Jay v Petrikas

Supreme Court of NSW|2022-10-28|Before: Robb J, Commission J

Solicitors: AR Connolly & Co (Plaintiffs) Crown Solicitors (Defendants) File Number(s): 2022/00304505

Background to the application

The plaintiffs and the first to third defendants are volunteer firefighters connected to the RFS and the fourth defendant is a district manager employed by the RFS.
In substance, the proceedings in this Court involve a dispute arising out of a number of publications made by the first four defendants, as follows:

A letter dated 25 August 2016 and attachments addressed to the fourth defendant by the first to third defendants (Annexure A to the statement of claim);
Briefing Note dated 5 September 2016 and attachments addressed to the Regional Manager, Ben Watson, from the fourth defendant (Annexure B to the statement of claim); and
Briefing Note dated 5 September 2016 and attachments addressed to Regional Manager, Ben Watson, from the third defendant and the fourth defendant (Annexure C to the statement of claim).

In summary, the plaintiffs allege that the above publications conveyed certain representations and that the representations are false.
On 6 March 2019, the plaintiffs commenced proceedings No 2019/72815 in the District Court of New South Wales against the first three defendants to these proceedings. The plaintiffs sued those defendants in the tort of injurious falsehood alleged to have been committed by the representations made by those defendants.
The plaintiffs filed a motion on 6 September 2019 to join the fourth defendant as a party and to sue her for defamation. That motion was dismissed by the District Court on 28 November 2019.
The fourth defendant was subsequently joined to the District Court proceedings on or about 1 May 2020 in an amended statement of claim and is also sued by the plaintiffs for alleged injurious falsehood.
The background to the commencement of the District Court proceedings is that, on or about 13 December 2016, the plaintiffs were informed by a representative of the RFS of the substance of the allegations raised in the publications referred to above, and that they would be referred to Jason Plumridge (the investigator), a private investigator, for investigation. On or about 11 December 2017, the plaintiffs, the defendants, and other relevant persons were informed by another representative of the RFS in substance that, following the investigation, the matter would not proceed further.
The Court was informed by senior counsel for the defendants on the hearing that is the subject of these reasons that, in substance, the investigator found that the allegations made against the defendants in the publications had not been substantiated. Accordingly, this is not a case where the plaintiffs complain that allegations had been made against them by the first four defendants and that the plaintiffs' reputations have been damaged by the publication of a report by the investigator commissioned by the RFS that found that the allegations had been substantiated. Senior counsel for the plaintiffs appeared to accept this position at the hearing, as he informed the Court that the plaintiffs' reputations had not been restored by a finding that the allegations were untrue, as the report only found that they had not been proved.
On 2 November 2021, the District Court proceedings were listed for final hearing on 21 November 2022 with an estimated hearing time of 10 plus days.
The parties participated in mediations on 30 August 2022 and on 12 September 2022 but the proceedings have not been settled.
In the District Court proceedings, the first plaintiff claims a total amount of $23,286.16 in actual pecuniary loss, and the second plaintiff claims the sum of $25,193.30. There are, in addition, claims for aggravated and punitive damages.
To establish their claim in the District Court proceedings, the plaintiffs must not only prove that the pleaded representations made by the first four defendants were false, but also that they were made with malice and that they caused the plaintiffs to suffer pecuniary loss.
The Court was informed on behalf of the first four defendants that, as the District Court proceedings have now been on foot for around 3 and a half years, they have been preparing themselves emotionally and mentally for a hearing on 21 November 2022, and that they wish to have the District Court proceedings heard on the allotted day, so that they can achieve closure in relation to this dispute, and they can then proceed with their lives.
As mentioned above, the Supreme Court proceedings were commenced on 12 October 2022. As I will explain in more detail below, as against the first four defendants the plaintiffs claim declarations that the representations that they say were made against them by the first four defendants were factually false. In the Supreme Court proceedings, the plaintiffs do not allege that the representations were made maliciously by the first four defendants, and the plaintiffs do not seek any monetary relief against those defendants. I will explain the nature of the separate claim made against the RFS below.

The parties' notices of motion

The Court has before it two notices of motion. The first was filed by the plaintiffs on 12 October 2022, and seeks the following relief: 1. Proceedings 2019/0072815 be transferred from the District Court of New South Wales to the Supreme Court of New South Wales pursuant to section 140(1) of the Civil Procedure Act 2005, and consolidated with these proceedings pursuant to rule 28.5 of the Uniform Civil Procedure Rules.
The defendants responded by obtaining the leave of the Court on 28 October 2022, which was the day of the hearing, to file in court the defendants' notice of motion, which relevantly sought the following relief: 2. The proceedings be dismissed pursuant to Rule 13.4 UCPR; 3. In the alternative, the proceedings be struck out pursuant to Rule 14.28. UCPR; 4. Further, and in the alternative, the proceedings be stayed pursuant to section 67 of the Civil Procedure Act 2005; …
The Court heard the two notices of motion in the Equity Duty List because of the relatively urgent need to the determine the applications, given that the District Court proceedings are listed to commence on 21 November 2022.
The parties agreed at the hearing that the logical place for the Court to start was to deal with the defendants' notice of motion. If the Court dismisses the plaintiffs' claim in this Court or strikes out the statement of claim, there will be no proceedings on foot in this Court to which the District Court proceedings could be joined after an order for transfer was made.

The District Court hearing

The Court was informed that, on 21 October 2022, after the defendants gave notice of their attempt to seek dismissal of the Supreme Court proceedings, the plaintiffs filed a notice of motion in the District Court proceedings seeking an order vacating the final hearing listed to commence on 21 November 2022, and an order that the Crown Solicitor's Office produce certain categories of documents. The motion was initially listed for directions in the District Court on 2 November 2022. After I reserved judgment, my Associate was informed by the parties that the District Court has been asked to adjourn the directions hearing until 7 November 2022 so that I will have time to deliver judgment in the matter. The Court has subsequently been informed that his Honour Dicker SC DCJ has made orders in chambers to that effect.

Analysis of the statement of claim in this Court

It will now be appropriate to analyse the statement of claim in this Court. I will deal separately with the claims against the first four defendants and then the claim against the fifth defendant, the RFS.

Claims against the first to fourth defendants

Prayer 1 seeks twelve separate declarations, the first six of which concern the first plaintiff and the second six of which concern the second plaintiff. All the separate declarations are formulated with the same structure. I will begin by setting out the declaration in prayer 1(a), which is as follows: 1. Declarations that: a. (i) the allegation that the first plaintiff bullied and intimidated members of the Rural Fire Service at a meeting on 20 July 2016 is false; (ii) in making that allegation, the first, second and third defendants breached NSW RFS service standard 1.1.42 'Respectful and Inclusive Workplace' by making a 'false or vexatious allegation'. (iii) in making that allegation, the first, second and third defendants breached NSW RFS service standard 1.1.3 'Grievances' by making a 'vexatious allegation'. (iv) in making that allegation, the first, second and third defendants breached NSW RFS service standard 1.17 'Code of Conduct and Ethics' by not acting with 'accountability', 'fairness and equity', and in accordance with NSW RFS 'values' and 'ethical decision-making'.
The only differences between the formulations of the 12 declarations is found in sub-par (i), where in each case, if the declaration were made, a different allegation of fact would be declared to be false.
The effect of sub-pars (ii) to (iv) is that the declarations, if made, would declare that the first to third defendants had breached the identified NSW RFS service standards.
The defendants made a submission that the statement of claim did not seek any relief against the fourth defendant. That is true in relation to the declarations in sub-pars (ii) to (iv). It may not be true in relation to each sub-par (i), where the effect of the declaration, if made, would be that a particular allegation of fact is false. That aspect of the declarations does not specify that it is sought against particular defendants, and it might bind all of them.
The pleadings and particulars contain allegations concerning the publication of three separate sets of information. Paragraph 4 alleges the publication on 25 August 2016 by the first to third defendants of the material annexed and marked A. Paragraph 6 alleges publication by the fourth defendant between 5 September 2016 and 19 October 2016 of the material annexed and marked B. Paragraph 10 alleges the publication by the third and fourth defendants between 5 September 2016 and 19 October 2016 of the material annexed and marked C.
It is to be noted that the plaintiffs allege that the fourth defendant was involved in the second and third of these publications.
In the case of each of the publications, the statement of claim contains a paragraph that sets out the representations made in the publications, being respectively the first par 5, and pars 7 and 11. (The numeration of the paragraphs is confused by the fact that there are two paragraph 5s). These representations are called the 25 August 2016 representations, the First 5 September 2016 representations and the Second 5 September 2016 representations respectively. In the case of each set of alleged representations there is a paragraph of the statement of claim that alleges the representations were false, being respectively the second par 5, pars 8 and 12.
Strangely, the allegations of the substance of the representations made in each of the three publications does not precisely match the terms of the declarations as to the falsity of the representations in the several sub-pars (i) in prayer 1. It is difficult to judge whether this disconformity would prove embarrassing at a trial.
There is a structural difference in how the claims concerning the second and third publications are pleaded compared to the first one. In the case of the first publication, the plaintiffs plead the making of the publication, the alleged representations made in it, and the falsity of the representations. The same pleadings are made in relation to the second and third publications, but in those two cases there are additional allegations, which are made in pars 9 and 13. Almost all the sub-paragraphs of those two paragraphs allege that the defendants responsible for the publications "knew" of specified facts and circumstances at the time the publications were made. Of the 12 sub-paragraphs of par 9, 10 allege that the fourth defendant knew of certain facts and circumstances. Of the 33 sub-paragraphs of par 13, 32 involve allegations that the third and fourth defendants knew of certain facts and circumstances.
I will only give one example of these allegations of knowledge. Paragraph 13(b) alleges: 13. In respect of each of the matter (sic) and the Second 5 September 2006 representations set out in the paragraphs above the plaintiffs allege that the third and fourth defendants: … (b) knew that [an RFS member - name redacted] had a sexual relationship with the first plaintiff's daughter while she was the babysitter of [the RFS member's] children and whilst the first plaintiff's daughter was 16 years old and [the RFS member] was a 33 year old married man and whilst they were both Brigade members; …
The allegations that certain defendants knew of particular facts and circumstances could not be material to any of the declarations in sub-par (i) of the formulation of the 12 declarations. Those parts of the declaration simply declare that a particular allegation is false. It is possible that the allegations of knowledge have some relevance to the declarations claimed in sub-pars (ii) to (iv) that the third defendant, at least, breached the three NSW RFS service standards. The allegations of knowledge of facts and circumstances made against the fourth defendant cannot be relevant to the declarations sought in sub-pars (i) of prayers 1(a)(i) to (l)(i), which only concern the conduct of the first to third defendants.
Apart from the multiplicity of the allegations of knowledge of certain facts and circumstances, it is to be noted that the statement of claim does not contain allegations that the subject matters of the alleged knowledge were factually true. The statement of claim rolls up the allegations as to the facts and the allegations as to the knowledge of the facts in bare allegations of knowledge. No particulars are given as to how the third and fourth defendants gained knowledge of the multitude of facts and circumstances that they are alleged to have known.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.4(2) has the effect that the statement of claim was not required to contain particulars of the knowledge of the third and fourth defendants. UCPR r 15.10(2) authorises the Court to order that particulars be given of the facts relied upon by a party to prove that the other party had knowledge of relevant facts and circumstances. Even though the plaintiffs were not required to give particulars of knowledge, it is significant in the present case that a multitude of allegations of knowledge is contained in the statement of claim in the absence of positive allegations as to the existence of the facts and circumstances which, if those allegations had been included, may have provided the third and fourth defendants with some basis for understanding how it is claimed that they had knowledge of those facts and circumstances.
The allegations against the first to fourth defendants are completed in pars 14 to 16 of the statement of claim, which are apparently relevant to the parts of the declarations that have the effect of declaring that the first to third defendants breached particular NSW RFS service standards. The allegations are: 14. Section 13 of the Rural Fires Act 1997 empowers the Commissioner of the fifth defendant to issue written policy statements to members of the fifth defendant for or with respect to procedures to be followed in connection with the operation, management and control of the fifth defendant. 15. In the exercise of the powers granted by section 13, the Commissioner of the fifth defendant has issued a number of Service Standards. 16. By making each of the above representations: (a) the first, second and third defendants, in the case of the 25 August 2016 representations, (b) the fourth defendant, in the case of the First 5 September 2016 representations; and (c) the third and fourth defendants, in the case of the Second 5 September 2016 representations: breached the following Service Standards of the fifth defendant, which were in force at the relevant times: (a) Service Standard 1.1.42 'Respectful and Inclusive Workplace', by making false or vexatious allegations; (b) Service Standard 1.1.3 'Grievances', by making vexatious allegations; (c) Service Standard 1.1.7 'Code of Conduct and Ethics', by not acting with accountability, fairness, and equity, or in accordance with the fifth defendant's values and ethical decision making.
The statement of claim does not contain any allegations as to the text of the relevant service standards. It is not therefore clear, for example, that service standard 1.1.42 contains a prohibition against members of the RFS making false or vexatious allegations. Even if it be assumed that a reading of the relevant service standards would demonstrate that they contain requirements or prohibitions that matched the allegations in the second sub-pars (a) to (c) in par 16 of the statement of claim, it is to be noted that the statement of claim does not contain any particulars as to how it is alleged by the plaintiffs that each representation involved a breach of the particular service standards. The provision of those particulars may have been an enormous task given their number, particularly if it is alleged that the facts and circumstances of which the third and fourth defendants are alleged to have had knowledge are in some way material to the breaches in each case. It is the case, however, that the plaintiffs allege that each of the three publications contained a substantial number of representations, that those representations were false, and, in the case of two of the publications, that the third and fourth defendants had knowledge of a multitude of facts and circumstances that may have had some bearing on the truth of the representations. The structure of the statement of claim requires the defendants to deduce for themselves how the allegations made against them involved breaches of the service standards.
For the purpose of determining the adequacy of the way the statement of claim is pleaded against the first of fourth defendants, the following matters are the most significant. 1. First, sub-par (i) of each of the declarations is limited to a declaration that a particular allegation of fact is false. Considered in isolation, these aspects of the declarations would not establish that the plaintiffs had any legal right known to the law. They appear to be limited to declarations as to the existence of factual circumstances that may or may not be relevant to whether the plaintiffs are entitled to particular legal rights. 2. Secondly, in relation to the three parts of the formulation of the declarations that involve the Court declaring that the making of the several representations involved breaches of NSW RFS service standards, nothing is pleaded in the statement of claim concerning the legal significance and enforceability of the service standards. It is not made clear whether, on a contractual or statutory basis, the service standards impose obligations on members of the RFS such that breach of the standards has some relevant legal consequence. In particular, nothing is pleaded concerning the effect of the service standards to establish that members of the RFS in the position of the plaintiffs have a legal right to require other members to adhere to the service standards.
I will consider the significance of these matters below when I address the entitlement of the defendants to the relief that they claim in their notice of motion.

Claims against the RFS

The declarations that the plaintiffs seek to be made against the RFS relate to three separate aspects of the dispute. The first concerns the way in which the RFS was involved in the investigation carried out by the investigator. The second concerns the way in which the RFS responded to the receipt of the report from the investigator. The third concerns the RFS' conduct in response to the District Court proceedings commenced by the plaintiffs. The declarations that the plaintiffs seek against the RFS are contained in prayer 1(m) to (p) of the statement of claim. There is no prayer 1(n). It will be convenient to deal with these three alleged aspects of the RFS' conduct separately.

The RFS' involvement in the investigation

The prayer in respect of the RFS' involvement in the investigation is relevantly as follows: 1. Declarations that: … m. (i) the NSW RFS improperly managed the investigation into the plaintiffs by: (a) Delaying the investigation without giving notice or cause to the plaintiffs thereby interfering with due process; (b) Liaising with the investigator in a manner that affected his impartiality and objectivity and created perceived and actual bias and interfered with due process and natural justice; and (c) Refusing to release the contents of the investigator's report to the plaintiffs at the conclusion of the investigation thereby interfering with due process and natural justice. (ii) in improperly managing the investigation into the plaintiffs, the RFS breached service standard 1.1.2 'Discipline' and acted contrary to the guides 'Conducting a volunteer discipline investigation' and 'Managing volunteer discipline' that are to be read alongside the service standard. (iii) in improperly managing the investigation into the plaintiffs, the RFS breached service standard 1.1.7 'Code of Conduct and Ethics' by not acting with 'accountability', 'fairness and equity', and in accordance with 'ethical decision making'.
The pleadings and particulars that supported this claim for relief by the plaintiffs are as follows: 17. The fifth defendant caused an investigation to be conducted into the subject matter of the false allegations alleged above. 18. In the process of causing that investigation to take place, the fifth defendant was required to afford procedural fairness to the first and second plaintiffs. 19. The fifth defendant failed to afford procedural fairness to the first and second plaintiffs, by: (a) delaying the investigation without notice to either the first or second plaintiff; (b) liaising with the investigator so as to affect the investigator's impartiality and objectivity; (c) creating perceived bias on the part of the investigator; (d) creating actual bias on the part of the investigator; (e) refusing to release the contents of the investigator's report to either the first or second plaintiff at the conclusion of the investigation. 20. By reason of the actions alleged in the preceding paragraph, the fifth defendant also breached the following Service Standards: (a) Service Standard 1.1.2 'Discipline; and (b) Service Standard 1.1 .7 'Code of Conduct and Ethics', by not acting with accountability, fairness, and equity, or in accordance with the fifth defendant's values and ethical decision making. 21. By reason of such actions, the fifth defendant also acted contrary to the guides 'Conducting a volunteer discipline investigation' and 'Managing volunteer discipline' that are to be read alongside Service Standard 1.1.2.
It may be noted in respect of this aspect of the declaratory relief sought by the plaintiffs against the RFS that it does not in any transparent way respond to the fact that the investigator found that all the complaints that had been made against the plaintiffs were not substantiated, and the RFS determined that no steps should be taken against the plaintiffs based upon the report.
By means of the chapeau to prayer 1(m)(i), the plaintiffs seek a declaration that the RFS "improperly managed the investigation" in the manner set out in the subsequent sub-paragraphs. The only matter pleaded that could support an allegation as to how the RFS should have managed the investigation is the claim in par 18 that the RFS was required to afford procedural fairness to the plaintiffs. While it may be that the RFS was under such an obligation, it is not universally true that employers are not permitted to carry out any investigations concerning the activities of their employees without affording the employees procedural fairness for the purposes of the investigation: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10 (Ainsworth). Procedural fairness may be required, but that will depend upon the circumstances.
The plaintiffs' claim that the RFS was required to afford them procedural fairness is pleaded as a matter of bare assertion. Nothing is pleaded concerning the circumstances in which the investigation took place that would disclose the basis of the plaintiffs' case they were entitled to procedural fairness. It must be remembered that the investigator was a private investigator, and it may be that the investigation was only commissioned by the RFS to enable it to determine whether the circumstances justified some formal enquiry into the allegations made by the first to third defendants. As noted above, the RFS satisfied itself as a result of the investigation that no further steps against the plaintiffs should be taken.
In substance, the plaintiffs have supported the declarations sought in prayer 1(m)(i)(a) to (c) by simply making bare assertions in the same terms as the pleadings in par 19(a) to (e) (although for some reason there are subtle differences in wording).
The plaintiffs allege in par 19(a) that the RFS delayed the investigation without giving notice to the plaintiffs. No facts are alleged that would support any finding that there was any material delay. No facts are alleged that could support a finding that the plaintiffs were adversely affected by any delay. As noted, the investigator found that the allegations were not substantiated.
The declaration in prayer 1(m)(i)(b), and the supporting allegations in par 19(b) to (d) that the RFS liaised with the investigator in a manner that affected his impartiality and objectivity, and created circumstances of perceived and actual bias and interference with due process and natural justice, are very serious allegations. The statement of claim does not plead any facts in respect of the RFS' conduct that are capable of supporting the allegation. The allegation is made as a matter of bare assertion.
The plaintiffs seek a declaration in prayer 1(m)(i)(c) that the RFS' refusal to release the contents of the investigator's report interfered with due process and natural justice. The bare allegation in par 19(e) mirrors that claim. The plaintiffs have not pleaded the basis for their claim for a declaration that the RFS improperly managed the investigation, given that the report found that the allegations had not been substantiated and the RFS decided not to proceed with any investigation against the plaintiffs.
The plaintiffs' claims for declarations in prayer 1(m)(ii) and (iii), to the effect that the conduct of the RFS involved the improper management of the investigation by breaching the service standards referred to, are supported in pars 20 and 21 by bare assertions made by reference to identified service standards. The statement of claim does not contain any allegations that would support findings as to the legal significance of the service standards, in the sense of how those standards would oblige the RFS to respond to the allegations made against the plaintiffs. The statement of claim does not allege the substance of the service standards sought to be enforced.

The RFS' response to the investigator's report

I will turn now to the second aspect of the relief sought by the plaintiffs against the RFS, being the declaration sought concerning the way in which the RFS responded to the receipt of the investigator's report. Prayer 1(o) is to the following effect: 1. Declarations that: … o. (i) the NSW RFS had a duty after receiving the finalized investigation report of Jason Plumridge given its contents and findings to investigate whether the allegations that had been made by the first, second and third defendants were 'frivolous, malicious or vexatious allegations' of a grievance and if so, treat them as a breach of discipline or misconduct. (ii) in failing to do so, the RFS breached service standard 1.1.3 'Grievance'. (iii) in failing to do so, the RFS breached service standard 1.1.7 'Code of Conduct and Ethics' by not acting with 'accountability', 'fairness and equity', and in accordance with 'ethical decision-making'.
The plaintiffs supported the claim for this declaration by including the following allegations in their pleadings and particulars: 22. When the fifth defendant received the reports of the investigator into the allegations against the first and second plaintiffs, given the contents of those reports, the fifth defendant had a duty to investigate whether the allegations that had been made by the first, second, third, and fourth defendants had been frivolous, malicious, or vexatious. 23. If the fifth defendant considered that the allegations that had been made by the first, second, third, and fourth defendants had been frivolous, malicious, or vexatious, the fifth defendant had a duty to treat them as a breach of discipline or misconduct. 24. The fifth defendant failed to consider whether the allegations that had been made by the first, second, third, fourth defendants had been frivolous, malicious, or vexatious. 25. The fifth defendant should have should have concluded that the allegations that had been made by the first, second, third and fourth defendants had been frivolous, malicious, or vexatious. 26. The fifth defendant should have treated the making of the allegations by the first, second, third, and fourth defendants as a breach of discipline or misconduct.
The most notable feature of this aspect of the plaintiffs' case is that they are not claiming relief in respect of the RFS' conduct directly against their own interests. They are seeking a declaration to the effect that the RFS was required, after it received the investigator's report, to take steps to first investigate whether, and then find that, the first to fourth defendants, in relation to their participation in the allegations made against the plaintiffs, had been frivolous, malicious or vexatious, and that such conduct involved a breach of discipline or misconduct.
The plaintiffs have not pleaded any allegations capable of supporting a finding by the Court, first, that the RFS was under any legal duty to investigate and find any case against the first of fourth defendants proved; or, secondly, that the plaintiffs have any legal right or standing to require the RFS to prosecute any investigation against the first to fourth defendants.
The allegation in par 22 that the RFS had a duty to investigate whether the allegations that had been made against the plaintiffs were frivolous, malicious, or vexatious is based on bare assertion.
Insofar as the plaintiffs allege in par 26 that the RFS should have treated the making of the allegations against the plaintiffs as being a breach of discipline or misconduct by the first to fourth defendants, the plaintiffs do not plead any facts in the statement of claim capable of supporting a finding by the Court that the conduct of the relevant defendants did in fact constitute a breach of discipline or misconduct. The Court could not make a declaration that the RFS should have made that finding if the Court did not have a basis for making the finding itself.

The RFS' response to the District Court proceedings

I will then move to the third aspect of the declaration sought by the plaintiffs against the RFS concerning what the plaintiffs claim the RFS should have done in response to the commencement of the District Court proceedings by the plaintiffs. In prayer 1(p) the plaintiffs claim: 1. Declarations that: … p. In funding the defendants in the litigation commenced against them by the plaintiffs, and failing to fund the plaintiffs in respect of the same litigation, the NSW RFS breached service standard 1.1.7 'Code of Conduct and Ethics' by not acting with 'accountability', 'fairness and equity' and in accordance with 'public interest' and 'ethical decision making'.
In support of the claim for this declaration, the plaintiffs pleaded: 27. On 6 March 2019, the first and second defendants commenced proceedings 2019/72815 in the District Court of New South Wales (the District Court Proceedings), naming the first, second, and third defendants as defendants. 1 May 2020, the first and second plaintiffs filed an Amended Statement of Claim in the District Court Proceedings, adding the fourth defendant as the fourth defendant in the District Court Proceedings. 28. The fifth defendant has funded each of the first, second, third, and fourth defendants in their defence of the District Court Proceedings. The fifth defendant has known at all times that the allegations made by the first, second, third, or fourth defendants as pleaded above were false. 29. By finding the defence of the first, second, third, and fourth defendants in the District Court Proceedings, but not funding the first and second plaintiffs, the fifth defendant has breached Service Standard 1.1.7, 'Code of Conduct and Ethics', by not acting with accountability, fairness and equity, and not acting in accordance with public interest and ethical decision making.
Although the point may not be immediately obvious, perhaps the most significant forensic consequence of these allegations is the claim in par 28 that the RFS has known at all relevant times that the allegations made by the first, second, third or fourth defendants were false. From the time that the RFS received the investigator's report, it had evidence capable of supporting a conclusion by the RFS that the allegations had not been substantiated. The allegation that the RFS knew that the allegations were false is an entirely different matter. The statement of claim contains no allegations of fact capable of supporting a finding by the Court that, at least from the date of commencement of the District Court proceedings, the RFS knew in fact that the allegations made by the first to fourth defendants were false.
The plaintiffs' claim that the RFS breached service standard 1.1.7 by funding the defence of the other defendants in the District Court, while not funding the plaintiffs' prosecution, depends upon the plaintiffs having legal standing that entitles them to oblige the RFS to fund the plaintiffs' prosecution of the District Court proceedings if it decided to prosecute the defence of those proceedings by the other defendants. The statement of claim does not contain any allegations of fact or law that would support a declaration by the Court as to how the RFS was obliged to conduct its statutory duties.
Separately, the statement of claim does not set out the substance of the relevant service standards in a manner capable of establishing an arguable case that the RFS was precluded from funding the other defendants' defence without also funding the plaintiffs' prosecution.

Claims in the District Court proceedings

It will now be appropriate to consider the relationship between the claims being prosecuted by the plaintiffs in the District Court and their claims in these proceedings.
The most notable difference is that, while the plaintiffs only seek declarations against the defendants in this Court, the relief they claim in the District Court is: "1. Damages including aggravated and punitive damages for injurious/malicious falsehood."
Another principal difference is that the plaintiffs have added a claim against the RFS in these proceedings, which is not a defendant in the District Court proceedings.
Finally, the plaintiffs do not make specific claims in the District Court proceedings for orders that will establish that the defendants breached any of the RFS' service standards.
Save for one significant matter, the allegations of fact that are pleaded in both statements of claim and the particulars given are materially the same. However, the allegation and particulars of malice in par 6 of the District Court statement of claim concerning the 25 August 2006 representations have been omitted from the Supreme Court statement of claim. It appears that the allegation of the fourth defendant's knowledge concerning the First 5 September 2016 representations, pleaded in par 10 of the District Court statement of claim, and of the third and fourth defendants' knowledge concerning the Second 5 September 2016 representations, pleaded in par 14 of the District Court statement of claim, have been retained in pars 9 and 13 of the Supreme Court statement of claim. That may be because in the District Court statement of claim, the plaintiffs specifically pleaded malice in par 6 concerning the 25 August 2016 representations but did not label the allegations in pars 10 and 14 of the District Court statement of claim, later becoming pars 9 and 13 of the Supreme Court statement of claim, allegations of malice. The latter two allegations were merely pleaded as allegations of knowledge, but they may have been intended to stand for allegations of malice. It is therefore possible that the allegations in pars 9 and 13 of the Supreme Court statement of claim have been transposed from the District Court statement of claim in error. The position is unclear because, although proof of knowledge on the part of the defendants would not be necessary to support declarations that allegations as to particular facts were untrue, proof of knowledge may well be necessary to justify declarations that the conduct of the defendants was in breach of relevant service standards. This uncertainty remains unresolved.
There was debate at the hearing as to why it would be to the advantage of the plaintiffs to substantially duplicate their claims in the District Court in this Court, even though different relief is sought.
There was no issue between the parties that the elements of the tort of injurious falsehood were correctly stated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404; [2001] HCA 69 at [52], as follows (footnotes omitted): [52] The elements of the action for injurious falsehood usually are expressed in terms which derive from Bowen LJ's judgment in Ratcliffe v Evans, to which further reference will be made. Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
Consequently, the District Court judge who presides over the hearing should be required to make findings as to whether the allegations that the plaintiffs claim were made by the defendants were in fact made, and, if they were made, whether they were false. If that happens in the District Court proceedings, the plaintiffs will have the benefit, if they succeed, of judicial findings substantially to the same effect as they seek in these proceedings. Although those findings will not be supported by declarations, they would give rise to issue estoppels.
Senior counsel for the plaintiffs responded to this issue by advising the Court that, even though the plaintiffs maintain their claims that the publications involved malice on the part of the defendants and caused them actual damage (being Gummow J's elements (3) and (4)), they recognised that they may face some forensic difficulty in establishing those elements. Accordingly, the plaintiffs have commenced the proceedings in this Court seeking declarations that would, if made, directly substantiate the plaintiffs' claim that false allegations of fact had been made against them by the defendants.
Thereby, senior counsel for the plaintiffs conceded that a primary purpose of the plaintiffs in commencing the proceedings in this Court was to restore the plaintiffs' reputations.
That course should not be necessary, and indeed it should involve a duplication of judicial proceedings, if it is likely that the District Court will make the necessary findings of fact concerning the making of the allegations alleged by the plaintiffs and the falsity of those allegations as a matter of fact. The plaintiffs seem to be concerned that their proceedings in the District Court may miscarry, because the judge may find that the tort of injurious falsehood has not been proved because the plaintiffs have failed to establish malice on the part of the defendants, or that they have suffered a relevant pecuniary loss as a result of the defendants' conduct. That concern on the part of the plaintiffs will only eventuate if the presiding judge does not feel an obligation to make appropriate findings on element (1) of the tort of injurious falsehood as stated by Gummow J.
In Boensch v Pascoe (2019) 268 CLR 593 at 600-1; [2019] HCA 49 at [7]-[8], Kiefel CJ, Gageler and Keane JJ implied that trial judges should decide issues that do not require determination in the light of other findings made by the Court, at least where that will facilitate the determination of appeals without the risk of retrials becoming necessary. In Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [35], Leeming JA (with whom Mitchelmore JA and Simpson AJA agreed at [293] and [294] respectively) said: [35] … In Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7], the general rule was enunciated that "a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial". See further PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] and the cases there cited, where it was said that while a litigant is not entitled to insist that a trial court determine non-dispositive issues and give reasons for doing so, nevertheless when a court chooses not to do so it is generally advisable to explain why that course is being taken. ...
I am not prepared to proceed upon the basis that there is a real risk that the presiding judge in the District Court proceedings will not perform his or her duty to make appropriate findings of fact in relation to the element of the tort that requires that it be proved that the defendants have made false statements of or concerning the plaintiffs' goods or business. With respect to the District Court, I should qualify that observation, however, by repeating the conclusion that I have expressed above that the plaintiffs' statements of claim in both courts allege a multitude of facts and knowledge on the part of the defendants. It may well be unreasonable to expect any court to make discrete findings on every single allegation of fact made by the plaintiffs - indeed, it may not be realistic to expect any court to do so. There is a considerable likelihood that both this Court and the District Court would need to find some way to make findings on sufficient facts to justify the ultimate conclusions reached by the Court, without embarking upon the oppressive task of attempting to make precise findings in respect of all the multifarious allegations.

Rules relied upon by the defendants

I will now turn to the rules that govern the making of the orders sought by the defendants. The defendants first seek an order that the proceedings be dismissed pursuant to UCPR r 13.4 which provides: 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 (b) no reasonable cause of action is disclosed, 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).
As I understand it, the real basis of the defendants' reliance upon this rule is that the plaintiffs are seeking bare declarations that specified allegations of fact are untrue, in the absence of any identified legal consequences to the making of the declarations sought. The defendants submit that, as the plaintiffs have not sought to protect their reputations by instituting proceedings for defamation, or they have been unsuccessful in seeking to institute such proceedings, they are left with their claim in tort for injurious falsehood as the only legally recognised action for them to take. They are not entitled to pursue an 'ersatz' remedy in the form of declarations that allegations that they claim were made against them are false. Furthermore, this aspect of the proceedings in this Court are both vexatious and an abuse of process, as the plaintiffs have pursued their claim for injurious falsehood in the District Court for over two and a half years and the hearing in those proceedings is now imminent. The defendants say that it will be oppressive to permit the plaintiffs to cause the hearing in the District Court to miscarry by pursuing alternative claims in this Court, which, in reality, involves the plaintiffs in seeking relief that is not available.
Alternatively, the defendants seek an order that the statement of claim be struck out. UCPR r 14.28 provides: 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 defence or other case appropriate to the nature of the pleading, 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).

Consideration

For the reasons that follow, I have decided that the Court should dismiss that part of the plaintiffs' claim as seeks declarations that allegations of fact that the plaintiffs claim were made by the defendants in the various publications were false. The Court should then strike out the whole of the balance of the plaintiffs' statement of claim. That would, in principle, leave it open to the plaintiffs to replead claims that the conduct of the first to fourth defendants involved breaches of the relevant service standards. It would also leave it open to the plaintiffs to replead a claim against the RFS. I am sceptical that the plaintiffs will be able to cure the pleading deficiencies that I consider exist in relation to those parts of their claims that I will not summarily dismiss. However, I consider that it is currently premature for the Court to summarily dismiss those parts of the plaintiffs' claims that will not be decided in substance in the District Court proceedings.
It follows that I will not make an order under s 140 of the Civil Procedure Act 2005 (NSW) transferring the District Court proceedings to this Court. It is not warranted that this Court make an order for the transfer of proceedings from the District Court that involve claims for damages in the order of $25,000 (plus, I accept, claims for aggravated and pecuniary damages). The District Court is, with respect, well-suited to determining these common law claims and is ready to do so. It is not convenient that they be transferred to the Equity Division of this Court. Although both proceedings could be transferred to the Common Law Division, that would in part defeat the purpose of seeking declaratory relief in this Court. Subject to any ruling by the District Court concerning whether the proceedings that are presently fixed to be heard in that Court should commence on the allotted date (an issue in respect of which I have no right to express any view), it should be left to the District Court to decide the questions of whether representations were made and whether they were false. If, based on those findings, the plaintiffs wish to resurrect their claims in this Court concerning breaches of the service standards and the conduct of the RFS, that will be a matter for the plaintiffs after they have served new pleadings that accommodate relevant findings by the District Court.
I will now set out my reasons for making the orders that I have just explained.
The first issue for consideration is the basis of the Court's decision to dismiss the plaintiffs' claims for declarations in the various sub-pars (i) of prayer 1 in the statement of claim to the effect that particular allegations made by one or more of the first to fourth defendants are false.
Section 75 of the Supreme Court Act 1970 (NSW) provides: 75 Declaratory relief No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
It is important to note that, even though the heading to this section speaks of "declaratory relief", and even though in common parlance the remedy is simply called "a declaration", the section speaks in terms of the authority of the Court to "make binding declarations of right".
As these reasons are required to deal with a Duty List matter, it will not be convenient to examine the development of the remedy of declaratory relief in detail. The history of the jurisdiction has been dealt with by the learned authors of Meagher, Gummow & Lehane's Equity Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) at [19-010]-[19-075]. It is now clearly established that the Court's jurisdiction to make declarations is not confined, as was formerly the case, to issues concerning equitable rights and interests, and the jurisdiction is not confined to making declarations as ancillary relief in cases where the plaintiff has some cause of action that is recognised and enforced by the Court: see Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61.
In the former case, Mason JA (as his Honour then was) said, at 201-2, in the context of explaining why the equity jurisdiction of this Court to grant injunctions before the introduction of the judicature system was the same as for courts that applied that system (footnotes omitted): The wide and general terms under which s. 10 is now expressed make it clear that the jurisdiction to grant declaratory relief, unaccompanied by consequential relief, extends to matters which do not fall within the traditional cognizance of a court of equity. So much is made clear by the provisions of sub-s. (1) and by the more detailed provisions of sub-s. (2). The jurisdictional limitations on the power to grant declaratory relief are, therefore, no more extensive than the limitations applicable to the power to grant declaratory relief exercisable by a court under a judicature system.
His Honour added at 203 (footnotes omitted): In my opinion the circumstances of the case fall precisely within the power conferred on the court by s. 10 (1) and (2) (b) (vii), which enables the court to make a declaration as to the powers, rights, liabilities and duties of any person arising under any Act or other instrument having effect under any Act, whether the declaration relates to the extent to which the proclamation forbids the appellant from putting his land to the use proposed or to the powers of the respondent to approve the proposed alterations to the building. In this respect I agree with the observations of Street J. in Sutherland Shire Council v. Leyendekkers. I am therefore of the opinion that there was jurisdiction to grant declaratory relief, if the appellant was otherwise entitled to it. (emphasis added)
In the latter case, Gibbs J (as his Honour then was) said at 435 (footnotes omitted): The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, "under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion": Hanson v Radcliffe Urban District Council; and see Barnard v. National Dock Labour Board; and Ibeneweka v Egbuna. … (emphasis added)
In Ainsworth, Mason CJ, Dawson, Toohey, and Gaudron JJ said at 581-2 (footnotes omitted): It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy. The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs. Moreover, had the appellants had advance notice of the Commission's intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition preventing it from reporting adversely without first giving them an opportunity to answer the matters put against them and to put submissions as to findings or recommendations that might be made. Instead, the report has been made and delivered in accordance with s. 2.18 of the Act. And, although it had no legal effect or consequence, it had the practical effect of blackening the appellants' reputations. Prima facie, at least, these matters suggest that the appellants are entitled to declaratory relief of the kind granted in Chief Constable of North Wales Police v Evans. It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under s. 2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done. The appeal should be allowed. The order of the Full Court of the Supreme Court of Queensland should be set aside and, in lieu thereof, it should be declared that, in reporting adversely to the appellants in its Report on Gaming Machine Concerns and Regulations, the Commission failed to observe the requirements of procedural fairness. The order nisi for writs of certiorari and mandamus should be discharged. The Commission should pay the appellants' costs of the proceedings in the Supreme Court and of this appeal.
Putting aside the reality that the investigator's report did not express conclusions adverse to the plaintiffs' reputations, the declarations sought by the plaintiffs in their proceedings in this Court would not involve the determination of a legal controversy. It would only involve the determination of some factual questions that have no real relevance to any legal or equitable rights claimed by the plaintiffs.
Although the Court has jurisdiction to make a declaration that is not antecedent to or consequential on the making of an order enforcing some right of action, the power is only available to make a declaration that establishes some relevant legal or equitable right that is claimed by the party seeking the declaration. The Court does not make declarations that some event occurred, and where that event is an allegation of fact, that the allegation is true or untrue. If the existence of the fact and its truth or untruth is determinative of the existence of some legal or equitable right, the Court should declare the existence of that right. But in cases where there is no claim that the allegation as to a fact being true or untrue has any material legal consequence, the Court does not have power to make a declaration, because that would not be a declaration of right.
It seems clear from the plaintiffs' submissions at the hearing that they only seek the declarations as to the falsity of the allegations that they claim the first to fourth defendants have made against them in order to vindicate their reputations. That is in the context that the plaintiffs do not assert that the declarations, if made, will determine any rights as between the plaintiffs and any of the defendants. The plaintiffs were given ample opportunity to explain, if it were possible, how the statement of claim could be amended in a way that would make the declarations sought determinative of the plaintiffs' rights, but they did not do so.
Given the inevitable vexation and oppression that this aspect of the plaintiffs' claim will impose upon the first to fourth defendants if it is permitted to continue, I am satisfied that the proper order is that this aspect of the plaintiffs' claim should be dismissed: UCPR, r 13.4(1)(a).
Before I deal with the balance of the statement of claim, I will mention two additional aspects of the parties' submissions. First, the defendants relied upon the decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 580-1 [54] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) and Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at 335 [28] (Gleeson CJ) to support a submission that the plaintiffs' claims in this Court should be dismissed because they were in substance a substitute for a claim in defamation (which has not effectively been made) and the claim for injurious falsehood (which will be dealt with in the proceedings in the District Court). The proposition relied upon by the defendants is that authority establishes that, in order to maintain legal coherence, where the facts relevant to the dispute may support a claim in defamation, the courts will not find the existence of some alternative right of action, such as the breach of a duty of care, that will in effect cut across and undermine the established cause of action in defamation.
While there is some force in the submission made by the defendants, I have not found it necessary apply the principle on which they have relied, because the plaintiffs have not sought to support the making of the declarations concerning the falsity of the allegations that they alleged were made against them by seeking to enforce some right of action in the alternative to defamation or injurious falsehood. On the basis of the principle that a declaration may be issued that is not subsidiary to the granting of relief to enforce a cause of action, the plaintiffs have sought declarations as to the existence of facts and the falsity of claims. The flaw in the approach adopted by the plaintiffs is that they have ignored the requirement that the declarations to be made will establish some right as between the plaintiffs and the defendants.
On their part, the plaintiffs relied upon the decision of the High Court in Ainsworth. As noted above, the Court held that the appellants had a real interest in obtaining a declaration that there had been a failure to observe procedural fairness in the way in which a certain report had been prepared because of the harm caused to their business or commercial reputation. This decision has no bearing on the question of whether the court can, or should, issue declarations that only have the effect of determining that allegations were made by the defendants against the plaintiffs and that the allegations are untrue. It may be possible that the principle decided in Ainsworth has relevance to the plaintiffs' claims against the RFS in relation to the alleged failure of the RFS to accord them procedural fairness and natural justice. The decision has no bearing on my determination to dismiss the part of the plaintiffs' claims that is now under consideration.
I will now explain briefly why I will make an order that the balance of the statement of claim be struck out. In my view, there are many pleading deficiencies in the balance of the statement of claim that have the result that the present form of the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings within the meaning of UCPR r 14.28(1)(b). I have explained what I consider to be those deficiencies in some detail in the course of my analysis of the statement of claim that is set out above. It is not necessary that I repeat those observations here. In summary, many of the allegations in the statement of claim take the form of bare allegations of ultimate facts, without the underlying facts being pleaded that are necessary to permit the finding of the existence of the ultimate facts. Many aspects of the plaintiffs' claim are only implied in the pleading. A multitude of allegations are made of knowledge on the part of defendants, without there being any pleading of the facts and circumstances that might have caused the defendants to gain the alleged knowledge. The formulation of a number of the declarations sought is simply mirrored in the corresponding allegations of fact, without the underlying facts being pleaded.

Orders

The orders of the Court are: 1. The plaintiffs' claims in prayers 1(a)(i), 1(b)(i), 1(c)(i), 1(d)(i), 1(e)(i), 1(f)(i), 1(g)(i), 1(h)(i), 1(i)(i), 1(j)(i), 1(k)(i), and 1(l)(i) are dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4. 2. The plaintiffs' statement of claim is otherwise struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28. 3. The plaintiffs' notice of motion filed on 12 October 2022 is dismissed. 4. The plaintiffs are ordered to pay the costs of the defendants of the plaintiffs' notice of motion filed on 12 October 2022 and the defendants' notice of motion filed on 28 October 2022.
I will give the plaintiffs time to consider whether and, if so, in what circumstances they will seek to propound an amended statement of claim. It will probably be cost efficient to defer that issue until after the outcome of the District Court proceedings is known. The parties should confer and advise my Associate within 14 days as to what orders should be made at this stage concerning the further conduct of the proceedings in this Court.

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: 03 November 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (15)

Cited By (1)