The plaintiff by notice of motion filed by her solicitors on 2 February 2017 seeks orders as follows:
1. That the plaintiff have leave, nunc pro tunc, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), to commence and continue proceedings No. 2016/333403.
2. That the plaintiff have leave to file an Amended Statement of Claim in the form attached as Annexure "B" to the Affidavit of Simon Campbell Maxwell sworn 2 February 2017.
3. Such further or other order as this Honourable Court deems appropriate.
The notice of motion relies upon the affidavit of Simon Campbell Maxwell, the solicitor for the plaintiff, sworn 2 February 2017.
The defendant opposes order (1). Alternatively, the defendant consents to order (2), on condition that the defendant may subsequently raise objections as to the remaining imputations.
A preliminary issue for determination is the question of whether one or both parties require leave to appear, and I will deal with this issue first.
[2]
Leave to appear
Sections 4 and 7 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Act") provide:
"4 Leave to sue required for persons convicted of serious indictable offences
A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.
7 Right of appearance
At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made:
(a) the applicant or appellant, as the case may be, is not entitled to appear in person, and
(b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented."
While these provisions would appear to militate against appearances in such applications, they need to be seen in the context of the special position of felons before the law. In Patsalis v State of New South Wales [2011] NSWCA 364 at [11], Basten JA explains the rationale behind these provisions as follows:
"[11] Neither the applicant, nor the putative respondent, has any right of appearance on an application for leave under the 1981 Act: see s 7. That constraint was no doubt imposed because "[a]n unrestricted right to appear in person to make an application for such leave would permit the very abuse which s 5 was designed to prevent": Schneidas v Jackson [1982] 2 NSWLR 969 at 972G (Hunt J). A similar concern was expressed by Moffitt P in [Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317], at 322C-D…"
However, Basten JA goes on to explain (at [11]) the reasons why these concerns are no longer of such a compelling nature in an age where videolink and other technological advances reduce the difficulties foreseen by the legislature:
"… Nevertheless, proceedings on the papers without argument is not a step required by law and its desirability in a particular case should be considered by a judge invited to grant such leave. Concerns about abuse expressed 30 years ago can be dealt with in other ways, particularly, as occurred in relation to this application, by use of videolink facilities. The ready availability of the putative respondent, the State of New South Wales, is also a factor to be taken into account."
Neither the solicitors for the plaintiff in their correspondence nor Mr Rasmussen identified any basis of substance for the objection to the defendant being granted leave. In an email to my associate dated 14 February 2017, the plaintiff's solicitors merely state that "[n]o leave has been sought by Ms Mullins to appear, and such leave will be opposed by the plaintiff". In fact, Ms Mullins' submissions set out the basis upon which leave was sought, and the reasons for it.
The plaintiff's blanket objection to the granting of leave fails to accommodate the approach taken by Basten JA in Patsalis v State of New South Wales at [13]-[17] and [18], or the undesirability of one party being represented but not the other. Insofar as there is any general practice in this regard, the entitlement of the plaintiff in person as well as the defendant has on occasion been accepted without challenge (see, for example, Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797 at [22]). Moreover, the parties in this application, on the first return date, actually agreed to a timetable for submissions on the issue of leave (although I would have been prepared to deal with the application on the papers if asked) and it is rather too late for the plaintiff's legal representatives to make the objection now.
Mr Rasmussen alternatively submitted that, if leave were granted, the defendant should not be allowed to rely upon the submissions provided. First, he complained that the defendant's submissions had turned this application into an inquiry or mini-hearing into the merits of the case, although applications of this kind, which could be brought at any time in the litigation, had a very low threshold. Second, any application based on proportionality could not be brought in relation to this application and should await the granting of leave (as well as being supported by affidavit evidence as to the costs of a defamation trial).
As to the first of these points, that has not been the approach taken in other applications under the Act. In Clark v State of New South Wales [2016] NSWSC 808, Schmidt J not only granted leave to the defendant to be represented and to oppose the application, but permitted the leading of evidence, for the reasons her Honour set out at [6]-[10]. Her Honour's approach to this exercise is of particular relevance here, firstly because Mr Clark sought leave to commence similar reputation-based claims for malicious prosecution, and secondly because the pleading problems which her Honour identified in Mr Clark's claims have some resemblance to the pleadings filed in this application. As to the second, as is set out in the section of this judgment on proportionality, I am satisfied that the provisions of s 60 Civil Procedure Act 2005 (NSW) and the relevant regulations to that Act apply to litigation at any stage, including the right to commence proceedings.
Guided by these decisions of the New South Wales Court of Appeal and Supreme Court, I am satisfied that the desirability of a decision after receiving the relevant information from the parties is particularly apposite in a case such as the present. Accordingly, during the hearing of this application, I granted leave to the defendant to be represented and to bring before me such documents and submissions as are necessary, and I proceeded with hearing the application on the basis of the written and oral submissions of both parties.
[3]
The relevant criminal sentence
Mr Rasmussen was unaware of the details of when the plaintiff had been charged, whether she had pleaded guilty or whether she had appealed. As a result, and with his concurrence, this information was obtained from JusticeLink.
The plaintiff pleaded guilty after arraignment on 13 September 2013 to the offence of import marketable quantity of border controlled drug (s 307.2 Criminal Code Act 1995 (Cth)). She went into custody at or about the same time. The sentence of imprisonment imposed on the plaintiff on 16 September 2016 in this court is recorded on JusticeLink as follows:
"The offender, Simone Farrow, is sentenced to a term of imprisonment of 11 years to commence on 4 August 2012 and expiring on 3 August 2023 with a non-parole period of 6 years, 6 months. The offender is first eligible for parole on 3 February 2019. The offender is to be released to supervised parole when the non-parole period expires. The relevant agency for the purposes of supervision is Probation and Parole Service."
The matters complained of state that the case took almost seven years to come to trial, took 36 hearing days and resulted in more than 6,000 pages of evidence in the form of a transcript. Those facts appear to be borne out by JusticeLink entries for 52 occasions when the proceedings were listed before the sentencing judge after the plea of guilty.
According to JusticeLink, a notice of intention to appeal was lodged on 11 November 2016 after an extension of time to do so. Whether or not an appeal has been lodged may be relevant to applications of this nature, for the reasons explained by Schmidt J in Clark v State of New South Wales at [12].
In an application of this nature, information of this kind should be stated concisely for the benefit of the court hearing the application. In addition, the cause of action needs to be pleaded with the precision required by r 14.30 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and the Defamation Act 2005 (NSW). While the absence of sentencing information was able to be resolved, the uncertainty about the contents of the plaintiff's proposed pleadings is one of the reasons why this application has been rejected.
[4]
The civil proceedings the plaintiff seeks leave to claim
While prisoners lose their right to liberty, they retain their rights in relation to the commencement of civil proceedings, subject to the qualifications set out in the Act. The New South Wales Court of Appeal decision in Patsalis v State of New South Wales represents a bastion of protection for the civil rights of prisoners in that it sets out the circumstances in which prisoners have the right to commence civil proceedings with or without leave, as well as identifying the relevant criteria (see J Donnelly, "Judicial Review for the Convicted Felon in Australia" (2012) 16 University of Western Sydney Law Review 137; Georgiou v Commissioner for Corrective Services NSW [2016] NSWSC 1337).
In Patsalis v State of New South Wales the Court of Appeal principally determined two issues of law: whether s 4 of the Act applied to an application for judicial review, and whether s 4 imposed a leave requirement in cases where there had been no disability under the principle of attainder. (I note that the Court's finding that administrative review proceedings were not civil proceedings supplanted earlier views of "civil proceedings" in Potier v Director-General, Dept of Justice and Attorney General [2011] NSWCA 105 which the New South Wales Court of Appeal has now clarified in Potier v Attorney General (NSW) [2015] NSWCA 129.)
This decision also contains important guidance for judges determining applications of this kind. As Mr Donnelly notes in his scholarly review of this case, Patsalis v State of New South Wales has been interpreted as supporting what he calls the "modern view" that prisoners should be accorded their civil rights. The Court of Appeal's analysis of the reasons for abolition of the rule of attainder are of particular relevance to this application, as the decision the catalyst for the abolition of that rule (Dugan v Mirror Newspapers Ltd (1979) 22 ALR 439) concerned an action for defamation brought by a felon.
While the parties agree that the right to bring a claim for defamation is a civil proceedings for the purposes of the Act, and that leave is required in much the same way as would be the case for a claim for personal injury (for an example of such a claim, see State of New South Wales v Maxwell [2007] NSWCA 53), they differ as to how the test for leave should be approached. Mr Rasmussen submits that the test in question is a low one, and that what could be called the "modern view" of considering such applications sympathetically is the approach I should take. Ms Mullins submits that any action brought by a felon for defamation is of itself a matter for concern and that factors of this kind should play no weight.
[5]
The publications
The plaintiff was sentenced on 16 September 2016. The matters complained of consist of a newspaper article dated 18 September 2016 and its internet copy (in almost identical content) which is still available online. A third publication (an online version in the Courier Mail) will be relied upon (according to the proposed amended statement of claim) as going to damages only.
The contents of the matters complained of, which were published two days after the plaintiff's conviction for the offence identified in paragraph 14 above, may be described as follows. There are some slight differences in layout (and hence paragraph numbering) between the print and online version, but the contents of the publications (44 paragraphs including photographs) are essentially the same and consist of:
1. Two headlines ("Drugs, sex and an officer" and "Prison guard fell for a Pet") and a box in bold (referring to the plaintiff's "extraordinary case" which "ended this week" as well as to new revelations), which refer to two of the three main stories (the plaintiff's criminal proceedings and her alleged sexual relationship with a prison officer);
2. Paragraphs 4 - 11 then set out the plaintiff's alleged sexual relationship with a guard in order to obtain access to an unmonitored phone;
3. A subheading, "Running a drug ring" (paragraph 12) and paragraphs 13 - 22 set out evidence leading up to and during the trial, including (paragraph 21) a captioned photograph of the plaintiff under arrest for fleeing in circumstances in which the person who had paid her bail had almost lost their money (this is the fourth theme in the publications), as well as photographs of the plaintiff "at her trial" and "during her modelling days" (paragraph 44);
4. A subheading, "Mum turned me into prostitute" (paragraph 23) is followed by evidence on sentencing about the plaintiff's troubled upbringing which put her on the path to prostitution and drug abuse;
5. A subheading, "The barrister she calls 'Dad'" (paragraph 36), which is followed by a description of the circumstances in which the plaintiff absconded while on bail (paragraphs 37 - 43; her arrest for this is the subject of the photograph and caption at paragraph 21) relationship with a benefactor (36 - 45).
These paragraph numbers are taken from the annotated matters complained of attached to the statement of claim. There are minor differences with the article in the Courier Mail in that the photographs are different, but the defamatory meanings are unaffected.
The imputations pleaded for the first matter complained of in the statement of claim filed on 8 November 2016 are:
1. The plaintiff knowingly assisted a NSW prison officer to engage in corrupt conduct by seducing him.
2. The plaintiff formed a secret sexual relationship with a prison officer in return for being allowed to make telephone calls from jail without them being recorded.
3. The plaintiff tried to hide evidence from the police by ensuring that her jail telephone calls were not recorded.
4. The plaintiff assisted a prison officer in misconduct by having sex with him.
5. The plaintiff ran a drug ring.
6. The plaintiff is a prostitute.
7. The plaintiff was sentenced to a term in prison after she was convicted of criminal offences.
8. The plaintiff is in jail and will remain there until at least 2018.
9. The plaintiff skipped bail.
10. The plaintiff allowed a prison officer to have sex with her in exchange for favourable treatment while she was in jail.
The imputations for the second publication are substantially the same, save for the last imputation:
1. The plaintiff knowingly assisted a NSW prison officer to engage in corrupt conduct by seducing him.
2. The plaintiff formed a secret sexual relationship with a prison officer in return for being allowed to make telephone calls from jail without them being recorded.
3. The plaintiff tried to hide evidence from the police by ensuring that her jail telephone calls were not recorded.
4. The plaintiff assisted a prison officer in misconduct by having sex with him.
5. The plaintiff ran a drug ring.
6. The plaintiff is a prostitute.
7. The plaintiff was sentenced to a term in prison after she was convicted of criminal offences.
8. The plaintiff is in jail and will remain there until at least 2018.
9. The plaintiff skipped bail.
10. The plaintiff had sex with a prison officer in exchange for favourable treatment while she was in jail.
Although the plaintiff now proposes to abandon imputations (g) and (h) (namely that she was sentenced to imprisonment for criminal offences and would remain in jail until 2018), the imputations the plaintiff wishes to proceed with include imputations (e), (f) and (i), which amount to challenges to the factual matrix resulting in her conviction, the factual material upon which her sentence was based and the circumstances in which she absconded whilst on bail. In other words, the entire criminal proceedings described in the matters complained of will be the subject of the plaintiff's claim, and not merely the prison guard story in the first eleven paragraphs, which the plaintiff asserts is false.
Mr Rasmussen emphasised, throughout the application, that the form of the imputations was not yet settled and that this application should proceed on the basis of the matters complained of rather than the imputations pleaded. However, he did not dispute that, as a particular of aggravated damages, the plaintiff claims additional damages by reason of her knowledge of the falsity of all imputations.
The imputations pleaded, or likely to be pleaded, fall into the following categories:
1. The facts of the plaintiff's imprisonment and jail sentence (imputations (g) and (h)): Although the plaintiff now withdraws two of these imputations, the fact that the plaintiff pleaded them at all is an issue relevant to whether leave should be granted or refused, as the plaintiff was seeking to bring proceedings for defamation for statements that she has been convicted of criminal offences and sentenced to imprisonment.
2. Challenges to the plaintiff having absconded whilst on bail, the crime for which she pleaded guilty and evidence she gave on sentencing (imputations (e), (f) and (i)): The plaintiff seeks to plead imputations that she ran a drug ring (which is relevant to the facts giving rise to her plea of guilty), was or is a prostitute (which is relevant to sentencing factors) and skipped bail (which is relevant to the court history and potentially also to sentencing factors).
3. Imputations (a), (b), (c), (d) and (j): These imputations relate to the conduct the statements in the headings and following 9 paragraphs of the matters complained of. There are problems with the imputations pleaded, which do not currently differ in substance (I note the plaintiff proposes to drop imputation (d)).
4. Imputations which have not been pleaded: While I have not taken into account the defendant's submissions about contextual imputations, for reasons set out in more detail below, it would be fair to say that both matters complained of are critical of the plaintiff from start to finish, and that they dwell in some detail on the unsavoury elements of the charges to which she pleaded guilty, the way in which the sentencing hearing was conducted on her behalf and the contents of her evidence, her history of prostitution and drug abuse, and her "unusual" relationships with men. The plaintiff has reserved the right to plead further imputations, which is unsatisfactory for the reasons explained by Schmidt J in Clark v State of New South Wales, as I set out in more detail below. The defendant's entitlement to a complete defence of contextual justification falls away if the plaintiff pleads these imputations, so this is a position of some unfairness to the defendant.
Mr Rasmussen explained that the defendant had "got the wrong prisoner" and that the contents of the first eleven paragraphs are false and defamatory. The plaintiff's challenge to other parts of the matters complained of are that they are not accurate (for example, that the plaintiff was not "running a drug ring" despite playing a principal role in the drug smuggling group).
The nature of the cause of action and its prospects of success are issues relevant to the question of whether leave should be granted, as both parties noted in their submissions.
[6]
The parties' evidence
The plaintiff's submissions are supported by the affidavit of Mr Maxwell sworn on 2 February 2017. The limited information he provides relates to hurt to feelings and to the proposed amendments to the statement of claim. He states, upon information and belief, that the plaintiff "has been persecuted in jail as a result of the articles" and that she has had "a particularly hard time from inmates and personnel at the jail as a result of the articles", including comments made to her by prisoners and by persons who visit her whilst in jail.
Ms Mullins objects to these portions of the affidavit on the basis that they are "second hand hearsay", but having regard to the hearsay nature of damage to reputation and the presumption of damage to reputation, I propose to accept these submissions for the limited purpose of this application.
Ms Mullins' submissions as to the cost of defamation proceedings are challenged on the basis that they are not in affidavit form. I propose to treat her estimates with caution as a result, but I am aware of other estimates for defamation trial costs, set out in other judgments dealing with proportionality issues, which are much higher than the costs she outlines.
[7]
The test to apply to applications under the Act
The plaintiff's position, as set out in submissions, is that this application "is not to be turned into an adversarial hearing or a preliminary trial". There is force in this submission. I have restricted my consideration of the defendant's submissions to the findings relevant to the test to apply to the plaintiff's application and have had no regard to the submissions of the defendant unless they relate to this issue.
The relevant test to apply is set out in Re Application of Potier [2012] NSWCA 222 at [16]-[17]:
"[16] Secondly, it is necessary to refer to the statutory test for leave to commence proceedings. It was not suggested by the primary judge that the proceedings otherwise involved an abuse of process if there was "prima facie ground" for them. In Ford v Simes [2009] NSWCA 351, Bergin CJ in Eq, with the agreement of Tobias JA and Handley AJA, stated at [31]:
The expression "prima facie ground" in s 5 of the Felons (Civil Proceedings) Act as it applies to this application, means no more than a ground of appeal that is arguable or not totally hopeless.
[17] Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied." [Emphasis added]
In simple terms, pursuant to s 5 of the Act, the plaintiff must satisfy the court that there is some prime facie ground for the proceedings and they are not an abuse of process.
[8]
Imputations challenging conviction, absconding on bail, imprisonment and/or evidence in the sentencing process
Both the current and proposed amended pleading go beyond imputations arising from the portions of the matters complained of which relate to the prison guard, and include challenges to the plaintiff's conviction, imprisonment, absconding on bail and sentencing evidence. Should leave be granted in whole or in part, if this portion of the claim is an abuse of process?
Convictions are of great significance in defamation proceedings; the rationale behind s 42 Defamation Act 2005 (NSW) was to prevent the mischief of a convicted person seeking to look behind the conviction. This section was imported from the repealed legislation, which was in force long before the attainder rule was abolished in 1981. In R v Beydoun (1990) 22 NSWLR 256 Hunt CJ at CL noted the public policy underlying the prohibition of civil actions which attack the criminal law process.
This brings me to imputations asserted to arise from the description of the evidence, such as that the plaintiff is or was a prostitute. Mr Rasmussen acknowledged there was evidence given at the sentencing hearing about the plaintiff's troubled upbringing which led her to prostitution and drug abuse. For the plaintiff to plead imputations of this kind (and claim aggravated damages on the basis of falsity) raises abuse of process issues of the kind referred to by the New South Wales Court of Appeal in Toben v Nationwide News Pty Ltd (2016) 338 ALR 329.
Taking all of the above into account, I am satisfied that any cause of action pleading imputations challenging the fact of her conviction, absconding on bail and length of imprisonment in the relevant imputations would amount to an abuse of process. Accordingly, leave to commence proceedings in relation to these imputations should not be granted.
[9]
Imputations which have not yet been pleaded, or may be pleaded contextually
Additionally, there is the question of defamatory imputations which may be capable of arising but which have not been pleaded. Some of these are set out as potential contextual imputations in the defendant's submissions; others are evident from a reading of the matters complained of.
The principal difficulty for me in relation to this fourth category of imputations is that Mr Rasmussen made it clear to the court that the plaintiff reserved the right to amend her imputations at any stage of the proceedings and that I should determine this application on the basis of the publications rather than the imputations.
I regard this as unsatisfactory. I note the careful analysis of the causes of action by Schmidt J in Clark v State of New South Wales, which resulted in her Honour rejecting all but one of the proposed claims, and her Honour's observations (at [138]) that the plaintiff would be obliged to plead that remaining cause of action conformably with his obligations under s 56(3) Civil Procedure Act 2005 (NSW). If that is not possible because the plaintiff's pleadings are not in proper form, then that must militate against the grant of leave in relation to the statement of claim in its current incomplete form.
[10]
Paragraphs 1 - 11 of the statement of claim
The plaintiff's main basis for her defamation claim relates to the imputations in paragraphs (a) to (c) and (j) (imputation (d) being agreed to be surplusage), arising from statements about the plaintiff which were not part of trial or sentence.
I accept what Mr Rasmussen says about this portion of the matters complained of being material which is not an abuse of process. The first question is whether, in relation to that portion of the matters complained of which is not demonstrably hopeless and an abuse of process, namely imputations (a) to (c) and (j), leave should be granted. The second is whether, having regard to the impact of the rest of the publication, the likely award of damages for this publication is so small as to render this a claim for which there is no realistic prospect of success.
I accept the submission of the plaintiff that an application of this nature should not be turned into an adversarial hearing or preliminary trial. However, I must form a broad impression as to whether or not the claim is "hopeless" or "unarguable", as it is clear to me that any claim based on the imputations set out in the first two groups above should never be permitted to go to court and that this fatally taints the plaintiff's complaints about the third group of imputations for her defamation claim.
Mr Rasmussen acknowledged the difficulties of complaining about only part of the matters complained of, given the indivisible nature of the publication. He submitted that the major part of the publication consisted of the allegations about the plaintiff's asserted improper relationship with the prison guard, while the reference to the court proceedings (both the sentencing and the bail absconding) were only the "tail end" of the articles. The allegations of an improper relationship with a prison guard were far more serious than conviction and imprisonment for a minimum of six and a half years and/or absconding on bail.
I do not accept this submission. The damage to the plaintiff's reputation, in the eyes of the ordinary reasonable reader, would flow from the whole of the publication.
Can the problem be cured by some form of restricted right to sue for damages for the first eleven paragraphs? I note that courts have gone to some lengths to attempt to rescue a portion of the claim where impermissible material has been pleaded (see for example Vorhauer v NSW Minister for Health & Anor) However, that cannot be done here. Any action for defamation must be on the whole of the matters complained of and is not divisible. The court cannot adopt a "curate's egg" approach of allowing part of the claim, particularly when the other claims of far greater seriousness (namely the evidence in the trial, her conviction and sentence) form the bulk of the matters complained of, and where the matters complained of are taken to have been read in its entirety by the ordinary reasonable reader.
[11]
Conclusions concerning the application for leave
In Clark v State of New South Wales at [16], Schmidt J refers to the "relatively low threshold" the plaintiff requires for leave to be granted. The scheme of the Act places the burden of establishing both that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. This requires both a broad impression as to whether the claim enjoys a prospect of success that is realistic, and not hopeless or unarguable, and that potential abuse of process needs to be identified (per Schmidt J at [48] - [50]).
The first difficulty I have in these proceedings is that, unlike the claims in Clark v State of New South Wales (where parts of the claims could be severed), a defamation matter must be brought in relation to the whole of the matters complained of. The plaintiff is bringing claims which amount to the canvassing of evidence and charges, which are an abuse of process. While Mr Rasmussen submits it would be easy for the defendant to prove the truth of these imputations, that only adds salt to the wound.
An additional difficulty is that Mr Rasmussen acknowledges that the imputations currently pleaded and set out in the proposed amendment are not final. He asks me to grant leave on the basis of the publications alone. That is not acceptable, for the reasons set out by Schmidt J in Clark v State of New South Wales at [55], [60], [81] and [92].
This does not mean that a felon accused of a serious crime is "libel proof" and can be the subject of false accusations without redress. There are other alternatives, as Ms Mullins pointed out. The plaintiff could have sent a personal letter of complaint requesting withdrawal of the objectionable portion of the matters complained of, or given instructions to her legal advisers to issue a notice of concerns limiting the complaint to the actual falsity.
Ms Mullins submitted that, had such a request been made and refused, the plaintiff would have been able to pursue a series of more proportionate options, ranging from complaint to the Press Council to seeking leave for a claim limited to any failure to make amends. Ms Mullins submitted that the plaintiff's failure to seek a correction should be viewed as deliberate.
While I am not prepared to take such a suspicious view of the plaintiff's failure to seek a correction or removal of the offending portions of the matters complained of, it does undercut Mr Rasmussen's complaint that the plaintiff is left with no remedy if leave is not granted.
This brings me to the issue of whether the claim enjoys a realistic prospect of success in the form of an award for damages.
While it would not be appropriate for me to have regard to damages other than in the most general way, I note Ms Mullins' submission that any felon seeking leave to bring a claim for damage to reputation faces a hurdle very different to a claim for other forms of damages, such as personal injury. The crime for which the plaintiff was convicted was serious, as were the circumstances of her absconding whilst on bail. I accept Ms Mullins' submission that the range of damages likely to be awarded if the plaintiff were successful would be at the bottom end of the scale. While bringing a claim which results in nominal or even contemptuous damages does not amount to an abuse of process, it must materially detract from any assertion that her claim has reasonable prospects of success.
Taking all of the above into account, the plaintiff has failed to discharge the onus which falls upon her to establish the necessary elements for the test under the Act.
There is a second basis upon which I would reject the plaintiff's application, and that is upon the basis of proportionality. As these are alternative findings, I shall deal with them only briefly.
[12]
Proportionality
The defendant submits that pursuant to s 60 Civil Procedure Act 2005 (NSW), proportionality of costs is a relevant consideration in these proceedings. Any award of damages is likely to be nominal, given the plaintiff's criminal convictions, while the costs to the defendant would be considerable.
Mr Rasmussen first submitted that concepts of proportionality could play no part in an application of this nature, and that any such application would have to await the grant of leave. I reject this submission, for two reasons. The first is that s 60 clearly applies "in any proceedings". The second is that the nature of the inquiry requires the taking into account of factors which touch, albeit distantly, upon proportionality.
Mr Rasmussen next challenged the giving of any evidence about the cost of defamation from the bar table or in submissions. However, I can have general regard to the estimates given in other proceedings where a claim of lack of proportionality has been made, including estimates given in applications for security for costs. The defendant's estimate of 10 days (totalling $130,000) is a modest estimate, taking into account the complexity of defamation proceedings and the complex factual matrix of the criminal proceedings, which I note took 36 hearing days and resulted in 6,000 pages of transcript. That is a significant s 60 factor.
There are other factors in relation to proportionality which might be of relevance. First, the plaintiff's failure to send a notice of concerns or even an informal request for the removal of the portions she asserts are false is, as is noted above, contrary to the spirit of both the UCPR and the Civil Procedure Act 2005 (NSW). Second, the length of the criminal proceedings and the amount of documentation, both of which are noted in the matters complained of as having been the subject of concern to the trial judge, could render the hearing of these proceedings by a jury difficult; this could give the plaintiff an unfair forensic advantage. Third, it is no answer for the plaintiff to say that proving the truth (under s 25) of imputations about the criminal proceedings and bail absconding would be easy, where the plaintiff proposes to prevent the defendant from relying upon s 26 as a complete defence by pleading imputations of this kind herself. However, I have not included these additional concerns in my reasoning, as the vagueness of the plaintiff's pleading makes any guess as to the parameters of the claim difficult.
The facts in this case are a good example of the tension between the costs and other factors relevant to proportionality and the right to protect reputation from the publication of defamatory material. The application of concepts of proportionality to litigation remains controversial and there is as yet no definitive consideration of this issue by the New South Wales Court of Appeal. It is nevertheless a concept often referred to in defamation litigation, where the costs and complexities of the litigation often dwarf the damages awarded and where abuse of process has been acknowledged as a basis for dismissal of a claim which might have, but for the abuse of process in question, resulted in an award of damages.
As to the application of s 60 to cases such as the present, I am guided by the observations, in Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334, of Macfarlan JA (with whom Leeming JA and Adamson J agreeing) at [42]:
"[42] Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating "the just, quick and cheap resolution of the real issues in the proceedings" to the matters to be considered (s 56). As well, s 57 includes the "efficient use of available judicial and administrative resources" amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute"."
As noted above, proportionality issues in relation to costs apply to all stages of proceedings. This would include an application for leave to commence proceedings by a felon where it is likely (as is here), from the structure of the claim and the imputations pleaded, that the felon will seek to challenge the facts underlying the criminal trial, conviction and sentence and, even if successful, would recover damages wholly out of proportion to the costs of the action.
Accordingly, if I have erred in holding that the plaintiff cannot satisfy the statutory test for leave to commence proceedings, I would be satisfied that if leave were granted, the costs of the trial would be disproportionate to the importance and complexity of the subject matter in dispute. That would not simply be disproportionate, but an abuse of process, and accordingly leave would be refused on that alternative basis.
[13]
Costs and other orders
As discussed with the parties, I reserved the issue of costs. I have listed these proceedings for directions on 2 March 2017 for further directions to enable the parties either to address me on costs or to allocate a date for doing so.
[14]
Orders
1. Pursuant to ss 4 and 7 Felons (Civil Proceedings) Act 1981 (NSW) the defendant is granted leave to appear.
2. Plaintiff's notice of motion filed on 2 February 2017 dismissed.
3. Plaintiff's statement of claim struck out and dismissed.
4. Costs reserved, with liberty to apply on 2 March 2017 in the Defamation List.
[15]
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Decision last updated: 27 February 2017