The claim for injurious falsehood
192 This claim is made in paragraphs 91-101 of the proposed statement of claim.
193 The applicant contended in her written submissions that the material discovered to her in the course of these proceedings:
depicts communications between the Respondent, its servants or agents, and third parties, which were made maliciously, were false and caused special damage. It is not necessary for the Court to determine the merits of the substantive matter on this application. Rather, the Applicant contends that evidence has become available during the course of these proceedings which supports the new cause of action. The Applicant seeks the leave of the Court pursuant to Rule 13.2(7)(b).
194 In one set of submissions Mr King went so far as to assert:
The late discovery of the Respondent makes it clear that it conducted a secret campaign to media outlets, other Banks and possibly major clients with a view to denigrating the Applicant and exculpating itself.
195 This submission went far beyond what any of the documents I have seen could possibly support.
196 It is true that the Court is not required to determine the merits of the proposed new pleading. But, as the applicant bears the onus of showing why leave should be granted, the merits of the claim are not irrelevant. The Court would not grant leave, for example, if it were futile to do so: see, e.g. Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (Haines), at 407G, comparing General Steel. Consequently, it was in the applicant's interests to point at least to the availability of evidence to support the claim. This she has failed to do. No evidence was tendered to show that the applicant had an arguable case. In order to succeed she would have to prove, amongst other things, that the alleged falsehoods were published maliciously and that the publication resulted in actual damage: Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388 (Parsons) at [1], [52], [114] and [154]. Actual damage means "special" or particular damage (not general damages) and "[a]s much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable": Ratcliffe v Evans [1892] 2 QB 524 at 532 per Bowen LJ.
197 The respondent submitted that this claim is based on conduct in which the respondent is alleged to have engaged in connection with a defamation proceeding Mr Blomfield brought in the NSW Supreme Court against Nationwide News Pty Limited (the Blomfield defamation suit). The respondent is not a party to that proceeding. That proceeding was triggered by the publication of two articles in April 2008 concerning the applicant's allegations against Mr Blomfield. The submission appears to be correct for the most part, but not all the impugned conduct in the proposed pleading relates to the publications (paragraph 92(a), for example, is distinct from it) and some of it relates to the publication of the articles but not the proceedings.
198 The respondent argues that the pleading should not be allowed for a number of reasons, the most important of which are:
It is an abuse of process, primarily because of its overlap with a proceeding commenced in the NSW Supreme Court by the applicant alleging that the CBA and Barbara Chapman, one of its employees, defamed her.
The claim is not properly pleaded, for example: no particulars of malice are given and actual damage is not pleaded or not with sufficient precision to properly notify the respondent of the applicant's case on damage;
The claim is "patently hopeless" as the applicant has not pointed to evidence capable of proving the material facts necessary to make out the cause of action, for example: there is no basis for arguing that the respondent is the publisher of documents or statements published in media outlets or by its parent company and, to give another example, the claim relies on a publication between two employees of one organisation, which is not capable of giving rise to an action in defamation or injurious falsehood;
Many of the documents referred to in the particulars are covered by absolute or qualified privilege, such as witness statements and pleadings;
A publication between two employees of one organisation will not give rise to an action in defamation or injurious falsehood;
Actual damage is not pleaded or not in such a way that suggests a link between the alleged falsehoods and special damage;
The claim relates to entirely different facts from those underlying the applicant's case as currently pleaded and such a major change in the applicant's case, which was not raised with the respondent before 22 January 2010, would lead to further substantial delay, for example because of the need for the respondent to gather and prepare new evidence;
There is no adequate explanation for the applicant's delay, given that of the 24 distinct particulars, 13 are based on documents admittedly known to the applicant by September 2009 and five as early as April or May 2008.
199 To understand the claim and the resistance to it, it is necessary to refer to some of the documents upon which the claim is based. I note, however, that few of them found their way into evidence. Most were provided in a folder entitled "Applicant's submissions" filed on 23 February 2010. Nevertheless, although not strictly before me, counsel for the respondent makes reference to some of them in her submissions, not taking the point that they were not in evidence. Accordingly, for the purpose of dealing fully with the applicant's proposal, I have had regard to them.
200 On Monday 14 April 2008 the Sydney Morning Herald and The Age published articles containing the allegations the applicant made against Mr Blomfield and the CBA. The same day Barbara Chapman, Group Executive, Human Resources and Group Services for the CBA, wrote to the editor of the Herald and the Editor-in-Chief of The Age complaining about the articles, asserting that their publication was inappropriate, that it was an abrogation of the standards of journalism expected of the newspaper, that it denied natural justice to Messrs Blomfield and [X] and that it unfairly besmirched their reputations. She noted that the CBA had taken the applicant's claims seriously, and that there had been an number of investigations into them, and in the letter to the Herald wrote:
The Bank has formed the considered view that her claims are unfounded. Accordingly, the Bank will strongly defend this matter and as part of its defence will say that:
▪ In early 2007, Ms Dye had been told by her manager that her performance was unsatisfactory.
▪ Ms Dye then initiated a complaint through the Bank's Fair Treatment Review process. She did not raise any issue of sexual harassment. Her complaint was determined to be unfounded.
▪ In October 2007, Ms Dye asked the Bank to investigate her claims against Mr Blomfield. The Bank engaged an external person to conduct this investigation. The investigator found that there was "nothing to substantiate [Ms] Dye's allegations of inappropriate behaviour". Further, a number of witnesses expressed their high regard for Michael Blomfield's character and care for other people. Mr Blomfield has left the Bank. However, his departure was not related to the claims made by Ms Dye. The Bank has informed Mr Blomfield that it continues to support him and will assist him in defending any claims which Ms Dye may make against them.
201 The letter to the Age was in similar terms.
202 The same day Ms Chapman circulated to CBA Group Executives, CBA Executive General Managers and CBA General Managers an email in which she wrote:
You may have seen an article that appeared in this morning's Sydney Morning Herald and The Age newspapers regarding allegations made by a former PBS staff member, Vivienne Dye against Michael Blomfield and [X].
The Group takes any claims of inappropriate behaviour very seriously. When these allegations initially came to light, the matter was investigated internally swiftly and thoroughly. We are satisfied that Ms Dye's allegations are unfounded and without basis.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission. We feel this approach has removed the basis of fair play and not afforded Michael Blomfield and [X] the opportunity to defend themselves.
We are writing to the newspapers involved today to express our concern at their role in publishing unfounded information aimed to damage the reputation of our two former employees.
The matter and allegations against the two former staff members will be strongly defended in the Commission.
203 Ralph Norris, the Chief Executive Officer of the CBA, circulated a similar email.
204 On 15 April 2008 Bryan Fitzgerald, General Manager, Media and Issues Management, Marketing and Communications, responded to an enquiry from a Daily Telegraph journalist (Heath Aston) about the applicant's allegations in the same terms as Ms Chapman had written to the editors of the Fairfax newspapers.
205 On 16 April 2008 lengthy verbatim excerpts from the applicant's HREOC statement appeared on the Daily Telegraph's website and an article under Heath Aston's by-line appeared on page seven of the paper containing some of the applicant's allegations, apparently drawn from the HREOC statement, and reporting the bank's position and [X]'s denial. It also included the following passages:
Pending the result of the HREOC investigation, Ms Dye intends to sue for $1.125 million for lost income, humiliation and suffering.
The Daily Telegraph understands the bank offered $50,000 to settle before Ms Dye took the complaint to HREOC.
206 The source for these comments, unsurprisingly perhaps, was not identified. The article included a denial on the part of the CBA that it had offered a settlement.
207 This article prompted Ms Chapman to send an email to CBA General Managers, Executive General Managers and Group Executives complaining that the Telegraph had run "a salacious and sensational story about allegations of sexual harassment against two former members of the Group, without any regard for the facts". That was followed by a statement to the effect that the organisation takes the issue of sexual harassment "very, very seriously" but that it also values "fairness, honesty and an individual's right to natural justice". She noted that it had taken the allegations the applicant made "very seriously" when they were raised and "[a] series of in-depth investigations" were undertaken and "the claims were found to be unsubstantiated". She went on to describe the steps the Group was taking to protect the reputations of the two men concerned and to express her disappointment that the applicant appeared to have chosen to fight the case in the media rather than awaiting the outcome of the HREOC process.
208 The same day the General Manager, Media and Issues Management, Marketing and Communications for the Commonwealth Banking Group (Bryan Fitzgerald) sent an email to the Telegraph answering a series of questions put to him on behalf of the journalist (Heath Aston) who wrote the article. In it he reported that [X] denied he had:
propositioned the applicant for sex;
asked her whether he could bring sex toys with him on a business trip to New Zealand;
before the trip commented about her physical appearance;
made sexual advances towards her during the trip;
ignored and isolated her at work after she had rejected his advances.
209 He also reported Mr Blomfield's denials that he had:
ever made any sexual advances towards the applicant;
leant towards her and tried to kiss and hug her for an extended period of time after walking her home following after-work drinks on 15 June 2006;
subjecting her to a period of alienation in the office after she had rejected his advances.
210 On behalf of the Bank Mr Fitzgerald also denied that the applicant had been sacked; stating she had been retrenched after her position was abolished and received full payment of all her entitlements. He also explained that her performance had been satisfactory for part of a performance review period and unsatisfactory for another part.
211 Some of that information was published by The Telegraph in one form or another on 17 April 2008.
212 Vanda Carson, a Fairfax journalist, enquired about an allegation against [X] published in The Age which Mr Fitzgerald told her was unknown to the CBA until the HREOC claim was lodged. He also forwarded to her a copy of Ms Chapman's internal email of 16 April and his internal email of 14 April.
213 The following day an article appeared in the Fairfax press under Vanda Carson's by-line reporting that the applicant's "lawyer", Peter Rochfort, had confirmed that her claim against the bank was not her first legal claim for compensation, that she had received a $20,000 payout from her former employer, Vodafone, after alleging she had been bullied by two female colleagues, as part of a confidential mediation, but declined to confirm that she spent half the payout on breast implants. The same day The Daily Telegraph reported that the applicant had "hit out" against "rumours posted on the internet" that she had left her job with Vodafone "with a hefty payout for harassment". On 19 April it rubbished the Herald story, quoting a spokesperson from Vodafone as saying that her employment was terminated by mutual agreement, that all payments were part of her contract and affirming that the company respected her privacy and would make no further comment. It also reported Mr Rochfort's intention to take legal action against the Herald over the issue.
214 On 7 May 2008 the Fairfax media published fulsome apologies to Messrs Blomfield and [X] accepting that the allegations published about them "are untested and are regarded as false not only by Mr Blomfield and [X] but by the bank which has thoroughly investigated them".
215 On 31 July 2008 the Fairfax media carried another story under Ms Carson's by-line reporting on the filing of the application in this Court. The article noted the applicant's allegations and the defence and reported comments by Mr Fitzgerald that the Bank had "previously strongly refuted all of the allegations made by Ms Dye" and that "we are not prepared to mediate because we believe there is no case to answer. We will continue to defend our position and support our staff and former staff". On 6 October 2008 it followed up with a report of the defence the respondent filed in these proceedings.
216 Other publications are also particularised but, as in the case of the documents I have discussed above, the documents said to contain the statements were not tendered and, unlike the others, were not attached to the submissions either.
217 The first allegation appears in paragraph 91:
From in or about May 2007, and ongoing, the applicant was injured in her trade and profession by malicious falsehoods which were made of or concerning her by the Respondent, its servants, officers and/or agents.
218 The alleged falsehoods are pleaded in this way ("particulars" omitted):
[92] The Respondent's falsehoods include but are not limited to stating:
(a) that the Applicant's performance was unsatisfactory, she was on a performance management program, being performance monitored and/or being managed for non-performance during her employment with the Respondent, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent.
[The only particular that is pressed is in these terms:
The statements of the respondent to the NSW Workcover Fraud Investigation Branch dated on or around November to December 2007.]
(b) that the Applicant's allegations in respect of the [X] Behaviour, the Blomfield Behaviour and the Victimising Behaviour were false, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent [a non sequitur].
(c) that the Applicant did not raise any of the allegations concerning the [X] Behaviour, the Blomfield Behaviour and/or the Victimising Behaviour when her work performance as a Marketing and Business Analyst was declared unsatisfactory in early 2007, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008; and the statement is also false because the Applicant is a qualified and competent worker, who maintained the highest performance rating during her employment with the Respondent.
(d) that the Applicant's work performance as a Marketing and Business Analyst was declared unsatisfactory and/or that her work performance was unsatisfactory in early 2007, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant is a qualified and competent worker who maintained the highest performance rating during her employment with the Respondent.
(e) that the Applicant first notified the Respondent of the Blomfield Behaviour in January 2008, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008.
(f) that [the] Applicant first notified the Respondent of the [X] Behaviour in February 2008, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant raised the conduct as alleged to the appropriate governance channel within the Respondent in 2006 and 2007, prior to seeking relief externally in 2008.
(g) that the Applicant's allegations are unfounded, unsubstantiated and/or baseless because the Respondent conducted a series of in-depth, swift and/or thorough internal and/or external investigations, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant has never been investigated by the Respondent about the [X] Behaviour, the Blomfield Behaviour or the Victimisation Behaviour and the statement is false because [X] and Mr Blomfield have provided a series of written admissions regarding the [X] Behaviour, the Blomfield Behaviour and the Victimisation Behaviour which have been in the possession of the Respondent since 2008, 2007 and some since 2006.
(h) that the Applicant chose to fight the issue in the media, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Respondent conducted a media campaign during 2008, 2009 and ongoing which harmed the Applicant, the Applicant did not.
(i) that the Applicant conducted herself in a manner which warranted being sued by the Respondent, its servants, officers and/or agents, which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statements are false because the Applicant has not conducted herself in a manner which warrants being sued by the Respondent nor any of its servants, officers or agents nor has the Applicant been sued.
(j) that the Applicant's complaints are "scurrilous" and have "besmirched" and/or "defamed" the reputations of Mr Blomfield and [X], which was a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant's allegations regarding the [X] Behaviour, the Blomfield Behaviour and the Victimising Behaviour are not defamatory, they are true.
(k) that the Applicant wore a fur highlighted G string showing about her skirt to a company event, which is a false assertion and the falsehood was published with malice [particulars omitted] …and the statement is false because the Applicant did not wear a fur-highlighted G-string to a company event, nor was the Applicant wearing a skirt.
219 I pause to note that the words in bold were not in the proposed amended pleading attached to the applicant's notice of motion and appear to have been added after the hearing on the motion was concluded and without notice or explanation
220 The statements are alleged to have been published to various third parties.
221 Not all of the proposed "particulars" were pressed. Once again, however, none of the matters listed as "particulars" meets that description. They all seem to be references to the publications in which the alleged false statements appeared.
222 On the second day of the hearing of the applicant's motion for leave to amend, Mr King handed up a document setting out two further "particulars" that the applicant wished to add to paragraph 92 (in fact, they were two further subparagraphs and thus purported to be pleaded as material facts). They were provided to counsel for the respondent minutes before the hearing commenced that day. Mr King sought to explain this further delay by claiming that the additional particulars arose from documents only recently provided by the respondent in further discovery. I refused leave in relation to one "particular" during the hearing, but directed the applicant to incorporate the other in the proposed amended statement of claim:
(m) That the Applicant exhibited predatory behaviour towards Mr Blomfield, which is a false assertion and the falsehood was published with malice…. because the Applicant did not exhibit predatory behaviour towards Mr Blomfield. [particulars omitted]
223 There was no sub-paragraph (l).
224 In paragraph 96 the applicant also wishes to plead:
Further and in the alternative, in or about May 2008, and ongoing, the Applicant was injured in her trade and profession by malicious falsehoods made of or concerning her by the Respondent, its servants, officers and/or agents by way of action brought against Nationwide News Limited for its publication of the allegations set out above at paragraphs 18 and 68.
225 Once again, the pleading is drafted in an inclusive, not exhaustive, fashion so that -rather than enabling the issues to be defined - the pleader proposes no limits to the allegations he or she would make.
226 The nature of the damage is pleaded in paragraphs 99 to 101 only in the most general terms where it concerns economic loss and also claims "an unspecified quantum of general damages". It is particularised as:
(i) Statement of financial loss to be provided by the Applicant; and
(ii) Expert medical evidence to be provided.
227 This is entirely unsatisfactory, particularly at this late stage of the proceeding and when the applicant is seeking an indulgence from the Court. It does not have the requisite level of particularity. There is a great deal of ambiguity about the meaning of special damage: see the discussion in McGregor on Damages, 18th edition (2009) [1-029-1-034] But one thing is certain. It does not include general damages. What should have been particularised is the actual damage to "her trade and profession" the applicant alleges was of a kind intended or "the natural and probable result" of the false statement: see Parsons at [14] per Gleeson CJ, [75]-[76] per Gummow J, and [114] per Kirby J. What is the loss the applicant claims she suffered as a result of the statements? The Court was not taken to any material to show that evidence was available to prove either actual damage or the necessary causal relationship between any such damage and the alleged injurious falsehoods.
228 There are other difficulties with the pleading.
229 First, as with defamation, the representation in an injurious falsehood claim must be pleaded with precision: Haines at 417. This means that the parts of the publications which have been particularised and are said to contain the false representations must be identified: Hewitt v ATP Tour Inc [2004] SASC 286 at [65]. It is not good enough to make an allegation and list as particulars a series of documents, expecting the respondent to work out for itself where the false statements are allegedly made and divine in what respects they are false, which is what the applicant has done here.
230 Secondly, actual damage is not pleaded as a material fact - or at least not with the requisite degree of precision - a serious omission in a case where the tort is not complete without it. As Hunt CJ at CL explained in Haines, giving particulars of special damages under a general claim for damages is not the same thing:
The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation (Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694) or feelings (Fielding v Variety Inc [1967] 2 QB 841 at 850), damages for injurious falsehood would appear to be restricted to the recovery of that actual damage: ibid at 850.
231 The respondent argues that actual damage must be proved and pleaded with respect to each publication, although no authority for that proposition was cited. I doubt that is right. If the applicant's case is that a series of publications contained false representations made maliciously I see no reason in principle why the tort would not be available if the combined effect of them caused actual damage.
232 Thirdly, just as in Haines, the proposed amended statement of claim fails to give proper particulars by which the respondent could know the basis upon which it was responsible for the specific publications identified in the pleading. In this case the applicant has chosen not to sue the CBA, whose employees were the makers of most, if not all, of the statements the subject of her complaint.
233 Fourthly, malice is pleaded in paragraph 95 in a way I regard as wholly unsatisfactory. This is the proposed pleading:
Each injurious falsehood was actuated by malice on the part of the Respondent, its servants, officers and/or agents, in that the dominant motive for each statement was an improper purpose or purposes, including the motive of harming the Applicant.
234 An allegation of malice is a serious one. The High Court said in Clyne v NSW Bar Association (1960) 104 CLR 186 (Clyne) at 200-1:
Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.
235 Clyne was not concerned with pleadings but the same principle underpins the professional conduct rules, which impose restrictions on the making of allegations of this kind. See, for example, r 37 of the NSW Barristers' Rules and r A37 of the Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules). It is inappropriate for such serious allegations to be made in the wide, inclusive terms of paragraph 95. As Harper J said of allegations of fraud in NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 at [6] in a passage extracted in Riley's Solicitors' Manual:
Allegations of fraud should only be made on the basis of evidence, worthy of serious consideration… Loose allegations of fraud are a blot on the adversarial system, and may - where, for example, they are made in terrorem - amount to an abuse of process.
236 In my view the pleading verges on the embarrassing. It seeks to leave open the possibility of other improper motives. It fails to identify the actual harm caused to the applicant. Numerous individuals are said to have published the allegedly false statements. The applicant did not point to any material to show that she could prove that each or any of those individuals was by a desire to do her harm or by any other improper purpose. In written submissions dated 10 March 2010 counsel for the applicant submitted:
The late discovery of the Respondent makes it clear that it conducted a secret campaign to media outlets, other Banks and possibly major clients with a view to denigrating the Applicant and exculpating itself.
237 I infer from this submission and the absence of any other indication that the Applicant's case is that malice is apparent on the face of the documents. I can see no justification for that conclusion, however, on the face of any of the documents that were presented to me.
238 In its written submissions the respondent contends (in effect) that malice could not be proved. It offers as an example the internal email from Barbara Chapman dated 16 April 2008, which the applicant puts forward as a "particular" to paragraph 92(g), circulated to CBA General Managers, Executive General Managers and Group Executives. According to the submission,
[t]he email relates to an article in the Daily Telegraph concerning Ms Dye's allegations (see the email at Schedule 6, page 4 to the Applicant's written submissions) [which was not tendered]. On a plain reading of that email, its purpose was to address the partiality of the Daily Telegraph article. The email does not deny Ms Dye's allegations. Yet the Applicant seeks leave to raise an argument that the email falsely claimed her allegations were unfounded and that, in doing so, the Respondent was actuated by malice and caused her actual damage. Any falsity contained within the email could not on any reading of it have related to the Applicant's allegations.
239 I reject the submission. The email, which expresses indignation at what are described as "salacious and sensational" stories about allegations of sexual harassment against two former members of the CBA Group "without any regard for the facts" includes the assertion:
The allegations made by Vivienne Dye against Michael Blomfield and [X] were taken very seriously when they were raised. A series of in-depth investigations were undertaken and the claims were found to be unsubstantiated.
240 It is difficult to see the distinction between a statement that the applicant's claims were "found to be unsubstantiated" and a statement that "her allegations were unfounded". And the email is plainly concerned with the applicant's allegations.
241 Nevertheless, there is nothing in it to suggest malice. The passage quoted in [238] above is followed by this statement:
The steps we are taking today to protect the reputations of [X] and Michael include:
• Trying to have the offending material removed;
• Working to stop it being spread further;
• Supporting them in considering what action they would like to take against Vivienne Dye and her adviser.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission.
242 Some of the contents of this email are replicated in others (including in an email to a journalist). The criticism of the newspaper turned on its presentation of one side of the case. The concern of the email is with vindicating the reputations of the individuals against whom the applicant made allegations, not with harming the applicant. It is defensive in its approach, not vindictive. The applicant pointed to no other material upon which it intended to rely at the hearing to demonstrate the ulterior purpose relied upon in the proposed amended statement of claim. While in the process of attempting to vindicate the reputation of others, the applicant's reputation might be harmed, on the material the applicant proffered on this application I cannot see how she could show that harm to her was the dominant purpose of the publications.
243 Paragraph 96 and 97 are in the following terms:
[96] Further and in the alternative, in or about May 2008 and ongoing, the Applicant was injured in her trade and profession by malicious falsehoods made of or concerning her by the Respondent, its servants, officers and/or agents by way of action brought against Nationwide News Limited for its publication of the allegations set out above at paragraph 18 and 68.
[97] The Applicant claims aggravated relief against each injurious falsehood made or put to the Applicant by Mr Blomfield, those acting for him and or any servant, officer or agent of the Respondent during the course of Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited Anors [sic], in which she was subpoenaed to give evidence:
Particulars
(i) the purported facts and imputations contained within the Statement of Claim submitted by the Plaintiff to the Supreme Court of New South Wales for the purposes of Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited;
(ii) the purported facts contained within the Reply to Defence submitted by the Plaintiff to the Supreme Court of New South Wales for the purposes of Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited;
(iii) the Transcript of the Cross Examination of Vivienne Dye taken during Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited; and
(iv) Media coverage of or concerning Supreme Court of New South Wales Proceedings No. 20218 of 2008: Blomfield v Nationwide News Limited.
244 I note that the word "all" appeared as the first word in particular (iv) in the proposed amended statement of claim but had been removed from the version filed after the conclusion of the hearing on the motion, although this further amendment was not discussed at the hearing or notified to the court.
245 Paragraphs 18 and 68 relate to the allegations of sexual discrimination and harassment the applicant makes in this proceeding against [X] and allegations of "victimisation/harassment" against Messrs Blomfield and Selvarajah. The reference to "action brought against Nationwide News Limited" is presumably a reference to the defamation case Mr Blomfield brought and which is the subject of the particulars in paragraph 97. I do not know what the applicant means by "aggravated relief". Although she makes a claim for damages in paragraphs 99-101, she does not include in it a claim for aggravated damages. None of the "particulars" answers that description.
246 This claim is audacious, to say the least. It offends the long-established immunity from suit for witnesses and advocates in legal proceedings.
247 In the case of witnesses the High Court in D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]-[40] affirmed the long-standing principle that a witness cannot be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. It also emphasised that a witness's immunity from suit extends to out-of-court conduct that is intimately connected with the giving of evidence in court, citing Watson v M'Ewan [1905] AC 480. And it declined to interfere with the established law that an advocate could not be sued. Gleeson CJ, Gummow, Hayne and Heydon JJ said at [39] (citations omitted):
From as early as the 16th 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 mattered 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.
248 Order 11 r 16 provides that:
Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of process of the Court;
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
249 The policy behind the courts' power to stay or dismiss proceedings as an abuse of process is the prevention of waste of judicial resources and their use for ulterior purposes: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.
250 I have no doubt that paragraphs 96 and 97 would be struck out as an abuse of process if they had been included in the statement of claim that has been filed.
251 The question remains about what is to be done about the other paragraphs.
252 It is well established that if there is a real question, whether of fact or law, to be tried and the rights of the parties depend on it, then the court is not entitled to summarily intervene: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91; Webster v Lampard (1993) 177 CLR 598 (Webster v Lampard) at 602-603. As Mason CJ, Deane and Dawson JJ emphasised in Webster v Lampard at 603: "[n]owhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact".
253 In General Steel Barwick CJ said at 129:
[T]he plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
254 But this is an application for leave to amend to add a cause of action, not an application to strike out pleadings. Even if an allegation withstands the General Steel test, it may not serve the overarching purpose to allow it. That said, if the applicant cannot show that she passes the General Steel test the amendment must be refused. On the material I have seen, I do not believe she can.
255 In any event, I do not think the joinder is justified. The joinder of this new cause of action would certainly complicate the proceedings and prolong, if not delay, the trial. There is a prospect that the existing trial dates would have to be vacated - for a third time. The respondent should not be distracted from preparing for trial by the need to seek further particulars, administer interrogatories or interview additional witnesses. If the new cause of action were joined, an inquiry would be necessary into the motives of at least six individuals, none of whom it appears would be likely to be witnesses in the trial on the current pleadings.
256 In addition, the applicant's proposal is to make the respondent liable for the conduct of employees of the CBA, the respondent's parent company. The basis of the legal relationship is not particularised. On the other hand, on 21 April 2009 the applicant commenced proceedings for defamation in the NSW Supreme Court against the CBA and Barbara Chapman. Those proceedings are yet to be heard. There is a closer connection between them and the injurious falsehood claim than there is with the present proceeding in this Court, not least because the relevant parties have been sued. The respondent contends that by these amendments the applicant seeks to make a number of allegations that are similar, if not identical, to allegations made in the defamation proceedings she has commenced in the NSW Supreme Court. For this reason it contends that the proposed amendment is an abuse of process. The pleadings in the Supreme Court were annexed to two affidavits of Ms Ferrier read on the motion.
257 First, the respondent points to what it says is "clear overlap" between the subject matter of the Supreme Court proceeding and the proposed injurious falsehood amendments. For example, in this case the applicant seeks to allege that the respondent uttered malicious falsehoods concerning the applicant's allegations, that is that they were unfounded on the basis of its investigations: proposed paragraphs 91, 92(g). In the Supreme Court proceeding, the applicant alleges that she was defamed by the defendants because there was an imputation that she had fabricated allegations of sexual harassment (see paragraphs 10, 12(b) and (c), 13 (b) and (c)).
258 Secondly, it points out that the damages claims in both are similar. Although the proposal here in relation to the cause of action for injurious falsehood is to compensate the applicant for injury to her "trade and profession" and the defamation proceedings are concerned with damage to her reputation, in the Supreme Court proceedings she also seeks damages for "general loss of business and custom".
259 Thirdly, it submits that it is clear from the amended defence filed in the Supreme Court, which pleads truth, that the publications pleaded in the Supreme Court proceeding are the same as those pleaded in the proposed amendments in this case (see paragraph 13 of the Amended Defence and paras 92(e), (g)).
260 The first publication with which the statement of claim in the Supreme Court proceeding is concerned is an email from Barbara Chapman sent on 16 April 2008 to Group Executive HR and Group Services. That email is listed as a "particular" to subparagraph 92(g) in the proposed amended statement of claim. Two of the four defamatory imputations alleged to arise from that email are the same as the matters pleaded in subparagraph 92(d) of the proposed amended statement of claim. The second publication is said to be a republication of the substance of that email in Fairfax Media publications. The third publication referred to in the Supreme Court pleading consists of two statements (set out in Schedule C to the amended statement of claim in that action) to the effect that:
(1) The CBA has investigated the applicant's claims of sexual harassment and it has concluded that they are unfounded;
(2) The CBA will strongly defend this matter [the allegations the subject of the HREOC complaint and hence this proceeding] and will argue that the applicant did not even make these claims or raise any issue of sexual harassment until her work performance as a marketing and business analyst was declared to be unsatisfactory by the bank early last year.
261 The particulars of meaning pleaded in the Supreme Court include allegations that the applicant made false allegations that Messrs [X] and Blomfield sexually harassed her - the subject of subparagraph 92 (b) of the proposed amended statement of claim.
262 The allegation the applicant makes in subparagraph 92(c) of the proposed amendment statement of claim to the effect that the applicant did not raise any of her allegations about the conduct of the two men "when [sic] her work performance as a Marketing and Business Analyst was declared unsatisfactory in early 2007" is (but for the difference in prepositions) virtually identical to the imputation contained in Schedule C to the amended statement of claim in the Supreme Court proceedings where "until" appears in lieu of "when".
263 Subparagraphs (e) and (f) of the proposed amended statement of claim are arguably another way of putting the allegation raised in paragraph 92(c).
264 Paragraph 92(i) of the proposed amended statement of claim contains the same allegation (malice aside) that is contained in the imputation in paragraph 7(c) of the Supreme Court statement of claim.
265 Indeed, the only substantive differences between the complaints in the proposed amended statement of claim and the Supreme Court pleadings relates to the allegations in subparagraphs 92(k) and (m). The relationship between Karen James, the "publisher" of the allegedly false assertion concerning the fur highlighted G-string the subject of the allegation in subparagraph 92(k), and the respondent is not pleaded. The vagueness of the so-called particulars of subparagraph 92(m) (which refer to "communications" "in and around certain dates" by Ms Chapman, Mr Fredericks and Mr Norris, none of whom it would appear was an employee of the respondent, give rise to other difficulties of the kind to which I have already referred.
266 The respondent's contention is that it would be an abuse of process for the applicant to bring this proceeding. The applicant responded by pointing to the differences between the elements of the causes of action. But this submission avoided the central question of the similarity of the subject matter.
267 It is true that the causes of action are different in the two actions with which I am concerned. But the similarity of the issues for determination in the two proceedings means there is a prospect that this Court could reach different conclusions from the Supreme Court about the meanings of words in the same documents. As the defendants in the Supreme Court action have pleaded truth as a defence, that Court will have to rule on the truth of the same statements the applicant alleges in this proceeding are false. If this Court were to come to a different conclusion on either, there is a risk that the administration of justice would be brought into disrepute.
268 Unfortunately, neither party took the Court to any authority on the question. Some support for the respondent's contention might be derived from Moore v Inglis (1976) 9 ALR 509 (Inglis) in which Mason J stayed the whole of proceedings commenced in the High Court as an abuse of process after similar proceedings had been instituted in the Supreme Court of the ACT. His Honour noted the authorities for the proposition that where two actions are brought by the same person against the same person in different courts governed by the same procedure and where the judgments are followed by the same remedies it is prima facie vexatious to bring the two actions where one will lie. In Inglis the parties were not identical and neither were the remedies and in the Supreme Court there was one action for conspiracy against five defendants and in the High Court the plaintiff alleged five separate conspiracies, although the object of the conspiracies was said to be identical in both actions. But his Honour considered the differences immaterial. His Honour observed (at 515):
Putting aside the inherent deficiencies in her claim to relief, deficiencies which would work against her case as much in this court as in the Supreme Court, there is no reason why the plaintiff could not, or cannot, seek relief by way of declaration and injunction in addition to, or in substitution of, damages in the action in the Supreme Court…
269 And on the question of parties, his Honour said that, if there was a sufficient basis for doing so (about which he expressed no opinion) the proceedings in the Supreme Court could be amended as to parties.
270 Ultimately, however, it is unnecessary for me to decide whether the proposed amendments would amount to an abuse of process and without the benefit of full argument on the question, I prefer not to. Regardless, it seems to me that the mere fact that the pending litigation in the Supreme Court concerns many of the same statements as those about which the applicant complains here is relevant to the question of whether it is just to grant leave to add the complaints in this proceeding. The applicant made no mention of the Supreme Court proceeding in her affidavit. Neither did she explain why she had not sought to sue for injurious falsehood in that proceeding. True it is that the respondent is not a party to the defamation proceeding. But Barbara Chapman, the maker of some of the statements in question is and the makers of many, if not most, of the others are employees of the CBA and not the respondent. In any event, the respondent could have been added as a party to the defamation suit. The nature of the damages sought in the Supreme Court is substantially the same as the nature of the damages sought here. If there were merit in the claim, it would make far more sense for the respondent to be joined to the litigation in the Supreme Court, than for this raft of new allegations to be made in this proceeding where trial dates have been fixed now for the third time, and where the proceeding in this Court is concerned with the vindication of very different rights and interests.
271 In addition, the respondent's late discovery of certain documents does not provide a satisfactory explanation for the delay in applying for leave to make these amendments. The applicant's statement of claim in the Supreme Court proceeding was filed on 15 April last year, two months before the principal proceeding in this case was first set down for trial, and more than nine months before the respondent was notified of the application. Not only that, but the applicant conceded in cross-examination that she was aware of the press articles on or around the dates of their publication (mostly in 2008). She must then be taken to have known of sufficient information to enable her to commence an action for injurious falsehood. The fact that she might later have become aware of additional false statements might have justified an application to amend based on those statements but it does not explain why she did not move on the basis of the information she had at the time she chose to sue for defamation. The applicant did not take the Court to any additional material that was discovered that, for example, might have supplied evidence to support malice, which she does not have to prove in the defamation suit. As I mentioned earlier, for malice she appears to be relying on inferences to be drawn from the statements.
272 For all these reasons I refuse leave to amend to plead the matters raised in paragraphs 91 to 101.