The present proceedings, likewise, should be dismissed under Pt 13, r 5(1)(a) as disclosing no reasonable causes of action, and under r 5(1)(b) as being frivolous and vexatious.
41 I now turn to the allegations of publication to which I have referred to in para 12 above. In my opinion the particulars relied upon by the plaintiffs demonstrate that the draftsman simply ignored or disregarded the requirements of Pt 16, r 1 and Pt 67, r 12(1)(a) at (b). As explained in Sims v Wran [1984] 1 NSWLR 317 at p 321: "The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet ... The object of particulars is to save expense in preparing to meet a case which may never be put; … and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing".
42 It is self-evident that, in terms, the particulars are embarrassing and leave the defendants to speculate as to the case (if any) to be made against them in respect of any publication to members of the families referred to. The claims which are based on these particulars should also be dismissed pursuant to Pt 13, r 5(1)(a) and (b) as disclosing no reasonable causes of action, and as being frivolous and vexatious.
43 The claims of conspiracy and of abuse of process are pleaded in the statement of claim as follows:
"7. On or about June 2004 the Defendants, either aided or abetted by an unknown person(s) and/or organisation(s) or on their own volition, agreed to publish of the material concerning the Plaintiffs and defamatory of the Plaintiffs. The above agreement was for the Defendants' benefit and/or for the benefit of the aforesaid unknown person(s) and/or organisation(s).
8. The objective of the above agreement was to defame the Plaintiffs and to cause psychological or psychiatric injury to the Plaintiffs or to aggravate the existing mental condition of the Plaintiffs.
9. The Defendants, and/or the aforesaid unknown person(s) and/or organisation(s), in abuse of process, misused the legal process in the proceedings No. 20492/99 for an improper purpose, i.e. to publish of the said matter complained of for the above objectives".
44 Further particulars are contained in paras 14-38 of the plaintiffs' better particulars filed 9 November 2004. It is sufficient to refer to the following:
"35. In or about July 2004, to effect a part of their agreement, the Middletons' solicitors sent the publications "A" and "B" by mail to Dragan and his family.
36. With the action of ordering, obtaining, publishing and distributing the publications "A" and "B", as explained above and below, the Middletons' solicitors, Blajer and the counsel misused the legal proceedings 20492/99 committing a tort of abuse of process".
45 Central to these claims is the conduct of the defendants in publishing the statement and translation. I have found that the documents were brought into existence for use as a witness statement for the purpose of the proceedings and that the occasions of publication relied upon are ones of absolute privilege. I have also found that the pleadings disclose no cause of action against the defendants for publication to members of the first plaintiff's family.
46 In respect of the claim for abuse of process it is convenient to refer to principles set out in Balkin & Davis "The Law of Torts" (3rd Edition 2004 paras 25.22-25.26). Relevantly, the authors point out that "The tort of collateral abuse of process must also be distinguished from those circumstances where public policy demands immunity from civil liability … Thus, it has been said that no tortious liability lies for a party who, however dishonestly, presents a false case in civil proceedings, as all of those involved in civil proceedings must be accorded the same protection. "If the position were otherwise, honest litigants might be deterred from pursuing honest claims or defences and honest witnesses might be deterred from giving evidence (para 25.24) … The essence of this tort is that the defendant has used some aspect of the machinery of the law to achieve a purpose which not only could not have lawfully been attained but also was "entirely outside the ambit of the legal claim upon which the court is asked to adjudicate" (para 25.25)"".
47 Having regard to the findings I have made, and to the relevant applicable principles, the pleading and particulars are incapable of sustaining a claim that the defendants engaged in an unlawful conspiracy or that in obtaining and/or publishing the documents on the occasions complained of they were unlawfully using the proceedings to harm the plaintiffs. In my opinion these claims are also manifestly groundless and to permit them to go to trial would be futile. They, too, should be dismissed.
Conclusion
48 For the above reasons I make the following orders: