Sarina v O'Shannassy [2019] NSWDC 246 | Case summary

Sarina v O'Shannassy [2019] NSWDC 246 | Case summary | Zoe

[5]

The plaintiff's submissions

As noted above, the plaintiff's explanation (as provided in Mr Maxwell's affidavit of 20 February 2019) is that these proceedings are "protective", in that the plaintiff intended to decide whether to discontinue these proceedings depending upon the stance taken by the Federal Circuit Court.
Mr Maxwell acknowledges that the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) would have permitted the transfer of the proceedings to the Federal Court of Australia (where I note Mr Sarina is conducting litigation against the author of one of the links in the matter complained of in these proceedings: Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190) and/or to the Supreme Court of New South Wales and thence to this Court, where Mr Sarina has conducted litigation in the past (Sarina v Fairfax Digital Australia and New Zealand Pty Ltd [2015] NSWDC 196). However, Mr Maxwell described the cross-vesting procedure as complicated and expensive, and considered the commencement of duplicate proceedings in the District Court as a fall-back was an easier option.
Mr Maxwell also acknowledged he did not inform either the defendant or the court about his client's decision to commence duplicate proceedings when he appeared before the court on the first return date to seek an extension of time for service. He agreed that the plaintiff had not informed the Federal Circuit Court judge who had reserved his decision in Sarina & Anor v O'Shanassy at the time these proceedings were commenced, but submitted that it was not necessary to do so, and pointed out that the defendant's legal representatives had not done so either.
Mr Maxwell also drew to my attention two differences between these proceedings and the proceedings in the Federal Circuit Court, namely: 1. The other applicant in the Federal Circuit Court was not a party to these proceedings. 2. The Federal Circuit Court proceedings relate to two publications, the first of which was published on 29 September 2017, whereas these proceedings relate only to the 20 December 2017 publication.
I note as a preliminary matter that I do not consider these differences explain or excuse the commencement of duplicate proceedings for the 20 December publication, especially since any action based on the 29 September 2017 publication would have been time-barred on the date these proceedings were commenced. My consideration of Mr Maxwell's other submissions is set out below.

[6]

The matter complained of

The matter complained of is an email dated on 20 December 2017, the text of which is as follows: "From: [Defendant's email address redacted] Sent: Wednesday, 20 December 2017 9:22 PM To: [Two recipients - email addresses redacted] Dear Gentlemen, I must apologise. I discovered that I had not completed the notification of my resignation as company secretary. I will do that over the next few days. I again warn you of the nefarious nature of Martin Green and Clinton Sarina. I am giving you some information so that you can be fully informed. I hear from a colleague Gary Stewart Martin Green is under investigation by the Legal Services Commissioners yet again. The issues [sic] is fraud. They are both in serious trouble so I would be very careful in any dealings with these rogues. Clinton has court proceeding against him in the Supreme Court for what I am told fraud again [sic]. You need to make up your own minds on how your [sic] deal with Martin Green and Clinton Sarina. But I would google them both. They have both been involved in fraud matter [sic] in which one party went to gaol for 6 years and in which the judge said that id [sic] Martin Green gave evidence he would have gone to gaol as well. I suggest you read the court judgment. See links See links [sic; appears twice] http://www.smh.com.au/nsw/mcgurk-duo-linked-to-150m-loan-fraud-20101015-16nmj.html [Picture with caption: McGurk duo linked to $150m loan fraud - SMH.com.au www.smh.com.au THE murdered standover man Michael McGurk's two closest confidants have been named as part of a massive investigation into an alleged $150 million mortgage fraud.] www.dailytelegraph.com.au/news/nsw/links-to-michael-mcgurk-in-fraud-charges/news-story/d85d342410c12d23a53fef07b24905ae http://courts.act.gov.au/__data/assets/pdf_file/0006/1018446/Fischetti-No-5.pdf http://www.smh.com.au/national/mcgurk-tape-handed-to-police-20090905-fc8e.html The above comments are post the court case Regards John -- O'Shannassy Lawyers John O'Shannassy"
Two of the three links to online newspaper articles relate to articles in 2009 and 2010 about the murder of a Mr McGurk, with whom the plaintiff has had some financial transactions; the third is not accessible, presumably because of ongoing proceedings in the Federal Court of Australia between the plaintiff and the publisher. The link to a Supreme Court of the Australian Capital Territory decision (R v Fischetti [No 5] [2016] ACTSC 213) is unrelated to those newspaper clippings.
The reference to "again warn" refers to the earlier email of 29 September 2017 which is not the subject of these proceedings but which is the other publication sued upon in the Federal Circuit Court proceedings: see the Federal Circuit Court's decision of Sarina v O'Shannassy at [11] and [15].

[7]

The circumstances leading to this application

Service in the District Court must be effected in one month (UCPR r 6.2(4)(b). UCPR r 10.1 requires service "as soon as practicable".
In breach of UCPR rr 6.2(4)(b) and 10.1, the plaintiff's solicitors failed to serve the statement of claim at all prior to the first return date (7 February 2019), which was more than one month after filing, which meant that the statement of claim was stale.
On 7 February 2019, Mr Maxwell appeared before me and sought an extension of time for service until 20 February 2019. At that time, there were in fact no problems in effecting service of the kind envisioned by UCPR rr 10.1 and 12.11(1)(e) (see Alex v Australian Broadcasting Corporation [2015] NSWDC 78). As was the case in Alex v Australian Broadcasting Corporation, an extension of time was essential, as both the limitation period for the claim filed on 18 December 2018 and the one-month period for its service had both expired.
Mr Maxwell provided me with a timetable providing for the statement of claim to be served by 20 February 2019. Mr Maxwell did not provide any affidavit evidence concerning the reasons for seeking the extension, although he informed me that there were other proceedings in the Federal Circuit Court. However, as occurred in Hunter v Hanson [2014] NSWCA 263, any challenge to the extension is a matter the court should leave to the absent party. Rule 12.11 UCPR grants a general right to the unserved party to be heard after the event and contest the grant of extension, so I granted the request and the proceedings were stood over to 21 February 2019.
On 21 February 2019 the defendant's solicitor, Mr See, advised the court that his client, who had just been served, was the respondent in proceedings for defamation concerning the same publication which had been commenced in the Federal Circuit Court. The current status of those proceedings, he informed me, was that Judge Manousaridis had reserved judgment on 25 September 2018. As the defendant wished to bring an application to stay these proceedings under s 67 Civil Procedure Act 2005 (NSW), his application was listed for argument on 4 April 2019.
The defendant's submissions was served in accordance with the timetable (on 10 March 2019). The plaintiff did not file any submissions.
Judgment was handed down by Judge Manousaridis on 29 March 2019. It is obvious, from the terms of this judgment, that his Honour had not been informed about the parallel proceedings in this court. The parties also agree that his Honour was not told about the imminent expiry of the limitation period for both publications after his Honour reserved.
When the application came before me for argument on 4 April 2019, the sole issue which interested the plaintiff was whether the defendant intended to appeal the Federal Circuit Court judgment (in which case the proceedings in this court would be left on foot as a stopgap), or accept the decision (in which case the proceedings in the District Court would be discontinued). The application was adjourned by consent to enable the defendant to consider his position.
The defendant has now decided not to appeal the judgment of Judge Manousaridis. Accordingly, the plaintiff now seeks leave to discontinue, which means that the only remaining issue for me to determine is whether costs should be assessed on the ordinary or the indemnity basis.

[8]

The proceedings in the Federal Circuit Court

The plaintiff in these proceedings was one of two applicants who brought a series of claims under Commonwealth legislation, all of which were later acknowledged to be hopeless, as well as a claim for defamation for two emails, one of which is the matter complained of in these proceedings. The Federal Circuit Court would only have jurisdiction to hear these defamation claims if they arose out of the same subject matter.
The hopelessness of the other claims is readily seen from their unfortunate procedural history. After the first set of claims failed, Judge Manousaridis initially heard (on 25 September 2018) an application to add an additional cause of action under s 50 of the Australian Consumer Law ("ACL"), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) ("CC Act"). After his Honour reserved, a further application to amend was then made, resulting in submissions on 5 October and 15 October 2018, following which Judge Manousaridis again reserved.
However, Judge Manousaridis then became aware of the issue of jurisdiction, which the parties had not raised. His associate sent an email to the parties, setting out these problems in detail: "His Honour has requested that I bring the following matters to your attention: The Federal Circuit Court of Australia has jurisdiction under s.138A of the Competition and Consumer Act 2010 (Cth) (CC Act) "in relation to any matter arising under this Part of the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister". "This Part" is Part XI of the CC Act which is headed "Application of the Australian Consumer Law as a law of the Commonwealth". The expression "Australian Consumer Law" is defined in s.130 of the CC Act to mean "Schedule 2 as applied under Subdivision A of Division 2 of this Part". Subsection 131(1) of the CC Act provides that "Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapters 2, 3 or 4 of Schedule 2 by corporations". Although the proposed statement of claim alleges contraventions of s.18(1) and s.50 of Schedule 2 of the CC Act, it does not allege that either of those contraventions were engaged in by a corporation; and the proposed statement of claim does not otherwise allege any conduct by any corporation. In those circumstances his Honour would appreciate receiving submissions from the parties on the following questions: a) Given the proposed amended statement of claim does not allege any contravening or other conduct by a corporation, do the applicants have any reasonable cause of action based on contraventions of s.18 or s.50 of Schedule 2 to the CC Act? b) Assuming (a) is answered in the negative, does the Court nevertheless have any jurisdiction to entertain the causes of action in defamation? (See Rana v Google Inc. [2017] FCAFC)? More particularly, assuming (a) is answered in the negative, is the applicant's invocation of the Court's jurisdiction "colourable in the sense that it was made for the improper purpose of fabricating jurisdiction"? (See Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572, at [29]; [88]) His Honour would appreciate receiving submissions within seven days or within such further time as the parties may reasonably request. Given the issues raised in this email, his Honour proposes not to give judgment until after the parties have had an opportunity to provide further submissions, and his Honour has had an opportunity to consider those submissions. That means that the current listing at 9.30 am on 19 October 2018 will be vacated."
Mr Sarina's legal advisers provided further submissions in which they conceded that his Honour was correct, and that because the pleadings did not allege any contravening or other conduct by a corporation, they did not have any reasonable cause of action based on contraventions of s 18 or s 50 of the ACL. However, they submitted that the defamation claim should be permitted to continue. Judge Manousaridis reserved again.
On 29 March 2019, his Honour handed down the judgment that resulted in the plaintiff's decision to discontinue the proceedings in this court. In that judgment, Judge Manousaridis set out (at [22]-[37]) his reasons for finding that the applicants' claim for relief based on defamation and under the failed action under the ACL constituted a "single controversy" (at [37]) and that the court accordingly had jurisdiction to determine the applicants' claims for defamation, even though the failed actions which did fall within the court's jurisdiction had all been hopeless, as they did not amount to an abuse of process. His Honour then went on to consider whether the defamation claim had no reasonable prospects of success (at [38]-[67]). His Honour rejected the respondent's claim of Anshun estoppel on the basis that Mr Sarina and his co-applicant should have commenced proceedings for defamation in Local Court proceedings failed because, inter alia, the Local Court has no jurisdiction to hear defamation claims (s 33(1)(b) Local Act 2007 (NSW)), as Judge Manousaridis noted at [67].
As the respondent did not appeal that decision, the defamation claim will now proceed in the Federal Circuit Court, so clearly the proceedings commenced in this court must come to an end. The defendant submits that this should be on the basis of indemnity costs as these proceedings were commenced without leave and are an abuse of process. This requires consideration of the Federal Court proceedings.

[9]

Interaction between the Federal Circuit Court proceedings and these proceedings

The first question is why the plaintiff commenced these proceedings in the Federal Circuit Court at all, given that there has never been a defamation trial conducted in that court before.
Mr Maxwell submits that there were other claims that fell within that court's jurisdiction but, as Judge Manousaridis's letter to the parties demonstrates, those claims were all hopeless. Mr Crispin suggested it could be forum-shopping.
As Judge Manousaridis's associate carefully set out in his long letter to the parties, the Federal Circuit Court of Australia ("Federal Circuit Court") may be vested with jurisdiction to determine defamation proceedings, but only in certain cases. The Federal Circuit Court has an associated jurisdiction to the Federal Court by reason of s 18 Federal Circuit Court of Australia Act 1999 (Cth). This means that, provided that the Federal Circuit Court has federal jurisdiction in a matter, it has jurisdiction in relation to all matters associated with the matter within federal jurisdiction. Early examples include Goodall v Nationwide News Pty Ltd (No. 2) [2007] FMCA 1427 (a breach of copyright claim was brought in conjunction with an application for defamation, which was dismissed) and Dale v Veda Advantage Information Services and Solution Limited [2009] FCA 305 (actions cross-vested from the District Court of New South Wales included claims for defamation, negligence and a claim under the Privacy Act 1988 (Cth)).
However, the Federal Circuit Court has not heard defamation claims in the past, and its jurisdiction to do so is not free from doubt (Tahi v Oxican Pty Ltd [2018] FCCA 3722 at [136] per Judge Jarrett J). The Federal Circuit Court has certain jurisdictional limitations; for example, the Federal Circuit Court of Australia Act does not provide for juries at all, unlike the Federal Court of Australia Act 1976 (NSW). The absence of a jury is a feature perhaps seen as desirable by some litigants.
Applications to bring proceedings for defamation in the Federal Circuit Court to date have not met with success. A litigant in person sought to bring defamation proceedings in Merrett v Marinakos & Anor [2019] FCCA 541. Judge Wilson QC, dismissing the claim, noted the court had accrued jurisdiction to deal with claims that are associated with claims "validly within its jurisdiction" (at [17]) but that otherwise the Federal Circuit Court did not have power to determine defamation litigation.
The issue before Judge Manousaridis was whether the bringing of claims not validly within the court's jurisdiction was sufficient to warrant the defamation action being brought in the Federal Circuit Court's accrued jurisdiction. The plaintiff was taking a risk in asking the court to do so, as the course taken in the Federal Court, when there is no arguable case of breach of s 18 of the ACL or a similar claim, has been to hold that the court has no jurisdiction in respect of related defamation or injurious falsehood proceedings. This was conceded in John Bridgeman Limited v Dreamscape Networks FZ-LLC [2018] FCA 1279 at [13]. A similar course was taken by Barker J in Frigger v Banning (No 3) [2017] FCA 221 where claims under ss 447A and 1324 of the Corporations Act 2001 (Cth) were without merit and "[a]s a standalone proceeding" the proposed action was not within the jurisdiction of the court (at [85]). Although the subject of agreement rather than argument, it is clear from these decisions that the associated claim does not need to be an abuse of process; mere hopelessness will do. However, that was not the view taken by Judge Manousaridis, and any argument by the defendant in these proceedings that the plaintiff was "forum shopping" needs to be seen in that context.
The failure of the plaintiff to advise Judge Manousaridis that he proposed to, and indeed had, commenced proceedings in this court may be one of more substance. In Nandutu v University of Sydney [2018] FCA 1118, one of the issues before the court was whether a claim for defamation should be included in claims to be heard by the Federal Court. Robertson J, who was informed that proceedings in the Supreme Court were already on foot, considered the matters set out in s 5(4)(b)(ii)(A), (B), (C) and (D) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) made it "more appropriate that the proceeding in this Court be determined by the Supreme Court of New South Wales" (at [24]). His Honour explained the reasons for this (at [25]-[26]) as follows: "[25] This is because, in my opinion, a substantial part of the proceeding pending in this Court would have otherwise been incapable of being instituted in this Court given the apparently tenuous nature of the applicant's federal claims; the proceeding or a substantial part of the proceeding in this Court would have been capable of being instituted in the Supreme Court of New South Wales; and a great part of the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application or interpretation of the law of the State of New South Wales and are not otherwise within the jurisdiction of this Court. [26] The interests of justice favour the transfer so that the respondents are not the subject of legal proceedings in this Court when there are pending proceedings arising out of similar facts in the Supreme Court. The applicant in this Court has not established any detriment to her rights if the proceedings were determined by the Supreme Court, nor any relevant forensic advantage for proceeding in this Court." (Emphasis added)
The history of these proceedings in the Federal Circuit Court paints an unattractive picture of protracted litigation over a series of hopeless associated claims, which must have placed a considerable burden on Mr O'Shannassy. The plaintiff has added to that burden by commencing proceedings in this court without telling Mr O'Shannassy until the last possible minute, apparently because the defendant's legal advisers considered the cross-vesting procedures to be too troublesome. The plaintiff expects the defendant to have to pay at least a proportion of his own costs, which could be considerable. Mr Crispin submits that his client should not have to do so.

[10]

Are these proceedings an abuse of process warranting the award of indemnity costs?

It is not uncommon for litigants in person to commence defamation proceedings in different courts for the same cause of action (see for example Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63). It is, however, almost unheard of for represented parties to do so (in both Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 and Meckiff v Simpson [1968] VR 62, the plaintiffs commenced proceedings in two States against the same defendant, but not for the same publication). What the court should do when the duplication of claims is discovered will depend on the circumstances of the case.
One common theme in all of these cases is the expectation, even from litigants in person, that they will be frank with the court about other proceedings being commenced for the same relief. Failure to be frank, especially where the proceedings involve ex parte relief, may be fatal to the whole claim.
A recent example is Kostov v Nationwide News Pty Limited [2018] NSWSC 1289, where the plaintiff brought proceedings in the Equity Division of the Supreme Court seeking relief she had been refused in the Common Law Division, but without telling the judge before whom she appeared (Rein J) about this. His Honour discovered this for himself and made the following telling observations about the duty of candour: "[12] It is not only the fact that those proceedings that have already taken place and been dismissed appear to cover the same ground as the proceedings which Ms Kostov has now commenced and give rise to questions about whether or not there is in fact a duplication and ancillary issues of that kind, making this a matter in which it is not appropriate to make any orders in the absence of the Defendant, but also that this is an ex parte application requiring full disclosure of relevant matters by the party seeking ex parte relief - a matter of which Ms Kostov should be aware. She asserted that she was intending to inform me of the Equity proceedings, but they are not mentioned in the Affidavit and in her oral submissions as to the genesis of these proceedings and she did not mention them or the defamation proceedings before McCallum J. The duty of candour is addressed in Garrard t/as Arthur Anderson & Co v Email Furniture Pty Limited (1993) 32 NSWLR 662, Mahoney AP (with whom Clarke JA agreed); see also Aristocrat Technologies Australia Pty Limited & Ors v Re Allam & Ors (2016) 327 ALR 595; [2016] HCA 3, a decision of Gageler J in which his Honour said as follows (at [15]): "15. It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made [footnote 10]. The principle is not confined to particular types of interlocutory orders [footnote 11]. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested." with reference in the footnotes to Garrard v Email (supra), Thomas A Edison v Bullock (1912) 15 CLR 679 at 681-2, and International Finance Trust Co Limited v the New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [130]-[133]."
The "duty of candour" to the court referred to by Rein J is of paramount importance. The plaintiff's legal representatives failed their duty of candour obligations both to the defendant and to the court. These failures are demonstrated in the circumstances in which the plaintiff's representative asked the court on the first return date (7 February 2019) for an extension of time for service for the claim (the period of time for service under UCPR r 6.2(4)(b) had expired). As Ritchie's Uniform Civil Procedure NSW points out at [10.1.5], due notice of proceedings is such a fundamental part of natural justice that courts rarely grant permission to extend time for service, particularly where the limitation period has expired.
Delaying service of defamation proceedings is particularly undesirable because of rationale behind the strictness of the limitation period as well as the case management principles set out in UCPR r 10.1. In Alex v Australian Broadcasting Corporation at [56], I listed a number of cases in this court where service of the statement of claim has been deliberately delayed, and I consider it unsatisfactory that this kind of conduct still continues. I also note that the reason for delay in service in these proceedings was not for any of the reasons set out in UCPR r 12.11(1)(e), but for self-serving purposes.

[12]

The relevant principles for the award of indemnity costs

There is no dispute by the plaintiff as to the payment of costs on the ordinary basis being warranted, and the exercise of discretion in relation to costs of discontinuance the subject of consideration in cases such as Fordyce v Fordham (2006) 67 NSWLR 497 does not need to be determined. The sole question is whether the costs should be paid on an indemnity basis.
In Oshlack v Richmond River Council (1998) 193 CLR 72 the High Court confirmed that, in the absence of special circumstances, the general rule should be applied by the Court in awarding costs to the successful party. Gaudron and Gummow JJ stated (at 89): "There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. … Nor, before or since the introduction of the Judicature system, has there been any absolute proposition that the sole purpose of a costs order is to compensate one party at the expense of another … It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or an indemnity basis. The result is more fully or adequately to compensate the successful party the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part."
In Packer v Maher (a decision approved on appeal in Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd. (1997) WAR 334 at 344), where the whole of the discontinued proceedings were held to be an abuse of process, indemnity costs were awarded. Similar observations were made in Maple v David Syme & Co Ltd, where the plaintiff hoped to take advantage of defences in Victoria seen as being preferable to those available in New South Wales.
For the reasons set out above, I am satisfied that the whole of these proceedings are an abuse of process. Complaints that the cross-vesting legislation is tiresome do not warrant the commencement of identical proceedings in another court. Multiple claims for the same relief in different courts are an abuse of the court's process.
In addition, there has been a breach of the plaintiff's duty of candour to his opponent. The case management provisions set out in the UCPR for prompt service of claims must be complied with, and failure to do so, in circumstances where a lack of candour is demonstrated (as is the case here) may have a range of adverse consequences, for the reasons outlined by Rein J in Kostov v Nationwide News Pty Limited at [12].

Sarina v O'Shannassy

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (23)

Cited By (1)