Chan v Sellwood; Chan v Calvert

Chan v Sellwood; Chan v Calvert - [2009] NSWSC 1335 - NSWSC 2009 case summary — Zoe

[10]

The Motions 10 At the outset of the hearing before me, Mr Golledge, who appeared for both the Defendants, accepted that his argument for summary dismissal in relation to the defamation claims was not a strong one and ultimately he accepted that the appropriate order was to strike out the pleading in relation to the defamation claims so that Mr Chan could be given a further opportunity to plead them correctly. In my opinion that concession was rightly made and, in the light of Mr Chan's acceptance that the defamation pleadings should be struck out there is no need for me to consider that aspect of the matter any further. 11 Mr Chan said that he did not intend to pursue the claims for negligence or misfeasance. He said that he did not intend to defend the Motions because he wanted leave to file a further Amended Statement of Claim in each of the 2 cases. In that regard he also sought an adjournment of the Notices of Motion to give the Defendants' solicitor time to consider his proposed amendments. 12 I declined to adjourn the proceedings. Mr Chan had filed an amended Statement of Claim in the Sellwood matter on 24 December 2008 and an amended Statement of Claim in the Calvert matter on 2 January 2009. 13 The present Notices of Motion were filed on 26 May 2009. They were returnable on 15 June 2009. But some time prior to that date it appears that orders were made extending time for the Plaintiff to provide a copy of a proposed further Amended Statement of Claim to the Defendants by 29 May 2009. 14 The matters then came before Nicholas J on 13 July 2009 when the Plaintiff did not appear. The proceedings were stood over to 14 September 2009 and it was noted that each of the matters was to proceed on that day and that the Plaintiff should be prepared to meet the Defendants' case. 15 The Motions came again before Nicholas J on 14 September 2009. It appears that by reason of a late start on that day there was not enough time to complete the Motions and shortly after they commenced Nicholas J directed that the parties be referred to the List Manager for the purpose of securing a date for the fresh hearing of the Notices of Motion. 16 Mr Golledge of counsel informed me that when the matter was before Nicholas J he was handed a document called "Amended Statement of Claim" in the Calvert matter. He also informed me that shortly before the hearing commenced before me, Mr Chan handed him a further Amended Statement of Claim in the Sellwood proceedings. An earlier version of proposed amendments had been served on the Defendants' solicitors 2 weeks previously. 17 In the light of that history, I took the view that it would not be appropriate to adjourn the proceedings, particularly when the Defendants and their legal advisors had come fully prepared to argue the Motions on the fixture that the parties had been given. Further, what was asserted by the Defendants was that even accepting all of the facts as pleaded, the Amended Statements of Claim did not (except for the defamation claims) disclose any causes of action. 18 At the hearing of the Motions Mr Golledge read 2 affidavits of Steve Oom which simply set out the background to the claims made together with the procedural history of the matters. Mr Chan wished to cross-examine Mr Oom but I declined to permit that. I took the view, and informed Mr Chan, that Mr Oom simply set out factual matters to put into context the applications for summary dismissal and strike out that had been made. Mr Chan made the submission that what was contained in the affidavits was for the most part irrelevant. I took the view that they set out relevant material and all that was contained in them was permitted to be read and tendered. 19 After I reserved my decision in this matter Mr Chan filed 17 pages of written submissions without any leave having been granted. These submissions took up one complaint that Mr Chan had made during the oral hearing, namely, that Ms Calvert's solicitor and counsel were improperly appearing because they were not retained by her but by the Department of Education and Training. As I pointed out to Mr Chan during the hearing it was likely, if what he said was correct that the solicitor and counsel were engaged by the DET, that was because Ms Calvert, and for that matter Ms Sellwood, were employees of the DET. 20 The written submissions also took objection to parts of the affidavit of Mr Oom filed in the Calvert proceedings and in particular annexure "F" being the judgment of the Administrative Decisions Tribunal in proceedings Mr Chan had taken against the DET in that Tribunal. The submissions linked, in a way that was not easy to discern, the annexing of that judgment to a conspiracy to injure him that Mr Chan sees between an organisation he has called "Andras" that consists of drug dealers who operate near his home and, apparently, various employees of TAFE. Scandalous allegations are made in the submissions about the influence of this organisation on officers of this Court. The submissions appear to result from paranoid thoughts that Mr Chan has and, except for one matter dealt with later, should be, and have been, rejected as having no relevance to the applications under consideration. 21 I shall now deal with each of the remaining causes of action, it having been agreed, as I have said, that the pleading in the defamation claims should be struck out with leave given to replead. I shall return to that question of leave at the end of the judgment. 22 In discussing the causes of action below I have regard to the principles laid down in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 but, as is made clear in Barwick CJ's judgment at 130 and further elucidated by Macfarlan JA in Leerdam v Noori [2009] NSWCA 90 at [75], matters are more easily dealt with on a summary basis where issues of fact do not arise. Issues of fact are not involved in the present application.

[12]

… Openness - the Assessor provides full and accurate information in an easily accessible form to those entitled to receive it." 24 Mr Chan pleads that Ms Louey did not provide full and accurate information to him and he was a person entitled to receive it, and/or it was not provided in an easily accessible form. Ms Sellwood was said, by reason of the fact that she was the Acting-Head Teacher to whom Ms Louey answered, to have supported Ms Louey's contravention of that clause. 25 In my opinion, no cause of action is disclosed in those paragraphs. First, it is not shown, and it does not appear to be the case, that there is any form of contractual status between TAFE and any student that gives rise to a legal entitlement for the student to sue even if it is accepted that a breach of that clause is made out. Mr Chan does not plead a contractual basis for this claim. 26 Secondly, even if a contractual basis was established that would not mean a cause of action was necessarily available to a person in the position of Mr Chan. Disputes between students and establishments of learning are ordinarily unsuitable for adjudication in the courts and ought to be resolved by internal procedures: Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988 at [12] and [30] - [31], seemingly approved in Griffith University v Tang (2005) 221 CLR 99 at [58] and [165]; and see also Walsh v University of Technology, Sydney [2007] FCA 880 at [71]-[80]. 27 Thirdly, there is nothing in the Policies that suggests that a private right of action is available to a student for breach of those Policies. 28 Fourthly, the Amended Statement of Claim does not assert in any event that Ms Sellwood was the Assessor within the meaning of the Policy. The only basis from the pleading that she is sued in respect of this contravention is said to be that she "supported the said contravention of Rule 6.1.3" (para 52 and see also para 55). Absent some statutory basis for rendering a person liable for "supporting" the breach or contravention (e.g. Trade Practices Act s 75B) it is difficult to see how a liability would attach to Ms Sellwood. 29 Fifthly, all that is sought in respect of this alleged contravention is a declaration. No damages are sought. It is far from clear what the utility of such a declaration, standing alone, would be: see Young, Declaratory Orders, 1984, 2nd Ed, Butterworths at para [202]. 30 Finally, in the proceedings earlier brought by Mr Chan, he complained about the decision to award him a "fail" mark which, by virtue of paragraphs of 53 and 54 of the Amended Statement of Claim in the present case, appears to be the same basis for seeking the declaration under consideration. If the only basis in the present case for seeking the declaration against Ms Sellwood was that she supported Ms Louey then any such declaration ought, in the first instance, to have been sought in the earlier proceedings: Port of Melbourne Authority v Anshun (1981) 147 CLR 589. However, it was determined in those proceedings that no cause of action was demonstrated where declarations not dissimilar to the present one were sought. 31 By the principle known as extended estoppel as articulated in Rippon v Chilcotin (2001) 53 NSWLR 198 Mr Chan cannot now maintain a claim on the same basis against Ms Sellwood. Although one of the requirements for the operation of the principle set out by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 was that the earlier decision be a final one, I do not consider that the fact that it became final by an interlocutory application for summary dismissal should preclude the operation of the principle. Had Ms Sellwood been a Defendant in those proceedings (and there is some evidence that she was intended to be from documents prepared by Mr Chan) it seems undoubted that the proceedings would have been dismissed for the same reasons given that her involvement is put on some sort of vicarious basis because of her position in relation to Ms Louey. 32 In my opinion, the Defendant is entitled to summary dismissal in respect of the claim made in these paragraphs.

[24]

(d) Negligence 44 This appears in paragraphs 176-180 of the Amended Statement of Claim. It is alleged that Ms Sellwood owed a duty of care to the Plaintiff to comply with all relevant TAFE policies and law in her dealing with the Plaintiff, that it was reasonably foreseeable that the Plaintiff would suffer injuries if she did not and that the Plaintiff has in fact suffered both physical and mental damage as a result of her breach. 45 In Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 the Plaintiff brought defamation proceedings against the Defendant in respect of a restaurant review. Ultimately, the Plaintiff amended his Statement of Claim to add counts in negligence and breach of contract. The Defendant applied to strike out or dismiss those claims on the basis that no cause of action was available when the claims were in effect the same claims that were made in the defamation claim. 46 James J, relying on what had been said by the High Court in Sullivan v Moody (2001) 207 CLR 562 at [53] - [55] and in Tame v New South Wales (2002) 211 CLR 317 at [28], [58], [123], [323] and [325] concerning coherence within the law, said: "[42] … [I]t seems to me, as a matter of principle, that, if the gist or core of a plaintiff's complaint is that the plaintiff has suffered injury to his or her reputation and injury to his or her feelings by reason of what the defendant communicated or published about the plaintiff to third persons, the plaintiff's remedy, if any, lies in defamation (or injurious falsehood) and not in negligence or breach of contract and it makes no difference, if by reason of the operation of any of the controls or defences which apply to claims in defamation, no claim in defamation could have been brought or a claim in defamation which was brought has failed. To hold otherwise would be to destroy, and not to preserve, coherency in the law and the balances which have been struck in the law of defamation between damage to reputation and freedom of expression.

[35]

Consolidation 69 At the conclusion of the hearing I raised with the parties the question of consolidating the 3 separate proceedings. I did this because I had formed an initial view that the matters complained of by Mr Chan in each of the matters arose from precisely the same set of facts although it is accepted that some particular matters were pleaded against each Defendant that might not be pleaded against the other Defendants. Mr Golledge did not oppose the proceedings being consolidated. Mr Chan did oppose such consolidation. He made submissions to me suggesting that it would cause problems in terms of service and evidence and in the event that 1 or more but not all of the 3 Defendants wanted to settle the proceedings. 70 In my opinion, none of the matters raised by Mr Chan provides any basis for the proceedings continuing to travel separately. Having now examined the Amended Statements of Claim in the Calvert and Sellwood matters more closely for the purpose of preparing this judgment, it is clear that the factual sub-stratum for each of the claims is the same. All that is different is the identification of the acts alleged against each of the Defendants in terms of the documents and publications complained of. The so-called "Scheme" which Ms Sellwood is alleged to have "encouraged, organised or orchestrated" is the same scheme that Ms Calvert is alleged to have participated in. The documents complained of that Ms Calvert produced were published to Ms Sellwood as her direct supervisor. Ms Frail was also said to be a participant in the scheme. 71 The one difficulty seems to me to be that the Frail proceedings, as I have noted, have not been served and the Statement of Claim is stale for service. It does not seem appropriate to do anything in relation to those proceedings for that reason. 72 However, it seems to me that the Sellwood and Calvert proceedings should be consolidated (in the true meaning of the term) so that there is but one set of proceedings with one of the present Defendants becoming the First Defendant and the other becoming the Second Defendant. The simplest way to achieve this would be for Ms Calvert to be added as the Second Defendant in the Sellwood proceedings (those proceedings having commenced first) and to dismiss the Calvert proceedings in their entirety.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Legislation Cited (1)

Cases Cited (16)