Tribe v Simmons

A INTRODUCTION and Background 1 This proceeding for defamation was commenced on 13 April 2021. Initially, an approach was made to the duty judge at that time requesting the matter be dealt with urgently. Given that no interlocutory relief was sought, in accordance with the Court's practice, the matter was docketed in the ordinary course. However, given that the originating application did seek an order that "this matter be dealt with urgently, on a final basis", once the matter was docketed, arrangements were made for an expedited first case management hearing on 23 April 2021. The reason why an early final hearing was sought was perhaps understandable in circumstances where Ms Simmons had made a number of tweets, being the publications sued on, which contained accusations of grave misconduct. They are annexed to these reasons (and I will refer to them as the First Tweet, the Second Tweet and the Third Tweet). 2 Before turning to the steps taken in case managing this proceeding to date, it is important in the factual narrative to note that on 16 April 2021 (two days after the statement of claim was served), Ms Simmons published a further tweet in the following terms: I stand in my truth and the statements I have made. I am not 'mentally ill' i [sic] have PTSD and cluster B personality traits due to trauma. I was molested and it happens far too commonly for me to keep sweeping it under the rug because someone in my family is famous. I am a survivor. 3 Five days later another tweet was published in the following terms: Because Australian laws protect rapists and pedophiles [sic]. Literally, they passed a law saying they can charge and arrest women for speaking out against their abusers 4 Ms Simmons did not appear at the first case management hearing on 23 April 2021 (despite prior contact having been made by my Associate informing Ms Simmons of the hearing). Orders were made to programme the matter in the following terms: 1. The respondent file and serve her defence by 12 May 2021 in accordance with r 16.32 of the Federal Court Rules 2011 (Cth). 2. The applicant file and serve his evidence in chief on or by 7 May 2021. 3. The proceeding be listed for a further case management hearing at 2.15pm on 14 May 2021, with a view to identifying the necessary interlocutory steps to ready the matter for a hearing. 5 Despite the operation of the Federal Court Rules 2011 (Cth) (FCR) and the orders made on 23 April 2021, no defence was filed. 6 When the matter came before me on 14 May 2021, Ms Simmons appeared and indicated her intention to defend the proceeding and, although it was not expressed in these terms, to file a justification defence: T4.10-8. On that occasion, Ms Simmons also indicated that her failure to comply with previous orders was due, among other things, to her difficulty in obtaining legal representation. 7 Without opposition, an order was made extending the time for Ms Simmons to file and serve a defence until 4 June 2021. At that time, I also made the following additional orders: 2. By 25 June 2021, the respondent file and serve any affidavit evidence upon which she proposes to rely. 3. By 16 July 2021, the applicant file and serve any affidavit material in reply. 4. The proceeding be set down for a final hearing to commence at 10.15am on 6 September 2021, with an estimate of five (5) days. 5. Liberty be reserved to relist the matter to seek a vacation of orders 2, 3 and 4 upon the respondent obtaining legal representation. 6. Liberty be reserved for the applicant to relist the proceeding in the event a defence is not filed in accordance with order 1. 7. The proceeding be listed for a case management hearing at 9.30am on 23 July 2021. 8 On 3 June 2021, my Associate received an email from Ms Simmons requesting that, given her continued difficulty in obtaining legal representation, the time to file a defence be further extended to 4pm on 18 June 2021. I instructed my Associate to reply to this email in the following terms: Dear Ms Simmons I have had the opportunity of speaking with his Honour regarding your communication. As his Honour indicated at the last case management hearing on 14 May 2021, irrespective as to whether you obtain legal representation, it is necessary that the proceeding progress. This is particularly the case where there is a hearing date in September. Accordingly, I have been directed to inform you that if a defence is not filed by 4 June 2021, you should take steps to remedy any default as soon as possible. His Honour is prepared to indicate, however, that in the absence of any defence, his Honour would not entertain an application for default judgment until after 18 June 2021, which gives you additional time to obtain legal representation and remedy any default. Further, in all the circumstances, his Honour has determined to list the proceeding for a case management hearing at 9.30am on 21 June 2021. (Emphasis in original). 9 A further email was received from Ms Simmons indicating that the date stipulated for the case management hearing was not convenient. In response, I directed my Associate to amend the date of the case management hearing to 9.30am on 9 July 2021 (later amended to 4pm on 9 July 2021 to suit to availability of the respondent). Further, given Ms Simmons' continued difficulties in obtaining legal representation, following the receipt of Ms Simmons' initial communication of 3 June 2021, and without objection from the respondent, on 9 June 2021, I arranged for the provision of a pro bono certificate to be issued by the Registry. 10 No defence was filed as foreshadowed by Ms Simmons, and on 25 June 2021, an interlocutory application was filed by Mr Tribe seeking, among other things, default judgment. I directed my Associate to indicate to the parties that the Court would entertain any application for default judgment at the same time as the case management hearing already listed on 9 July 2021. 11 As it happened, in early July 2021, Ms Kaur-Bains of counsel, in response to the inquiries made by the Court, accepted the pro bono referral and subsequently appeared at the case management hearing on 9 July 2021. At that hearing, Ms Chrysanthou, senior counsel for Mr Tribe, moved on the interlocutory application for default judgment, although she recognised that the situation may have changed given the fact that Ms Simmons was now represented: T2.15-20. Ms Kaur-Bains indicated to the Court that the previous default in filing a defence was due to the fact that Ms Simmons was incapable of doing so without a lawyer: T2.40-45. Ms Kaur-Bains also indicated that after having had the opportunity of speaking with Ms Simmons, she was instructed to seek an extension of time for the filing of a defence and that Ms Simmons maintained her position that she would defend the proceeding: T3.25-30. 12 In these circumstances, and notwithstanding earlier defaults, I further extended the time for Ms Simmons to file a defence, together with any affidavit material upon which she proposed to rely, until 30 July 2021 and ordered that the matter be relisted for a case management hearing on 3 August 2021. At the conclusion of the case management hearing, I said the following (at T5.5-26): HIS HONOUR: I [will extend] the time [to file a defence], notwithstanding the very considerable indulgences that the respondent has already had, but given that she was unrepresented, it is appropriate … given that Ms Kaur-Bains has accepted the referral to extend the time for the filing of defence and for any affidavit material to go on [by] Friday, 30 July. … I could bring [the matter] back for a case management hearing at … 9.30 am on Tuesday, 3 August. That will give you the weekend and the Monday to review the defence. … I'm not going to make any orders at the moment about how long it would take [the applicant] to put on [his] material. That, naturally enough, will be informed by the metes and bounds of the defence, but I intend to keep the hearing date at present, allow the defence and any affidavit material by 30 July. If, for some reason, that doesn't occur, I don't propose to dismiss the interlocutory application; I [will] also make that returnable before me on 3 August because if, for some reason, there's further default in relation to this now that the respondent has the benefit of legal representation if, for example, she didn't make herself available … then my patience, if I may say [so, will have] come to an end. 13 Ms Kaur-Bains has appeared again before the Court today. It is evident that she has sought, as best she can, to obtain instructions from Ms Simmons and has spent time seeking to put together an affidavit in compliance with my orders. Unsurprisingly, it would be prudent for an affidavit to be prepared prior to the finalisation of a defence, particularly given the nature of the defence foreshadowed by Ms Simmons. I am told, however, by Ms Kaur-Bains, and accept, that she has been informed by Ms Simmons that she has received some medical advice that it would be contrary to her interests to continue to defend the proceeding. Ms Kaur-Bains also apprised the Court of the fact that Ms Simmons' three-year-old daughter recently had brain surgery and the attention of Ms Simmons must be on the health of her daughter and that she was not in a position to provide Ms Kaur-Bains with any further instructions. 14 Understandably in these circumstances, Ms Kaur-Bains has taken the view that she can no longer continue to represent Ms Simmons in the proceeding. However, as a matter of courtesy to the Court, Ms Kaur-Bains indicated that for the purposes of today's case management hearing she was content to appear as an amicus curiae, and make any arguments she thought appropriate to be make in relation to whether default judgment should be entered.

B Application for default Judgment 15 As might be expected, given this turn of events, Mr Tribe presses his application for default judgment. 16 In the absence of a defence being filed, I indicated to Ms Chrysanthou that, consistent with the approach I took in Szymczak v Balijepalli (No 2) [2019] FCA 1093 (at [5]), where a respondent in a proceeding for defamation does not appear, it is appropriate for the Court, before finally entering default judgment, to consider the legal question reserved for the Court as to whether the matters complained of are reasonably capable of conveying the pleaded imputations: see also Al Muderis v Duncan [2016] NSWSC 1726 (at [3] per McCallum J); Graham v Powell (No 3) [2014] NSWSC 185 (at [6] per Beech-Jones J). The reasoning behind such an approach is clear; it is, of course, always a question of law to be determined by the Court as to whether an imputation is reasonably capable of arising from the publication. If that issue was ignored at the time when default judgment is sought, it could, as McCallum J explained in Al Muderis (at [4]), result in a "judgment in favour of the plaintiff in respect of a claim that was bad in law." 17 In this regard, it is important to draw a distinction between the question as to whether or not the imputations that are pleaded were, as a matter of fact, conveyed, and the separate inquiry as to whether or not the publications had the capacity to convey the meanings or imputations alleged by the applicant. There is no need for me, yet again, to set out the well-settled principles as to capacity. They have been, with respect, usefully set out by Wigney J in Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 (at [76]-[80]). 18 Although, of course, the tribunal of fact in this case would be a judge rather than a jury, the legal question which must be kept separate from the factual inquiry in the present circumstances is whether the meanings or imputations pleaded could reasonably be found to have been conveyed. Unlike in previous times in New South Wales, each imputation is not the cause of action - the cause of action is each publication. It follows, as a matter of logic, it is only necessary for Mr Tribe to establish that one of the pleaded imputations is capable of being found to have been conveyed by each publication to obtain judgment in the absence of a defence. 19 The imputations pleaded in respect of the First Tweet are as follows: (a) Tribe sexually molested his half-sister before she turned eight years old; (b) Tribe sexually molested his half-sister before she turned eight years old causing her to have post traumatic stress disorder; (c) Tribe sexually assaulted his half-sister before she turned eight years old; (d) Tribe sexually assaulted his half-sister before she turned eight years old causing her to have post traumatic stress disorder; (e) Tribe sexually assaulted his half-sister before she turned eight years old causing permanent damage to her uterus; [and] (f) In the alternative to (e), Tribe sexually assaulted his half-sister before she turned eight years old causing her to commence sexual activity from that early age that has resulted in permanent damage to her uterus. 20 The imputations pleaded in respect of the Second Tweet are as follows: (a) Tribe sexually molested his sister Olivia Simmons; (b) Tribe is a liar because he had sexually molested his sister Olivia Simmons and then falsely claimed to release a statement on behalf of the Simmons family; and (c) Tribe is a liar because he had sexually molested his sister Olivia Simmons and then released a statement falsely denying having molested her. 21 The imputations pleaded in respect of the Third Tweet are as follows: (a) Tribe sexually molested his sister Olivia Simmons; (b) Tribe sexually molested his sister Olivia Simmons causing her to have post traumatic stress disorder; (c) Tribe is a liar because he had sexually molested his sister Olivia Simmons and then released a statement falsely denying to having molested her; and (d) Tribe is a racist because he was attacking Olivia Simmons, a black woman, and calling her crazy for speaking up about trauma she had suffered from him. 22 Although the position is clear in relation to the Second Tweet and the Third Tweet (although I do not believe that the last imputation pleaded in respect of the Third Tweet is capable of being conveyed), there is an infelicity in the drafting of the imputations in respect of the First Tweet; namely, each imputation includes the notion that the alleged sexual assault occurred before Ms Simmons turned eight years old (cf the terms of the First Tweet: "my sexual history started at 8"). 23 It is open to an applicant to choose the imputations relied upon, which will generally confine the questions of meaning and will determine the metes and bounds of any contest at trial, but these boundaries extend to meanings that are not substantively different in that they are comprehended in, or are a shade or nuance of, the pleaded meaning. 24 I must say, it is a little unclear to me why there is any substantial difference in conveying the extraordinarily serious imputation that Mr Tribe sexually assaulted his half-sister before she turned eight years old to conveying that Tribe sexually assaulted his half-sister at around the time she turned eight years old. On balance, it seems to me that the sting conveyed by the First Tweet is sufficiently captured by the imputation, notwithstanding the drafting. In any event, if I am wrong about this, it does not really matter, because given the substantially similar nature of all publications, damages will be assessed in one sum and, in the circumstances of this case, quantification or any other question of relief is unlikely to be affected if the same substantial sting was published on two or three occasions. 25 In the circumstances it is appropriate for me to proceed under FCR 5.23 to give judgment for the applicant against the respondent for damages to be assessed, and for that assessment hearing (and consideration of other final relief) to occur on the dates currently set aside for the hearing.

C INTERLOCUTORY Relief 26 The issue then arises as to what, if any, further relief is appropriate to be ordered prior to the determination of the balance of issues in this case. In the unusual circumstances where Ms Simmons has: (1) made a series of implied admissions of the matters contained in the statement of claim (by reason of FCR 16.07); (2) made further tweets since the commencement of this proceeding; and (3) made statements protected by absolute privilege to the effect that she has a defence of justification to the claim, and yet despite being given every opportunity to do so, has not filed a defence, it is appropriate that interim relief be granted to prevent further publications of a similar nature. 27 Given the inconsistent and unhelpful approach taken by Ms Simmons to the proceeding even when the Court gave her the benefit of pro bono legal representation, it is appropriate that she be restrained until 5pm on the hearing date, 14 September 2021, from publishing a matter in any form to the effect that: (1) Mr Tribe sexually molested Ms Simmons; or (2) Mr Tribe is a liar because he denied he sexually molested Ms Simmons. 28 Arrangements should be made by those representing Mr Tribe to effect personal service of a copy of this order on Ms Simmons given that she is no longer legally represented. I will also direct that a copy of these reasons be provided to Ms Simmons when they are revised so that she understands the circumstances which have led to the entry of judgment against her and so that she has some explanation of why the Court, after giving her every opportunity to take an active step in the proceeding, has felt compelled to proceed down this course. 29 Needless to say, the allegations made in the tweets were very serious and Mr Tribe is entitled to have his claim determined as soon as practicable. Although I extend sympathy to Ms Simmons as to the apparent illness of her child and any ill health she may be suffering, I am simply not satisfied, given what Ms Kaur-Bains has said this morning, that there is any prospect a further extension would be productive. The fact that Ms Simmons is not prepared to take the active step of pleading out a defence, despite there being no withdrawal of the contention made at the commencement of the proceeding that the allegations are true, seems to me to point quite strongly to the need for an interlocutory regime to be put in place to protect further publication until a final hearing when the issue of a permanent injunction can be resolved. Obviously, I make this order cognisant of the usual caution that exists in defamation proceedings in granting interlocutory relief by way of restraint, but this is a circumstance where further publications have been made since commencement and despite the Court giving Ms Simmons every opportunity, no defence has been raised (and the imputations are, by their nature, grave ones). I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Associate: Dated: 9 August 2021 Annexure A - The First Tweet Annexure B - The Second Tweet Annexure C - The Third Tweet