Farrow v Nationwide News Pty Ltd

Abuse of process

1. Section 5 of the Felons (Civil Proceedings) Act provides: A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.
2. The judge referred to the discussion of the test for establishing "prima facie ground" in Application of Potier. [5] The applicant accepted that her Honour correctly identified those principles but submitted that she failed to apply them.
3. I do not think the test in Potier was the issue. Although her Honour considered those principles, she determined the application on the basis that at least a portion of the claim was an abuse of process and that the proceedings were indivisible.
4. The imputations relating to the applicant's alleged sexual encounter with the prison guard, which the applicant asserts are false, did not give rise to any concern (imputations (a), (b), (c), (d) and (j)). However, the judge was persuaded that any cause of action pleading the remaining imputations would amount to an abuse, since those imputations "challenge" the fact of the applicant's conviction, the length of her term of imprisonment, her absconding on bail and the evidence she gave at the proceedings on sentence: at [38]-[41].
5. The applicant accepts that imputations (g), (h) and (i) are true. Indeed, as evidently accepted by Mr Evatt, imputation (g): "the plaintiff was sentenced to a term in prison after she was convicted of criminal offences" is incontrovertible, by force of s 42 of the Defamation Act 2005 (NSW). The applicant pleaded guilty to a charge of importing the marketable quantity of a border controlled drug (crystal methamphetamine) contrary to s 307.2 of the Criminal Code Act 1995 (Cth) and was sentenced for that offence to a term of imprisonment of 11 years with a non-parole period of 6 years and 6 months commencing on 4 August 2012.
6. Imputation (h): "the plaintiff is in jail and will remain there until at least 2018" and imputation (i): "the plaintiff skipped bail" are also matters of record which cannot properly be controverted by the applicant.
7. An amended statement of claim sought to be filed in the proceedings below would have deleted imputations (g) and (h) but it was appropriate for the primary judge to consider the proceedings sought to be instituted as pleaded.
8. Mr Evatt submitted that it is "proper practice" for a plaintiff to plead all available imputations even if some are substantially true. Authority for that proposition was said to be found in the following remarks of Viscount Simonds in Plato Films Ltd v Speidel [6] : It surprises me that it should be considered a proper matter for pleading that a plaintiff has not sought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion wholly improper.
9. As submitted by the respondent, the import of those remarks has been mischaracterised in the applicant's submissions. It is plain from the whole of the relevant passage (only part of which was set out by the applicant) that his Lordship was not criticising the plaintiff's pleading. He was commenting on the publisher's plea in mitigation, which fastened on other conduct of the plaintiff "the truth of which the plaintiff…does not deny". It was that plea in mitigation which his Lordship considered to be improper.
10. In any event, I would respectfully agree with the conclusion of the primary judge that the institution of proceedings pleading those true imputations would amount to an abuse of process in the circumstances of the present case. Mr Evatt, who appears with Mr Rasmussen for the applicant, submitted that an imputation relied upon by a plaintiff does not "challenge" anything. He submitted that, in holding otherwise, her Honour "may have mistakenly concluded the applicant was averring the imputations to be false." In fact, the applicant did aver the imputations to be false, at least to the extent of pleading her knowledge of their falsity as a matter relied upon to support a claim for aggravated damages. However, it is not necessary to determine the matter on that basis (there is a dispute, which need not be resolved, as to whether the applicant abandoned that plea).
11. The submission that a plaintiff's imputation does not "challenge" anything is technically correct in that falsity of an imputation is not an element of the cause of action. All a plaintiff is required to establish is that the matter complained of was published and that it conveyed a defamatory imputation; truth is a defence. It does not follow that a plaintiff can properly institute an action seeking damages for a defamatory imputation he or she knows to be true. In my respectful opinion, it is manifestly an abuse to invoke the court's process to obtain a remedy to which the applicant is indisputably not entitled or else put a defendant to proof of that which cannot be denied.
12. Imputations (e) and (f) are in a slightly different category but their inclusion in any proceedings would also amount to an abuse in my view. Imputation (e): "the plaintiff ran a drug ring" was said to be false, notwithstanding the accepted fact that the applicant was sentenced as one of the principals in the smuggling operation, because the applicant contends that she was not the only principal and therefore not the one and only person who "ran" the drug ring. The proposition that a convicted offender should be entitled to invoke the process of the court to vindicate such a nuanced analysis of the findings of the court in criminal proceedings may be dismissed out of hand.
13. As to imputation (f) "the plaintiff is a prostitute", the applicant contends that imputation is false because although she was or used to be a prostitute, she is no longer. The abuse in the prosecution of an action on that basis rests in the cynical formulation of the imputation. The part of the article from which it is alleged to arise reports the applicant's own evidence given in mitigation at the proceedings on sentence. According to the article, she was speaking about her past. Obviously, an imputation expressed in the past tense could be defended by reference to the very evidence the applicant gave. It would be absurd to allow the applicant to seek a remedy for damage to her reputation caused by the publication of her own evidence. That obvious proposition cannot be overcome by condoning the device of pleading an imputation in the present tense (which is not the burden of the reported evidence).
14. For those reasons, I considered that the conclusion of the primary judge was plainly right and that leave to appeal should be refused. Contrary to the submissions of the applicant, the refusal of leave to institute the proceedings in the present case does not hold that a prisoner may be defamed with impunity. The abuse of process lies in having instituted proceedings which, for whatever tactical reason commended itself to the pleader, sought a remedy for the applicant on the strength of imputations the truth of which cannot properly be controverted by her.

Proportionality

1. The primary judge said, in case of error in her conclusion as to the test under the Felons (Civil Proceedings) Act, that she would have refused leave on the alternative basis that the proceedings were an abuse of process because the costs of the trial would be disproportionate to the importance and complexity of the subject matter in dispute. The applicant contends that, in so finding, her Honour purported to follow my decision in Bleyer v Google. Her Honour did not expressly refer to that decision in the judgment. In any event, the applicant submits (in the alternative to her primary argument) that the primary judge was wrong to conclude that the proceedings should be dismissed on that alternative basis and that this Court should disapprove the principle stated in Bleyer.
2. In light of my conclusion as to the applicant's primary argument, any temptation to reconsider Bleyer in my temporary guise as an additional judge of appeal for the purpose of these proceedings can and should be resisted.

Conclusion

1. Those are my reasons for joining in the following orders of the Court made on 13 September 2017: 1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW) grant the respondent leave to appear and be represented in this proceeding. 2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017 3. Order that the applicant pay the respondent's costs in this Court.

Endnotes

1. (2014) 88 NSWLR 670; [2014] NSWSC 897 (McCallum J).
2. Felon (Civil Proceedings) Act 1981 (NSW) (FCP Act), s 5.
3. Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 (Primary Judgment) at [41], [52]-[53].
4. Primary Judgment at [58].
5. [2012] NSWCA 222 at [16]-[17].
6. [1961] AC 1090 at 1125. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2017