Frawley v State of New South Wales

Bishop v State of NSW [2000] NSWSC 1042 Byrne v Deane [1937] 1 KB 818 CASES CITED : Hird v Wood 38 Sol. J 234 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 - 127 Webb v Bloch [1928] HCA; 41 CLR 331

PARTIES : Gregory Frawley - Plaintiff State of New South Wales - Defendant

COUNSEL : PM Sibtain - Plaintiff K Andronos - Defendant

SOLICITORS : MacMahon Associates Pty Ltd - Plaintiff IV Knight, Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20243/05 Gregory Frawley v State of New South Wales

JUDGMENT 1 HER HONOUR: By statement of claim filed on 22 July 2005 the plaintiff claims damages against the defendant (the State of NSW) in respect of an allegedly defamatory publication on the internet. It is the plaintiff's case that the defendant is responsible for the publication. 2 The defendant seeks orders for the summary dismissal of the proceedings, or, alternatively, that the statement of claim be struck out. It invokes UCPR r13.4 and r14.28. Those rules are respectively, relevantly in the following terms: "13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." "14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action ..., or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 3 Neither party took advantage of the capacity to adduce evidence. 4 At the outset it is worth emphasising that the issues that now arise concern only the adequacy, or otherwise, of the plaintiff's pleading to support his case, on the assumption that he will be able to adduce evidence to support his assertions of fact. I am not concerned with whether the plaintiff will be in a position to prove the facts he alleges. At times the argument bordered upon and even strayed into canvassing the plaintiff's prospects of proving those facts. But I must proceed, on this argument, on the basis (however unlikely it may appear to be) that the plaintiff will be able to prove the facts pleaded. 5 The circumstances are very unusual. What the plaintiff pleads is this:

Between March 2002 and August 2004 he was employed by the defendant as a teacher at a Sydney high school. The principal of the high school was a Mr John Norris, also employed by the defendant. During July 2004 there was published on the internet material that identified and defamed the plaintiff. (It is unnecessary to go into the detail as to what is alleged to have been contained in the material: it is enough to say that, as pleaded, and on the assumption that it could and did identify the plaintiff, it was plainly seriously defamatory.) The plaintiff does not allege that the defendant, or any of its employees, servants or agents, were the authors of the material, or physically took any action to publish it, to place it on the internet, or took any part in publishing it other than as appears below. He only alleges that the material appeared on a website that was accessible on computers within the school, that were supplied by and the property of the defendant; that Mr Norris was made aware of the site, and of the subject material; that he was asked to remove it or take steps to ensure that it was not accessible on the defendant's computers in the school; that he failed to do so; and that he thereby made himself (and therefore the defendant) responsible for its publication. 6 Solicitors acting for the defendant sought further particulars of the statement of claim. Relevantly for present purposes, they asked: "1. I assume that the basis upon which you allege publication is the download from the world wide web of the first matter complained of on computer terminals: (a) physically located at the High School; and (b) the property of the Department. Please confirm that this is the case. If there is some other basis upon which publication is alleged, please specify. ... 6. What steps to 'remove the material complained of' is it alleged were available to the Principal and that he failed to take? 7. From where is it alleged that the material complained of could have been removed had the Principal taken the steps available to him that he failed to take? 8. What steps to ensure that the material was not viewed on the High School's computers is it alleged were available to the Principal and that he failed to take?" 7 The plaintiff's solicitors responded by confirming the assumption expressed in the first of these extracts. They replied to the requests numbered 6, 7 and 8, in the following terms: "6. (a) The Principal could have denied access to all school computers until the website was closed; (b) The Principal could have arranged for the site to be blocked; and

(c) The Principal could also have arranged for the site to be closed. 7. As to 6(a) and (b), all school computers. As to 6(c) the website. 8. As to 6(a), the computers could have been switched off. Staff and students could have been instructed not to access the internet. As to 6(b), the school computers could have been blocked from the server. As to 6(c), a request could have been made to the site administrator to close down the website." 8 The question which now arises is whether, if the plaintiff is able to prove the facts he asserts, his claim against the defendant is valid: that is, whether it is reasonably possible that the defendant would be held liable as publisher. 9 The case appears to be unique. However, there is nothing unique about an argument concerning the extent of liability of one person for the publication of others. 10 In Webb v Bloch [1928] HCA; 41 CLR 331, Isaacs J quoted with approval from an 1891 English text on slander and libel as follows: "'The term published is the proper technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.'" (italics in the judgment of Isaacs J) 11 His Honour then went on to quote an argument of senior counsel in a different case, in turn quoting from a different text on slander and libel, as follows: "'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication : thus if one suggest illegal matter in order than another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.' In R v Paine [(1696) 5 Mod 163, at p. 167] it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty : so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.' ... In The Queen v Cooper [(1846) 8 QB 533, at p. 536] Lord Denman CJ said: 'If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.' In that case the defendant was indicted for 'publishing and causing to be published' the libel in question. The judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it. ... In Parkes v Prescott [(1869) LR 4 EX, at p. 178] Montague Smith J says: 'If a man gives a copy of his speech to another to publish, he is answerable as a publisher .'" (italics in the judgment of Isaacs J)

This demonstrates that the principle the plaintiff would seek to invoke is an ancient one. Nevertheless, the plaintiff's attempt to make it apply to his present circumstance may be seen to be pushing its boundaries. 12 I move to more recent authority. In Byrne v Deane [1937] 1 KB 818 a verse which parodied the plaintiff was placed upon the wall of a club. There was no suggestion that it had been there placed by either of the defendants, who were the proprietors of the club. One of the defendants was also the secretary of the club. The rules of the club provided that no such poster could be placed in the club's premises without the consent of the secretary. The three members of the court took different views. Greer LJ held that both defendants were liable since they allowed it to remain upon the wall without removing it, in the knowledge that it would be read by others, and that the defendants were, accordingly, taking part in its publication; Slesser LJ held that there was some evidence of publication on the part of the defendant who was the secretary of the club, but not of the other defendant. His Lordship said: "There are cases which go to show that persons who themselves take no overt part in the publication of defamatory matter may nevertheless so adopt and promote the reading of the defamatory matter as to constitute themselves liable for the publication."

He referred to Hird v Wood 38 Sol. J 234. 13 Greene LJ took into account, in respect of both defendants, that as proprietors they were entitled to remove the notice. He held that the appropriate test was: "... having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?"

He concluded that, the defendants having the power and the right to remove it, and to do so without difficulty, and knowing that it would be seen by club members, they must have been taken to have elected deliberately to leave it there. This amounted to consent to its publication. 14 Closer to home, and to the present day, is the decision of this Court in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 - 127. The circumstances in that case were that posters potentially defamatory of the plaintiff were placed in bus shelters under the control of the Urban Transport Authority of NSW ("the UTA"). The plaintiff drew the UTA's attention to the posters and asked that they be removed. They remained in place for another month. There was no evidence that any employee, servant or agent of the UTA was responsible for the placement of the posters in the shelters. 15 Hunt J (as he then was) reviewed the authorities, including those I have mentioned, and ruled that: "... proof that [the UTA] - (i) had been notified of the existence of the posters and of the plaintiff's complaint concerning their contents, (ii) had been requested to remove the posters, (iii) had the ability to remove those posters or to obliterate their contents, and (iv) had failed within a reasonable period to do so, is capable of amounting to the publication by [the UTA] of those posters provided that the jury also draws the inference from such conduct that [the UTA] had in fact accepted a responsibility for the continued publication of those posters." 16 Finally, in Bishop v State of NSW [2000] NSWSC 1042, Dunford J was dealing, in a jury trial, with a case in which students at a high school had performed a skit in a dramatic production. The skit was said to have lampooned and defamed the plaintiff. At the trial an application was made for a verdict for the defendant by direction on the ground that the evidence did not disclose publication by any person for whom the defendant was liable. Dunford J also reviewed the authorities, including Urbanchich. He held that, in order to make the defendant liable, it was necessary that the plaintiff establish that at some stage the principal of the school became aware of the acts and gestures which conveyed the allegedly defamatory imputations, and that the principal had the opportunity and ability to terminate the performance and failed to do so. In that case, because of the transient nature of the performance, there was no room for any requirement of a complaint or request for intervention. It was also necessary to show that the principal had accepted responsibility for the continuation of the performance. On the evidence in that case, he declined to direct the jury to return a verdict for the defendant. 17 As was submitted on behalf of the defendant in the present case, there is a common thread through these cases. That is, it is essential that the plaintiff prove that the defendant (or the defendant through its employees, servants, or agents) consented to the publication. This could be inferred from the fact (if it be the fact) that that person has control over the matter complained of but fails to take any steps to prevent the publication, or to prevent the continued publication. 18 Provided the plaintiff can establish those facts, a jury would be entitled to find that the defendant was responsible for the publication. 19 In this case, of course, the question is not what the evidence establishes, or what inferences can be drawn from the evidence. No evidence has been adduced. The proceedings are well short of that point. The issue only concerns whether the plaintiff has pleaded sufficient facts which, if proved, would enable a jury to return a finding against it, that is, that it had consented to or permitted the publication. It is important to bear in mind that the likelihood that the plaintiff will be able to meet that fairly demanding test is not in issue. 20 I have concluded that, when the further particularisation of the claim is incorporated, the plaintiff has met the test. He has asserted that the defendant had been notified of the existence of the defamatory material and of the plaintiff's complaint concerning its contents; that Mr Norris had been requested to remove the defamatory material; that he had the ability and the means to do so; and that he had failed to do so. That would leave it open to a jury to infer that the defendant, through Mr Norris, had in fact accepted a responsibility for the continued publication of the material. He has particularised the manner in which he asserts Mr Norris could have presented the use of the school computers for the purpose of accessing the defamatory materials. Whether what it is asserted he could have done was indeed possible, or reasonable, is not relevant to the present determination. 21 I decline to make the order sought by the defendant. The defendant must pay the plaintiff's costs of the proceedings.

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.