All three defendants bring this application on the following four bases:
[2]
(a) Failure to comply with the directions of the court
The plaintiff not only understood the order that was made for production of the documents in question, he consented to it. Not only has he failed to comply with the order to which he consented, but he has stated in categorical terms in his correspondence to the parties and the court that "I do not care about this court's corrupt orders" (plaintiff's emails dated 19 April 2018, Exhibit 1, pp. 31, 38, 50 and 77).
Underlying the plaintiff's submissions is the belief that he is only obliged to present his evidence in court as a hearing. However, as the Court of Appeal explained in Palavi v Queensland Newspapers Pty Ltd, the obligation to provide discovery is not confined to production of documents at the hearing, particularly when the circumstances of the failure to produce suggests that those documents no longer exist. The court went on to note, at [55], that failure to produce discoverable documents in such circumstances, although these were clearly of central relevance to the conduct of the proceedings, "may attract a sanction". The nature of that sanction is then a matter for the exercise of judicial discretion and may extend to striking out the whole claim, although it is a sanction "imposed sparingly in an appropriate case".
Sections 56 - 62 Civil Procedure Act 2005 (NSW) set out the case management principles used in this court. The days when documents and evidence were only produced at the hearing are long gone. Procedures for discovery, including early discovery, are an important part of case management generally: Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 at [24]; Halpin v Lumley General Insurance Inc (2009) 261 ALR 741. Avoiding "trial by ambush" is of particular importance in the context of defamation litigation where trial by jury is potentially available: Fairfax Media Publications Pty Ltd v Bateman (2015) 321 ALR 726 at [98] per McColl JA.
In the present case, the plaintiff suffers from the additional problems of seeking the court's leave to go behind an order made following his consent to produce the correspondence sought, and in the timeframe sought for its production: Rogers v Wentworth [1988] NSWCA 129.
[3]
(b) Failure to appear
Where a party (and in particular a plaintiff) fails to appear at a hearing, it is open to a court to dismiss the proceedings (UCPR r 29.7(4)). In the present case, the plaintiff's refusal to attend court has simply brought the litigation to a standstill.
[4]
(c) The plaintiff's attitude to the court and conduct of these proceedings
Where any party engages in conduct other than proceeding with the case, issues may arise pursuant to s 61 Civil Procedure Act 2005 (NSW) or UCPR r 12.7 as to whether such conduct amounts to want of prosecution.
The defendants submit that the plaintiff has displayed "a wholesale failure to engage with the processes of the court which reveals an arrant disregard for the importance of doing so" (Templar v Britton (No 2) [2014] NSWSC 587 at [37] per McCallum J). Mr Richardson submitted that the plaintiff's conduct went beyond that generally described as being a "reluctant gladiator" (Bi v Mourad [2010] NSWCA 17 at [31] per Young JA, a term first used by his Honour in Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263 at [63], and which has come to be applied to litigants unable or unwilling to enter the trial arena) and amounted to a dismissal not only of the battle but of the arena itself.
The defendants also point to the plaintiff's failure to answer correspondence in any meaningful way (Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244).
The plaintiff's refusal should be seen in the context of the importance these documents have to the defence of innocent dissemination, which will be based in part upon when and in what circumstances (if at all) the defendants received notification of the request for the publications to be taken down. It is hard to imagine a more important document in these proceedings than the letters or emails the plaintiff sent to the defendants concerning these documents.
[5]
(d) Abuse of process
Where a party refuses to provide evidence of significance to a case, the court generally only draws appropriate inferences. However, where that document is "significant" (Clark v New South Wales (2006) 66 NSWLR 640 at [104]) the court may have to call in aid its power to stay or to dismiss the proceedings.
The relevant principles were set out by Johnson J in Clark v New South Wales at [103]-[104]:
"[103] However, the remedies available in such circumstances are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case. This power is to be exercised sparingly.
[104] Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party."
In the present case, the defendants point not only to the absence of the covering emails (or letters) but to other factors, including the existence of inconsistent emails to the first and second defendants on other topics, the absence of evidence of download, the unsatisfactory addresses on the letters the plaintiff purports to have sent and the unlikelihood of the plaintiff, having allegedly written these letters on 9 June 2017 and doing nothing until 26 February 2018, despite losing $150,000 worth of work from clients, presumably in the interim. The defendants also point to the tenor of his other communications with the Guardian prior to 26 February 2018 as corroborative of these facts.
The defendants ask me to infer that the plaintiff never sent any letter to them because he either did not see or did not understand the post about himself until February 2018 or, if he did so, that he knew or was likely to have known that his emails or letters never reached them because of being mis-addressed or not being sent at all. As such, these proceedings are argued to be an abuse of process.
[6]
The plaintiff's arguments
As well as setting out the defendants' submissions, I have endeavoured to consider what the plaintiff's arguments would be.
As noted above, I reject the plaintiff's assertion that these are issues which should be determined at the trial. This is an issue to which I have given careful consideration.
As to the third defendant's application, even in courts which favour the system of leaving interlocutory issues to the trial, applications of the kind brought in Young v Facebook Australia Pty Ltd have been considered appropriate for summary dismissal applications.
As to the defendants' joint application in relation to the documents not produced in compliance with the consent orders, even in courts where the interrogatory process has been abandoned, discovery is still a pre-trial prerequisite. In this court, ss 56 - 62 Civil Procedure Act 2005 (NSW) and case management require compliance with the rules. The entitlement of a party to call for the whole of a document referred to in a pleading is a fundamental part of proper case management and it is fundamental to the administration of justice that specific provisions such as UCPR r 21.10 be complied with.
In addition, the plaintiff might argue that parties often do not produce documents despite being ordered to do so, and courts do not generally strike out their actions as a result. No adverse inference can result from a mere absence of evidence.
However, a court may strike out a pleading or a whole claim as an abuse of process (Palavi v Queensland Newspapers Pty Ltd; see also Kae v Wak [2010] QCA 327 at [39]-[40]; Mango Boulevard Pty Ltd v Spencer at [25]-[29]; Moody Kiddell and Partners Pty Ltd v Arkell [2013] FCA 1066) if the court is satisfied that the missing material is so fundamental to the claim as to warrant making the order in the interests of justice (and proportionality: Ting Ting Jia v Lee [2018] VSC 164 at [143]).
Taking into account what I anticipate would be the plaintiff's arguments, I am satisfied that the exceptional circumstances of this case warrant such an order. He consented to production of these documents in their entirety and should have done so. They are central to the case and the continued refusal to provide them must raise concerns, particularly given the other features of the statement of claim and evidence to which the defendants have pointed.
Finally, taking into account that the plaintiff is a litigant in person and noting the observations of the Court of Appeal in Mohareb v Kelso [2017] NSWCA 98 concerning the court's obligation to consider alternatives, I have given careful consideration as to whether there was some other alternative to striking out the whole proceedings. These are:
1. I considered whether the plaintiff should be given a "guideline" judgment of the kind I handed down in Michail v Mount Druitt & Area Community Legal Centre (No. 2), to give him one last opportunity to provide the documents in question.
2. I considered whether I could suggest the transfer the proceedings to the Supreme Court Defamation List pursuant to s 140 Civil Procedure Act, so that the plaintiff could have the benefit of a fresh judicial eye on the proceedings.
3. I considered the possibility of a separate trial on publication (Voller v Fairfax Media Publications Pty Ltd [2018] NSWSC 608).
4. I considered staying the proceedings so that the plaintiff could obtain advice from a computer expert as to how to demonstrate that he sent this correspondence.
5. I considered an adjournment so that I could refer the plaintiff to the court's pro bono panel.
Two factors persuade me that I should not do so. The first is the contents of the plaintiff's own correspondence and website. His letters to the court have included a link to websites in which he sets out his association with the United Nations, his activities combating paedophilia and information about injustices he has personally suffered at the hands of the courts. The plaintiff clearly wishes to have his complaints dealt with by the Court of Appeal, the High Court and the United Nations at the earliest opportunity. In those circumstances, I consider the plaintiff would be likely to be even more indignant at being offered an adjournment, a transfer or another form of hearing than the defendants would be.
This impression is confirmed by his email of 12 May 2018:
"Mr Vincent Mok Associate to Justice JUDITH GIBSON
I refer to your email and your threats that my emails will be placed in the Court File and be Public Records.
PLEASE do so. I WILL MAKE SURE THAT THE JUDICIAL COMMISSION OF NSW GETS ALL MY CORRESPONDECE RELATING TO THE CORRUPT ORDERS MADE ON 26 APRIL 2018, WHICH HAVE BEEN MADE.
I NOTE THAT YOU OR GIBSON J. HAVE REPLY TO MY CORRESPONDENCES RELATION TO THE UCRP AND AS YOU WILL HAVE NO DOUBTS THAT WILL ON THE PUBLIC RECORDS AND ESPECIALLY CORRUPTION!!!
I NOTE YOU STATED THE requirement of open justice. I AM SURE THAT YOU AND ANY JUDGE IS AWARE THAT OPEN JUSTICE REQUIRES impartiality AND THE RULE OF LAW. MAKING ORDERS TO PRODUCE MY EVIDENCE TO THE DEFENDANTS BEFORE TRAIL AND BEFORE DEFENCES ARE ARE FILED, IS NOTHING MORE THAN CORRUPTION!!!
I WILL MAKE SURE THAT CORRUPT JUDGES AND THEIR CORRUPT ACTS ARE IN THE PUBLIC RECORDS AND ALSO AT THE UNITED NATIONS.
CORRUPT SCUMS IN AUSTRALIA ARE NOT DEALING WITH JUST A POOR WOG, I WILL MAKE SURE THAT CORRUPT SCUMS IN AUSTRALIA ARE EXPOSED .
JUSTICE GIBSON WAS REQUESTED IN WRITING TO PROVIDE THA SECTIONS OF UCPR GIVING HER THE POWER TO MAKE HER CORRUPT ORDERS AND NOW YOU WILL HAVE TO EXPLAIN IT ALL.
I AM NOT ALONE AS SCUMBAGS THINK I AM SEE: http://www.defendersofhumanrights.com.au/
AS TO THE DEFENDANTS , AND OPEN JUSTICE THEY WILL HAVE THE CHANCE TO EXPLAIN THEIR CORRUPT ACTS" [Original misspellings retained]
A further confirmation, if one is needed, may be seen in his response to being told the matter was listed for judgment to be handed down on 29 May 2018:
"Mr Mok I REFER TO YOU EMAIL BELOW RELATING TO JUDGEMENT BY GIBSON J.
I ADVISE I WILL NOT ATTEND ON 29 MAY 2018 AND
I REQUEST A COPY OF THE JUDGEMENTS AND LIST OF EVIDENCE AND COPIES OF THE NOTICE OF MOTION AS PER UCPR 18 AND SUBRULES.
I REQUEST THE THE ABOVE DOCUMENTS BE PROVIDED TO ME ASAP SO THAT I CAN FILE AMY APPEAL DOCUMENTS IN RELATION TO THE CORRUPT JUDGEMENT OF GIBSON J." [Original misspellings retained]
The second is that, if the plaintiff is to sue the correct identity (Facebook Ireland) in the place of Facebook Australia, he cannot do so in this court, which would not have jurisdiction in relation to overseas service. While a transfer from this court to the Supreme Court under s 144 Civil Procedure Act 2005 (NSW) is possible, the logistics of transferring a reluctant plaintiff from this court to another court are extremely difficult and (thanks to the multiple publication rule) none of the limitation issues which played so decisive a role in Mohammed v Unicomb [2017] NSWCA 65 need trouble any court. In addition, he will be able to pray in aid the history of these proceedings if any application to refuse leave is brought under s 23 Defamation Act 2005 (NSW).
[7]
The third defendant's application for summary dismissal
In addition to the grounds relied upon by the first and second defendants, the third defendant relies upon the principles set out in Young v Facebook Australia Pty Ltd for summary dismissal of the proceedings on the basis that the third defendant is the wrong party.
It is not necessary for the purpose of this application to set out information about the practical or technical aspects of Facebook beyond noting the description of the workings of Facebook set out Young v Facebook Australia Pty Ltd at [8]-[22]. The affidavit of Michael Alan Owens sworn 4 May 2018, which is Exhibit 3 in these proceedings, states at paragraph 21:
"21. Accordingly, I am instructed and believe that:
a. Facebook Australia does not have any responsibility for the Facebook Service.
b. Facebook Australia is a corporation registered in Victoria: at document 45 of MA02 is a copy of an ASIC historical company extract for Facebook Australia.
c. As is shown in the ASIC historical company extract at document 45 of MA02 Cipora Rachel Herman was a director of Facebook Australia from 4 November 2008 to 20 November 2012.
d. Since at least 20 November 2012 Cipora Rachel Herman has not been an employee of Facebook Australia, nor has any person named "Ciporea Rachel Herman" been an employee of Facebook Australia.
e. Facebook Australia is a separately incorporated entity governed in accordance with Australian corporate law with its own board of directors. It is a legal distinct entity, and with an existence separate from Facebook, Inc. and Facebook Ireland.
f. Facebook Australia does not own, operate, control or host the Facebook Service. Similarly, Facebook Australia does not have the ability or power to control or direct Facebook, Inc. or Facebook Ireland's actions in relation to the Facebook Service.
g. In particular, Facebook Australia is not responsible for the day to day operations of Facebook, Inc. or Facebook Ireland and Facebook Australia is not authorised, nor able, to control or direct the conduct of Facebook, Inc. or Facebook Ireland.
h. Facebook Australia has no authority to enter into any contract or deed on behalf of Facebook, Inc. or Facebook Ireland. Facebook Australia does not have access to records of activity of Facebook users, or any messages or user data of Facebook users.
i. The operations of Facebook Australia are limited. They involve sales and marketing, public relations and consultancy. Facebook Australia does not act as an agent of Facebook, Inc. or Facebook Ireland.
j. Facebook Australia had no access to, or control of, the matters complained of in the Amended Statement of Claim filed on 17 April 2018 ("ASOC").
k. Accordingly, if Facebook Australia was ordered to take any action relating to the matters complained of and pleaded in the ASOC, it would not be able to comply with any such order because it is not in a legal or technical position to do so in circumstances where it does not own, operate, control or host the Facebook Service."
The Facebook Terms of Service attached to Mr Owens' affidavit clearly identify Facebook Ireland as the contracting party (Exhibit 3, pages 94 and 103). That is the party which should be sued. The plaintiff would require leave to serve outside the jurisdiction, an application which must be brought in the Supreme or Federal Court.
As the plaintiff has refused to acknowledge that he cannot continue proceedings against the third defendant in this court and instead insisted upon the third defendant filing a defence, the only way forward is for the proceedings against the third defendant in this court to be dismissed.
[8]
Conclusion concerning the parties' applications
The importance of the documents sought by all three defendants is that, if no prior notice was given requesting the taking down of the publication in question, the defence of innocent dissemination would succeed. They were entitled to seek these documents in full, not least because the plaintiff provided some of them and consented to an order for production of the covering documents.
The applicants rely upon the combination of findings, but submit that, individually, each of the four bases upon which both parties rely would be sufficient to warrant the dismissal of these proceedings.
For the reasons set out above, I am satisfied that each of the four bases put forward by Mr Richardson has been made out. I am also satisfied that Mr Lewis on behalf of his client, the third defendant, has discharged the evidentiary burden to determine that these proceedings should be summarily dismissed conformably with the principles set out in Young v Facebook Australia Pty Ltd.
I have done my best to consider the plaintiff's arguments in his absence. However, by refusing to attend court and by the limited and abusive nature of his communications on these issues, the plaintiff has prevented me from taking any step to assist him with the conduct of these proceedings. Regrettably, I have no alternative other than to strike out the claim and make an appropriate order for costs.
There is an additional issue. In the 17 emails the plaintiff has sent to the court, many refer to his association with the United Nations, United Nations Police, United Nations Women, United Nations Office on Drugs and Crime and/or the International Criminal Court. The logos and links for these organisations are set out as part of his website, where he describes how "my case" (presumably these proceedings) will be referred to the United Nations and/or the European Court of Human Rights once the appeal process to the High Court of Australia has been exhausted. The precise nature of the plaintiff's association with the United Nations and/or these organisations (in particular, the International Criminal Court, the logo for which appears to have been modified) is unexplained. Conformably with the principles set out in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16]-[18], a copy of this judgment will be provided to the United Nations Association of Australia.
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: 29 May 2018
Parties
Applicant/Plaintiff:
Pedro Alfaro trading as Palfaro Cleaning Services ABN: 57 267 431 409
Slipetz v Trudeau [2013] MBQB 111
Templar v Britton (No 2) [2014] NSWSC 587
Ting Ting Jia v Lee [2018] VSC 164
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263
Voller v Fairfax Media Publications Pty Ltd [2018] NSWSC 608
Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253
Young v Facebook Australia Pty Ltd [2015] FCA 1440
Category: Principal judgment
Parties: Plaintiff: Pedro Alfaro trading as Palfaro Cleaning Services ABN: 57 267 431 409
First Defendant: Lenore Taylor
Second Defendant: Guardian News and Media Limited ABN: 24 547 692 578 trading as Guardian Australia
Third Defendant: Facebook Australia Pty Ltd
Representation: Plaintiff: No appearance
The plaintiff commences proceedings for defamation
The plaintiff's claim for defamation arises from an online publication in the "Comments" section following an article in the Guardian posted on its Facebook page on 5 June 2017. The plaintiff has identified the publication about which he complains in paragraph 6 of both the Statement of Claim and of the Amended Statement of Claim as consisting of a photograph of himself with the words "Paedophile alert" printed across it.
The plaintiff states, in the statement of claim filed on 27 February 2018, that "a few days later" (i.e. a few days after publication of the matter complained of on June 5, 2017) he "wrote to" the first and third defendants asking for the offending material to be removed, but received no reply. Finding it still online on 26 February 2018, he commenced these proceedings.
The defendants, who were unable to discover this letter sent "a few days later" amongst correspondence or emails kept by either of them, sought a copy of this correspondence as soon as they were served with the statement of claim. Identical documents (except for the address) dated 9 June 2017 were then provided by the plaintiff, who indicated that he would amend his pleadings to refer to this date, and to correct the date of publication, given as 5 July 2017, to 5 June 2017.
However, the plaintiff did not provide the defendants with a copy of the covering email under which the letter was sent. The defendants sought this on the first return date and the plaintiff said he would provide it later that day. Although the plaintiff had consented to a court order to do so, he has never provided them and refuses to comply with any further orders of the court, saying this is an issue for the trial and that the defendants should file defences in relation to all issues.
The third defendant additionally argues that it has been wrongly joined as a party, for the same reasons as those set out in Young v Facebook Australia Pty Ltd [2015] FCA 1440 at [54]. The solicitors for the third defendant put the plaintiff on notice of this in their letter of 15 March 2018, which also sets out the relevant principles of law as well as factual material.
The plaintiff's emailed response was that "I look forward" to fighting "these allegations in court" (plaintiff's emails dated 15 March 2018, extracted from pp 10, 12 and 13 of Exhibit 3). He made the following statements in a series of emails all dated 15 March 2018:
"AND AS TO YOUR SCARY CASE OF YOUNG AND FACEBOOK AUSTRALIA PTY LTD LETS SEE WHAT THE COURT SAYS ABOUT THAT!
Be Advised that you are Not dealing with an idiot as to defamation litigation."
…
SEE YOU AT COURT MR BIG SOLICITOR. I'M NOT MR YOUNG AND THAT HAS NOTHING TO DO WITH DEFAMATIONS, SCUMS."
The absence of the plaintiff from the courtroom
The plaintiff was called three times outside the court and has not appeared to answer this application.
However, that does not mean that the case cannot proceed. It is not uncommon for one of the parties to fail to attend court, and in those circumstances there are additional burdens placed upon both the party present and the court.
Where a party fails to attend for the purpose of an interlocutory argument, the court may simply make orders in that person's absence (see UCPR r 18.7) or, if the failure to attend is of a longstanding or otherwise egregious nature, strike out the pleadings in favour of the opponent. Stricter rules apply where a party fails to appear at a hearing; these are set out in UCPR r 29.7.
As the nature of the application brought by the third defendant is a summary dismissal, and the consequences of the failure to provide the documents sought by the parties is also argued to warrant dismissal of the claim, I propose to adopt the stricter test under r 29.7.
In Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365, Barrett J explains the role that the court should play when dealing with a hearing where a party has not attended. The court's obligations to that missing party require obtaining proof there has been full and proper notice of the hearing date, to ensure a level playing field and to have careful regard to the evidence so that the relevant issues are considered in a manner that is fair to the missing party.
I am satisfied, from the correspondence set out above, that the plaintiff at all relevant times has been aware not only of the hearing date but of the substance of the claim for summary dismissal made by the third defendant. I am also satisfied, from the correspondence set out in more detail below, that he is aware of the basis upon which all defendants seek summary dismissal of this claim on the basis of his failure to comply with the order he consented to in the directions hearing on 22 March 2018.
I will first set out the relevant portions of the statement of claim containing the defamatory material and the references to the notifications the plaintiff says he sent to both defendants.
The contents of the statement of claim
The matter complained of is described, in paragraph 5 of the Amended Statement of Claim, as a photograph (by inference of the plaintiff, as he states that it is taken from his Facebook page) with the words "PAEDOPHILE ALERT" written across it, as part of a conversation thread described by the plaintiff as "some comments relating to a story related to the former director of the FBI James Comey which had been published by the Guardian Australia on the date" (paragraph 5). However, examination of the text set out in the attachment to the statement of claim shows this is not an accurate description.
The "comments" were made by the plaintiff to an article which was headed "James Comey Senate testimony: America braces for a historic political moment".
The plaintiff's comment was:
"HAHAHAHAHA The biggest LAIR [sic] PROTECTING PEADOPHILES [sic] IS HONEST??? WHAT [sic] JOKE GUARDIAN AUSTRALIA"
There were responses from other readers, to each of whom the plaintiff made a series of comments, namely "GET F SCUM !!!!!" (to several persons); "THE IDIOT IS YOU F SCUM!!!!"; "It is clear you are just one of the scums [sic] LIKE THE Guardian Australia seeking to attack Trump because he is after PAEDOPHILES [sic] and there are many in Australia!!!" and, finally, "HAHAHAHA I like it when SCUM hid their Location [sic], You [sic] must be one of the Scums protecting PAEDOPHILES or maybe one too, just like the others Scums [sic] before!!!!!"
It was in response to this last post from the plaintiff that another contributor responded with a post saying "methinks thou dost protest too much" and attaching a photograph (which the plaintiff claims is of himself) with the words "PAEDOPHILE ALERT" across it. Only the photograph and these words are relied upon by the plaintiff as being the matter complained of.
The time at which this publication was made is 5 June 2017. Three further entries appear after the plaintiff's, similarly bearing the timing "37 weeks" (the same as the entry concerning the plaintiff), but the printout attached to the statement of claim then ends, although I note at the bottom of this document that this page is only page 2 out of 7. These confirm the printout date of 26 February 2018, the day before the lodgement of the statement of claim for filing. No contemporaneous printout for 5 June 2017, or for any date prior to 26 February 2018, has been provided.
The Amended Statement of Claim corrects the date of publication from 5 July 2017 to 5 June 2017, although retaining the "few days later" portion in one part of the claim:
"• The Plaintiff a few days later wrote to the Defendant Taylor as the editor of the Guardian Australia and to Defendant Facebook Australia and advised of the posting and of the photo which was seeking to cause damages [sic] to the Plaintiff with the allegations of paedophile alert. The Plaintiff received no reply from the editor of the Guardian Australia or from Facebook Australia Pty Ltd.
• The Plaintiff on 26 February 2018, once again inspected the story of the former directo [sic] of the FBI published on 5 July June 2017, and found that the photograph with the words paedophile alert was still on the facebook [sic] page of the Guardian Australia and nothing had been done by the Guardia [sic] Australia or by facebook [sic] Pty Ltd." (Paragraphs 6 and 7 of the Amended Statement of Claim)
Conduct of the proceedings after the first return date
On 19 April 2018, conformably with the orders made on 22 March 2018, these proceedings came before me.
Mr Alfaro wrote to the court on 17 April 2018 asking for the court date to be "vacated", but without proposing any further date or course of action:
"I refer to the above matters Listed today 19 April 2018 and to the AMENDED STATEMENT OF CLAIM Filed [sic] 17 April 2018.
I hereby Request [sic] that the Listing of 19 April 2018 be vacated.
The Defenders [sic] lawyers were advised and Copy [sic] of Amended Statement of Claim was served on them by email to the lawyers [sic] office.
The Stamp [sic] copies are going by Registered Post on 18 April 2018.
A copy of this correspondence will be Cc to the Lawyers on the Court Records."
No reason for vacating the date was given and no adjourned date was proposed. When the matter was called, the plaintiff did not respond when called outside the court three times. The defendants advised that the documents the subject of the consent order made on 22 March 2018 had not been provided. I stood the matter over to 26 April 2018 and made orders for the plaintiff to be notified.
Between that date and 26 April 2018, the plaintiff sent a series of emails to the solicitors for the defendants and to the court. His email of 19 April 2018 stated:
"1. No judge has the power to force me to provide or produce my EVIDENCE before trail [sic]. And now that matters [sic] will be taken to the NSW Court of Appeal and High Court of Australia relating to the orders made on 19 April 2018;
2. On 17 April 2018, Amended Statement of Claim was filed AND THE DEFENDANTS MUST FILED [sic] DEFENCES AND NO JUDGE CAN INTERFERE WITH and that will be dealt with at NSW Court of Appeal;
3. I DO NOT INTEND TO ATTEND FOR THE LISTING OF 26 APRIL 2018, AND ONCE ANY ORDERS ARE MADE ON THAT DATE, APPEAL DOCUMENTS WILL BE FAILED [sic] AT COURT OF APPEAL AND THAT IS THAT.
I would suggest Smart Lawyers that think they are so smart to comply with the Court Rules relating to Filing Defences or I will MAKE SURE THAT THEY [sic] MATTERS GO ALL THE WAY TO THE HCA and I am sure Smart Lawyers are Aware of High Court decisions in Defamation and Dismissal Applications and that includes Judgement [sic] against Facebook and the Guadian [sic].
I AM NOT GOING TO BE INTIMIDATED BY ANY JUDGE IN AUSTRALIA AND WILL ALSO REPORT THE MATTERS TO THE UNITED NATIONS."
He sent correspondence in a similar vein to the defendants, saying that no judge could force him to produce his evidence before trial, and that the "corrupt actions" resulting in the orders made on the first return date "are going to the High Court of Australia" (Exhibit 3, p. 55).
On 26 April 2018, the plaintiff did not attend again, and I made the following orders:
1. List both summary dismissal applications for hearing on Thursday, 24/5/18 at 10am before Gibson DCJ (estimate of 1 hour plus).
2. Direct the defendants to notify the plaintiff of these orders by email and text message by 4pm today, noting that orders may be made against the plaintiff in his absence if he does not attend pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005.
3. Defendants to file and serve their evidence and an outline of submissions identifying the nature of the defences which they say entitle them to summary dismissal/abuse of process within 7 days.
4. Any evidence the plaintiff wishes to rely upon (including the production of the correspondence the subject of Judge Wass' order of 22/3/18) to be filed and served no later than 4pm on 18/5/18.
5. Any evidence in reply by 22/5/18.
6. Reserve the issue of costs.
The relevant principles of law
The statutory provisions relied upon by both defendants are set out at paragraph 2 above.
The relevant principles for summary dismissal of proceedings are set out in Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523. It has repeatedly been stated that the court's power to dismiss proceedings should be used "with great care" and "extreme caution" (Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6]). The rationale for the exercise of such a power should be restricted to cases where there is a need to prevent the administration of justice being brought into disrepute and for the protection by the court of the integrity of its processes (Batistatos v RTA (NSW) (2006) 226 CLR 256 at 264 and 265 per Gleeson CJ, Gummow, Hayne and Crennan JJ). I also note observations to this effect by Muir JA in Mango Boulevard Pty Ltd v Spencer [2008] QCA 274 at [25]-[29].
The application made by the third defendant is based upon the principles set out in Young v Facebook Australia Pty Ltd. The applicant in those proceedings was a litigant in person and Griffiths J set out the relevant facts and the law clearly and helpfully.
I also note the relevant principles where a party is a litigant in person. Litigants in person are entitled to a degree of assistance from the court which requires an understanding that self-represented parties may be indignant about or frightened by the judicial process and may express themselves in ways which are not appropriate.
In paragraph 9(a) of the Amended Statement of Claim, the plaintiff identifies the letter he wrote "a few days" later as a letter he wrote on 9 June 2017:
"9. The Plaintiff as a direct result of the defendants [sic] actions, has suffered loss and damages [sic] and the defendants are responsible and liable and the Plaintiff claims to be entitled to compensatory, exemplary and aggravated damages.
Particulars
a) The Defendants Taylor and Guardian News and Media Limited did nothing after [sic] were notified in writing by the Plaintiff on 9 June 2017 of the publication of the photo with the words Paedophile Alert writing [sic] on it and published on 5 June 2017 and the Plaintiff has been subjected to humiliation and hatred as result [sic] of the publication of the photograph with paedophile alert written on it and published on 5 June 2017.
b) The Defendant Facebook Australia Pty Ltd did nothing after were [sic] notified in writing by the Plaintiff on 9 June 2017 of the publication of the photo with the words Paedophile Alert writing [sic] on it and published on 5 June 2017 and the Plaintiff has been subjected to humiliation and hatred as result [sic] of the publication of the photograph with paedophile alert written on it and published on 5 June 2017.
c) the [sic] plaintiff has had to tell prospective clients of the publication of the photograph with paedophile alert written on it and published on Guardian Australia Facebook page and the Plaintiff has suffered the lost [sic] of work in commercial cleaning after the Plaintiff advised prospective clients of the publication of the defamatory photograph with paedophile alert written on it and published on 5 June 2017, and the Plaintiff has suffered lost [sic] of work from 5 June 2017 of some 3600 hours at the rate of $40 per hour with the total of about $150,000 in losses of income."
The plaintiff claims damages including special damages of $150,000 in loss of income as a carpet cleaning from "prospective clients" who had seen the matter complained of. No particulars of downloading are provided (Jenman v McIntyre [2013] NSWSC 1100); the plaintiff appears to be relying upon his having told his customers about it, which resulted in those customers ceasing to deal with him, which may not be actionable (Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253).
The plaintiff pleads ten imputations as arising from the words "paedophile alert" across his photograph, which include an imputation that he is conducting the Defenders of Human Rights organisation to deceive the public and using Palfaro Cleaning Services as a front for criminal activity against children, although these are not referred to and would require the pleading of extrinsic facts.
Although none of these issues are before me for determination, the statement of claim will require amendment or determination by argument in the future. Other difficulties include the pleading (unparticularised) of a claim for exemplary damages, which is crossed out in paragraph 9 but still sought in the claim for damages.
On 26 April 2018, the plaintiff sent the following letter to the Judicial Registrar and to my Associate:
"I hereby Demand [sic] that Gigbson [sic] J, provide the section/s of the District Court Act and Rules and of the Evidence Act and UNCPR which gave her powers to make produce and Provide my Evidence to the Defendants before trail [sic] and to make Allegations of Abuse of Process. I advise that this letter will be produce in Evidence at the NSW Court of Appeal. This Letter is Cc to: Mr Vincent Mok Asociate [sic] to Judge GIBSON District Court NSW Email: [Email address]"
As my Associate was overseas, Mr Alfaro wrote to my Acting Associate at 4:09pm on 26 April 2018 in the following terms:
"Ms NG
the [sic] attached letter very clear at botton [sic] REQUEST THAT JUDGE GIBSON PROVIDE THE SECTIONS OF THE DISTRICT COURT ACT, RULES AND OF THE UNCPR [sic] RELATING TO THE CORRUPT ORDERS THAT I PRODUCE AND PROVIDE MY EVIDENCE TO THE DEFENDANTS.
I DEMAND THAT GIBSON J PROVIDE THE MATTERS AND I WILL SEND A LETTER JUST RELATED TO THOSE MATTERS SOON.
NO CORRUPT ORDERS WILL FORCE ME TO PROVIDE MY EVIDENCE BEFORE TRAIL [sic]"
Ms Ng replied as follows:
"Dear Mr Alfaro,
The order for you to produce the document to which you refer in paragraph 6 of the statement of claim was made by Judge Wass SC, not by Judge Gibson. Judge Gibson has made case management orders subsequent upon Judge Wass SC's orders.
Where a document is referred to in an originating process (such as your statement of claim), the opposing party may make a request pursuant to UCPR r 21.10 to inspect the document. If you oppose such an application, the burden of resisting this inspection lies upon you: Jefferson Ford Pty Ltd v Ford Motor Co of Aust [2007] VSC 450 at [30] - [35]. The examples set out in Ritchie's Uniform Civil Procedure (NSW) at [21.10.10], which include references in pleadings to letters being sent or received, will give you further guidance.
Kind regards,
Yvonne Ng | Acting Associate to her Honour Judge Gibson | District Court of New South Wales"
On 27 April 2018, Mr Alfaro wrote to the Associate to Judge Wass SC in the following terms:
"REQUEST FOR SECTIONS OF ACTS AND RULES
27 April 2018
Ms Sarah SHIN
Associate to Judge Penelope M Wass SC
[Address]
[Email address]
Dear Madam
RE: COURT 2018/64543
RE: COURT 2018/64543 PEDRO ALFARO T/AS PALFARO CLEANING SERVICES V LEONE [sic] TAYLOR AND GUARDIAN NEWS AND MEDIA LIMITED AND FACEBOOK AUSTRALIA PTY LTD.
I refer to the above matters listed for directions before Wass J. on 22 March 2018 and to her Orders made on 22 March 2018 that I provide a copy of my Evidence to the Defendants and I REQUEST [sic] the following:
1. please prove [sic] the Sections of the District Court Act and Rules upon which Wass J. made her orders on 22 March 2018 seek [sic] to force me to provide my Evidence [sic] to the Defendants;
2. please provide section of the Evidence Act upon which Wass J was forcing to provide my Evidence [sic] to the Defendants before trail [sic];
3. please provide the section of the UCPR, the District Court Act and Rules, upon which Wass J, [sic] made Orders on 22 March 2018, forcing me to provide a copy of my Evidence [sic] to the Defendants before the filing of Defences.
I ADVISE [sic] that the Oders [sic] made by Wass J. and by Gibson J. on 26 April 2018, WILL TAKEN TO THE NSW COURT OF APPEAL [sic] and I REQUEST THAT THE ABOVE MATTER MARKED 1 TO 3 BE PROVIDED WITHIN [sic] 7 Days from the hereof [sic].
Sincerely
[Signature]
27418
PEDRO ALFARO"
On 29 April 2018, my Associate sent the following email to Mr Alfaro:
"Dear Sir,
The evidence and relevant statutory provisions are to be served by the parties on each other as set out in the orders made by Gibson DCJ of 26 April 2018.
As to the basis upon which Judge Wass SC made the orders on 22 March 2018, I note earlier correspondence has referred you to UCPR r 21.10 and Ritchie's Uniform Civil Procedure (NSW) at [21.10.10].
Yours faithfully,
Vincent Mok
Associate to her Honour Judge Gibson
District Court of New South Wales"
I will not set out the remainder of Mr Alfaro's correspondence. To date, he has sent 17 emails to the court in similar terms, making similar complaints in relation to the order concerning production of the email attaching his letter of 9 June 2017. He sent the following email the day before the hearing, on 24 May 2018:
"NOTICE OF NSW COURT OF APPEAL PROCEEDINGS SECTIONS OF UCPR 2005
May 2018
Mr Vicent [sic] MOK
Associate to Judge Judith GIBSON DCJ
[Address]
[Email address]
Dear Sir And [sic] JUDGE GIBSON
RE: CASE No. 2018/64543 PEDRO ALFARO T/AS PALFARO CLEANING SERVICE AND DEFENDERS [sic] OF HUMAN RIGHTS V LENORE TAYLOR AND GUARDIAN NEWS AND MEDIA LIMITED AND FACEBOOK AUSTRALIA PTY LTD.
I refer to the above matters Listed [sic] for 24 May 2018 and the Orders made by Gibson J. on 26 April 2018. BE ADVISED I AM NOT ATTENDING COURT TODAY.
I NOTE THAT GIBSON J, WAS REQUESTED TO PROVIDE THE SECTIONS OF THE UNIFORM CIVIL PROCEEDURE RULES, UPON WHICH ORDERS WERE THAT THE PLAINTIFF PEDRO ALFARO PROVIDE THE DEFENDANTS, WITH THE PLAINTIFF'S EVIDENCE. TO THIS DATE, NO REPLY WAS RECEIVED IN RELATION TO THE ORDERS THOSE ORDERS.
I NOTE THAT UCPR 18 AND SUB-RULES, PROVIDE THE REQUIREMENTS FOR APPLICATION FOR SUMMARY DISMISSAL OF PROCEEDINGS. I NOTE THAT TO THIS DATE, THE DEFENDANTS HAVE NOT CONPLIED WITH UCPR 18 AND SUBRULES, IN RELATION TO APPLICATION FOR SUMMARY DISMISSAL.
I AM SURE THAT ALL ARE AWARE THAT ANY ORDERS MADE ON 24 MAY 2018, RELATING TO ORDERS MADE ON 22 MARCH, 19 APRIL AND 26 APRIL 2018, WILL BE TAKEN TO THE NSW COURT OF APPEAL. THE DEFENDANTS AND GIBSON J. WERE REQUESTED IN WRITTINFG TO PROVIDE THE SECTIONS OF THE UCPR GIVING POWERS FOR THE ORDERS OF 22 /03/ 2018, 19 /04/2018, AND 26/04/2018 AND TO DATE, NO REPLIES HAVE BEEN RECEIVED. APPENDED SOME OF THE CORRESPONDENCES TO BE PRODUCE AS EVIDENCE AT NSW COURT OF APPEAL.
Sincerely
[Signature]
24518
PEDRO ALFARO"
The plaintiff's reference to a requirement for notices of motion being a pre-requisite for the defendants' applications is misconceived; interlocutory proceedings are conducted in accordance with District Court Practice Note 6 (Defamation), and notices of motion have not been in use in defamation applications since Justice Hunt ended their use in the Supreme Court Defamation List in 1979. Nor are defendants in defamation proceedings required to file defences in 28 days, for the same reason. The present proceedings are a good example of the reasons for this exception. Cautious defendants fearing applications for default judgment might do so, but they are not required to.
The plaintiff's stated intention is to appeal any orders I make, and he clearly does not intend to attend court to seek any orders other than demanding that defences be filed. There is no purpose in further adjournments, and I have accordingly proceeded to hear the defendants' applications for summary dismissal.