Lassanah v State of New South Wales

Ainsworth v Burden [2004] NSWSC 552 Briginshaw v Briginshaw (1938) 60 CLR 336 Burke v Greene 963P.2d 1119 (Colo. App. Div. V 1998) Cabassi v Vila (1940) 64 CLR 130 Caldor v Bowden 330 Md 632, 625A. 2d 959 (1993) CAN. v Lukasik (1985) 18 DLR (4ph) 245 (Alta. QB) Di Corpo v Sweeney 69 Ohio St. 3d 497, 634 NE 2d 203 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 Farnsworth v Rack (Supreme Court of New South Wales, Levine J, 11 April 1994, unreported) Gett v Tabet [2009] NSWCA 76 Giller v Procopets [2008] VSCA 236 CASES CITED: Hanisch v Canada (2003) BCSC 1000, (2003) Carswell BC 1594, 18 CCLT (3d) 143, 16 BCLR (4th) 310, [2003] BCJ No 1518 (SC) King v McKenzie (Supreme Court of New South Wales, Grove J, 27 February 1992, unreported) Mann v O'Neill (1997) 191 CLR 204 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mullins v Beneteau (1996) 11 OTC 298 O'Neill v Mann (1994) 126 ALR 364 Page v McGovern [2008] TASSC 13 Pope v Motel 6 121 Nev. 307, 114P. 3d 277 (2005) Szalatnay-Stacho v Fink [1947] KB 1 Taylor v Serious Fraud Office [1999] 2 AC 177 Toker v Pollack 44 NY 2d 211, 376 NE 2d 163 (1978) Watson v Mc'Ewan [1905] AC 481 Westcott v Westcott [2008] EWCA Civ 818

Gatley on Libel and Slander (8th ed.) TEXTS CITED: Brown, Law of Defamation in Canada (2nd ed.) Prosser and Keeton, Law of Torts (5th ed., 1984)

First Plaintiff: Michael Lassanah PARTIES: Second Plaintiff: Aaron Oddie (an intellectually disabled person) by his tutor Michelle Pearson First Defendant: State of New South Wales Second Defendant: LVMH Watch & Jewellery Australia Pty Ltd

COUNSEL: Plaintiffs: Ms L Evans First Defendant: Mr D A Caspersonn

Plaintiffs: Friend & Co Lawyers SOLICITORS: First Defendant: Henry Davis York Lawyers Second Defendant: Thurlow Fisher Lawyers

[1] This is one of three applications brought by the defendants in defamation proceedings for summary judgment on the basis that the publication was made on an occasion that is protected by absolute privilege.

[2] The circumstances in which the claim was brought, according to the affidavit of Kerry Anne Stewart of 6 March 2009, were that the police attended the premises at TAG Heuer Australia at 119 King Street, Sydney after an alarm button was pressed. This alarm button is referred to in the police records as the "hold up button". They attended the premises and spoke to the plaintiffs who were identified as persons of interest. CCTV footage of the incident taken from three different cameras show the arrival of the plaintiffs at the store and the departure of the police as occurring over approximately a half hour period, although the times on the CCTV tapes are somewhat inconsistent with the times recorded by the New South Wales Police Service, although this appears most likely to be due to recording techniques, and nothing turns on it.

[3] The plaintiffs by way of statement of claim commenced proceedings for defamation and other causes of action on 12 November 2008 seeking damages. The claim for defamation is particularised as follows: "On or about 10 June 2008 on the footpath outside of 119 King Street Sydney the first defendant by itself, its servants, employees and agents to which police officers spoke and published of and concerning the plaintiffs certain defamatory words the substance of which are herewith set out: 'The manager of the TAG Shop said you were intending to steal from the shop. We are stopping you because you guys were in the TAG Shop intending to steal. You were intending to steal. Don't go into that shop. You were intending to steal.'" [4] The statement of claim goes on to plead that the defamatory words in their natural and ordinary meaning conveyed imputations that each of the plaintiffs is a thief or is, in the alternative, an attempted thief, and that each of the plaintiffs intended to steal from the TAG Heuer shop.

[5] In a note dated 16 March 2009 counsel for the second defendant advises that the plaintiffs have withdrawn the defamation claim pleaded against the second defendant in paragraph 4 of the statement of claim. The only claim brought against the second defendant is the claim for wrongful arrest and false imprisonment. It is asserted that the defendants caused the plaintiffs to be wrongfully arrested and falsely imprisoned by detaining them on the footpath and gutter outside 119 King Street, Sydney for one hour during which time the police officers took and failed to return the first plaintiff's driver's licence and searched them in the presence of members of the general public.

[6] The first defendant, the State of New South Wales, brings an application for summary judgment on the basis that the statements made by the police officers for whom the first defendant is vicariously liable are protected by the defence of absolute privilege.

[7] Prior to the matter coming before me in the Defamation List on 28 November 2008, the solicitors for the first defendant in a letter dated 27 November 2008 warned of a strike out application on the basis of the defence of absolute privilege and also challenged whether the imputations were capable of arising for the reasons enunciated in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. When the matter came before me on 28 November 2008, I directed the defendants to put on any application for summary judgment and provide an outline to the Court and to the plaintiffs by 4.00pm 10 December 2008. Mr Caspersonn of counsel in a well prepared set of submissions, set out clearly and concisely the basis upon which this application was made. When the matter was next in the list, I listed it on the same day as Bechara v Bonacorso (5084 of 2008) as notice had been given in this matter on 14 November 2008 of intention to bring a similar application for summary judgment by counsel in that matter, Mr Lynch.

[8] On 6 February 2009 a Mr K Stewart on behalf of the defendant in Moses v The State of New South Wales (6191 of 2008) sought a hearing in relation to the same relief.

[9] The solicitors for the plaintiffs, although initially agreeing to a hearing date in both these matters, wrote to the Court on 18 February requesting that the hearing date be vacated on the basis that the application was hopeless, referring to O'Neill v Mann (1994) 126 ALR 364 and Mann v O'Neill (1997) 191 CLR 204. Beyond referring to this case, and providing a one and a half page outline to this effect, the plaintiffs have had little to say in either application. This is relevant to the issue of costs.

The issues for determination and Mann v O'Neill (1997) 191 CLR 204

[10] The starting point for determination of the legal issues relevant to the defendants' application is the High Court's decision in Mann v O'Neill, a decision which has been referred to with unreserved approval, most recently by the Full Court of the Supreme Court of Tasmania in Page v McGovern [2008] TASSC 13 at [29].

[11] The facts in Mann v O'Neill were as follows. Dr Mann was the defendant in two actions in the Small Claims Court heard by Magistrate O'Neill. Dr Mann was dissatisfied with the magistrate's conduct of these hearings and wrote to the Attorney General of the Commonwealth, as the Minister responsible for the administration of justice in the Australian Capital Territory, questioning the magistrate's mental capacity and expressing the opinion that he should be suspended from duties while he is examined for fitness to sit as a magistrate. At the time, there was no procedure in the Magistrates Court Ordinance 1930 (ACT) for removal or suspension of a special magistrate and magistrates could only be removed from office for proved misbehaviour or incapacity on an address by both houses of Parliament. Dr Mann also asked for a rehearing of one of the matters, where judgment had been given against him.

[12] In the High Court two issues were addressed: (i) Was the letter addressed to the Attorney General comparable to a notice of appeal from a judicial decision and for that reason protected by absolute privilege?

(ii) Was the letter a necessary first step for the institution of judicial proceedings for the removal of a magistrate and protected by absolute privilege for this reason? [13] The first issue was disposed of in comparatively brief fashion by the High Court for reasons that are of no relevance here. With regard to the second issue, Brennan CJ, Dawson, Toohey and Gaudron JJ held that the Magistrates Court Ordinance provided no procedure to be followed for the removal of a special magistrate from office, nor was there any established procedure in dealing with complaints of the kind filed by the defendant. For this reason, it was not possible to view Dr Mann's letter to the Attorney General as the first step in judicial proceedings which attract absolute privilege (at 216). However, their Honours went further to assert that complaints made to prosecuting authorities should enjoy only a qualified privilege (at 216): "For the purpose of the law of defamation, the position of the Attorney General in relation to a special magistrate, at least in regard to complaints of the kind involved in this case, is properly equated with that of a prosecuting authority charged with investigating and taking such action as is considered appropriate. Complaints to prosecuting authorities - "statements in aid of justice", as they are sometimes called - enjoy qualified privilege." [14] Gummow J concurred, noting that qualified privilege struck a proper balance for the interests involved and adding that the Court should be hesitant to act until statutory procedures are in place. Kirby J also concurred, holding that (at 273): "To afford absolute privilege to any letter, however written, with whatever motive and however false and malicious the allegations might be, upon an analogy of the initiating proceedings in a court of law or a quasi judicial tribunal is completely unpersuasive." [15] McHugh J dissented on the grounds that the statement arose out of the alleged conduct of the magistrate while hearing proceedings in which the appellant was a party, and they were made to the appropriate authorities for the purpose of investigating the fitness of the magistrate for judicial office (at 216-217). McHugh J went on to make a number of suggestions, such as that an attack on conduct of a magistrate in court can be protected by the Court prosecuting for contempt rather than in a private action for defamation, and further to assert that it was incompatible with the holding of judicial office for any judicial officer to sue former litigants with respect to comments arising from their conduct of judicial proceedings (at 704).

[16] I note that in Page v McGovern [2008] TASSC 13, a decision of the Court of Appeal in Tasmania, Blow J, with whom Crawford and Evans JJ agreed, said at [29]: "At common law, when a complainant alleges to police officers, or to any investigating and prosecuting authority, that an offence has been committed, absolute privilege does not apply: Mann v O'Neill (1997) 191 CLR 204 at 216." The defendants' submissions

[17] Mr Caspersonn submits that the statements in Mann v O'Neill are obiter and that it is open to me to have regard to and follow the English Court of Appeal decision in Westcott v Westcott [2008] EWCA Civ 818 where Ward LJ stated at [34]: "Immunity for out of court statements is not confined to persons who are subsequently called as witnesses. The policy being to enable people to speak freely, without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect to the statements which they make. That applies whether they are informants, investigators or prosecutors." [18] It is argued that making a complaint is the first step in a judicial process and that, for public policy reasons of the kind explained in Westcott, immunity must be given from the earliest moment that the criminal justice system becomes involved. Both instigation and investigation must be protected because they are steps towards, and part of, the administration of justice: Watson v Mc'Ewan [1905] AC 481.

[19] Although the Court of Appeal in Westcott considered its resolution of the issue novel, Eady J had arrived at a similar conclusion in an earlier decision noted by the Court. More relevantly, in Taylor v Serious Fraud Office [1999] 2 AC 177 Hoffman LJ (at 214) stated that solicitors were protected by immunity in such circumstances and that: "It would be an incoherent rule which gave a potential witness immunity in respect of a statement which he made to the investigator but offered no similar immunity to the investigator if he passed on information to a colleague engaged in the investigation or put it to another potential witness." [20] Hoffman LJ considered that the privilege should extend to all persons involved in the investigation whether they were solicitors, investigators, witnesses or the like.

[21] The issues which I must decide are: (i) Are the statements of principle in Mann v O'Neill binding upon me or mere obiter statements?

(ii) Whether or not the statements in Mann v O'Neill are stare decisis , is it appropriate to depart from "considered" obiter dicta in light of the High Court's warning in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]?

(iii) To what extent should I be influenced by interstate decisions at appellate levels such as Page v McGovern [2008] TASSC 13, bearing in mind the New South Wales Court of Appeal's recent statements about the importance of giving weight to interstate appellate decisions in Gett v Tabet [2009] NSWCA 76? The impact of Mann v O'Neill

[22] Any extension of absolute privilege is viewed with "the most jealous suspicion" and to be resisted unless its necessity is demonstrated (Mann at 213, cited with approval by Levine J in Ainsworth v Burden [2004] NSWSC 552 at [39]).

[23] The decision of the majority in Mann v O'Neill equated the position of the Attorney General to that of a prosecuting authority charged with investigating and taking such action as is considered appropriate. Their Honours went on to note that such complaints enjoy qualified privilege only, citing Szalatnay-Stacho v Fink [1947] KB 1 and other authorities as well as paragraph 484 of the 8th ed of Gatley on Libel and Slander. The Court went on to state that it was not necessary that statements to prosecuting authorities be absolutely privileged (at 216): "It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function. Nor is it required for complaints inviting investigation of a special magistrate's ability to discharge his duties of office." [24] Having made that equation, it is part of the ratio of this decision that there is no necessity for statements to prosecuting authorities to enjoy anything other than qualified privilege. Statements by prosecuting authorities in the course of their investigation (as is the case here) must, by analogy, fall into the same category.

[25] Even if, rather than forming a part of the ratio decidendi, this amounts to "considered obiter dicta", I am still bound by this decision for the reasons explained by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd at [135]: "Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong ... Since there is a common law of Australia rather than each Australian jurisdiction, the same principle applies in relation to non-statutory law." [26] This is a claim brought in relation to the "common law". In addition I should note, on the subject of statutory interpretation, that there is now uniform national legislation in relation to defamation, and this legislation is silent on this issue.

[27] The High Court went on to note in Farah Constructions at [163] that it was the High Court's role to determine whether a decision was to be overruled, and said that to depart from seriously considered obiter dicta of a majority of the High Court was unacceptable (at [158]).

[28] In addition, it would be necessary for me to fail to have regard to an appellate interstate decision, namely the Full Court of the Supreme Court of Tasmania's decision in Page v McGovern.

[29] There are also issues of comity between courts, This argument has been dealt with in a number of judgments handed down in the New South Wales Supreme Court Defamation List between 1994 and 2004, starting with Farnsworth v Rack (Supreme Court of New South Wales, Levine J, 11 April 1994, unreported) and ending with the most useful, Ainsworth v Burden [2004] NSWSC 552.

[30] The facts in Ainsworth v Burden were as follows. In rejecting an application for summary judgment on the basis that a letter written by a police officer to the Commissioner of Police complaining about litigation between a poker machine manufacturer and a number of police officers, Levine J noted Hoffman LJ's statements in Taylor v Serious Fraud Office but declined to follow them, although he did so more as a result of the facts in the case than for any other reason.

[31] There can be no doubt that there is a clear split between Mann v O'Neill and English authorities such as Taylor v Serious Fraud Office. Levine J explained in Ainsworth v Burden (at [34] and [35]) the critical approach taken by Hoffman LJ to the judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ as follows: "[34] In the course of his speech, in Taylor Hoffmann LJ referred to Mann v O'Neill as follows:

In Mann v O'Neill (1997) 71 ALJR 903, 907 the judgment of Brennan CJ, Dawson, Toohey and Gaudron LJJ describes the rationale as one of necessity:

It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.

Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.

Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but nonetheless valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

[35] See also Hope LJ at [219 B-H] and Hutton LJ [221]." [32] The issue has been dealt with in Supreme Courts in other States. One such example is Noye v Robbins [2000] WASC 81 where a similar objection (albeit concerning an action for injurious falsehood) was rejected by the trial judge, relying upon both Mann v O'Neill and Cabassi v Vila (1940) 64 CLR 130.

[33] Intermediate appellate court are bound by previous decisions and should only depart from authority (including authority from co-ordinate jurisdictions) if that court is plainly wrong and there are compelling reasons to do so: Gett v Tabet [2009] NSWCA 76 at [277]-[278], [281] and [286]. This is all the more the case for intermediate trial courts such as the District Court.

[34] Is there a compelling reason? The problem for the defendant is that the availability of a defence of absolute privilege is not a clear issue in other jurisdictions. As Professor Brown points out in Law of Defamation in Canada (2nd Ed.) at [12.4], there is inconsistent authority in both the United States and Canada on the availability of absolute privilege as a defence. In Toker v Pollack 44 NY 2d 211, 376 NE 2d 163 at 167 (1978) Jasen J held that a qualified privilege was sufficient to foster the public purpose of encouraging citizens to come forth with information concerning criminal activity. If the information is given in good faith by an individual who believes the information to be true: "he is protected against the imposition of liability in a defamation action, notwithstanding that another, possessed of greater wisdom, would not have reported the information ... The protection afforded by a qualified privilege should not be cavalierly dismissed as inadequate. On the contrary, while not providing an absolute cloak of protection, a qualified privilege does provide an atmosphere in which a civic minded citizen may, without fear, convey information which he believes the disclosure of which will redound to the benefit of the public. Only those who act out of malice, rather than public interest, need hesitate before speaking." [35] However, in Di Corpo v Sweeney 69 Ohio St. 3d 497, 634 NE 2d 203 the Court, approving statements to this effect in Prosser and Keeton on the Law of Torts (5th Ed, 1984) at page 819, held that complaints to prosecuting attorneys were an initial step in a judicial proceeding and essential to the protection of public interest as well as encouraging reporting of criminal activity and the prosecution of criminals.

[36] The inconsistent decisions in Canada are set out in Law of Defamation in Canada (at [12.4(5)]), the learned author of this encyclopaedic text noting that a qualified privilege is all that protects occurrence reports, reports to Crown Council and continuation reports prepared by officers in the course of a police investigation: Hanisch v Canada (2003) BCSC 1000, (2003) Carswell BC 1594, 18 CCLT (3d) 143, 16 BCLR (4th) 310, [2003] BCJ No 1518 (SC). Although this decision was reversed in part on other grounds, it remains the current state of the law. Professor Brown goes on to note that in most American jurisdictions where a complaint is made to a police officer, or by him in turn to his immediate superior, the general rule is that in the law of defamation "statements made to law enforcement officers are entitled to only a qualified privilege and not one that is absolute" (Burke v Greene 963P.2d 1119 (Colo. App. Div. V 1998).

[37] In Caldor v Bowden 330 Md 632, 625A. 2d 959 at 968 (1993) Chasanow J said: "We do not believe public policy is violated by requiring that citizens who report criminal activities to the police do so in good faith. Those who maliciously volunteer false accusations of criminal activity to the police should not be granted absolute immunity. Although we do not wish to discourage the reporting of criminal activity, we also do not wish to encourage harassment, or wasting of law enforcement resources, by investigations of false, maliciously made complaints." [38] In Pope v Motel 6 121 Nev. 307, 114P. 3d 277 (2005) the Court adopted the constitutional actual malice standard of knowing or reckless falsity rather than a common law express standard, which is a very high test indeed. However, it must be recalled that the standard for establishing malice in New South Wales remains the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336): King v McKenzie (Supreme Court of New South Wales, Grove J, 27 February 1992, unreported) per Mahoney ACJ, so Amercian authorities must be treated with caution.

[39] Professor Brown notes at [12.4(5)] that accusations made at the scene of an alleged crime, whether before or after the police arrive, are not part of a judicial process, and are not protected by absolute privilege, citing as an example the fact in CAN. v Lukasik (1985) 18 DLR (4ph) 245 (Alta. QB). A young woman wearing very little clothing who was sitting in a car with the plaintiff pressed the horn while neighbours gathered around and screamed "rape". She filed charges against and accused the plaintiff of rape, a story that was later found to be completely fabricated. While the Court in this case appeared reluctant to commit itself, suggesting that privilege "may" apply to the written statement, the Ontario General Division in Mullins v Beneteau (1996) 11 OTC 298 refused to follow this decision and held that the statement made to the police officer was protected only by a qualified privilege.

[40] The rationale for a qualified privilege is starkly shown by Noye v Robbins, where the defendant made false allegations about a police officer out of malice and in the hope of obtaining a better deal with police in unrelated theft charges.

[41] Finally, all courts, and most of all intermediate trial courts, should be reluctant to embark upon the creation of controversial causes of action and/or defences, for the reasons explained by the Victorian Court of Appeal in Giller v Procopets [2008] VSCA 236 and more recently by the Court of Appeal in Gett v Tabet [2009] NSWCA 76.

[42] While I have been impressed by Mr Caspersonn's able submissions, the application must be dismissed for the reasons set out above.

[43] The first defendant also raised issues concerning failure to provide particulars for publication to third parties and, in particular, to the passers by who observed the scene. That is a matter which the parties have agreed can be dealt with by the exchange of particulars and it is not necessary for me to deal with it.

[44] The plaintiff has been content to leave the argument for the court to determine so is appropriate that the costs of this motion should be the plaintiff's costs in the cause.

(1) First defendant's notice of motion for summary judgment dismissed. (2) Costs to be plaintiffs' costs in the cause. (3) The parties have leave to bring in Short Minutes of Order for a timetable for these 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.