been pleaded is embarrassing and leave should not be granted to file a pleading in those terms. 48 It remains to consider whether the imputations pleaded by Mr Chan are capable of being conveyed by the matter complained of in its natural and ordinary meaning. For the reasons already identified, in my view it is appropriate to consider that issue by reference to the whole of the letter rather than the words identified in the pleading, "You were convicted of assault in Burwood Local Court on 27 September 2007". 49 It may be noted that Mr Chan has taken care to rely on imputations which convey the notion of the existence of a standing conviction as at the date of the letter. That is presumably because an imputation to the effect that the plaintiff was convicted of assault on 27 September 2007 would be defensible on the grounds that it was true: s 25 of the Defamation Act 2005. 50 When the words "You were convicted of assault in Burwood Local Court on 27 September 2007" are considered in the context of the whole of the paragraph in which they appear, there is certainly a strong suggestion that the conviction referred to was entered in Mr Chan's absence. That might suggest to the ordinary reasonable reader the prospect of its being subsequently annulled. However, in the absence of any express reference to the annulment of the conviction, in my view the letter is reasonably capable of conveying the meaning that Mr Chan had a standing conviction for assault in New South Wales as at the date of the letter. In my view, imputation (a) is capable of arising, although it would make better sense if it were expressed in the past tense, as follows: "As at 11 December 2007, the plaintiff had a standing criminal conviction for assault in New South Wales". 51 In my view, there is a problem with imputation (b) in that it creates temporal confusion. It makes no sense to say that, as at 11 December 2007, a matter was proven on 27 September 2007. The problem could be cured by deleting the words "As of 11 December 2007" from that imputation, so that it would read "It was proven in the Burwood Local Court on 27 September 2007 that the plaintiff had assaulted another person". However it is doubtful whether Mr Chan would wish to rely on that imputation, since it would also be defensible under s 25 of the Defamation Act. 52 As to imputation (c), I do not think the statement that a person has been convicted of assault is reasonably capable of conveying the imputation that it was a proven fact that the person was a violent person. The existence of a single conviction for assault could not, on its own, reasonably form the basis for a general characterisation of that nature. There is no additional material in the letter to sustain such a charge. In my view, that imputation should not be permitted to stand in the pleading. 53 Leaving aside those conclusions, however, I am satisfied that there is a fundamental defect in Mr Chan's claim in that the facts pleaded are incapable of establishing publication of such a kind as to disclose a reasonable cause of action in defamation. 54 I do not think that Mr Chan should have leave to replead his claims. As already noted, he has made no fewer than six attempts to identify the material facts that would support the claims. The flaws in the claims were identified in correspondence well before the present hearing. In my view, the proceedings should be dismissed. 55 The orders are: (1) Pursuant to rule 13.4(1) of the UCPR, that the proceedings be dismissed. (2) That the plaintiff pay the defendant's costs of the proceedings. **********

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