DOQ17 v Australian Financial Security Authority

2. EVIDENCE 10 In support of her application to amend and for joinder of the additional parties, the applicant relies upon her affidavit sworn on 5 February 2018 which annexes the draft FASC-2. 11 The fourth respondent, Ms Nash, and proposed eighth respondent, Ms Adams, rely upon the affidavit of Katie Thompson, solicitor, sworn on 2 March 2018. No further affidavit material was filed by the other respondents or the proposed ninth defendant, Mr Metlej.

3.1 The Family Court proceedings for an alleged contravention of s 121, Family Law Act 12 As I have indicated at [1] above, the central claim in these proceedings relates to the disclosure of the applicant's identity in April 2012. However, there is also a subset of claims arising from conduct and defamatory statements said to have taken place in certain FCC proceedings commenced in 2014. It is these FCC claims which are the genesis of the allegations now made against the proposed eighth and ninth respondents. 13 On 8 September 2014, the applicant filed an "Application-Contravention" in the FCC alleging that Ms Czinner and Mr Madden, as trustees for the AFSA, and Ms Nash as their solicitor at the relevant times, contravened by the means earlier explained a pseudonym direction made in the Family Court proceedings on 19 August 2011 in Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 (Family Court judgment). The so-called "direction" or "order" was in the following terms: IT IS NOTED that publication of this judgment under… [a] pseudonym… is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) (emphasis original) 14 As earlier mentioned, Ms Czinner and Mr Madden were employees of AFSA and had been appointed trustees for the sale of the property.: order 1 of the Family Court Orders. 15 In November 2014, Ms Czinner and Mr Madden applied for an order summarily dismissing the FCC proceedings. They were represented by Mr Metlej, solicitor, who is the proposed ninth respondent. The proposed eighth respondent, Ms Adams, was the solicitor retained by the fourth respondent, Ms Nash, to represent her in the FCC proceedings. Ms Nash also sought summary dismissal of the proceedings in November 2014. 16 On 1 December 2014, the FCC summarily dismissed the application as incompetent. The FCC's reasons for judgment are published under the pseudonym Debrossard v Carey & Ors [2014] FCCA 2915 (FCC judgment). Specifically, Scarlett J held that the notation of the approval of a pseudonym for publication under s 121(9)(g) in the Family Court judgment did not constitute an "order" and therefore could not be enforced by way of contravention proceedings. Furthermore, Scarlett J held that there was nothing establishing that the applicant had the written consent of the Commonwealth Director of Public Prosecutions to prosecute the respondents for an offence against s 121 of the Family Law Act 1975 (Cth), as required by s 121(8). Nor did the FCC have power to give consideration to the prosecution of individuals alleged by an applicant to have breached s 121: Prentice v Bellas [2012] FamCA 108; (2012) 47 Fam LR 262. For those reasons, Scarlett J held that "it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents" and the application was incompetent: FCC judgment at [26]. 17 There was no application for leave to appeal the FCC decision. 18 As I later explain, the new causes of action alleged against the proposed ninth respondent, Mr Metlej, rely upon the following matters: (a) Mr Metlej accepted a retainer from AFSA, Ms Czinner and Mr Madden to act for Ms Czinner and Mr Madden in the FCC proceedings; (b) in the course of performing that retainer, Mr Metlej became aware of an affidavit by Ms Nash either sworn or affirmed on 18 November 2014 and filed in the FCC Proceedings (18 November 2014 affidavit) (about which various allegations are made by the applicant); and (c) on 19 December 2014, Mr Metlej swore an affidavit in his capacity as the solicitor for Ms Czinner and Mr Madden, which was filed in the FCC proceedings on 22 December 2014 in support of an order that the applicant pay AFSA's costs of the contravention proceedings on an indemnity basis in the sum of $2079.90. See paragraphs 20A(n) and 20C of the draft FASC-2 at pp. 24-25. 19 The application for indemnity costs in the FCC referred to above was successful on the ground that the case brought by the applicant was "clearly a hopeless case as the Court had no jurisdiction to make the orders sought" and that the applicant had persisted with "such a meritless case" until its "inevitable" summary dismissal: FCC judgment at [20]-[22] (Scarlett J).

3.2 Institution of these proceedings in the District Court of New South Wales and the application for summary dismissal 20 The present proceedings were commenced on 27 April 2015 in the District Court of New South Wales. The proceedings as originally pleaded are conveniently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 (D v AFS (NSWCA)) as follows: 6. The District Court proceedings arise out of the circumstances in which, following the applicant's divorce and the bankruptcy of her former husband, the applicant's former matrimonial home was sold pursuant to a statutory trust for sale. 7. The applicant's complaint is that a copy of Family Court orders (made on 19 August 2011), setting aside earlier consent orders by which her former husband's interest in the matrimonial home had been transferred in its entirety to her and vesting the property in the second and third respondents on a statutory trust for sale, was attached to the contract for sale of the property and distributed to prospective purchasers without the redaction of her name and other identifying information (including the file number of the Family Court proceedings). 8. The applicant initially brought proceedings only against AFSA (the first respondent in the current proceedings) the two trustees employed by it (the second and third respondents) and the solicitor who acted for AFSA on the sale (the fourth respondent). 9. The causes of action raised against those parties were identified by Taylor SC DCJ, when ruling in May 2016 on a summary dismissal application brought by them (see [14] below), as being for: breach of publication order; breach of s 121 of the Family Law Act 1975 (Cth); breach of the Privacy Act 1988 (Cth) (the Privacy Act); negligence; breach of confidence; breach of privacy; defamation; and breach of statutory duty arising from a breach of s 121 of the Family Law Act (see [11] of his Honour's reasons). 21 Ward JA and Sackville AJA in D v AFS (NSWCA) summarised the outcome of the summary dismissal application before Taylor SC DCJ as follows: Summary dismissal judgment - 16 May 2016 14. Before the applicant's subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents). 15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of "breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation"), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being "in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order" and did not strike out those references. 16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said: In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action. 17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]). 18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed - on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading "TYPE OF CLAIM". His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]). 22 No application for leave to appeal from the summary dismissal judgment was made. However, on 12 August 2016 Sidis ADCJ dismissed an application to amend the applicant's claims to include, among other things, an action in defamation. Ward JA and Sackville AJA summarised that application in the District Court as follows: The Second Impugned Decision 27. After the dismissal of the applicant's application for leave to issue the subpoena, the applicant prepared an amended statement of claim, naming three further parties as defendants - The New South Wales Government, Land & Property Information (more accurately, the Registrar-General) (as fifth defendant); Australian Restructuring Insolvency & Turnaround Association (as sixth defendant); and Savice Pty Limited trading as LJ Hooker, Picton (as seventh defendant) - and amending the defamation claim. … 33. In essence, the AFSA's objection to the re-pleaded defamation claim ([17]) was twofold: first, as to the defamatory capacity of the publication of Family Court orders (the material particularised at A-F of the proposed further amended statement of claim) and, second, on the basis of a limitation issue, in that the affidavit particularised at 17 was an affidavit sworn on 18 November 2014 by the fourth respondent and filed in the Federal Circuit Court for a hearing on 1 December 2014, well outside the limitation period of one year for defamation actions, and that it was protected by absolute privilege on the basis that it was prepared for the purpose of Court proceedings. 34. The Registrar-General made submissions to the effect that, to the extent that the claim for damages extended to a cause of action in defamation based on an alleged breach of s 121 of the Family Law Act, leave should be refused (on the basis outlined by Taylor SC DCJ in his Honour's May 2016 decision - namely that: the notation on the orders was not an order (at [30]); a cause of action for damages for breach of a Family Court order could not be maintained in the District Court (at [31]); and under the Family Law Act there was no entitlement to damages arising from a breach of s 121 (at [34]). It was submitted that s 121 of that Act did not apply to the Registrar General on the facts of the case; that no imputations had been pleaded as required under r 14.30(2) of the UCPR in respect of the defamation claims and that the claim for breach of the Privacy Act could not be maintained in the District Court (referring to Taylor SC DCJ's reasons at [36]). 35. Sidis ADCJ gave brief reasons in the course of the hearing as to the basis on which she proposed to make the orders that were made. Her Honour noted that the applicant was not pressing [12] of the proposed further amended statement of claim. Her Honour expressed the view that [17] of the proposed pleading was not sustainable. Her Honour ordered, relevantly, that: 1. I grant leave [to] the plaintiff to file [a] further amended statement of claim on the following basis: (a) paragraph 17 of the proposed amendment is not allowed for the reason that the majority of the claims made are statute barred and the remainder are not reasonably sustainable (b) paragraph 12 is not pressed by the plaintiff; (c) the claims made against the 4th and 5th defendants will be limited to claims in negligence only. 36. The reference in order 1(c) to the fourth and fifth defendants appears to be in error. The transcript makes clear that her Honour was limiting the leave granted for the joinder to the proceedings of the Registrar General (the fifth defendant) and the Australian Restructuring Insolvency & Turnaround Association (the sixth defendant) "on the basis that the matters pleaded are read only in the context of claims in negligence against them and not in breach of the statutes referred to in those pleadings". Her Honour also ordered that costs of the motion be costs in the cause.

3.3 The application for leave to appeal to the New South Wales Court of Appeal 23 The Court of Appeal refused leave to appeal from the decision of Sidis ADCJ given on 12 August 2016 refusing to grant the applicant leave to amend on the following grounds: 69. Leave to appeal from the second impugned decision should also be refused. Again, no issue of principle or public importance is raised. The pleading, especially in relation to the defamation claims sought to be made against the respective respondents, suffers from the defects to which the respondents have pointed in that the defamatory imputations are not properly identified. That alone is sufficient to dispose of the complaint as to the refusal to allow the proposed [17] of the further amended statement of claim. 70. As to the restriction of the claims against the Registrar-General other than in relation to negligence, again there has been no error shown in the exercise of her Honour's discretion, as a matter of case management, to confine the amendment to claims that were at least arguable on their face and within jurisdiction of the District Court (as opposed to the claims in respect of which the Registrar-General asserted there was no jurisdiction or could not - for reasons earlier identified by Taylor SC DCJ - be maintained). 71. In the circumstances, it is difficult to avoid the conclusion that the applicant would be well-advised to seek legal advice in the formulation of the claims that she seeks to advance against the respective respondents. In the meantime, no basis has been shown to warrant appellate intervention in what has become a pleading stoush.

3.4 Conduct of the proceedings in the Federal Court following their transfer from the District Court 24 These proceedings were transferred to the Federal Court by an order made by the District Court on 27 June 2017 and have now reached an advanced stage. The statement of claim has already been amended twice, namely, on 21 January 2016 and again on 18 August 2016. Timetabling orders were made on 20 December 2017 by this Court in order to enable the matter to proceed expeditiously to trial. Pursuant to these orders, the fourth respondent (Ms Nash) filed an amended defence to the FASC on 20 December 2017, and the fifth and seventh respondents (the Registrar General of New South Wales and LJ Hooker) filed amended defences shortly thereafter. Replies have also been filed by the applicant to the amended defences. In addition, the timetabling orders required the applicant to file and serve her lay and expert evidence on 2 March 2018 and 16 March 2018 respectively. That evidence has now been filed, in addition to a considerable body of evidence filed earlier when the proceedings were in the District Court. The timetabling orders envisaged that the respondents would serve any affidavits and/or expert evidence in reply on or before 13 April 2018 with the matter listed for further directions later in April specifically for the allocation of a date for the hearing.

4. PRINCIPLES GOVERNING THE GRANT OF LEAVE TO AMEND 25 Rule 16.53 of the Federal Court Rules 2011 (Cth) (FCR) confers a broad discretion on the Court to grant leave to amend a statement of claim: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66 (Research in Motion) at [22] (Kenny J). Leave of the Court is required because (as outlined at [24] above) the pleadings have now closed, and as such r 16.51 of the FCR does not apply. 26 Leave to amend would ordinarily be exercised in favour of an amendment if facts already pleaded gave rise to an additional cause of action: Tameeka Group Pty Ltd v Landan Pty Ltd (No 2) [2016] FCA 480 (Markovic J). However, leave will generally be refused where the amendment would be futile, such as where it fails to disclose a reasonable cause of action or seeks to raise a case that is misconceived in point of law, where the amendment is embarrassing, or where the amendment is otherwise liable to be struck out: Research in Motion at [23] (Kenny J); Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36 (Lindgren J (with whose reasons Lockhart and Tamberlin JJ agreed)); SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48] (Gleeson J). In determining whether the amendment would be liable to be struck out, relevant principles include the following. (1) In determining whether to strike out a pleading, the central function of pleadings must be borne squarely in mind, namely, to state with sufficient clarity the case to be met so as to ensure as a matter of procedural fairness that a party has the opportunity of meeting the case against it: see also Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 (Australian Parking (No. 1)) at [19(1)] (Perry J). (2) While a respondent has no absolute right to insist that an applicant plead every material fact necessary to demonstrate a complete cause of action, all of the material facts necessary to formulate a complete cause of action should in general be pleaded such that the respondent understands the case to be met: r 16.02(2) of the FCR; Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 (Young Investments Group) at [7] (the Court). (3) A pleading which simply pleads a conclusion from unstated facts is embarrassing and is liable to be struck out: Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 (Fisher J); Young Investments Group at [7]. A pleading is also embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against her or him: Priest v New South Wales [2006] NSWSC 12 at [34] (Johnson J). 27 Further and importantly, the Court must also exercise its discretion to grant leave to amend in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 (Tamaya Resources (FCA)) at [125] (Gleeson J). Section 37M provides: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 28 The application of like case management principles were considered by the High Court in the context of a late application to amend pleadings in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon Risk). In particular, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the question of whether leave to amend should be granted did not simply require consideration of whether the party seeking to amend has an arguable case. Rather "serious consideration" (at [114]) must be given to other matters. The factors to be considered were summarised by Gleeson J in Tamaya Resources (FCA) at [127] (in a passage accepted on appeal in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 (Tamaya (FCAFC)) at [125]), and include: (1) The nature and importance of the amendment to the party applying for it: Aon at [102]; (2) The extent of the delay and the costs associated with the amendment: Aon at [102]; (3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102]; (4) The explanation for any delay in applying for that leave: Aon at [108]; and (5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ("Luck") at [44]; (6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]. 29 As to the fifth of these considerations, the plurality in Aon Risk emphasised that: 112. …limits will be placed upon [the parties'] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. (emphasis in the original) 30 In line with this, the plurality had earlier accepted at [102] that the objectives under the Court Procedures Rules 2006 (ACT) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, "[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked." 31 With respect to the considerations referred to by Gleeson J at 125 and (7) above, French CJ explained in Aon Risk at [5] that "…the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." Similarly, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 (Expense Reduction) the Court held that: 51. In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. 32 Moreover, while Aon Risk concerned the application of the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings, the High Court pointed out in Expense Reduction at [51] that "the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objectives of the administration of justice." That the philosophy which informed their Honours findings in Aon Risk applies equally to s 37M of the FCA was confirmed by the Full Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [43] (the Court). As such, the same considerations inform the question of whether leave should be granted to join the additional parties in this case. 33 Finally, the duty imposed upon the Court by s 37M of the FCA Act applies irrespective of whether a party is legally represented or is self-represented: Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75. Importantly in this regard, s 37N(1) of the FCA Act imposes a duty directly upon a party to civil proceedings, with a separate duty being imposed upon legal representatives by s 37N(2). Section 37N(1) provides that: The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. (emphasis added) 34 Consistently with this, while the Court has a duty to ensure that an unrepresented person does not suffer disadvantage in exercising the right of a litigant to be self-represented as an aspect of ensuring that a trial is fair, "the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties": Hamod v New South Wales [2011] NSWCA 375 at [310] (the Court) (emphasis added) (cited with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J (with whose reasons Allsop CJ and Mortimer J agreed)).

5.1 Preliminary matters 35 By way of preliminary matters, I note first that I have disregarded the many allegations by the applicant in her written submissions that the legal representatives for the respondents have misled the Court in various ways, as well as the applicant's many disparaging comments about the respondents' legal representatives. The fact that a litigant is unrepresented does not justify the making of scandalous and unfounded allegations of misconduct or disparaging comments against the legal representatives for other parties. The Court expects all litigants to act with courtesy and respect. Many of the applicant's submissions were also irrelevant, and made allegations amongst other things about third parties: see e.g. the allegations in the applicant's written submissions at [46]. These have also been disregarded. 36 Secondly, at a general level, the applicant contends that by filing the interlocutory application, she "aims to correct the pleading issue and outline more clearly particular events which have taken place" (Applicant's submissions at p. 7). I do not accept that characterisation of the proposed amendments. They do not clarify existing claims, but seek to plead new causes of action including as against the additional proposed respondents.

5.2 The application for leave to amend should be refused 37 In my view, this is a clear case where leave to amend the FASC should be refused for the reasons set out below.

5.2.1 Case management considerations 38 First, the fourth and proposed ninth respondents submit that leave should be refused because the applicant's applications to amend and for joinder are not in keeping with the engagement of judicial power as quickly, inexpensively, and efficiently as possible in line with s 37M of the FCA Act. In response, the applicant points to alleged defaults by the first to fourth respondents in complying with orders such as for service of documents, an adjournment of the pre-trial conference in order to permit the first, second and third respondents to change solicitors, the summary dismissal application by the first, second and third respondents, and the application for transfer of the matter to the Federal Court by the fourth respondent. However, none of these matters point to unreasonable conduct on the part of the respondents. Furthermore, even assuming that these steps may have resulted in delay, none explain the applicant's own delay in seeking to amend the FASC. 39 In this regard, I note that many of the proposed pleading amendments centre on allegations about the contents of the 18 November 2014 affidavit, which the applicant alleges was not served on her and that Scarlett J would not allow her to see without giving any reasons for that decision: see paragraphs 20A(a) to (o) inclusive on pp. 21-24; and paragraph 20C and 20D on p. 25 of the draft FASC-2. However, the applicant pleads at paragraph 20A(f) of the draft FASC-2 on p. 23 that she became aware of the contents of the 18 November 2014 affidavit when she inspected her Family Court file on 23 February 2016. It follows, as the respondents submit, that the applicant was aware of that material six months before her application to amend before Sidis ADCJ: see above at [22]. Yet no explanation is given for the applicant's failure to raise these allegations at that time. The applicant's submission at [19] that the amended FASC filed in August 2016 could not include her claims regarding the 18 November 2014 affidavit, because she was awaiting Taylor SC DCJ's determination of the summary dismissal application are not persuasive given that that decision was handed down in May 2016 (see above at [21]) 40 In the circumstances, I agree with the respondents' submission that the grant of leave to amend and for joinder would not facilitate the overarching purpose in s 37M of the FCA Act and therefore should not be granted. As I have earlier explained, the proceedings are now at an advanced stage, having reached final preparations for trial. If permitted, the amendments would require the filing of further amended defences by the existing respondents, the filing of defences by the proposed respondents, and a further round of replies by the applicant. A further exchange of evidence between the parties would then be required. It is also apparent from the nearly three year history of the matter and the two prior applications for leave to amend that the applicant has had more than an ample opportunity to plead her case; yet the delay by her in seeking these amendments is unexplained.

5.2.2 The pleadings are embarrassing and fail to provide fair notice of the basis of the claims 41 Secondly, the proposed new pleadings are replete with allegations of intentional misconduct, malicious intent, intentional falsehoods, criminal defamation, and the like. However, despite the seriousness of such allegations, the pleadings go no higher than bare assertions or conclusions and, as such, fail to plead essential elements of the causes of action alleged, fail to provide proper notice of the claims, and are embarrassing and scandalous. By way of example, at proposed paragraph 20A(l) on p. 24 of the draft FASC-2, the applicant alleges without further particularisation in relation to the 18 November 2014 affidavit that "[t]he sworn Affidavit of the Fourth Defendant was prepared with malicious intent to defame the Plaintiff, place doubt in the minds of those persons reading the Affidavit as to the Plaintiff's character and conduct, such as Scarlett J." As a further example, the proposed pleading at paragraph 20D on p. 25 of the draft FASC-2 baldly alleges that "The First, Second, Third, Fourth, Eighth & Ninth Defendants came to the Federal Circuit Court with 'unclean hands' because their conduct was intentional in order to defame the Plaintiff and mislead the Court…" (emphasis in the original).

5.2.3 Failure to identify any reasonable cause of action 42 Thirdly and in any event, the grant of leave would be futile for the reason that the proposed amended pleadings do not enjoy any reasonable prospects of success. 43 In this regard, the applicant repeatedly emphasised in her submissions what she saw as the failure by the respondents to explain the conduct alleged in the draft FASC-2, including the failure by the respondents to explain how their conduct complies with the rule of law and why they had, on the applicant's accusation, acted unprofessionally or negligently. The applicant also submits that her case is a matter of public interest because, as is shown by the alleged conflict with the rule of law, s 121 of the Family Law Act 1975 (Cth) "is not being applied equally and fairly so that no one is above the law." Section 121 "is known to all the parties in these proceedings… therefore they are able to be prosecuted, civilly or criminally but this has not occurred…": applicant's submissions at [16(ii)]; see also e.g. applicant's submissions at [31]. However, those submissions do not address the critical question of whether the grant of leave to amend would be futile because they fail to plead a reasonable cause of action. The Court is not able to provide a forum for all disputes, but only those where a reasonable cause of action exists at law.

5.2.3.1 The proposed claims in defamation 44 Turning first to the applicant's proposed claims in defamation, her claims may be summarised as follows: (1) she was criminally defamed with malicious intent by the 18 November 2014 affidavit: see paragraph 20A(e) on p. 22 of the draft FASC-2; see also at paragraphs 20A(k), (i), (m), and (o) on pp. 23-24; (2) she was disparaged with malicious intent to defame and ridicule her in a letter dated 23 December 2014 to the Legal Director at ARITA enclosing a copy of the applicant's confidential Application-Contravention filed in the Family Court: paragraph 20A(b) on p. 22 of the draft FASC-2; and (3) the first, second, third, fourth, eighth and ninth respondents came to the FCC with "'unclean hands' because their conduct was intentional in order to defame the Plaintiff and mislead the Court…": paragraph 20D on p. 25 of the draft FASC-2. 45 All of the proposed pleadings alleging defamation suffer from the same fatal defect identified by the Court of Appeal in D v AFS (NSWCA), namely, they fail to identify any alleged defamatory imputations. As the fourth and proposed eighth respondents submit, this is a compelling basis, even without other considerations, to refuse the amendments proposed in the paragraphs set out above. 46 Moreover, all of the proposed causes of action for defamation are statute barred by operation of s 14B of the Limitation Act 1969 (NSW), being the relevant limitation statute with respect to the Defamation Act 2005 (NSW). I note in this regard that, while it was ultimately unnecessary for the Court of Appeal to address this issue in D v AFS (NSWCA), the respondents also objected to the proposed pleadings of a cause of action in defamation before Sidis ADCJ on this ground: see above at [22]. As such, the applicant would have been well aware of the existence of the statutory bar at the time of making the present application to amend. 47 Against this, the applicant submits that even though her claim in defamation was struck out by Sidis ADCJ, and the Court of Appeal dismissed her application for leave to appeal in D v AFS (NSWCA), this "does not mean that [she] was not defamed" and that "in accordance with the Rule of Law", she should not have been subjected to "misconduct and malicious falsehoods". She contends that as an unrepresented party, she had no knowledge that she was required to specify "imputations" in the Amended Statement of Claim, and that she specified those imputations when she was granted leave to file the FASC and to join the fifth, sixth and seventh respondents by Sidis ADCJ on 12 August 2016. Those submissions again fail to address the difficulties correctly identified by the respondents with the proposed pleadings in the draft FASC-2. Further, given the Court of Appeal's judgment in D v AFS (NSWCA), it cannot be suggested that the applicant is now unaware of the need to specify the imputations.

5.2.3.2 The proposed claim for professional negligence against the solicitor respondents 48 The proposed amendments also allege that the third and fourth respondents and the proposed eighth and ninth respondents acted negligently and in breach of their duties as practising solicitors under the Professional Conduct and Practice Rules 2013 (no longer in force): see the unnumbered paragraph on p. 8 of the draft FASC-2. However, the short point correctly made by the first, second, third and seventh respondents is that there is no allegation, and none could be made, that any of the respondents or proposed respondents were retained to act for the applicant and thereby owed her a duty of care. In her submissions the applicant accepts that the proposed eighth and ninth respondents do not owe her a duty of care, but says that they "owe a duty of care to their clients and to the court": applicant's submissions at [23]. That submission reveals a fundamental misunderstanding of the function of a court. While legal practitioners have duties to the court as officers of the court in facilitating the due administration of justice, manifestly they do not act on behalf of the court and do not owe a duty of care to the court. The function of the court is that of an impartial adjudicator of disputes between litigants in the exercise of judicial power. Further, while a duty of care is owed by a solicitor to her or his client, it is self-evident that if that duty is breached, a cause of action in negligence may lie at the suit of the client but not another party to the proceeding to whom no duty is owed. As such, the proposed pleading is hopeless. 49 In relation to Ms Czinner, who it will be recalled was a trustee for the sale of the applicant's property, the applicant submits that she was owed a duty of care "because of [Ms Czinner's] breach of s 121 Family Law Act 1975 and the conduct required by Solicitors under the Legal Profession Act 2004 NSW and the 'ethical considerations [which] are an inherent part of practising law due to the multiple obligations solicitors owe their clients, the Court, the profession and the public' according to the Law Society of NSW" (applicant's submissions at [32]) (emphasis in the original). However none of these matters is capable in law of establishing a basis on which a solicitor acting in the capacity of a trustee for sale owed a duty of care to the applicant, including for the reason that an alleged breach cannot logically also constitute the basis on which the claimed duty of care arises. The existence of a duty must, in other words, precede the breach: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [22]-[23] (Gleeson CJ and Kirby J).

5.2.3.3 The proposed action for an alleged contravention of s 723 of the Legal Profession Act 50 Paragraphs 19A and 19B of the draft FASC-2 at pp. 20-21 allege that the third and fourth respondents were in breach of s 723 of the Legal Profession Act. I note that, while the Legal Profession Act is now repealed, it was in force at the time the Family Court Orders were disclosed. The proposed pleadings seek to re-characterise facts already pleaded to found the alleged new cause of action, namely: as against the third and fourth respondents, the alleged disclosure of the identities of the applicant and her ex-husband in April 2012; and, as against Ms Nash, also by the alleged publication of her conference paper on 23 March 2012 and case note on the ARITA website. 51 At the relevant time s 723 of the Legal Profession Act provided that: A person who discloses any information obtained in the administration of this Act is guilty of an offence unless the disclosure: (a) is made with the consent of the person to whom the information relates, or (b) is authorised under a provision of this Act, or Note: Examples of authorised disclosure provisions include Part 4.10 (Publicising disciplinary action) and section 677 (Permitted disclosure of confidential information obtained in course of investigation, examination or audit). (c) is made in connection with the administration of this Act, or (d) is made for the purpose of legal proceedings arising out of this Act or of any report of any such proceedings, or (e) is made with other lawful excuse. Maximum penalty: 50 penalty units. (emphasis added) 52 In my view, the proposed pleadings have no reasonable prospects of success. 53 First, the section creates a criminal offence and does not create a statutory cause of action. Nor is there any basis on which to imply any statutory cause of action. 54 Secondly, this Court lacks jurisdiction to entertain proceedings for an offence under the Legal Profession Act, with s 731 of the Legal Profession Act vesting jurisdiction in the Local Court. 55 Thirdly, it is the function of the Bar Council and the Law Society Council to institute prosecutions and other proceedings for a breach of the Legal Profession Act: see ss 696(1)(c) and 699(1)(c) respectively of the Legal Profession Act. As such, these are the bodies with standing to enforce s 723 of the Legal Profession Act. There is nothing in the Legal Profession Act to suggest that a private individual would have such standing. 56 In the fourth place, the information in question must have been "obtained in the administration of this Act". However, none of the information allegedly disclosed in contravention of the provision was information obtained in the administration of the Legal Profession Act. 57 Finally, s 731(3) of the Legal Profession Act provides that proceedings for an offence under that Act may be brought within 12 months after the date of the alleged offence. The alleged contraventions occurred: in the case of the blog in August 2011; and otherwise in or about March and April 2012 being the period leading up to the finalisation of the contract for sale to which the Family Court Orders were attached (see paragraphs 1, 1D, 2 and 3(a) of the FASC). As such, these proceedings were commenced at least two years after the expiry of the limitations period set by s 731(3) of the Legal Profession Act. 58 The applicant's submissions in reply reiterate the events surrounding the Family Court Orders, as well as indicating that she has previously made complaints to the New South Wales Legal Services Commissioner: applicant's submissions at [31]. The applicant repeats her statement that "ethical considerations are an inherent part of practising the law" (applicant's submissions at [20]). However, these submissions fail to address the fundamental obstacles to her proposed claim under the Legal Profession Act, on which the respondents rightly relied. Nor did her submissions otherwise grapple with these obstacles. 59 It follows for these reasons that it would be futile to allow the proposed amendments in paragraphs 19A and 19B.

5.2.3.4 The proposed new causes of action for injurious falsehood and malicious intent 60 The applicant seeks to re-characterise as acts of injurious falsehood and malicious intent at 20A, 20B and 20C of the draft FASC-2, allegations which are already made in the FASC. To some extent, these allegations overlap with the new claims of criminal defamation against the fourth respondent. The applicant also complains of an allegedly "deliberate omission" by the Commonwealth Attorney-General's Department to comply with a subpoena, which is said to be an act done to protect Ms Nash and to defame and discriminate against the applicant: paragraph 20A(n) of the draft FASC-2 at p. 24. 61 The draft FASC-2 fails to disclose any reasonable cause of action for injurious falsehood and malicious intent. 62 With respect to the elements of a cause of action in injurious falsehood, Gummow J explained in Palmer Bruyn & Parker Pty Limited v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [52] that: … generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement. 63 As the respondents submit, the applicant's allegations fail at the first hurdle, there being no allegation of a false statement concerning her goods or business. As such it would be futile to allow the proposed amendments at paragraphs 20A, 20B, 20C and 20D of the draft FASC-2. 64 In response, the applicant submits that (a) injurious or malicious falsehood applies to individuals; (b) there was a "publication" in the relevant sense, being the provision of the statements to third parties; (c) the publication was malicious because it was not "made in good faith"; and (d) she has suffered actual damage, as outlined in her medical evidence: applicant's submissions at [21]. 65 However, quite apart from other difficulties with the proposed pleadings, none of these submissions address the fatal defect identified by the respondents in the applicant's cause of action. 66 Furthermore, by paragraphs 20A(m) and (o) of the draft FASC-2, the applicant seeks to challenge collaterally the decision of the FCC on the grounds of a breach of procedural fairness. However, as the respondents submit, if issue was taken with the conduct of the matter before the FCC, the proper avenue of challenge was by way of an appeal from the FCC decision. The attempt now to challenge that decision collaterally in separate proceedings would constitute an abuse of process on the basis that it would undermine the principle of finality, namely, that it is not only in the interests of the parties, but also of the state that there be an end to litigation. As for example, Gleeson CJ, Gummow, Hayne and Heydon JJ held in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D'Orta): 34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. 67 As their Honours continued at [35], the principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system - a system which the applicant did not seek to engage with respect to the FCC's alleged breach of procedural fairness. The same objection should be upheld with respect to paragraph 20D in which complaint is made that the first, second, third, fourth, eighth and ninth respondents came to the FCC with "unclean hands". 68 The claims against Ms Adams and Mr Metlej, the proposed eighth and ninth respondents, concerning the 18 November 2014 affidavit, also lack any merit for the reason that, as advocates in the relevant sense, they were immune from suit for negligence from their own clients in the conduct of the case and work out of court which was intimately connected with the conduct of the case in court: D'Orta at [25] (Gleeson CJ, Gummow, Hayne and Heydon JJ). Nor did Ms Adams, in acting for Ms Nash, or Mr Metlej, in acting for Ms Czinner and Mr Madden, owe any duty to the applicant to question or determine the accuracy of their instructions. As the NSW Court of Appeal held in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at [92(c)] (McColl JA (with whose reasons Hodgson and Ipp JJA agreed): …the legal practitioner is not "the judge of the credibility of the witnesses or of the validity of the arguments': Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297; [1951] WN 247 at 238; the legal practitioner is not 'the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him': Myers v Elman (at 304) per Lord Atkin; Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 at 413 [34]; 47 ATR 1 at 8 [34], per Callinan J… 69 In this regard, as to any implied suggestion in paragraph 20E of the draft FASC-2 that Ms Adams or Mr Metlej permitted the swearing of an affidavit that they knew was false, the pleadings are expressed again no higher than bare assertions. 70 The allegations against the fourth respondent, Ms Nash, with respect to her affidavit are similarly misconceived by reason of her immunity from suit arising from her status as a witness. As Gleeson CJ, Gummow, Hayne and Heydon JJ explained in emphatic terms in D'Orta: 39. From as early as sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It matters not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. (emphasis added) See also the discussion of the authorities in Young v Hones (No 2) [2013] NSWSC 1429 at [176]-[182] (Garling J). These authorities indicate that the immunity attaching to witnesses is one facet of an immunity in respect of words used by witnesses in the course of judicial proceedings that also extends to parties in litigation and advocates: Cabassi v Vila (1940) 64 CLR 130 at 140 (Starke J). 71 The fact that no subpoena was issued for Ms Nash to give evidence, and that she was also a party to the FCC proceedings, as submitted by the applicant does not mean that Ms Nash was not a witness entitled to the immunity in swearing the affidavit in question (applicant's submissions at [23]).

5.3 Conclusion 72 It follows that leave to amend the draft FASC-2 should be refused. The amendments would be futile as they fail to disclose a reasonable cause of action, are misconceived in point of law, repeatedly plead conclusions from unstated facts, and are embarrassing. Nor would the grant of leave serve the overarching purpose is s 37M of the FCA Act.

6. THE APPLICATION FOR JOINDER SHOULD BE REFUSED 73 Turning to the application for joinder of the proposed eighth and ninth respondents, the Court has a discretion under r 9.05 of the FCR to make an order that a person be joined as a party to the proceeding if the person: (a) ought to have been joined as a party to the proceeding; or (b) is a person: (i) whose cooperation might be required to enforce a judgment; or (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determine; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 74 To obtain an order for joinder, a party must show that she or he has an arguable case against the proposed respondent, at least to the standard of being able to resist an application for summary judgment by the proposed respondent: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009 at [5] (Heerey J). For the reasons given above, even to the extent that causes of action known to the law are pleaded against the proposed eighth and ninth respondents, they would not survive an application for summary judgment, having no reasonable prospects of success. 75 Further, ss 37M and 37N of the FCA Act apply to the application for joinder and, therefore, considerations such as delay, unnecessary complication of issues, and additional costs are equally relevant: see e.g. QGC Pty Limited v Bygrave [2011] FCA 1175 at [24]-[28] (Collier J). It is apparent that if the application for joinder were allowed at this late stage, it would be necessary to provide for the filing of defences by the additional respondents and pleadings in reply by the applicant, and for an exchange of evidence between the additional respondents and the applicant. As such, joinder would substantially delay the hearing to the detriment of all respondents and the timely and efficient disposition of this matter, with consequential costs. Moreover, as earlier explained, this matter was instituted almost three years ago and no explanation has been given for the delay in making the application for joinder. 76 It follows that the application for joinder should be refused.

7. CONCLUSION 77 For the reasons set out above, the application to further amend the FASC and for joinder of the proposed additional respondents must be refused. The applicant is to pay the respondents' costs as agreed or assessed on the applications for joinder and to amend the FASC and the costs of the proposed eighth and ninth respondents on the applications for joinder. As to the former, the respondents had a legitimate interest in opposing the application for joinder given among other things the detrimental impact that joinder would have had on the likely date for trial and otherwise upon the expeditious and orderly preparation of this matter for trial. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

SCHEDULE OF PARTIES NSD 1319 of 2017 Respondents Fourth Respondent: SALLY SUSAN NASH Fifth Respondent: REGISTRAR GENERAL OF NEW SOUTH WALES Seventh Respondent: SAVINCE PTY LIMITED (LJ HOOKER PICTON)