Lansley v Gaynon [2001] NSWSC 695 | Case summary

"Date: Thu, 02 Mar 00 10:43AM EST From: Terence To: Zen Wijeyesinghe Subject: Re: Greetings Dear Zen, I am truly sorry for the way you have been treated. And I say that because I don't often recommend anyone these days for fear of being let down. With respect (very little) to the law firm, I'd like to say your shoddy, unprofessional treatment is connected of our friendship, but, I can't. It is my reliable inside information that the place is booked for a first class trip on NT Airlines. And as a major financial guarantor, I'll be boarding the aircraft with them. It is my concern the other side may apply to have your complaint dismissed. I think you have been more than patient. TTFNOS, Terry PS I am personally offended by your tasteless humour whereby you vilified the Mighty Macintosh. Bah and Humbug to you, Sir !!!!!!!!!! " 3 At the top and the bottom of the print of the message the word "jokes" appears in boxes. The significance of this, if any, remains presently obscure. Perhaps it is a classification for the message. 4 It is further alleged that the matter complained of was republished by Wijeyesinghe on 29 March 2000 to the Legal Services Commissioner (an office pursuant to Part 10 Division 2 of the Legal Profession Act 1987). The defendant is alleged to be liable for this republication. 5 At the hearing before Levine J which culminated in some orders and directions above referenced, some objections by the defendant were deferred to be dealt with after the plaintiff's further amended pleading was forthcoming. Those and objections to that document have been listed for argument. As I understand it, both parties seek that these matters be resolved before the action progresses further even though some of the orders sought by the defendant would effectively result in judgment in whole or in part in his favour: c.f. Cumberland v Clark 1996 39 NSWLR 514. 6 One of the defects dealt with by Levine J was an assertion that the matter complained of "in its natural and ordinary meaning together with certain extrinsic facts" conveyed certain imputations. That impermissible admixture required attention and in passing his Honour commented that in the light of the content of the e-mail and the imputations then pleaded it seemed to be a "true innuendo" case, but no decision was made on this aspect as it had not been argued at that point. 7 The further amended statement of claim pleads two imputations said to be conveyed by the natural and ordinary meaning of the publication and three further imputations are pleaded as true innuendoes. I have taken the expression "intrinsic" in paragraph 8 to be a typographical error having regard to the supply of alleged "particulars of extrinsic facts pursuant to SCR Pt 67 r12(b)" (sic) as I also take the latter to be a typographical error for SCR Pt 67 r12(1)(c). 8 It is convenient to deal first with matters pertinent to the republication. By consent a copy of the complaint form and accompanying documents lodged by Wijeyesinghe with the office of the Legal Services Commissioner was tendered. I note that the only other material sought to be tendered was a copy letter to the plaintiff from the Law Society noting the dismissal of a complaint against her for alleged unethical conduct. The tender was rejected. The document has been marked for identification and placed with the papers. The purported relevance was an expressed ground for dismissal that "the publication of the e-mail was not in connection with a Pt 10 investigation" but it is obvious from the context that this was not a reference to the publication by Wijeyesinghe to the Legal Services Commissioner. 9 Although formal pleading has not been completed the parties argued propositions commencing with whether the republication on 29 March 2000 was the subject of absolute privilege. Section 17J of the Defamation Act 1974 provides: " 17J(1) There is a defence of absolute privilege - (a) for a publication to or by any of the following - ……………………………. (ix) the Legal Services Commissioner; …………………………….. for the purpose of the making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987 …………." 10 The print copy of the e-mail was attached to the complaint form in response to its direction to attach photocopies of any relevant documents and is appropriately regarded therefore as a constituent of the complaint itself. In terms of the statute the defence of absolute privilege applies. 11 The contention of the plaintiff was that there is an issue of fact to be determined namely whether the "purpose" of the publication was the "making or referral of a complaint". Reference was made to Rajski v Carson 1988 15 NSWLR 84 where it was held that if it is arguable that the "purpose" (in that case the execution or administration of the Legal Aid Commission Act 1979) was other than that specified, the issue must go to trial. However, Kirby P and Hope JA (in majority) commented "we do not believe that it is fanciful to assert that a jury would decide that the 'purpose' of the respondents in writing of the matter complained of was not the execution or administration of the ……..Act at all". There was in that case evidence by one of the respondents that his interest was to resolve certain litigation as early and as cheaply as possible and he was seeking to remove a perceived impediment of the grant of legal aid to the opponent. 12 There is no material suggesting such or some extraneous purpose harboured by Wijeyesinghe when he lodged his complaint with the Legal Services Commissioner. The plaintiff submitted that the present was on "all fours" with Clark v Ainsworth NSW SC Levine J 29 August 1997, but that was an exemplar of the application of the approach in Rajski where the publication of a document entitled "Annual Report of the Licensing Investigation Section Superintendent of Licenses Office" was arguably not for the purpose of discharge of function under the Criminal Justice Act 1989 (Queensland) which vested a defence of absolute privilege. 13 There are no identifiable disputed questions of fact relating to the purpose of Wijeyesinghe's lodgment of his complaint. Counsel suggested that his purpose may have been an exercise of malice but as was observed in Rajski there is a distinction between motive and purpose and motive may be complex and multitudinous, but the ultimate question must be whether the publication was for the purpose of making or referral of a complaint. Varied to the positive, the remark above cited of Kirby P and Hope JA is apt. 14 The suggestion of an alternative purpose for Wijeyesinghe's lodgment of the complaint is entirely based upon speculation emanating from the plaintiff's legal advisers and the evidence demonstrates that it is incontestably a composite document which falls within the designated purpose. I accept that the relief sought by the defendant can only be granted if his contention attains the high standard required by authorities such as General Steel Industries Inc v Commissioner for Railways 1964 112 CLR 125 and I am persuaded that the defendant has discharged that necessary onus. 15 That determination suffices to terminate the action based upon the republication but I should advert to other less immediately fatal defects in the further amended pleading. The plaintiff does not plead that the defendant authorized the republication or that Wijeyesinghe was under a legal duty to republish and it is particularized that the liability of the defendant is asserted to derive from a proposition that the republication was a natural and probable consequence of the original publication: Speight v Gosnay 1891 60 LJQB 231. The matter complained of was published by the defendant to Wijeyesinghe (obviously) prior to his lodgment of complaint to the Legal Services Commissioner. Particular (ii) misreads the reference in it to "complaint" which is clearly to Wijeyesinghe's litigation in the Local Court. The only particular which could contribute to sustaining the necessary allegation is the assertion that the defendant knew that the recipient was "in the course of" lodging a complaint. That alone could not demonstrate that it was a natural and probable result of the original publication that there would be republication and the particulars are inadequate in that regard. 16 In relation to both publication and republication there is no attempt to comply with SCR Pt 67 r 12(1)(c)(ii) to identify by reference to name or class, the identity of those to whom facts and matters were known so as to support the true innuendoes. 17 I turn to the publication of the matter complained of by the defendant to Wijeyesinghe. The defendant contends that the cloak of absolute privilege made available by s17J of the Defamation Act extends to this publication. This is based upon the agreed fact that the plaintiff first became aware of the existence of the publication when it was communicated to her in order to seek her response to the Legal Services Commissioner concerning Wijeyesinghe's complaint. The defendant's submission is that, by analogy with a document produced compulsorily in court related proceedings, the matter complained of having been disclosed as above described, it cannot be used for alien or ulterior purposes and the absolute privilege should therefore extend to it: see Riddick v Thames Board Mills 1977 1 QB 881; Miller v Polk NSWSC Hunt J 4 August 1985; Capital TV Group v Northern Rivers Television NSWSC Bainton J 4 September 1995. 18 Insofar as the functions of the Legal Services Commissioner were statutory and not court related attention was drawn to Oliver v Bryant Strata Management Pty Limited 1995 41 NSWLR 514 where Levine J observed (in connection with the Strata Titles Commissioner): "This is a case where the policy of the law in the context of that dispute resolution structure having been established demands that it should be availed of by those for whose benefit it has been created without fear of 'oppressive litigation'. The publications are documents generated by the very mechanism itself as provided for by statute. It would defeat the objects of the legislature to permit a person aggrieved by the functioning of a statutory quasi-judicial dispute resolution mechanism and the conduct of persons availing themselves of it, to be inhibited (and in my view consequentially also the efficient functioning of the mechanism), by the threat or reality of litigation by way of a defamation action based upon the operation of that mechanism." 19 Against this proposition is the fundamental circumstance that each of publication and republication constitutes a separate cause of action. That an original publication is not actionable is not a defence to republication: Lawrence v Newberry 1891 64 LT 797 and the converse must also be the case. As the editors of Halsburys Laws of Australia have observed (145-405 fn 8) an original publisher could not rely upon a protection given to a republisher, for example, where a defamatory publication outside Parliament was repeated inside it. 20 On the defendant's case the original publication was entirely divorced from any intent or contemplation by Wijeyesinghe to dispatch the matter complained of to the Legal Services Commissioner and the only nexus with the exercise of that function was that it was through that officer that the plaintiff came to know of what the defendant had published to Wijeyesinghe. In distinction from Oliver the (original) publication in this case was in no way connected with any dispute between the plaintiff and Wijeyesinghe being dealt with in accordance with the mechanism of the applicable statute. I am unpersuaded that the defence of absolute privilege is inevitably available to the defendant. That standard of proof would be required in order to grant summary relief. 21 I return to the pleading of the imputations. Said to be conveyed by ordinary and natural meaning are: "(a) The plaintiff as a solicitor treated Mr Wijeyesinghe in an unprofessional manner. (b) The plaintiff carried on her legal practice in an unprofessional way." 22 The matter complained of contains reference to a law firm and "shoddy, unprofessional conduct" but does not specify that the plaintiff herself did anything at all. As Levine J foreshadowed in his judgment of 4 August 2000, it is possible that knowledge of extrinsic facts might give rise to an imputation or imputations of this kind but they are in my view incapable of being derived from the natural and ordinary meaning of the words in the publication. 23 The imputations pleaded arise as true innuendoes are as follows: "(a) The plaintiff's practice as a solicitor is financially unviable. (b) The plaintiff is about to become insolvent. (c) The plaintiff has so conducted herself in her business as a sole legal practitioner that she is about to cause the defendant financial ruin." 24 As I have already observed there is only partial purported compliance with the requirements for particulars of these imputations pursuant to SCR Pt 67 r 12(c)(i) and (ii). 25 The plaintiff apparently relies upon the knowledge of some person or class of persons who would be aware that "a first class trip on NT Airlines" means pending insolvency. The defendant argues that this cannot arise, even as a metaphor. An over-arching present difficulty in the absence of proper particulars exists, but I consider that the question whether it is not possible to plead and particularize the imputations will have to remain open until particulars are supplied in proper form. 26 Imputation 8(c) has defect as to form in the use of the imprecise expression "has so conducted herself" and, on the assumption that the metaphor can be sustained, what facts (known to whom) which convey the meaning that the plaintiff is about to cause the defendant financial ruin need to be particularized. 27 I have not overlooked that three of the particulars (so described) assert various things that "Wijeyesinghe knew" but (save the metaphor) what is set out does not reveal fact or facts which explain how the content of the matter complained of is defamatory in special meaning. It can be suspected that the plaintiff might intend to suggest Wijeyesinghe was a person who had knowledge of special meaning of some extrinsic facts but the pleading does not elucidate what is being contended. 28 My findings in summary are that the cause of action founded upon the republication must fail; the imputations claimed to arise from natural and ordinary meaning of the matter complained are incapable of being so conveyed and the imputations alleged to arise as true innuendoes are inadequately pleaded and particularized. Leave to replead in respect of the lastmentioned should be granted. I am conscious of the history of earlier attempts to have the plaintiff properly plead the claim but a last opportunity should be granted. 29 The defendant seeks costs and leave to enforce the order forthwith. The defendant should have his costs following his substantial success on the issues argued. No particular reason was advanced for making the enforcement order other than that the defendant has been required to attend court repeatedly yet the plaintiff's case remains, at the very least, inadequately formulated and that in any event the matter is "a storm in a teacup". I refrain from comment on the lastmentioned beyond observing that no doubt if the action is pursued, consideration of remission to the District Court will be given and, as the publication upon which the action may be maintained is limited to a communication to an apparently already disgruntled client, counsel's description might have some congruity. There might also be thought to be some potential for the operation of s13 of the Defamation Act. With some hesitation, and in the hope that it will operate so as not to create an obstacle to the manifestly desirable resolution of this litigation, I refrain from ordering that the costs be recoverable forthwith. 30 I make the orders and give the directions following:

Lansley v Gaynon

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cited By (1)