Hamade v State of New South Wales

The Amended Statement of Claim pleads by paras 1 and 2 that the plaintiff was at all material times employed as a taxi driver and that the defendant is vicariously liable for the conduct of its servants or agents pursuant to s 23(1B) of the Crown Proceedings Act 1958. Then, in para 3, it is alleged that the defendant between 2003 and 17 May 2005 published in each Australian jurisdiction a National Police Certificate. The Certificate, a copy of which is annexed to the Amended Statement of Claim served on the defendant, contained information to the effect that the plaintiff had been found guilty of numerous crimes, that he was being investigated in relation to theft and rape, and that he used aliases to avoid detection. In the particulars under para 3 of the Amended Statement of Claim, it is said, "The Certificate was published in each State and Territory of Australia on the National Police Records database ... during the period and was available to any person making an application for access to the plaintiff's alleged criminal history maintained on the database...." 24In that case, the proceeding then came before the courts, was adjourned with directions that an amended statement of claim be filed. The statement of claim was not amended in the time allowed and the plaintiff was provided with a further opportunity to amend, failing which the proceeding would be dismissed with costs. An amended statement of claim was served three weeks later, however the plaintiff took a year to respond to the defendant's request for further and better particulars. In the meantime the defendant issued the summons that sought inter alia an order for the proceedings to be stayed on the grounds they did not disclose a reasonable cause of action, were scandalous, frivolous or vexatious or an abuse of process. The defendant was successful before the Master of the Court and Harper J heard the appeal by way of de novo hearing. 25The necessary elements to a cause of action in defamation in Mr Hamade's claim are not made out in the pleadings. Harper J in Mohamed v State of Victoria struck out a plaintiff's statement of claim on similar grounds. His Honour stated at [22]: " [22] The position then, it seems to me, is that the cause of action in defamation as presently pleaded is one which suffers from a terminal problem. A material element of the cause of action is not pleaded, and on the materials provided by the plaintiff himself cannot be pleaded at present, because the plaintiff does not have the relevant information. Until that information is obtained the plaintiff will not be in a position to assert that he has a complete cause of action in defamation and will therefore not be able to plead all the elements which make up such a cause of action. In those circumstances the cause of action in defamation should, as the defendant submits, be struck out." 26Further, Mr Hamade has not addressed the issue of section 14B of the Limitations Act 1969, which states: "14B Defamation An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of. " The Police records that are the subject of Mr Hamade's complaints appear to have been published between 2002 and 2006. 27The State of NSW also submitted that Mr Hamade's pleadings do not comply with the directions given by Schmidt J on 2 September 2010 and that the cause of action pleaded in these proceedings is defamation so the pleadings do not comply with UCPR 14.30. 28Specifically, UCPR 14.30 concerns a pleading of defamation. It reads: " 14.30 Allegations in statements of claim generally (cf SCR Part 67, rule 11; DCR Part 49, rule 10) (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful. (2) Any such statement of claim must: (a) subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance." 29The State of NSW has also submitted that Mr Hamade has not used the opportunity given to him by Schmidt J to properly replead his case. The State of NSW submitted that Mr Hamade does not set out the contents of those records nor does he name the police officers who allegedly defamed him. According to the State of NSW the further amended statement of claim does not specify each imputation on which Mr Hamade relies nor does it allege that the imputation was defamatory of him. To an extent Mr Hamade does give details of the three COPS entries. In these circumstances the State of NSW submitted that the Court should dismiss these proceedings pursuant to UCPR 14.30. 30The amended statement of claim as currently pleaded is hopeless. Mr Hamade's claim has not been articulated in accordance with the Uniform Civil Procedure Rules. The State of NSW would be unable to understand the case it has to meet. Mr Hamade has already been given an opportunity to replead his statement of claim and has been referred for pro bono legal assistance. It appears that Mr Hamade is unable or unwilling to properly plead his claim. He could have availed himself of the assistance of a pro bono lawyer to draft the amended statement of claim. He did not do so. It is my view that to allow Mr Hamade another opportunity to replead his case properly is futile and will result in unnecessary expense being incurred. Hence, I dismiss the amended statement of claim. 31The plaintiff objects to paying any costs. 32Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs of the motion and of the proceedings as agreed or assessed.

The Court orders:

1. The amended statement of claim filed 24 February 2011 is dismissed.
2. The plaintiff is to pay the defendant's costs of the motion and of the proceedings as agreed or assessed.

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: 25 May 2011

It follows that if the cause of action on which the plaintiff seeks to rely is to be pleaded properly, it must contain an allegation of bilateral publication." 21At law, the issue, for Mr Hamade appears to be not whether the Police records were defamatory of him, but whether the defamatory publication was unlawful. This concept is clearly explained at [1070] of ADLP : "In all cases of defamation, the essential question to ask is not whether the publication is defamatory of the plaintiff. Obviously many communications made to the public may contain seriously defamatory statements: the evidence of witnesses in court, the speeches of politicians in parliament, the reports of royal commissioners to government. But these publications are lawful, being protected usually by absolute privilege and affording the defendant, if sued, the opportunity to have the proceedings determined in his favour summarily ( Rajski v Carson (1986) 4 NSWLR 735 at 743-4) . The essential question is really whether the publication constitutes an actionable defamation, that is, a defamatory publication which is not lawful. After all, while the law of defamation can act as a powerful brake on the freedom of expression, it is not designed to deprive the public of information on matters of public importance. It is usually the media which supplies information to the public about the proceedings in courts, in parliament, or in commissions of enquiry, to name but three. In such cases, provided the reporting is fair or accurate, the media has the protection of the law. Many an innocent person has been damaged by such reporting. But in deciding whether that person has a remedy the essential question is usually not whether the plaintiff has been defamed, but whether the defendant can avail itself of a defence whereby the publication was lawful." 22While it is possible that the Police records contained statements that were defamatory to Mr Hamade, it is also possible that their publication, if they were in fact published, was reasonable in the circumstances or that they were subject to some sort of privilege. It is not clear from the pleadings what exactly was unlawful about the COPS records. 23It is worth considering and comparing the facts in Mohamed v State of Victoria as described by Harper J at [1] - [4] and [11]: " [1] The plaintiff, Noor Mohamed, has endured an experience no one would want. He is a person of good character. He had never been convicted of anything. Yet for a period ending on 2 May 2005 he was recorded "on data bases maintained by police jurisdictions at the Federal, State and Territory level" as having a series of convictions for offences involving violence....