Massarani v Kriz

Judgment

1. BASTEN JA: I agree with McCallum JA. Accordingly the orders are: 1. Dismiss the application for leave to appeal from the judgment in the District Court; 2. Order the applicant to pay the respondents' costs of the application.
2. LEEMING JA: I agree with McCallum JA.
3. McCALLUM JA: Patrick Massarani seeks leave to appeal from a decision of the District Court (Gibson DCJ) summarily dismissing his action for defamation arising out of the publication of an article in a student newspaper over five years ago. Leave is required because the orders of the primary judge were interlocutory and because the appeal is from orders made on an application for summary judgment under the rules: s 127(2)(a) and (d) of the District Court Act 1973 (NSW). Mr Massarani argued that leave is warranted because the proposed appeal would present an occasion for appellate consideration of the so-called principle of proportionality derived from my decision in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897.
4. In Bleyer v Google, sitting then as a judge of the Common Law Division, I granted a permanent stay of an action for defamation on the basis that the proceedings were an abuse of process because the resources of the court and the parties that would be expended to determine the claim were out of all proportion to the interest at stake. The plaintiff's claim in that case raised issues of considerable complexity. The interest at stake was his entitlement to vindicate his reputation in the eyes of one person. There was evidence estimating the defendant's likely costs in the hundreds of thousands of dollars and doubt as to the enforceability against it of any judgment.
5. The decision has met with some criticism. [1] Where it has been considered by appellate courts, other Supreme Courts and the Federal Court, it has arisen in circumstances where it was unnecessary for the court to express a view as to its correctness. [2] Accordingly, it may well warrant appellate consideration in an appropriate case. This is not that case. Here, the decision of the primary judge was an orthodox ruling striking out parts of a pleading that failed to articulate the elements of a reasonable cause of action coupled with an unassailable discretionary decision refusing leave to replead. To the extent that the primary judge had regard to the prospect of disproportion between the resources the claim would command and the interest at stake, her Honour did so permissibly. In my view, leave to appeal should be refused.

Principles to be applied

1. It is ordinarily appropriate to grant leave to appeal only in matters involving issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing at [71] and [72]). The applicant submitted that leave to appeal will more readily be granted where the interlocutory order effectively determines the substantive rights of the parties with finality, citing what was said by Kirby ACJ in Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 664-5 and some of the authorities to which his Honour there referred. However, none of the decisions cited by the applicant was an application for leave to appeal from a successful application for summary judgment. The separate inclusion of summary judgment decisions in the list of appeals requiring leave under s 127(2) of the District Court Act tends to suggest that the principles approved in Jaycar should apply undiluted in such a case. That said, it may be accepted that an order that effectively determines legal rights with finality might more readily be shown to entail "an injustice which is reasonably clear".
2. The premise of the present application was that an issue of principle is raised because the primary judge embraced "the concept of summary dismissal for want of proportionality" and that that was the sole basis upon which her Honour dismissed the applicant's claim. That was described by senior counsel for the applicant as the "central issue" in the appeal. However, it is clear from the primary judge's reasons that the order dismissing the parts of the proceedings that concerned the respondents, Ms Kriz and Mr Klauzner, flowed from the following conclusions: 1. that the claims pleaded as against Ms Kriz and Mr Klauzner were hopeless and were liable to be struck out; 2. that, for a number of reasons including considerations of proportionality, the discretion to grant leave to replead should not be exercised in favour of the applicant.
3. In order to explain why neither of those conclusions is attended by relevant error, it is necessary to consider the claims brought in the District Court in some detail.

Claims pleaded in the District Court

1. The original article of concern to Mr Massarani was published in Honi Soit, the student newspaper of the University of Sydney, on 30 July 2015 in print and online. The article was headed "Make Her Life Hell" with the subheading "Georgia Kriz struggles with student teacher intimacy". It opened with an upbeat account of the development of a sexual relationship between a student, "Alice", and her tutor but went on to explore more familiar stories of sexual exploitation. The author explained, "originally, I had planned to write this feature about students just like Alice - students who had fun, sexy stories to tell about their adventures in Introduction to Tutor Sex 1001".
2. The particular passage of concern to Mr Massarani appeared towards the end of the article and evidently inspired the headline. In the original article, it appeared as follows: "But I find myself worrying that the system that Austin, Blakeney and other undoubtedly well-meaning activists are trying to reform is a system that is ultimately, irredeemably broken. This worry rears its head most acutely after I speak to one student who was recently severely sexually harassed and assaulted by a member of the Senate, the University's ultimate governing body. She tells me how she knew he could 'make her life hell' if she reported him and how he boasted that he sat on the Student Disciplinary Committee. She recalls how afraid she was because she felt like any complaint she made wouldn't have been taken seriously, or would have been tied up in more bureaucracy to save face for the University. She's adamant that I anonymise her as much as possible, because she is still terrified of his reach and of his power."
3. The article did not name Mr Massarani but he contends it identified him in its reference to "a member of the Senate" who "boasted that he sat on the Student Disciplinary Committee". However, Mr Massarani does not assert a cause of action in respect of the print version, presumably because any such claim would be statute-barred. The limitation period for a cause of action for defamation is one year running from the date of publication: s 14B of the Limitation Act 1969 (NSW). Mr Massarani's cause of action is now confined to any downloading of the online version of the article within the period of one year before the proceedings were commenced in the District Court in 2019. As noted by the primary judge, the English jurisprudence adopts the term "residual claim" for such cases.

First matter complained of - the online article in Honi Soit

1. Shortly after the publication of the original article, in response to a complaint from Mr Massarani, the words "and how he boasted that he sat on the Student Disciplinary Committee" were removed from the online version of the article. The amended version was later archived. The archived version of the article is the first matter complained of in the pleading considered by the primary judge (the further amended statement of claim filed on 13 August 2019). In order to succeed on that claim, Mr Massarani had to establish that the archived version of an article that defamed him not by name but as a member of the class of male members of the Senate at some unspecified point before July 2015 was downloaded within the year before the proceedings were commenced by at least one person who knew Mr Massarani had been a member of the Senate and took the article to refer to him.
2. The primary judge recorded at [44] that counsel had identified four persons who had potentially downloaded the article, two of whom were the former fourth defendant and her boyfriend and two of whom were described as "insufficiently identifiable". I will return to explain the involvement of the former fourth defendant and her boyfriend. Whether the other two persons could satisfy the requirement to establish publication was not established. As correctly noted by the primary judge, the defendants could not be held liable for publication to any person who downloaded the post for the purposes of the litigation: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293.
3. The pleading alleges that the first matter complained of was published by Mr Klauzner and another student who is also sued but who has not been served with the originating process. Each was sued in his capacity as an elected "Director of Student Publications" who was on the "roster" as being responsible for editing the relevant edition of Honi Soit back in July 2015.
4. Ms Kriz was not sued as a publisher of the first matter complained of in Honi Soit. However, the pleading alleges that the first matter complained of was republished by her on her Facebook page and remained on that page at the time of the commencement of the proceedings. In order to succeed on that claim, Mr Massarani had to establish that the link on the Facebook page (which had been posted many years earlier and appeared well down Ms Kriz's Facebook feed) was opened within the year before the proceedings were commenced by at least one person who knew Mr Massarani had been a member of the Senate and took the article to refer to him. It was acknowledged at the hearing before the primary judge that Mr Massarani cannot provide particulars of any such person. That claim was plainly liable to be dismissed.

Second matter complained of - the conversation in 2018

1. Over three years after the publication of the original article, Ms Kriz was contacted by Ms Grace Franki and asked whether Mr Massarani was the person referred to in the online article. The evidence before the primary judge established that the reason Ms Franki made that inquiry was that she suspected, based on her own experience of Mr Massarani, that the article might refer to him. Ms Franki and Ms Kriz had a conversation the content of which was later reported to Mr Massarani by Ms Franki's boyfriend. The conversation between Ms Franki and Ms Kriz is the second matter complained of. It was pleaded in the following terms (par 10 of the further amended statement of claim): "In or about December 2018, during a conversation between the First Defendant and Grace Franki, the First Defendant informed Ms Franki that: a. the Plaintiff was the member of Senate referred to in the original article and the first matter complained of; b. the First Defendant had been informed by the anonymous source of the original article and the first matter complained of the names of six other persons who had experienced similar harassment by the Plaintiff; and c. the anonymous source of the original article and the first matter complained of was terrified of the Plaintiff who had threatened the source multiple times. (the 'second matter complained of') Particulars i. Conversation between the First Defendant and Grace Franki in or about December 2018; and ii. Email dated 1 January 2019 from Grace Franki to Shane Treeves."
2. Pleading the matter in that form did not set out the terms of the alleged oral publication and so had a tendency to cause embarrassment within the meaning of rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). It was plainly liable to be struck out.

Summary dismissal applications

1. Following a lengthy and often terse exchange of correspondence between the defendants (acting for themselves) and the solicitors for Mr Massarani, and before filing any defence in the proceedings, Ms Kriz and Mr Klauzner moved to have the proceedings summarily dismissed or permanently stayed.
2. Mr Klauzner, who is sued only in respect of the archived version of the Honi Soit article, sought to have the pleading as against him struck out on the basis that no reasonable cause of action was disclosed in the absence of particulars of any person who downloaded the article within the relevant period and took it to refer to Mr Massarani. Separately, he submitted that he was not a publisher of the article. Although he was one of the student editors in 2015 at the time the original article was published, he provided an affidavit stating that he had no involvement in reviewing that edition of Honi Soit. By the time the proceedings were commenced, he was no longer a Director of Student Publications.
3. As already explained, Ms Kriz was not sued as a publisher of the online version of Honi Soit but only for her republication of that article on her Facebook page. As to the Facebook link, she contended that no reasonable cause of action was disclosed because there was no allegation of any actual publication (which would require opening the link). Alternatively, she contended that the article was incapable of identifying Mr Masserani as it did not name him and was the version in which the reference to the Student Disciplinary Committee had been removed. Alternatively, Ms Kriz sought to have the proceedings dismissed or permanently stayed as an abuse of process in accordance with the proportionality principle.
4. The primary judge acceded to both applications and made orders striking out the relevant parts of the pleading, refusing leave to replead and dismissing those parts of the proceedings. The order her Honour made was expressed in composite terms, as follows: "Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the 'Further Amended Statement of Claim' filed on 13 August 2019 are struck out and dismissed, with leave to replead refused."
5. It would, with respect, have been preferable separately to identify the source of power invoked for striking out part of the pleading, for refusing leave to replead and for dismissing part of the proceedings. The reference to rule 12.7 of the Uniform Civil Procedure Rules is obscure. That rule confers power to dismiss proceedings for want of due despatch. It was not invoked by either defendant. However, there is no doubt that her Honour had power under the other rules identified to strike out parts of the pleading [3] and to dismiss any part of the proceedings in respect of which no reasonable cause of action was disclosed [4] and a discretion under s 64 of the Civil Procedure Act 2005 (NSW) to refuse to grant leave to replead. Without leave to replead, the claims against the respondents remained struck from the pleading and dismissal of the proceedings would be the logical next step.
6. While her Honour's order was also expressed as being pursuant to ss 60, 61 and 67 of the Civil Procedure Act 2005 (NSW), none of those sections could sustain the order made. Section 60 is not a discrete source of power. That section states a normative principle which informs the exercise of any discretion in a matter relating to practice and procedure, including the discretion to grant leave to replead the parts of the claim that were to be struck out. The defendants' applications do not appear to have invoked s 61 (power to give directions for the speedy determination of the real issues between the parties). Ms Kriz invoked s 67 (power to stay proceedings) in the context of her proportionality argument but that is not the order the primary judge made.
7. However, while some of the provisions referred to were inapposite, her Honour undoubtedly had power to make each kind of order. The applicant has not established relevant error in the exercise of those powers. It was essentially conceded before the primary judge that at least parts of the pleading were liable to be struck out. Contrary to an assumption implicit in the applicant's argument, leave to replead a claim that has been struck out under the rules does not follow as of right. The primary judge erred in favour of the applicant on this issue, perceiving the correct approach to be that "where there is an absence of particulars (such as particulars of downloading or of publication), the proceedings will not be struck out and dismissed; almost invariably, the pleader will be granted an opportunity to replead, even where the pleading is hopeless in its current form": at [46]. The authority cited for that proposition was my decision in El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990. With respect, I do not apprehend what I said in that case to support a principle in such unqualified terms.
8. The case for having an opportunity to replead in this case was difficult. In my assessment it was well open to refuse leave, for the reasons given by the primary judge. It was not established that there was any real prospect of identifying any person who had downloaded the archived article or accessed the link on Ms Kriz's Facebook page in the year before the proceedings commenced; on the contrary, that seemed inherently unlikely. As to the conversation in 2018, the primary judge noted at [82] that the pleading of that claim was defective because it failed to set out those portions of the conversation attributed to Ms Kriz. Mr Massarani initially sued Ms Franki as well but the claim against her has been resolved. In theory, she could give evidence as to who said what. However, an amendment made since the claim against her was resolved did not address that issue. As noted by the primary judge, the claim is based on a conversation in which one person defamed Mr Massarani to another person who "defamed him back". The reason Ms Franki approached Ms Kriz was to confirm her suspicion based on an experience she had with Mr Massarani when he was a member of the Senate which she regarded as having some similarity to the conduct described in the article.
9. In the circumstances, considerations of proportionality were plainly relevant to the decision whether to grant the plaintiff the indulgence of making a further attempt to plead such claims. For those reasons, I would dismiss the application for leave to appeal with costs.

Endnotes

1. Smith v Lucht [2014] QDC 302, considered by me in Feldman v The Daily Beast Company LLC [2017] NSWSC 831 at [15]-[18].
2. Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [44] (Macfarlan JA), [55] (Leeming JA), [56] (Adamson J); Lazarus v Azize [2015] ACTSC 344 at [23] (Mossop AsJ); Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296 at [130]-[143] (Ward JA, Meagher and Payne JJA agreeing at [1] and [145]); Watney v Kencian [2017] QCA 116 at [61] (Applegarth J, Morrison and McMurdo JJA agreeing at [1] and [2]); GG Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664 at [52] (Markovic J); Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246 at [40] (McCallum J), cf at [5] (Basten JA); Armstrong v McIntosh (No 2) [2019] WASC 379 at [115] (Le Miere J); Fox v Channel Seven Adelaide Pty Ltd (No 2) [2020] SASC 180 at [11]-[21] (Stanley J); and see the helpful review of the development of the principle in the decision of Gibson DCJ in Khalil v Nationwide News Pty Ltd (No 2) [2018] NSWDC 126 at [40].
3. UCPR, r 14.28.
4. UCPR, r 13.4(1)(b). 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: 13 October 2020