Peter P v Clarence C

The questions for determination

1. The issues for determination are thus as follows: 1. Whether Mr Cohen, the defendant's counsel, should be entitled to cross-examine the plaintiff on the affidavit he swore in these proceedings, notwithstanding the fact that this is a summary dismissal action. 2. Alternatively, whether interrogatories could be administered for the purpose of obtaining the admissions Mr Cohen submits are essential for his case. 3. Whether the documents attached to the affidavits relied upon contain privileged communications for the purpose of settlement negotiations (s 131 Evidence Act 1995 (NSW)), in circumstances in which the use of these documents is asserted not only to be impermissible but is itself an abuse of process.
2. For the reasons noted at the end of the judgment, the names of any persons likely to be a party or witness in any family law proceedings in the courts of this or another country have been anonymised.

The basis for the summary dismissal application

1. In his notice of motion filed on 24 September 2019, the defendant sought the following orders: 1. Upon the affidavit of the defendant dated 23 September 2019, the plaintiff's action be permanently stayed as an abuse of process. 2. And/or in the alternative, service of the statement of claim be set aside pursuant to UCPR r 11.6(1) and the proceedings dismissed.
2. Mr Cohen relies, in relation to the first basis, upon the court's inherent power to stay actions as an abuse of process. As these proceedings were transferred from the Supreme Court, the plaintiff is entitled to refer to inherent jurisdiction, but the concept of abuse of process must still be viewed through the prism of the relevant provisions of the Civil Procedure Act 2005 (NSW) and its regulations. While that legislation does not cover the field, it does identify abuse of process with some particularity and I have proceeded on the basis that the defendant accepts that I must take its provisions (notably UCPR rr 12.11 and 13.4), into account.
3. The second basis, which sought the setting aside of orders for service made in the Supreme Court under UCPR r 11.6(1), has now been abandoned. I understand this is in part because the defendant acknowledges that he regularly visits Australia for the purpose of access.
4. According to the defendant's latest submissions, an application based on proportionality principles (Bleyer v Google Inc (2014) 88 NSWLR 670) has now been brought. I was not told whether the cross-examination would relate to this issue as well. To err on the side of caution, I have assumed that this is the case.

The reasons for permitting cross-examination of Dr Toben in a summary dismissal application

1. Dr Toben is a historian whose views on the Holocaust have resulted in orders not to publish certain statements, as well as leading to his imprisonment for contempt for non-compliance with those orders, as is noted by McCallum J at [69]-[73] (see Jones v Toben [2002] FCA 1150; Jones v Toben [2009] FCA 354; (2009) 255 ALR 238 and Toben v Jones [2009] FCAFC 104).
2. As McCallum J notes in the Summary of her Honour's decision, the orders of the Federal Court of Australia (per Branson J) restrained Dr Toben from publishing material that conveys the following meanings: 1. That there is serious doubt that the Holocaust occurred. 2. That it is unlikely that there were homicidal gas chambers at Auschwitz. 3. That Jewish people who are offended by and challenge Holocaust denial are of limited intelligence. 4. That some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances.
3. While subject to these orders, Dr Toben commenced proceedings for defamation for publication of a 2013 news article ("Split in Greens over Holocaust denier") imputing that, as a historian, he fabricated history about the Holocaust, that he is a Holocaust denier and that he is an anti-Semite. The defendants brought an application for summary dismissal as an abuse of process, on the basis that Dr Toben's aim was not to vindicate his reputation, but to flout Branson J's orders and to use the court as a vehicle for expounding his Holocaust beliefs.
4. At [79]-[80], McCallum J explained why, in these "unusual circumstances", leave to cross-examine had been sought and granted even though this was a summary dismissal application: "79 Mr Hmelnitsky sought leave to cross-examine Dr Toben. He acknowledged that cross-examination would not ordinarily or automatically be allowed on an interlocutory application. He made it plain, however, that he proposed to put a submission that vindication of reputation on the imputations pleaded is not Dr Toben's true purpose in bringing these proceedings. On that basis, he submitted that it would be appropriate for the Court to grant leave to cross-examine so as to allow the proposition to be put squarely and to afford Dr Toben an opportunity to respond to it. Mr Hmelnitsky also indicated that he proposed to invite the Court to infer from the material put before the Court by the defendants that Dr Toben is racist and an anti-Semite and that his evidence to the contrary should be rejected altogether. 80 In the unusual circumstances of this case, I determined that it would be appropriate to allow cross-examination of the plaintiff. The submissions foreshadowed by Mr Hmelnitsky raised a real question as to the purpose for which the Court's authority to decide is invoked in this case; the documentary material tendered by the defendants afforded ample basis for those submissions. I considered that cross-examination should be permitted not only as a matter of fairness to both parties but to inform the proper exercise of the Court's power (which is also regarded as a duty) to suppress any abuse of its process".
5. McCallum J then described (at [81]-[82]) the role that the cross-examination played in her reasons for finding that Dr Toben's defamation proceedings were an abuse of process: "81 The cross-examination confirmed the apprehension of a shift in the discourse. There can be little doubt that, prior to his imprisonment, Dr Toben was prepared to accept and indeed embrace, as fact or at least his own belief, the four imputations specified in the orders of Branson J. 82 The evidence of that is overwhelming. Dr Toben conducted the inquiry before HREOC on the basis that "truth is a defence"; he defended the application before Branson J to enforce HREOC's determinations on the same basis; he appealed to the Full Court of the Federal Court, not to challenge the finding of Branson J that his publication of the material was reasonably likely to offend, insult, humiliate and intimidate the groups identified by her Honour but to test the Constitutional validity of the relevant provisions of the Racial Discrimination Act and otherwise to test his entitlement to publish such material." [Emphasis added]
6. Two important portions of her Honour's judgment are highlighted by me in the extract set out from [81] above. The first, and most important, is that for a lengthy period after the orders were made, and "prior to his imprisonment" (at [73]), Dr Toben had continued to embrace the four concepts which led to the orders made in the Federal Court of Australia by Branson J.
7. McCallum J noted the impact of the cross-examination on this issue, the following being one such example: "87 In these proceedings [as opposed to earlier proceedings in the Federal Court], there is a shift in language. Throughout his evidence, Dr Toben flatly refused to be drawn as to his views and indeed appeared to deny that he holds any views as to the Holocaust at all; he is merely a philosopher. He characterised his statements as "philosophical discourse". 88 The first illustration of that consistent theme came early in the cross-examination. Mr Hmelnitsky began with the fact that Dr Toben, in these proceedings, sues on an imputation that he is an anti-Semite. 89 Dr Toben's personal website has a page dated 12 December 2014 under the tag "free expression". He sets out a quote attributed to Henry Ford Snr in May 1920 expressing anti-Jewish sentiment, followed by the words: "Don't only blame the Jews; also blame those that bend to Jewish pressure." 90 In his cross-examination, Dr Toben accepted that those were his words. The cross-examination continued: Q. That is something of a maxim that you live by, isn't it? A. It is a little more complicated than that. These are mere phrases that I use to encapsulate our problem in focussing on deeper issues." [Emphasis added]
8. McCallum J described the remainder of the cross-examination and her reasons for relying upon it as follows: "94 The cross-examination continued in that vein. Dr Toben's own writings (which to an objective reader might be thought to breach the orders of Branson J) were dismissed as "dialectic" (T45.29). Where he had published the words of others, they were characterised as "a quote that needs to be looked at and to be tested for truth content" (T46.37). 95 Mr Hmelnitsky's skilful cross-examination of Dr Toben has persuaded me that Dr Toben's claim merely to be engaged in philosophical discourse is cynical and disingenuous. It is a transparent rhetorical device in which Dr Toben's own anti-Semitic views are deliberately attributed to a straw man (or else characterised as mere asteroids in the universe of philosophical discussion) so as to enable Dr Toben to record views he plainly espouses on a pretended lawful basis. 96 The evidence has further persuaded me that Dr Toben's purpose in commencing this defamation action is to advance that pretence. Having regard to Dr Toben's own writings and his evidence in these proceedings, the suggestion that the proceedings are brought to vindicate his reputation against the imputations on which he sues is risible. 97 In my view, it is clear that his purpose in bringing the proceedings is not to vindicate his reputation against the false attribution that he denies an obvious truth but to use the proceedings as a forum for its disproof."
9. The "unusual circumstances" (at [80]) of the case were that the plaintiff had not only published anti-Semitic material, but had given evidence in other court proceedings which would be (and was) inconsistent with the evidence he was likely to give before McCallum J. If so, his purposes in bringing the defamation action included the circumventing and undermining of orders made by Branson J on 17 September 2002 in Jones v Toben [2002] FCA 1150 and following from the subsequent decisions of the other judges of the Federal Court of Australia which led to Dr Toben's imprisonment.
10. I would add my own observation that, as Dr Toben had been the subject of sanctions, whether or not those sanctions (in the form of the orders made by Branson J) were of a continuing nature, it may be that the defamation proceedings he brought would also be an abuse of process for reasons similar to those later outlined in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246.
11. Unlike the present case, the inconsistent statements made by Dr Toben were not made by him as part of settlement negotiations, family arguments or informal correspondence. The source of inconsistency was his evidence in the Supreme Court when compared with his prior evidence in the Federal Court, where he openly espoused views of the kind found by Branson J to warrant the making of the non-publication orders, as well as in his writings leading to those orders and subsequently.
12. The second relevant factor is McCallum J's emphasis that the cross-examination was not the main reason for her findings; the cross-examination merely "confirms" (at [81]) her findings concerning the inconsistency that is apparent from his earlier writings which had led to imprisonment as well as to the ongoing orders of Branson J.
13. Dr Toben's appeal ground included the issue of whether the cross-examination should have been permitted. His appeal on this ground was dismissed. However, this was not because the Court endorsed the process of cross-examination in an application for summary dismissal. The challenge to the decision to cross-examine Dr Toben was determined solely on the basis as to whether McCallum J's ruling to permit cross-examination amounted to an error of principle or within the rubric of House v The King (1936) 55 CLR 499; [1936] HCA 40: "55. Dr Toben further complains that her Honour permitted him to be cross-examined at all on the hearing of the News respondents' application (ground 8). 56. Turning first to the last of those complaints (ground 8), the decision to permit cross-examination was one clearly within her Honour's discretion. The News respondents say that the utility of the cross-examination, and the reason that leave was sought (and granted) to cross-examine Dr Toben (referring to what is recorded at T 28.7-26) was to challenge Dr Toben's evidence as to his purpose in bringing the proceedings and to demonstrate that he could not be believed in that regard. 57. Her Honour gave cogent reasons for permitting the cross-examination. No error of principle or House v R error has been demonstrated by Dr Toben in relation to that decision (House v The King (1936) 55 CLR 499; [1936] HCA 40). It cannot be said that the primary judge in some way inverted the onus of proof. Rather, Dr Toben chose to adduce evidence as to his purpose in commencing and continuing the proceedings; and the News respondents were permitted to test that asserted purpose by cross-examination. There is no merit to ground 8 of the proposed grounds of appeal."
14. The Court also dismissed the claim by Dr Toben that he was taken by surprise by the request to cross-examine him since he had sworn an affidavit for the purpose of the application (at [60]). Again, this was not an endorsement of cross-examination in interlocutory proceedings, but a finding in relation to a complaint of absence of procedural fairness.
15. In dismissing the appeal, the Court of Appeal frankly acknowledged (at [111]) that "[t]he present case does not find a ready analogy in the cases where abuse of process has been found in the past." This observation is consistent with the reference by McCallum J at [80] in the first instance judgment to "unusual circumstances" which by inference warrant the taking of unusual steps, by reason of the facts of the case.
16. How does the reasoning in both the first instance and appeal Toben decisions apply to the circumstances of this case? Given that Mr Cohen concedes that cross-examination is rarely permitted in summary dismissal cases (the parties did not refer me to any other examples), what is "unusual" or different about the facts of this case sufficient to warrant the making of an order for cross-examination in a summary dismissal application?

The defendant's reasons for seeking to cross-examine the plaintiff

1. The defendant acknowledges that in his affidavit the plaintiff has given what the defendant concedes to be "legitimate reasons for commencing proceedings" (submissions in reply, paragraph 8), although Mr Cohen also describes these reasons as "self-serving" (submissions in reply, paragraph 6).
2. In essence, the defendant submits that there is "inconsistent evidence from the plaintiff" (submissions in reply, paragraph 5), namely conflicting statements made in emails and WhatsApp messages that "would enable a court to draw a conclusion that the proceedings are an abuse of process, as they have been issued for a collateral purpose". That collateral purpose is "to secure a favourable family law settlement for the plaintiff's new partner" (submissions in reply, paragraph 5).
3. The defendant seeks to prove through cross-examination that "the plaintiff is not seeking to litigate these proceedings for the purpose of vindication, but rather to place the defendant in a position where he feels compelled to give his former wife [sic] money which he would otherwise have to spend on legal fees, and thereafter the [defamation] proceedings would be dropped, without the plaintiff having any form of vindication".
4. The questions to be asked in cross-examination would therefore demonstrate, according to Mr Cohen, that the plaintiff's dominant purpose for bringing proceedings was illegitimate.
5. As to the references in Toben to the difference between "purpose" and "motive", Mr Cohen submits that the distinction between these words is merely one of semantics. He submits that "a motive may be furtive or hidden desire" and that "a hidden desire is not relevant". The plaintiff's "purpose" has been made abundantly clear through his own express words sent to the defendant: "The point is that the evidence inferring abuse of proceedings was generating without the knowledge that it could be used as against the plaintiff in the current application whereas the evidence in the plaintiff's favour was generating expressly in answer to this motion - it is self-serving evidence." (Submissions in reply)
6. I have set out these portions of Mr Cohen's submission in quotations, as I am not entirely sure what they mean. It seems that what he is saying is that the plaintiff was leading the defendant on with the intention of using the defendant's correspondence against him, and that such evidence is "self-serving" for this reason. However, all the correspondence predates the summary dismissal application, and it is hard to see how the plaintiff could have predicted such an application would be brought. As set out in the plaintiff's affidavit, he certainly spent months in negotiating with the defendant (with some success in relation to the [redacted country] proceedings); how this is "self-serving" is not explained.
7. Alternatively, the defendant submits, if the plaintiff declines to be cross-examined by opposing this application, the plaintiff should be deemed to have waived his right to what would be ordinarily considered procedural fairness. In practical terms, this submission forms part of the same argument.

Why is cross-examination of the plaintiff necessary?

1. Mr Cohen's submissions in reply state that, for the purposes of determining this application, "the Court must resolve this conflict in the evidence" and that "this cannot ideally be done on the papers". In fact, he submits, permitting cross-examination would do the plaintiff a favour, since "the point of the application to cross-examination [sic] the plaintiff is to counter a submission that the plaintiff has not been afforded procedural fairness when determining issues such as credit", as it would be "difficult for the Court reject part of the plaintiff's evidence without the plaintiff being cross-examined" (submissions in reply).
2. What are these questions? Mr Cohen has not set them out with any specificity. He has had the opportunity to do so, not only in his written submissions, but in response to my suggestion that he could seek admissions by way of written questions, a suggestion he rejects.
3. Despite Mr Cohen's lack of particularity as to the questions he wants to put, he clearly intends to challenge statements made by the plaintiff about why the defamation action was started, by whom it is funded and admissions the plaintiff may be said to have made about the case being started against the defendant as a tactic.
4. The first and third of these topics should be looked at in light of the affidavit material, but the desirability of attack on a defamation action on the basis of champerty or some other basis of abuse requires consideration of similar applications brought on such a basis.
5. There are many cases where funding is from a third party such as a trustee, an employer, a member of a family, a litigation funder or an "angel" financier, including for the purposes of bringing defamation proceedings, as the list set out in Roux v Australian Broadcasting Commission [1992] 2 VR 77, where a challenge of this kind was brought in relation to defamation proceedings, demonstrates. As to the desirability of dealing with such matters in interlocutory applications, the court noted curial observations in Brew v Whitlock [1967] VR 449 at 462 - 3, which were as follows: "It is significant that there is no modern case in which the relief sought by the defendant has been granted. In EH Bodkin, Law of Maintenance and Champerty, 1935, p. 32, the various consequences of a maintenance agreement do not include the relief which the defendant seeks in the proposed amendment. In Southern Cross Assurance Company Ltd v Shareholders Mutual Protection Association Ltd (No 2) [1935] SASR 480, the majority of the Full Court refused an injunction restraining plaintiffs who were unlawfully maintained from continuing an action. Angas Parsons ACJ (dissenting) was for granting the injunction, since the maintained plaintiffs were committing a serious abuse of the process of the court and guilty of conduct which was contrary to public policy. Richards and Piper JJ refused the injunction since damages were an appropriate remedy and (per Richards J) in any event, there was a remedy by criminal proceedings. Neither of these arguments is available today in Victoria. Finally, I note that in Brew v Whitlock [1967] VR 449, at 462-3, Gillard and McInerney JJ, without expressing any concluded opinion, were inclined to the view that an interlocutory application should not be "answered by an allegation of criminal illegality of dubious existence". The application to amend the defences was accordingly refused." [Emphasis added]
6. If the basis of the abuse of process is asserted to be the funding of the defamation litigation by a third party, that would not be an appropriate basis for cross-examination on an interlocutory application, particularly where there is no pleading to support any such claim.

The defendant's affidavit

1. Prayer 1 of the notice of motion asks the court "upon the affidavit of [the defendant]" to stay these proceedings permanently as an abuse of process, and this clearly is the material to be put to the plaintiff. There is no text of significance in the affidavit; it merely attaches two bundles of emails and Whatsapp messages between the plaintiff and defendant.
2. The contents of these documents, like the matters complained of and the documents attached to the plaintiff's affidavit, paint a picture of long-running and acrimonious litigation in two countries with the result that both parties were in significant financial difficulties, child support was not being paid and third parties came as a result to intervene. That litigation is, however, between the defendant (who has been given the pseudonym Clarence in the extracts from this correspondence) and Clorinda; the plaintiff is not identified anywhere as playing any role in the proceedings in either court. His role appears to have been to try to intervene as a peace-maker between Clarence, the defendant, and Clorinda.
3. The first of the plaintiff's emails attached to the defendant's affidavit, dated 22 February 2019, is addressed to the defendant, Clarence: "Dear Clarence - do I need to say this correspondence is without prejudice etc? If I am supposed to then consider I have. As promised I have been working with Clorinda on a response to the Final Orders that your lawyers have proposed 10 days ago, and have prepared her numbered responses below."
4. The history of the dispute is then set out, including the defendant's conduct in filing "a fictitious Statement of Claim in the [redacted country] court" in which costs orders were made against him, which first led the defendant to ask Clorinda for legal fees and then to "legal finance angels" (a third party whose identity is hinted at) paying not only Clorinda's court costs but also the plaintiff's costs of these defamation proceedings (this is the sole reference to the defamation action in this email).
5. The plaintiff goes on to state that his motives in trying to help Clarence and Clorinda settle the proceedings are because "it is very sad that you are both willing to spend this money [on legal costs]" when "the real issues [are] your children's welfare, not the extra debt that you are incurring in fighting without mediation/negotiation".
6. The second email, dated 24 March 2019, refers to a two-hour meeting between the plaintiff and Clarence, the defendant, in the course of which an agreement to finalise all issues of property and access was reached. Also included is an agreement that the plaintiff will have the defamation action "cancelled", with each party to bear their own costs.
7. The third email, dated 26 March 2019, described as being "in good faith and without prejudice", is in similar terms.
8. Unfortunately, the agreement as to the Family Court proceedings then evaporated. The plaintiff's fourth email, dated 6 May 2019, states: "You and I did agree to drop the defamation case however there is one issue in doing that. It is with the financiers who have provided Clorinda over $80,000 in legal fees to defend your original [redacted country] statement of claim in August last year. I don't know if you recall but I did let you know two or three times that the defamation case was "futile". To be radically honest it was a strategy by Clorinda's financiers to get you to spend money you don't have on litigation that was indefensible. I have always seen your allegations about me as simply the result of a painful marriage breakup and the heartbreaking separation you both experienced with [redacted child name] and [redacted child name] living on opposite sides of the planet."
9. The plaintiff then sets out all the legal costs incurred to finalise the litigation commenced by the defendant which, when added to the costs orders made against defendant in the [redacted country] proceedings, were substantial. He states that the financiers sought another $5,000 from the defendant, adding that this "is why the financiers want to keep the financial pressure on with the defamation case." He asks the defendant to "focus on the immediate task" and says that if there is finalisation in 48 hours "[the financial angels] will immediately stop the defamation case" - I am bound by their financing this and Clorinda." If the defendant does not focus on ending "this bitter chapter of your family life in the next 2 days" then he "will need to file a response to the defamation this Thursday AND continue the Family Law court process here in Australia."
10. The defendant wrote back on 7 May 2019 to say: "[Plaintiff's name], the defamation case. You told me you withdrew it. But you didn't. I'm totally unprepared for court as I trusted your word. You didn't tell me the financiers will allow me I will withdraw it. You told me that if I consent to have no further claims you will withdraw it. To turn this around
11. The plaintiff replied later that same day to say: "You are right Clarence - I did agree to stopping the case and I pressed the financiers to do so. They work directly with [name redacted] and only on the weekend we realised they had not stopped it. When I insisted they do due to yours and my agreement they said "I could if I wanted to but I would have to pay the legal costs of the [Defamation] case." As you know they have paid everything to date and all I contribute is my time to keep it moving towards settlement. However they seem to have hardened towards your position in the last week or so. I'm truly sorry - I thought I could call it off. Anyway I have sent your request to them and expect a reply very soon - they work in [redacted country] time too. They are very responsive - mostly. Please hold and I will send you their response ASAP. Meanwhile - are you able to make any progress with the main matter at hand - the Consent Orders?"
12. In a second email a few hours later, the plaintiff explained: "They want to wrap this Family Law and Defamation Case up as soon as possible. It seems from their tone that they have lost confidence since you are on your 5th lawyer (but let's ignore that). … Their offer is for you to pay the outstanding $32,453 immediately into Clorinda's account and they will adjourn the Defamation case on Thursday for a short period to allow time to settle the Consent Orders in the Family matter. If you do they will authorise me to cancel the case. If you don't pay the $32,453 they will seek default judgment against you on Thursday and apply for defamation damages in addition to your Family Law matter with Clorinda. Can you pay your Child Support arrears before court on Thursday Clarence so we can postpone or perhaps cancel the Defamation case please?"
13. The next email in the chain (10 May 2019) is from Clorinda, who notes there are two outstanding legal actions, namely "the defamation and the family law matter" which were "both funded by my legal Angels". She sets out her financial difficulties due to lack of child support. She then says: "If you do pay within the next six days, the Financiers will instruct [the plaintiff] to terminate the Defamation case. It is true that [the plaintiff] did instruct the defamation lawyer to do this but at the last minute they insisted he would have to wear the costs if he did. I understand how shocked and surprised you feel that the process suddenly changed, but you must know by now they are using this case & the next case as leverage (just as you did) in an attempt to get you to provide for your family."
14. The plaintiff's final email, dated 21 May 2019, is in similar terms. After referring to the defendant's failure to honour their March 2019 agreement to pay $5,000 a month, which included the defamation claim, he states: "As for the defamation case - please know that I honestly wanted to terminate it. But after Clorinda's lawyers and financiers saw you engage and disengage 5 different lawyers in the past 8 months while underpaying your child support they stopped me, saying they have no confidence whatsoever in you paying for your children - at all. How could I disagree? And recently [name redacted] contacted me on your behalf hoping for a resolution and I've not heard from him since. Then there is the fact that you still haven't paid any money at all for your children to live for this month of May. Finally Clorinda's financiers emailed me with the reason for the sudden change of direction. You have a 40 year financial history that is a litany of debt, borrowings, unpaid tax, failed businesses and broken agreements with no savings, surplus or assets to show. … You started this legal process in August 2018 after 4 hours of disingenuous mediation and keep it going. Then when I gave you an option recently to jump out of the Defamation by paying at least some of your Child Support you didn't reply, counter-offer or even mediate - instead you paid lawyers. So this is my last email about all of your legal problems - I am leaving it to the lawyers now Clarence. I did my best. Over to you and them."
15. A series of undated WhatsApp messages over this period contains similar statements by both parties.

The plaintiff's affidavit

1. The plaintiff swore an affidavit on 26 November 2019 in which he sets out the circumstances of the two matters complained of and the hurt and distress they caused him.
2. The first matter complained of asserts that he "preyed on children and had supplied drugs to a 14 year old girl" (paragraph 17). He wrote asking the defendant to "put the record straight" and apologise but instead received the second matter complained of, which was in similar terms. He heard that these allegations were being spread around in the community and was concerned that they could be raised in court in relation to the ongoing family court dispute. For these reasons, he "had no choice" (paragraph 41) other than to commence proceedings for defamation. He was concerned about the costs of funding this and agreed to accept financial support offered by persons he calls "anonymous family friends". Proceedings were commenced on 1 November 2018, almost a year after publication.
3. The background to the emails attached to the defendant's affidavit is described as follows. In January 2019, after a discussion with Clorinda, he decided to approach the defendant and try to mediate the matter. There was a meeting in the plaintiff's office on 5 February 2019 which resulted in some written proposals. In the course of this discussion the plaintiff told the defendant that their side of the litigation was being funded by third parties. The defendant responded to these written proposals by email on 24 February 2019 saying "thank you for your email and without prejudice [emphasis in original] is [sic] accepted and I trust it will be respected both ways."
4. The principal topics were the family law issues, but the agreement also included the defamation claim. Clarence wrote that the plaintiff had "better stop" the defamation proceedings and added: "As to the defamation case, it's a nuisance I admit, but not a worry. In my opinion, it can cause more harm to you and Clorinda than to me".
5. A mediation on 16 March 2019 between Clarence and Clorinda resulted in an agreement to settle the Family Court proceedings and defamation proceedings (paragraph 63). After further discussions the plaintiff wrote to the defendant saying that the lawyers would draft consent orders for the Australian and [redacted country] proceedings. The Family Court proceedings were discontinued in [redacted country] on 18 April 2019, although a further order for the defendant to pay costs of around $1,200 was made by that court.
6. However, the Family Court proceedings in Australia were not able to be settled. Additionally, the defendant failed, wholly or in part, to pay child maintenance.
7. This was not part of the bargain. The plaintiff states at paragraph 72: "It was not my intention nor was it a term of the 16 March 2019 agreement that I would discontinue these proceedings prior to orders being made by consent in the Australian Family Court Proceedings."
8. The remainder of his affidavit consists of responses to the correspondence attached to the defendant's affidavit. In particular, he states that when he described the defendant's allegations as being simply the result of a painful marriage breakup he was not saying these allegations were trivial but "attempting to convey empathy".
9. The plaintiff's concern, in general terms, was to resolve all the litigious disputes. To do so, he remained in continued contact with the defendant over a long period of time. For example, the WhatsApp messages attached to the defendant's affidavit were part of "a very extensive exchange of messages" on 17 June 2019, consisting of 454 messages. He has provided full set of correspondence and messages in question as an annexure to his affidavit so that the statements he made can be seen in context.

Cross-examination in interlocutory applications

1. As McCallum J notes in the first instance Toben judgment at [80], cross-examination is generally not permitted in summary dismissal applications. There are many statements at appellate level to this effect (Ren v Jiang [2014] NSWCA 1 at [11]; Freehill, Hollingdale and Page v Bandwill Pty Ltd [2000] WASCA 150 at [29]) as well as warnings by first instance judges that such a right should be granted "somewhat sparingly" (Wu v Avin Corporation Pty Ltd (No 3) [2006] FCA 1221 at [18]). In exercising the discretion, the court must have regard to the objectives of case management set out in ss 56 and 57 of the Civil Procedure Act 2005 (NSW) and UCPR provisions (Mariusz Zmudinski v Cheapa Campa Pty Ltd and Cheapa Travel Pty Ltd [2011] NSWSC 997 at [4]).
2. However, applications for summary dismissal in defamation proceedings are more common than in other areas of the law, in part by reason of the nature of the cause of action and in part because of the growing number of applications for summary dismissal on the basis of proportionality and abuse of process. This latter course has its origins in common law principles developed in the English courts over the past two decades. Is there any support for the defendant's arguments in decisions from the courts of England and Wales?

Use of cross-examination in summary judgment applications for defamation

1. As the judgments referred to below demonstrate, where applications for summary judgment are made in defamation proceedings in the English court, the same principles of law and of case management apply in decisions both before and after enactment of the Defamation Act 2013 (UK). Despite the considerably greater use of evidence in summary dismissal applications, courts hearing such applications have been careful not to permit applications for summary judgment to turn into 'mini-trials' (see for instance Swain v Hillman [2001] 1 All ER 91). Summary judgment applications generally depend upon the application of principles of law, rather than "on the written evidence, and still less with the aid of cross examination": BVG v LAR [2020] EWHC 931 (QB) at [26] per Warby J.
2. This was the case even in the very early decision of Wallis v Valentine [2002] All ER (D) 275 (Jul); [2002] EWCA Civ 1034. The application by the defendants to strike out the claim on the basis of no evidence of publication to any third party was successful, and the first instance judge went on to strike out the rest of the claim as abuse of process. However, the way that this was done was, as the Court of Appeal noted, in dismissing the appeal, that the judge had looked at the case at its highest from the point of view of the claimant and had asked himself the relevant questions which arose when considering the overriding objective, citing Broxton v McClelland [1995] EMLR 485 and Schellenberg v British Broadcasting Corporation [2000] EMLR 296. As is the case here, the parties in these decisions had been involved in previous litigation of a bona fide nature. However, additionally in those cases, the party bringing the defamation proceedings had been unsuccessful in the earlier litigation; whether this factor is present here is unknown to me, but it was an important factor in terms of the abuse of process findings.
3. Since Wallis v Valentine was handed down, courts in the United Kingdom have increasingly taken the view that serious harm issues and separate trials on meaning should be subject to the same proportionality principles that the courts were being asked to determine in the applications in question. However, the judges supervising the Defamation List have warned that taking short cuts on factual issues such as credibility simply leads to additional complexity, delay and cost. A good example is Theedom v Nourish Training & Anor [2015] EWHC 3769 (QB) (at [31]), where the court noted that a preliminary issue trial included cross-examination of both the claimant and defendant (and, in particular, to the plaintiff's credit), resulting in a combined costs bill of £170,000. Warby J refused an application by the defendants for a preliminary issue trial on similar grounds, including meaning and serious harm, in Brown v Bower [2017] 1 WLR 4703.
4. The greater use of interlocutory applications in defamation proceedings such as rulings on imputations does not assist the defendant either, as these do not include cross-examination (Helena Shipman, "Are meanings hearings the new normal?", Inforrm, 21 April 2020, https://inforrm.org/2020/04/21/libel-are-meaning-hearings-the-new-norm-helena-shipman/) that these trials have gone "from strength to strength" in the English Courts). Their rationale goes against the proposal the defendant puts. As Warby J stated in Brown v Bower at [58]: "It is clearly just and convenient to direct a preliminary trial of meaning and defamatory tendency. Such a trial would be short, and relatively inexpensive. It would stand a reasonable chance of bringing an end to the proceedings. Failing that, it would at least narrow the issues."
5. The position in Australia is similar. Applications in this court for summary dismissal have not, to date, required cross-examination of the plaintiff. Mr Cohen did not suggest to the contrary. Where an application to strike out for want of prosecution is brought, a plaintiff may (but not must) give evidence of reasons for delay: see, for example, Gill v Eatts (1999) Aust Torts Reports 81-529; [1999] NSWSC 1056. The same is the case where an extension of time is sought. However, evidence of this kind is generally given where the party to be cross-examined is seeking an indulgence and/or must provide an explanation for failure to comply with limitation periods and/or court orders, and these decisions must be seen in that light.

The plaintiff's submissions

1. Mr Senior, in his concise summary of reasons for opposing this application, submits that leave should be refused for the following reasons: 1. It is "entirely unclear" from the defendant's submissions what the cross-examination will be about, beyond claims that "there is clear evidence… in which the plaintiff makes a point of stating the proceedings are for a collateral process" and that there are "inconsistent" and "self-serving" statements in his affidavit. 2. There were clearly defined factual issues before the court when McCallum J made her decision to permit cross-examination in Toben, a case where the exception proves the rule, and which turns on its own facts. There is no need to cross-examine the plaintiff on his affidavit, because the issues he raises are to demonstrate the factual issues in dispute for the trial. This will include whether the statements the plaintiff made in correspondence formed part of a negotiating process. 3. The defendant appears to propose "a free-ranging cross-examination of the plaintiff's entire evidence without having explained what he seeks to establish through such cross-examination (other than to cross-examine on the alleged inconsistencies)" (submissions, paragraph 29). To permit cross-examination of this kind is contrary to the efficient disposal of the court's business (Ren v Jiang at [6]) where there has already been significant delay, not only in the Supreme Court but in this court, and in relation to this application in particular, which has been adjourned twice. Continued delay would be contrary to ss 56 - 58 of the Civil Procedure Act 2005 (NSW). 4. There would be Covid-19 restrictions operating in relation to the special fixture on 5 June 2020.

Why leave to cross-examine should not be granted

1. I set out my reasons for refusing leave in accordance with the four grounds identified by the plaintiff, as set out in the previous paragraph.
2. As to the first of these grounds, the absence of clear identification of the issues for cross-examination is of itself a reason for refusal of leave. If the defendant has such "overwhelming" and "unequivocal" evidence of abuse of process as Mr Cohen claims in his written submissions, that does not further elucidate matters; to the contrary, it indicates that cross-examination is not merely undesirable but unnecessary.
3. As to the second and third of these grounds, I give particular weight to the insightful observations of Leeming JA in Ren v Jiang and respectfully adopt both his Honour's reasoning and conclusions. If there is a suggestion that courts apply more generous interpretations of these issues in defamation proceedings and that the Toben decision confirms this, that argument fails, for the reasons I have set out above. The unusual circumstances in Toben render the decision to grant leave as one which turns on the facts of that case.
4. I would add that any such free-ranging cross-examination could have included matters for the trial about which the plaintiff did not have the necessary document or witness to hand. That would not be procedurally fair. I also note that I gave Mr Cohen more than one opportunity to formulate an issue for the purposes of a separate trial pursuant to UCPR r 28.2, to permit the plaintiff to be ready to answer these issues, and he expressly disavowed such a course. Instead, he argues that the plaintiff's unwillingness to be cross-examined amounts to some form of admission or waiver of rights, a proposition I consider to be itself procedurally unfair.
5. As to the impact of Covid-19, if I had been of the view that cross-examination should be permitted, that would not have prevented me from making such an order, even though such cross-examination would have taken place via AVL or otherwise delayed in order to comply with court requirements. However, I am satisfied that cross-examination should not be permitted for each of the other reasons put forward by the plaintiff, both individually and in combination.

Interrogatories seeking admissions

1. I do not need to consider this proposal any further, as Mr Cohen has essentially rejected this proposal out of hand, in that he has not formulated any such questions, or areas for questioning.
2. This is unfortunate, in that Mr Senior indicated that his client did not have any objection in principle to the administration of interrogatories if the court found these were necessary, adding that this course "would better further the overriding purpose than an open-ended and potentially time-consuming cross-examination of the plaintiff" (submissions, paragraph 35).

Admissibility of privileged communications

1. Both parties have attached the relevant correspondence to their affidavits and it would be hard to imagine a clearer case of waiver. I shall, however, set out the parties' submissions, as well as the position of potentially privileged material in the context of the Family Court proceedings.
2. Annexed to the defendant's affidavit are a series of documents which the defendant asserts (submissions, 29 October 2019, paragraph 11) "contain privileged communications", as they appear to be communications for the purpose of settlement negotiations, and which may require rulings as to whether they fall within the exceptions identified in ss 11 and 131 Evidence Act 1995 (NSW). Mr Cohen submits that s 11(1) and (2) of that Act expressly state that the Act does not apply where the purpose of the tender is for the court to control the conduct of its proceedings, which he asserts includes complaints of abuse of process, citing Van Der Lee & Ors v New South Wales & Ors [2002] NSWCA 286. Mr Cohen adds that "the position is no different in relation to the common law and documents otherwise privileged are admissible if they are evidence an abuse of process". I note that correspondence between legal practitioners and their clients is also governed by s 118.
3. An additional difficulty is that the court dispute in question is a dispute governed by the terms of the Family Law Act 1975 (Cth), which contains a number of prohibitions as to the use of such material outside the confines of the Family Court. Many of the publications made in the course of Family Court proceedings, and in particular those relating to Division 3, are additionally the subject of absolute privilege: Harvey v Henzell [2015] QCA 261.
4. Mr Cohen notes that the parties agree that their correspondence falls outside the rubric of family counselling as defined in Division 3 of that Act, but submits that does not mean that the contents of correspondence are unprotected. The very nature of Family Court proceedings, with their exception to open justice, anonymization of names and prohibition of publication is designed to protect the participants and their dependents from exposure of their information to third parties. However, there is no suggestion that these provisions impinge on the proceedings before me.
5. As to confidentiality, this is not an absolute bar. The parties may consent to the loss of confidentiality, or one of the exceptions in s 131 may apply. In "The Protection of Confidentiality in Australian Family Law", Wiley Online Library, 20 January 2020, https://onlinelibrary.wiley.com/doi/full/10.1111/fcre.12459, Judge Joe Harman explains that the privilege for settlement negotiations is founded in the administration of justice, and identifies the following exceptions: 1. Disclosure is reasonably necessary to enable a proper understanding of other evidence; 2. Evidence of settlement negotiations tends to contradict or qualify other evidence; The proceedings relate to enforcement of an agreement to settle the dispute; 3. The Court is likely to be misled unless evidence of settlement negotiations is adduced to contradict or to qualify other evidence; 4. Determining costs (i.e., considering offers that had been made); 5. Settlement negotiations involved the commission of a fraud or an offence; 6. One of the parties to the dispute knew or ought to reasonably have known that the communication was made in furtherance of a deliberate abuse of power.
6. It is unclear to me why these issues of confidentiality and privilege are even raised by Mr Cohen. He appears to have been anticipating that Mr Senior might take these points. However, Mr Senior submits in reply (at paragraph 45) that there does not appear to be any reason for restriction on the admissibility of any of the relevant correspondence in these proceedings. Similarly, he does not suggest that there is any reason in relation to the Family Court proceedings, either in Australia or in [redacted country], either due to legislation or orders agreed to between the parties, that such correspondence or affidavits concerning it should be inadmissible. Consequently these questions are not in issue now (or at the hearing on 5 June 2020), from his client's point of view.
7. I have refused leave to cross-examine. I would refuse leave to cross-examine whether some, all or none of the attached correspondence were admissible. Unless and until some ruling is sought by Mr Cohen as to one or more of the documents in question, I do not propose to make any ruling as to admissibility (or lack thereof) of any kind, but to assume that all the evidence currently before me will be before me at the hearing of the application on 5 June 2020.

Costs and s 121 Family Law Act 1975 (Cth)

1. I was not addressed on costs and will reserve the costs of this application.
2. I drew the attention of the parties to s 121 of the Family Law Act 1975 (Cth), which creates a punishable offence for anyone who publishes or broadcasts any account of any family law proceedings (in whole or in part) which identifies any parties (related or otherwise) and witnesses in the proceedings. Although neither party has asked me for such an order, I propose to anonymise the names of the parties and potential witnesses in those proceedings, which appear to still be before the relevant courts for determination.

Orders 1. The defendant's application to cross-examine the plaintiff for the purposes of the application for summary dismissal listed for hearing on 5 June 2020 is refused. 2. Costs reserved, with liberty to apply.

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: 26 May 2020