Stanizzo v Sassu

District Court of NSW|2014-07-04|Before: Higgins J, Lawyers J

nal of New South Wales [2009] NSWDC 341 Vescio v Guardianship Tribunal of New South Wales [2010] NSWCA 227 Watson v M'Ewan [1905] AC 480 Wong Shui Kee v Chu [2003] 1 HKC 125 Texts Cited: Brown on Defamation (2nd Ed., Carswell) Category: Interlocutory applications Parties: Plaintiff: Vincent Francis Stanizzo First Defendant: Maria Sassu Second Defendant: Gian Michele Sechi Third Defendant: Lorenza Porcheddu Fourth Defendant: Angelo Porcheddu Fifth Defendant: Karen Garrett Representation: Plaintiff: Mr M Rollinson First, Second, Third and Fourth Defendants: Mr M Lawson Fifth Defendant: In person Plaintiff: Justice Lawyers First, Second, Third and Fourth Defendants: Smith Lawyers Fifth Defendant: In person File Number(s): 2014/116920 Publication restriction: None

Judgment 1This is an application by the first to fourth defendants for summary dismissal of the statement of claim filed on 14 April 2014. 2The matters complained of are an unspecified number of conversations and/or documents published by these defendants to each other and/or the solicitor acting for the first and second defendants in Supreme Court proceedings. These individual publications are not identified in terms of which defendant published them, to whom, when, or where, or what they contained, beyond a single set of 15 imputations, pleaded as arising from all these publications, over a period from 17 February to 27 June 2013. 3The initial particulars of publication set out only that each of the defendants "conversed by telephone and otherwise communicated with each other" and unknown third parties in April/May 2013, details of which would be provided following discovery, interrogatories and the issue of subpoenae. On the first return date in the Defamation List (16 May 2014), the first to fourth defendants foreshadowed an application to strike out the statement of claim as deficiently pleaded. The plaintiff sought, and was granted, leave by Bozic SC DCJ to file an amended statement of claim, and did not seek early discovery or interrogatories for particulars of the conversations in question. 4The amended pleadings provided no further detail of the contents of the publications made "by telephone and otherwise", but did set out specific particulars as to how these publications, and any imputations they may convey, have been identified by the plaintiff. The possibility that there were such conversations by or between one or more of the defendants has been gleaned by the drafter of this pleading by analysing the contents of the affidavits the first to fourth defendants filed in Supreme Court proceedings 2013/100460 and working backwards, from the information provided by each deponent in their respective affidavits. The imputations pleaded are similarly drawn from this material. (The amended pleading also added a new claim against the solicitor who had appeared for the first and second defendants in the Supreme Court proceedings, but that is unrelated to the claim against the first to fourth defendants.) 5When the proceedings came before Elkaim SC DCJ on 13 June 2014, the defendants renewed their application for summary dismissal. The fifth defendant, who was joined in the amended statement of claim without leave, sought a separate hearing of the claim against her. Elkaim SC DCJ set these issues down for hearing on 4 July 2014 and gave the parties leave to serve affidavits. This was the application I heard on 4 July 2014. 6The leave granted by Elkaim SC DCJ would have permitted the bringing of an application for discovery or interrogatories, if that was how the plaintiff proposed to proceed. This was the course taken in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd [2013] NSWSC 1101. (In those proceedings, the plaintiff never took the steps of administering the interrogatories for which leave was granted, with the result that those proceedings were later dismissed: Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850.) The plaintiff in these proceedings has not brought any such application, but contends that, if necessary, he is entitled to do so in the future, and that it is unnecessary to do so now.

The applications before the court 7The first to fourth defendants put forward three submissions. Firstly, the plaintiff's failure to seek some form of early discovery (Dank v Cronulla Sutherland District Rugby League Football Club Ltd (No 3), supra) or discovery before suit (r 5.3 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")) warrants these proceedings being summarily dismissed for failure to comply with r 15.19 UCPR. Secondly, if any such orders were sought, they would never be made, as the plaintiff would be on a "fishing expedition", and the appropriate course is thus to dismiss these proceedings summarily. Thirdly, the conversations are protected by absolute privilege at common law and under s 27(2) Defamation Act 2005 (NSW) ("the Act"), as the plaintiff has "worked backwards" from the affidavits filed in the Supreme Court proceedings in which the plaintiff and the first and second defendants were parties, in order to bring a claim for the conversations the defendants had with their legal advisers and each other. Additionally, these conversations were protected by legal professional privilege, and many would have taken place outside the twelve-month period prior to the filing of the statement of claim (16 April 2014). The proceedings should be dismissed summarily on this basis. 8The plaintiff's submission is that all he has to do is to plead a cause of action sufficiently particularised for the defendants to know the case they have to meet, which he has done. Interrogatories concerning publication can be sought at any time. The first to fourth defendants have already filed defences, and the matter can proceed on the basis that at some time in the future, discovery and interrogatories can clarify issues of publication. The admissions made in the defence make it clear the defendants made communications of the kind set out in the statement of claim. Those conversations, notwithstanding having led to the drafting of affidavits, are not privileged, as absolute privilege cannot extend retrospectively to conversations witnesses have with each other or with their solicitor merely because such a conversation is later set out in an affidavit: Watson v M'Ewan [1905] AC 480. Furthermore, these affidavits were never read in court, as the matter settled. Alternatively, absolute privilege protects the affidavits and may extend to conversations in the solicitor's office, but does not protect the defendants' conversations outside the solicitor's office or between themselves.

The factual background 9The will of Mr Constantino Sini, who died on 17 February 2013, was one of the client documents in the possession of a solicitor, Mr Glenn Henniker, who had purchased the plaintiff's law practice after the plaintiff ceased practising as a solicitor. That will, made in 2002, named the plaintiff as executor. The plaintiff asked Mr Henniker to give him the original will for the purpose of attending to his executorial obligations. The beneficiaries gave instructions to the effect that they opposed the plaintiff being appointed as the executor, and the will was not handed over. The plaintiff commenced proceedings 2013/100460 in the Supreme Court seeking an order that Mr Henniker produce the will in his possession. 10The beneficiaries, who resided in Italy, instructed a solicitor (Ms Garrett, the fifth defendant) to cross-claim against the plaintiff, seeking orders that either the first and second defendants, their Australian relatives, be appointed as executors, or alternatively that the NSW Trustee and Guardian be appointed. All four defendants (who are all cousins, and related to the beneficiaries living in Italy) swore affidavits in those proceedings. 11On 2 October 2013 Lindsay J made interim orders appointing the NSW Trustee and Guardian pending the hearing: In the Estate of Sini: Stanizzo v Henniker [2013] NSWSC 1459. The parties have informed me that on 3 March 2014 the Supreme Court made orders to the effect that the NSW Trustee and Guardian be appointed administrator of the estate of the late Mr Sini without the matter proceeding to a final hearing.

The issues for determination 12In those circumstances, the issues are: (a)Whether the plaintiff's failure to seek early discovery and/or interrogatories about publication warrants the striking out of these proceedings, (b)Whether any future application for discovery or interrogatories by the plaintiff will be a fishing expedition, and (c)Whether the publications in question are protected under s 27(2) or at common law, in circumstances where the matters complained of are agreed to consist of conversations the defendants had with their solicitors and/or each other in relation to the material contained in their affidavits in the probate proceedings before the Supreme Court Equity Division.

The first issue: Should the plaintiff have sought these orders before now? 13The form of the statement of claim, the contents of which are set out in the schedule to this judgment, somewhat resembles the pleading which was the subject of consideration by McCallum J in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd, supra. The plaintiff in those proceedings pleaded a collection of disparate remarks made to one or more persons on one or more occasions in different forms, as if they were one publication. The source for those remarks was a newspaper article. McCallum J granted leave to administer interrogatories as to those conversations. 14The plaintiff asserts a right to rely upon the pleadings in their present form until such time as interrogatories can be administered, relying upon Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294, where Hunt J granted relief of the sort that the plaintiff proposes at some stage to seek in these proceedings. While it is the case that Hunt J warns (at 295) that the plaintiff's right to identify unknown defamatory publications by this method "is limited to supporting a definite case set up, and does not extend to fishing out a case from his opponent", the plaintiff submits that such a warning is unnecessary in these proceedings. This is because the first to fourth defendants have already filed a defence, a step not taken by the defendant in Kaiser v George Laurens (NSW) Pty Ltd, supra. By taking such a step the defendants have waived any right to complain about the plaintiff not having proceeded to interrogate or seek preliminary discovery concerning publication issues. 15It is correct for the plaintiff to say that a party may seek such interrogatories at any time. In Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11, Nicholas J identified the relevant rule as r 21.2(1)(a) UCPR, which entitles a plaintiff to seek limited discovery in relation to issues of this narrow kind at any stage of the proceedings, subject to ss 56 - 62 Civil Procedure Act 2005 (NSW), the longstanding recognition of the court's power to permit discovery and interrogatories (Cumming v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246) and, most importantly, provided that the application was not a fishing expedition (at [10]). 16However, Nicholas J considered such an application could be made at any stage of the proceedings where fundamental issues such as the nature of the publication and imputations distilled therefrom are clear. This does not entitle a plaintiff to commence proceedings without identifying the matter complained of with sufficient clarity for the proceedings to be able to proceed. This was the problem in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd, supra, where a series of statements to different persons on different occasions, distilled from quotes in a newspaper article, were pleaded in this fashion. McCallum J was satisfied that there was sufficient evidence of some publication for leave to administer interrogatories (Dank v Cronulla-Sutherland District Rugby League Football Club Ltd, supra). However, the plaintiff did not do so, and instead filed a statement of claim that was "if anything, worse than in the original statement of claim" (Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3), supra, at [10]). The plaintiff's failure to take this step resulted in dismissal of this part of the claim. In other words, where the issue the subject of such interrogatories is such a fundamental issue as what was said, by whom and when, delay in carrying out such a step, if ordered (which is not the case in these proceedings), may be fatal. 17Mr Rollinson submits that I can disregard this problem in these proceedings, because the first to fourth defendants have elected to file a defence and are clearly able to go to trial on the issues as currently pleaded. I note the first to fourth defendants did not seek orders that the plaintiff take this step before proceeding further, unlike the defendants in Dank, supra. Instead, they filed a defence. 18This requires a consideration of their defence. This poorly drafted document (for which Mr Lawson was not responsible) refers briefly (in paragraph 4) to unparticularised defences of absolute privilege (s 27(2)(b)) and to a defence of statutory and qualified privilege at common law. Paragraph 5 consists of a series of factual challenges "in answer" to the imputations pleaded. A second paragraph 5 (due to a numbering error) identifies unparticularised defences under ss 25, 26, 27, 30 and 31 of the Act "in addition to the common law defences", but goes on to say that "the defendants are unable to specify which defence applies to which alleged publication because the Statement of Claim does not specify the alleged publications". 19This final sentence is important. It makes clear is that this is a "holding defence", of the kind that is filed in proceedings where summary judgment is threatened, in circumstances in which the nature of the cause of action is unclear (Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274) or time about to expire (Cristovao v Butcher Paull and Calder and Ors [2006] WASCA 235). It should not be necessary to file a "holding defence" in defamation proceedings, where default judgment is not available, but where a claim of absolute privilege is relied upon, a "holding defence" may be required to file a defence outlining the nature of absolute privilege claimed: Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341; Vescio v Guardianship Tribunal of New South Wales [2010] NSWCA 227. 20There was no need to file a defence. The first to fourth defendants were not ordered to do so; Elkaim SC DCJ's orders excused them even from filing a notice of motion. It may be advisable to file a defence where summary judgment is sought (especially if on the basis of a defence that a publication was made on an occasion of absolute privilege). However, the cursory manner in which the s 27(2) defence is referred to is hardly satisfactory, and the unparticularised references to other defences are unhelpful. Nevertheless, the issue of a s 27(2) defence has clearly been raised. 21Much of the argument before me on this first issue centred on whether (despite filing a defence or not) the first to fourth defendants could now say it was too late for the plaintiff to bring any such application. The submission that such an application had to be brought before proceedings, as only discovery before suit was available, is misconceived. The plaintiff is entitled to commence proceedings and to seek such orders at a later time, provided that the application is not a fishing expedition. 22The second basis upon which Mr Lawson submitted that the claim against his clients should be struck out is that such an application, if brought, would amount to a fishing expedition and would never be permitted. In other words, the orders for discovery and interrogatories made in the cases discussed above could never be made, no matter when these orders were sought, because what the plaintiff was asking the defendants to do was to draft the statement of claim.

The second issue: Is this a fishing expedition? 23Mr Rollinson submits that the plaintiff has a basis for inferring these conversations took place by looking at the contents of the first to fourth defendants' affidavits, just as the plaintiff in Kaiser v George Laurens (NSW) Pty Ltd, supra had a basis, from credit report documents, upon which to infer that the defendant had told third parties that the plaintiff was bankrupt. The plaintiff in Kaiser v George Laurens (NSW) Pty Ltd had given the best particulars he could of these publications to unidentified third parties, and successfully sought orders for discovery and interrogatories only to rectify this deficiency, as Hunt J considered that the request for this information did not amount to a fishing expedition. 24Mr Rollinson submitted that the present case was much stronger than Kaiser v George Laurens (NSW) Pty Ltd, supra. This was principally because the defendants in those proceedings had not yet filed a defence, and had submitted that they could not know the case they were to meet, neither of which was applicable here. Any future application for particulars of the publications would not be a fishing expedition, as the precise conversations in these proceedings be identified with reference to the affidavit material, as appears to have been acknowledged by the contents of the defence. The defence demonstrates that the first to fourth defendants comprehend, and join issue with, the plaintiff's case, in that they deny that there were conversations other than for the purpose of these proceedings. The plaintiff should be entitled to explore that assertion at an appropriate state of the litigation in the future. 25In State of South Australia v Milisits [2013] SASC 189 at [21], Stanley J defined a "fishing expedition" as an application seeking "disclosure of documents in the hope that something will turn up of assistance to the party seeking disclosure in the documents themselves". In Dank, supra, McCallum J noted that the court will only assist a plaintiff with such interrogatories where the plaintiff can demonstrate a good cause of action but is "unable to find out the precise form in which to frame it" (at [31]. Her Honour was satisfied that the plaintiff had a good cause of action, and the question was whether it was spoken orally or published on Twitter: "[34] I confess that I have found it difficult to decide this issue. I acknowledge that authority cautions against requiring a party to answer interrogatories unless that is "necessary". The use of that term in the rules must of course be understood in the context of the Court's obligation to ac in accordance with the dictates of justice and the difficulties faced in this litigation: see s 58 of the Civil Procedure Act 2005. Whilst I would accept that the plaintiff could have approached Mr Rothfield with a view to ascertaining his version of events, one can understand that there may be difficulties in taking that course in circumstances where Mr Rothfield is a defendant in the proceedings... [35] In my view, the plaintiff can demonstrate by reference to [the Sunday Telegraph article] that he has a good cause of action but is unable to find out the precise form in which to frame it. The transcript establishes the making of a slanderous imputation of a particular character, but a question has arisen as to its accuracy particularly given that part of it purports to be words spoken by Mr Irvine whereas the television broadcast has characterised those words as having been published not orally but in a tweet." 26The first prerequisite is that the plaintiff has a good cause of action. The plaintiff's submissions appear to concede that at least some of the conversations leading to the matters in the affidavits will be protected by absolute privilege and/or legal professional privilege, and that at least some of these conversations (namely most of the conversations involving the first and second defendant leading up to the affidavit which was sworn on 18 April 2013) fall outside the 12-month limitation period. How many of these conversations can be rescued from this hostile undergrowth of privileges and limitation defences is uncertain. 27However, the second prerequisite - the precise nature and extent of these many conversations - is an even greater problem. Mr Lawson submits that what the plaintiff will have to do is to ask his clients to outline all their conversations in the hope that he can pick and choose some of them which may be actionable. All conversations between the defendants are sought, whether amounting to publication to a third party or not (see the conflicting decisions on this issue discussed by Tobias JA in Trantum v McDowell [2007] NSWCA 138), whether protected by common interest privilege or legal professional privilege or not (Network Ten Limited v Capital Holdings Limited (1995) 36 NSWLR 275 at 279 per Giles JA), whether protected by spousal immunity or not (Roberts-Smith v Crawshaw [2014] WASC 12), and whether within the limitation period or not. 28In Kaiser v George Laurens (NSW) Pty Ltd, supra, all the defendant had to do was to identify those persons who had sought their professional advice (the defendant being a credit agency that provided such information). In Dank v Cronulla-Sutherland District Rugby League Football Club, supra, all the defendants had to do was to identify the dates and times of the conversations referred to in the matter complained of. 29Here, however, I am satisfied not only that any such task would be impossible to perform, but that the plaintiff is endeavouring "to see if he can find a case...of which at present he knows nothing" (Russell v Stubbs Ltd [1913] 2 KB 200 at 204). Each of the four defendants would have to set out each conversation he or she had with anyone about any aspect of the court proceedings capable of giving rise to the matter complained of over the period of time referred to in the statement of claim. All these conversations, telephone calls, emails and/or letters would then have to be examined to determine if they were to be the subject of a claim for legal professional privilege, or absolute privilege, or falling outside the limitation period, or all of the above, or whether the plaintiff wants to bring proceedings in relation to each of them. What would happen if there were different versions of events from each of the defendants is hard to imagine. The plaintiff would no doubt wish to be heard on issues in relation to each such publication. The plaintiff is effectively asking the first to fourth defendants to draft his statement of claim. 30If the plaintiff cannot establish either of these elements then, although the plaintiff may in theory be at liberty to bring a Kaiser v George Laurens (NSW) Pty Ltd application "at any time" (Ahmed v John Fairfax Publications Pty Ltd, supra), I am satisfied that no such order would ever be made, having regard to the pleadings in these proceedings, as it would be a fishing expedition of the clearest kind. 31Additionally, as Nicholas J and McCallum J both noted, the entitlement of a plaintiff to bring such an application "at any time" is subject to the provisions of ss 56 - 62 Civil Procedure Act 2005 (NSW). Mr Lawson submitted that the onerous obligations placed on his clients, in relation to the very limited publications which were essentially made either to each other or to their solicitors, was the opposite of "just, cheap and quick" and involved costs disproportionate to issues (s 60). 32I am satisfied that any application by the plaintiff to compel the first to fourth defendants to identify and set out the text of the conversations and/or documents identified in the statement of claim would be an impermissible fishing expedition. The pleadings in their present state fail to comply with r 15.19 UCPR. In their current state, those pleadings are embarrassing and, conformably with the reasoning of McCallum J in Dank v Cronulla-Sutherland District Rugby League Football Club (No 3), supra, the pleadings in the amended statement of claim set out in relation to the first to fourth defendants should be struck out and dismissed on this basis. 33This brings me to the third basis for the application for summary dismissal raised by Mr Lawson, namely that the plaintiff has "worked backwards" from the affidavits filed in the Supreme Court proceedings to bring a claim for defamation in relation to matter that is protected by absolute privilege under s 27(2) of the Act, as is set out in his clients' defence.

The third issue: Are the publications by the defendants giving rise to the imputations immune from suit? 34Mr Lawson explained his description of "working backwards" as arising from the particulars of publication provided by the plaintiff in the statement of claim. Although those affidavits have not been provided to me, it is clear from the statement of claim that the plaintiff's claim arises only from conversations between the first to fourth defendants and with the solicitor who acted for the first and second defendant and drafted the affidavits for all defendants. 35Immunity from suit for witnesses extends to all civil proceedings except malicious prosecution: Cumberland v Clark (1996) 39 NSWLR 514 at 520, citing R v Beydoun (1990) 22 NSWLR 256 at 259 - 260. The rationale is that there should be no collateral attack upon litigation. Although Mr Rollinson referred to Martin v Watson [1996] AC 74, the narrowly defined circumstances in which a claim for malicious prosecution may be brought against an individual as opposed to the prosecuting authority are not relevant here, and remain controversial in Australia. 36A party's private communications with his lawyer, or with other witnesses or potential witnesses in the proceedings, for the purpose of preparation of affidavits forms part of the protection afforded by the absolute privilege afforded to that affidavit (Brown on Defamation (2nd Ed., Carswell), [12.4.5(j)]). In Lincoln v Daniels [1962] 1 QB 237 at 260 Devlin LJ, referring to the absolute immunity afforded to pleadings, stated: "A plaintiff in a libel action could not be allowed to say, "I do not bring the action against you for what was said in the statement of claim but for what you instructed your solicitor and counsel to put into the statement of claim." 37Mr Rollinson's submission is that the House of Lords in Watson v M'Ewan, supra, held that this privilege did not extend to conversations between parties, their legal representatives and their witnesses for the purpose of preparing their affidavits or otherwise seeking instructions. The Lord Chancellor, with Lord James and Lord Robertson agreeing, noted the absolute immunity of the evidence contained in a witness statement or affidavit used in court as "too plain for argument", and went on to note that this extended to the conferences with the solicitor for the preparation of the evidence: "But then comes the question which, so far as I know, has been raised for the first time in this case. The ingenious suggestion has been made that although it is true that a witness is protected from an action in respect of evidence actually given in a Court of justice, yet no such protection exists in respect of his attendance before the solicitor at what is called apparently in Scottish law his precognition - what we call the interview between the intended witness and the solicitor who takes from him what we call the proof - that is to say, reduces to writing the evidence which the witness is about to give. One very serious element of difficulty which those who insist upon such a liability have to meet is manifest - namely, that in the whole course of the diligent inquiry that the learned counsel on both sides have made into this matter they have not found that any such liability has ever been sought to be established before. So far as I know personally in my experience no such question has ever arisen. The learned Judges who have allowed these issues have done so apparently for the first time in this case. It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them - that is, to the solicitor or Writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply - that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, "I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box." If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, "I shall not tell you anything; I may have an action brought against me to-morrow if I do; therefore I shall not give you any information at all." It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice, namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony. 38The House of Lords then appeared to leave open whether the privilege extends to the witness whose affidavit is not tendered, and does not take an oath in court to be cross-examined on his affidavit: The hardship to which I refer is this: That although when a witness does give evidence which is wilfully false you can indict him for perjury; on the other hand, if he makes the same statement, not upon oath, to a person taking down the evidence he is prepared to give, it seems to be very difficult to devise anything that would bring him to justice for that false statement. The answer, of course, dealing with it as a matter of convenience and indeed of necessity for the administration of justice, I suppose, is this: Unless he does give evidence in a Court of justice, in which case he can be indicted for perjury if his evidence is wilfully false, nobody knows anything about it - it slumbers, I suppose, in the office of the solicitor, and nobody hears or cares anything about it. Practically, I think that would be the answer. But whether that be a good answer or not, what seems to me to be an overwhelming consideration in the determination of this case is that a witness must be protected for his preliminary statement or he has no protection at all, and that there is that protection established is, as I have already said, beyond all possibility of doubt." 39While the House of Lords was uncertain about the extent of this immunity in 1905, it is now settled law that immunity from suit extends to persons interviewed as witnesses even if the testimony is never given, or not presented in court. In Lincoln v Daniels, supra, at 258, Devlin LJ, noting the reference in Watson v M'Ewen to this category of absolute privilege as "the most difficult" to define, went on to say it was "immaterial whether the proof is or is not taken in the course of proceedings"; see also Page v McGovern [2008] TasSC 13 at [30]; Paterson v Hesse [1914] 34 NZLR 177 at 181 per Hosking J; McCabe v Joynt [1901] 2 Ir R 115 at 127 (QBD). This has even been held to extend to the usual solicitors' inter partes correspondence, and as not being confined to documents required for use in court: Wong Shui Kee v Chu [2003] 1 HKC 125 (considered in Cunliffe v Woods [2012] VSC 254). The fact that there are others present when the testimony is discussed will not defeat that privilege if those persons are not otherwise strangers to the action: Thompson v Turbott [1963] NZLR 71, such as another witness: Ascherman v Natanson 23 Cal App 3d 861, 100 Cal Rptr 656 (1972). 40A potential additional requirement in More v Weaver [1928] 2 KB 520 (a decision which, while doubted, has never been overruled: see Clark v Davey [2002] EWHC 2342), namely that the remarks would need to be relevant to the pleadings or subject matter of the proceedings, is not an issue here, as the imputations pleaded by the plaintiff are a agreed to be a compilation of the allegations made in the affidavits sworn by each of the defendants. 41As Mr Lawson noted, a further problem is that the conversations the defendants had with their solicitor and with each other in relation to the preparation of these proceedings would be protected by legal professional privilege: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]; Re Neenan [2011] AATA 372. Conversations between a solicitor and client are themselves the subject of absolute privilege at common law: Brown on Defamation (2nd Ed., Carswell), at [12.4(4)(c) ff]. This is the corollary of the submission that the defendants' statements to their legal representatives and each other for the purpose of preparing the probate proceedings were made on a protected occasion. Even if they were not, they were made on an occasion of solicitor/client or common interest privilege and as such the plaintiff cannot compel their production. That includes conversations and communications between the cross-claimants (the first and second defendants) in the Supreme Court proceedings with each other and their witnesses, which would be protected by the common interest legal professional privilege explained by Giles JA, as well as by the immunity from suit to which witnesses are entitled. 42Further, as Mr Lawson noted in his submissions, any publications made prior to 16 April 2013 fall outside the one year limitation period for defamation proceedings. This is of particular significance to the publications asserted to have been made by the first and second defendants, which more than likely were made prior to that date. 43Finally, the defendants submit that the claim is an abuse of process. This argument was not developed by the defendants, or responded to by the plaintiff, but I note that the issues raised here reflect some of the court's concerns in Moevao v Department of Labour [1980] 1 NZLR 4 and Higgins J in Emanuele v Headley (Supreme Court of the ACT, Higgins J, 7 March 1997). (See also Calabro v Zappia [2010] NSWDC 127, where the matter complained of was a potential witness's statutory declaration, surreptitously removed by one of the plaintiffs from a bundle of papers in the courtroom foyer.) 44Accordingly, the proceedings against the first to fourth defendants should also be dismissed on the basis that the publications identified in the statement of claim are protected by absolute privilege under s 27(2) of the Act.

The fifth defendant 45The fifth defendant is a legal practitioner and the author of the letter which is annexed to the statement of claim. The parties agreed that I should determine the summary dismissal proceedings brought by the first to fourth defendants and defer the future conduct of this litigation by the fifth defendant, including any applications by either party for rulings, will be a matter for the parties to determine. Any such timetable should commence with any challenge to the form and capacity of the sole imputation pleaded. Neither the complexities of defamation proceedings nor the dangers of inadequate or precipitate pleadings should be overlooked by either party in the future conduct of these proceedings. 46In the course of making interim orders in In the Estate of Sini: Stanizzo v Henniker, supra, Lindsay J made observations which I am sure were of assistance to the parties in subsequently resolving the matter. Those observations are just as pertinent here. With his Honour's observations in mind, I have reserved the issue of costs of the proceedings against the first to fourth defendants, with liberty to apply.

Orders (1)Plaintiff's claim against the first to fourth defendants dismissed. (2)Costs of the proceedings against the first to fourth defendants reserved, with liberty to apply. (3)The plaintiff and fifth defendant have leave to bring in short minutes of order for a timetable.

The Statement of Claim

The Plaintiff is a solicitor and was practising at all material times until December 2010 at Warrawong in New South Wales.
In or about April/May 2013 and on subsequent dates unknown to the Plaintiff, each of the Defendants (Maria Sassu, Gian Michele Sechi, Lorenza Porcheddu and Angelo Porcheddu) conversed by telephone and otherwise communicated with each other and other persons presently unknown to the Plaintiff, to be particularized after discovery, interrogatories and the issue of subpoenas, the matter of and concerning the Plaintiff (the matters complained of): Particulars of paragraph 2 (as far as now known to Plaintiff) (1) The First Defendant (Sassu) communicated the matters complained of to Glenn Henniker (Henniker), a solicitor, in conversations or other communications with him on dates unknown to the Plaintiff between shortly after 17 February 2013, being the date of death of Constantino Sini, and 18 April 2013, being the date of an affidavit made by Sassu in proceedings in the Supreme Court, No. 2013/100460, Stanizzo v Henniker ('the Sini Estate Case'), and on subsequent dates; and also communicated them to each of the other Defendants (Sechi, L Porcheddu and A Porcheddu) during and after the same period. (2) The Second Defendant (Sechi) communicated the matters complained of to Henniker in conversations or other communications with him on dates unknown to the Plaintiff between shortly after 17 February 2013 and 18 April 2013, being the date of an affidavit made by Sechi in the Sini Estate Case, and on subsequent dates; and also communicated them to each of Sassu, L Porcheddu and A Porcheddu on dates unknown during and after the same period. (3) The Third Defendant (L Porcheddu) communicated the matters complained of to Henniker in conversations or other communications with him on dates unknown to the Plaintiff between 17 February 2013 and 27 June 2013, being the date of an affidavit made by L Porcheddu in the Sini Estate Case, and on subsequent dates; and also communicated them to each of Sassu and Sechi on dates unknown during and after the same period. (4) The Fourth Defendant (A Porcheddu) communicated the matters complained of to Henniker in conversations or other communications with him on dates unknown to the Plaintiff between 17 February 2013 and 27 June 2013, being the date of an affidavit made by A Porcheddu in the Sini Estate Case, and on subsequent dates; and also communicated them to each of Sassu and Sechi on dates unknown during and after the same period.
The matters complained of conveyed the following imputations of and concerning the Plaintiff, and defamatory of him: (a) The Plaintiff is suspected on reasonable grounds of having committed criminal offences including sexual assault on a female former client on two occasions, threatening that former client on one occasion, attempting to intimidate a witness to sign a document, and threatening a witness. (b) The Plaintiff has been charged and prosecuted for the offences described in (a) above. (c) The plaintiff deliberately causes delays in legal matters he handles or has handled in. the past, in a manner that gives him an unfair advantage. (d) The Plaintiff has handled business matters with. Angelo Porcheddu in a dishonest and improper manner. (e) The plaintiff took unfair advantage of the Angelo Porcheddu and Vincenzo Roppa in regard to commercial premises at 62 & 64 King Street, Warrawong owned by those 3 persons. (f) The plaintiff constantly harassed Angelo Porcheddu for money for expenses that were excessive. (g) The plaintiff is a bully. (h) The plaintiff bullied Angelo Porcheddu and Vincenzo Roppa. (i) The plaintiff made excessive charges for managing the properties on behalf of the 3 owners. (j) The plaintiff's behaviour forced Angelo Porcheddu and Vincenzo Roppa to sell their share for no gain. (k) The plaintiff made a direct threat to Lorenza Porcheddu that he would kill Angelo Porcheddu. (l) The Plaintiff has taken unfair advantage of his client/s. (m) The Plaintiff has mixed his personal finances with those of his client. (n) The Plaintiff has surrendered his practising certificate as a solicitor because of his improper conduct. (o) The plaintiff is not a trust worthy person and is dishonest. 3A. On or about 23 December 2013, the Fifth Defendant (Garrett) communicated to a person or persons employed in the Office of the NSW Trustee and Guardian, matter of and concerning the Plaintiff ('the Second Matters') Particulars (a) Telephone conversation between Garrett and that person or those persons on or about 23 December 2013. (b) E-mail message at 4.01 PM on 30 December 2013 from Garrett to that Office, copy annexed and marked 'A'. 3B. The Second Matters conveyed the following imputation defamatory of the Plaintiff: (a) The Plaintiff, although the executor named in the will of the late Constantino Sini, was not a fit and proper person to act as executor.
By reason whereof the Plaintiff has suffered damage to his reputation, hurt and embarrassment.
The Plaintiff claims general and special damages, including aggravated damages.
Costs.

"A" Karen Garrett From: "Karen Garrett" [Email of Ms Karen Garrett] Date: Monday, 30 December 2013 4:01 PM To: [Email of NSW Trustee & Guardian Special Projects]; "Mark Lawson" [Email of Mr Mark Lawson] Subject: Estate of Constantino Sini G59 Dear Sir/Madam Thank you for your time on the telephone on 23 December 2013. Per our discussion, I confirm that on 2 October 2013, his Honour Lindsay J made orders granting special letters of administration to the NSW Trustee which included 8(d) to publish notices. We believe that it was his Honour's intention that this step take place. We note you advised that the view of your "legal people" is that you should not publish notices until a final grant is applied for and/or granted. Please note that our clients' (i.e. the beneficiaries) Cross-claim to have the named executor found to be not a fit and proper person, also seeks an order that two relatives be appointed as executors, or in the alternative: "an order that administration of the estate, with the will of the late Constantino Sini dated 16 August 2002 annexed, be granted to such other person, or persons, as the Court considers appropriate to hold such office" The above order obviously contemplates the appointment of the NSW Trustee. In other words, our clients have already made application to the Court for the appointment of the NSW Trustee. If there is any other impediment to the notices being published, we would be grateful if you would have your legal people advise us of the basis for same so that we can seek appropriate orders from the Court. The matter is listed for directions on 3 February 2014. We note your advice that you will provide us with a report of the progress of the matter prior to that date. We confirm it is our intention to seek an order that you have power to sell the real estate of the deceased as you do not believe the current orders make it clear that you may do so. Yours faithfully COYNE LEGAL per Karen Garrett Phone [redacted] Mobile [redacted] Fax [redacted]

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: 08 July 2014

At a glance

Court

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Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (18)