Voscarides v Corrigan

District Court of NSW|2020-11-19|Before: McCallum J

Solicitors: Plaintiff: Agilitylegal Defendant: Redlinelegal File Number(s): 2017/00223104

The applications before the court

These proceedings were commenced by a statement of claim filed in the Supreme Court of New South Wales on 21 July 2017 (served on 28 August 2017) which was transferred to this court for case management on 3 May 2019. The plaintiffs, who reside in Cyprus, seek damages for two Facebook posts concerning their conduct in relation to clinics in that country specialising in Lyme Disease. A claim of injurious falsehood brought by a third plaintiff, a corporation, was dropped when the current statement of claim was filed on 29 July 2020.
The applications before the court are as follows: 1. The defendant seeks summary dismissal of the claim on the basis of failure to plead an arguable case on identification, notwithstanding dismissal of an earlier application to this effect by Wass SC DCJ on 23 July 2020. 2. The plaintiffs seek an order that the defendant show cause why default judgement should not be entered and/or summary judgement granted, by reason of the defendant's failure to file a defence conformably with orders made by Wass SC DCJ.
By reason of the nature of the orders sought, it is necessary to set out the procedural history of this action in both the Supreme and District Courts.

The relevant procedural history

These proceedings were case managed by the Supreme Court Defamation List Judge, McCallum J, from the first return date of 6 October 2017 until the proceedings were transferred to this court two years later. As is evident from the transcript and the orders made, her Honour was confronted with significant case management issues. The two plaintiffs-in-person worked and lived in Cyprus, where the corporation which was a co-plaintiff conducted its affairs, while the defendant resided in Tasmania; in those circumstances, her Honour questioned whether New South Wales was the appropriate forum. The defendant, who was unrepresented, was ill, as was her husband, and over the next two years she provided the court with information about health problems of great seriousness. A series of adjournments designed to assist the defendant to resolve these difficulties did not bring about any change to the situation.
In 2018, a proposal for mediation by registrar of the Supreme Court was put forward. In a short judgement, handed down on 2 November 2018, McCallum J noted that attempt to arrange a mediation had failed "due largely, if not solely, to the defendant's unwillingness to cooperate in that process". On 2 November 2018, her Honour noted that "there would come a time when the matter would have to proceed". In the interim, by reason of the nature of the defendants "incapacity to participate in the process" for medical reasons, the proceedings were stood over to 8 March 2019.
On 8 March 2019, the proceedings came before Hoeben CJ at CL for case management in the Defamation List. His Honour expressed similar concerns to those of McCallum J, and stated to the plaintiffs' legal representatives (the defendant did not appear): "I will not go through it at this stage but let me tell you some of the concerns I have about this matter. The defendant is self-represented. She is impecunious, she claims to be impecunious, but I get the distinct impression one of the reasons she is unrepresented is because she is short of money. She is clearly uncooperative. She made no genuine effort, it seems to me, to participate in the mediation which would only have involved her being at the other end of a telephone. For the first time in her documents that she sent to the Court we have received some medical certificates so we have some idea of what her claims disabilities are. Even if you won this matter there is no money coming, it would seem to me. This is your client. And there are some problems in the claim itself. There is no link to New South Wales. I can't even see any evidence of publication in New South Wales, to the extent that there is publication, it seems to be in Tasmania. Apart from the fact that your firm is based in New South Wales I can't see any real connection between this jurisdiction and the claim. The claim is a small claim; it is based on a chat group who have an interest in Lyme disease and they were very critical of your clients' sanitarium or facility in Cyprus. Putting all that together, I wonder why we are here."
The plaintiffs' legal representative responded by observing that the comments were made on an online Facebook group approximately 60% of whom were Australians located in the states and territories of Australia, and not merely in Tasmania. The first plaintiff had his ordinary place of residence in Sydney. The plaintiffs would be put to considerable expense if the proceedings had to be conducted in Tasmania.
In those circumstances, his Honour made the following orders on 8 March 2019: "1. Defendant is to notify the plaintiffs in writing of any objection to the form of the pleading and any objection that the matter complained of is not capable of conveying any of the imputations pleaded by the plaintiffs on or before 22.3.2019. 2 Plaintiffs to respond to the defendant in writing to any of the defendant's objections indicating as to each objection whether it is accepted or rejected on or before 5.4.2019 3 Defendant to give notice in writing to my Associate of any objection maintained by her on or before 19.4.2019. 4 Stood over to Defamation List for directions on 3 May 2019. 5 Costs reserved."
On 16 April 2019, the defendant sent an email to the plaintiff's legal representatives advising that her husband had just been diagnosed with acute myeloid leukaemia and had been given only a few weeks to live. She asked the plaintiffs "to drop this matter out of compassion so I can be with my husband and three children during this time", adding that she would not be responding to any more of their emails. She advised that a medical certificate could be provided if requested and this was done (although not until 23 May 2019).
On 3 May 2019 the matter came before Hoeben CJ at CL and the following exchange occurred: "HIS HONOUR: Has there been any development at all in this matter? PILSNENIKS: In one sense, no, you Honour. Since the last orders on 8 March, the defendant did not provide the written objections to my clients' claim. However, it came to my attention yesterday that on about 9 October 2017 the defendant had written to me and to the Court and did provide a 75-page document which may be characterised as the requisite objections. Unfortunately, this only came to my attention last night. So, to that end, in consideration of that 9 October 2017 document from the defendant, might your Honour consider a timetable that allows tie for the plaintiff to respond to - HIS HONOUR: Mr Pilsneniks, this matter is going nowhere and you are going to eventually have it because you are getting no cooperation from the defendant in Tasmania and you are eventually going to have to take some fairly drastic steps to either have it heard in her absence or make a number of applications which may or may not be acceded to. At this stage it has already taken far too much time in this Court. I propose to refer the matter to the District Court and it can be dealt with there from then on. PILSNENIKS: May it please the Court."
The proceedings were accordingly transferred to this court, where they came before Wass DCJ SC on 13 June 2019. Her Honour gave the defendant a further adjournment of three months.
On 31 October 2019 these proceedings came before me for directions. The defendant did not appear and the proceedings had to be adjourned. On 28 November 2019 I made an order referring the defendant on the pro bono panel for legal assistance, adjourning the matter to 27 February 2020. Pro bono legal assistance has now been provided and the defendant has been represented by a court appointed solicitor and barrister since 6 February 2020.
The defendant's newly appointed legal representatives then raised a series of issues requiring repleading of the statement of claim and challenging the issue of identification. These applications were listed for hearing before Wass DCJ SC on 23 July 2020. After hearing argument, her Honour made the following orders: "1. I grant leave for the Plaintiff [sic] to re-plead their amended SOC pleading in the way that Mr Olson has indicated in argument before me, by COB on 30 July 2020. 2. I direct the Defendant is to file their defence by COB on 10 September 2020. 3. I direct any Reply to be filed by COB on 24 September 2020. 4. I adjourn the matter to Thursday, 1 October 2020 at 10 am in the defamation list. 5. Parties have liberty to apply. 6. Parties are to provide consent orders regarding the security for costs, by way of email to my associate, in 7 days. 7. I order the Defendant pay the Plaintiff's costs of today. 8. I decline to strike out any of the imputations and will give my reasons in writing."
Her Honour provided short reasons for the making of these orders on 8 and 11 September 2020. I set out in full the portion of the judgment dealing with the identification issue (which is the subject of this application): "Mirror Newspaper Ltd v World Hosts Pty Ltd (1979)141 CLR 632 is not authority for the proposition that the plaintiffs must in fact be as described in the matter complained of. In Plymouth Brethren Christian Church v The Age Company Ltd (2018) 97 NSWLR 739 the Court observed the need for caution before determining that the matters complained of are not capable of identifying the plaintiffs. It requires that I opine, without evidence, that no reader could reasonably have understood the words as referring to the plaintiffs and that it would be perverse to conclude otherwise. In short, it must be beyond argument that the matter complained of, is not reasonably capable of identifying the plaintiffs. If the identification comes about as a result of confusion and an erroneous belief, a mistaken identification may nonetheless be reasonable, particularly if it is produced or fostered by the matter complained of. Whether it is reasonable to identify the plaintiffs from the matter complained of is matter for evidence, and is gleaned from the surrounding circumstances: David Syme & Co v. Canavan (1918) 25 CLR 234. That speaks against striking the matter out, particularly where the trier of fact is required to decide words with nuanced meaning, such as "financial partner" and "promotors", which may mean different things to different people, but nonetheless all be reasonable. It is the kind of over-analysis that is required for the defendant to succeed that was eschewed by McColl J in Plymouth Brethren. The meaning of the words, and whether they identify the plaintiffs, involves a qualitative analysis dependent on the evidence, which speaks against striking the pleading out. Accordingly, I declined to do so."
Judge Wass SC made the following further orders on 1 October 2020: "1. The Defendant is to request particulars of the Plaintiff's claim by COB on 2 October 2020. 2. The Plaintiff is to respond by COB on 9 October 2020. 3. The Defendant is to file and serve its Defence by COB on 19 October 2020. 4. Without further leave of the Court, the Defendant is not permitted to file its Defence if not served in accordance with these orders. 5. The Security of Costs order made on 25 September 2020 by me, is to be substituted by the following orders: a. Within 7 days of today's date, the Plaintiff is to provide $45,000.00 by way of Security for Costs to the Court and in the event of non-compliance with that order, the Plaintiff's proceedings be stayed pending compliance. b. The Security for Costs amount of $45,000.00 paid into the Court will require an order of the court in relation to any determination of any claim made by the Defendant of return to the Plaintiff (whichever the case may be). 6. Matter stood over to Defamation List on Thursday, 29 October 2020 for further directions. 7. Costs reserved."
It was following this application that the defendant, instead of filing her defence, brought the application for rehearing of the challenge to identification, on the basis of the new information set out by the plaintiffs in the particulars provided in answer to the other orders made by Wass SC DCJ.
On 29 October 2020 I made the following orders: "(1) Plaintiffs and defendant are to provide written submissions in respective of summary orders by Monday 9 November 2020, with Reply to the written submissions by Monday 16 November 2020. (2) Matter stood over to the Defamation List for Argument on Thursday 19 November 2020 at 9am. (3) Costs of today reserved."

The pleadings in their current state

Following the orders made by Wass SC DCJ on 23 July 2020, the amended statement of claim that is the current pleading was filed. The amendments are significant. These include: 1. The whole of the claim brought by the third plaintiff, Neomed Institute Ltd, has been dropped. 2. The information provided about the first and second plaintiffs has been substantially repleaded, as has the information pleaded in relation to the defendant. 3. The previous pleading of the "manner of publication" has been deleted. 4. Completely new particulars of identification have been provided for both publications, as follows: "Particulars of identification 5.4. From around July 2016 until the present, the first plaintiff, the second plaintiff and the defendant have been members of a Facebook group titled "Cyprus Ozone for Tick Diseases and Chronic Health Concerns" (the Cyprus Ozone Group). 5.5. Since July 2016, the first plaintiff and the second plaintiff have participated regularly in discussions in the Cyprus Ozone Group forum in their capacity as promoters of the Y & C Institute and the Neomed Institute. 5.6. In or about November 2016, the defendant created the Patient Experiences Group and most members of the Cyprus Ozone Group also became members of the Patient Experiences Group. 5.7. The first plaintiff and the second plaintiff became members of the Patient Experiences Group and participated regularly in discussions in that forum in their capacity as promoters of the Y & C Institute and the Neomed Institute. 5.7A On about 21 January 2017, the defendant published the following sequence of posts in the Patient Experiences Group, one after another: (i) "Yes this is the BS coming from the owners of the new clinic…Professional or what???" (ii) "Here is another one coming from the owners of the new clinic…" (iii) The defendant published a screenshot of a post by the first plaintiff. 5.8. In the premises of the matters particularised at subparagraphs 5.4 - 5.7A above, the first plaintiff and the second plaintiff were known to members of the Patient Experiences Group as promoters of the Y & C Institute and the Neomed Institute. 5.9. The first matter complained of was published to the following persons who were members of the Patient Experiences Group and knew the matters particularised at subparagraphs 5.4 - 5.7A above, and in the premises, identified the first plaintiff and the second plaintiff in the matter: (i) Alex Patsan (New South Wales); (ii) Liza Cannavo (Brisbane, Queensland); (iii) Shaun James O'Grady (United Kingdom); (iv) Snez Jenkins (Victoria); (v) Richard Taylor (United Kingdom); (vi) Dona Frigo (Queensland); (vii) Rita Hafouri (Sydney, New South Wales); (viii) Natalie Hain (New South Wales); (ix) Michael Tomlinson (Victoria); (x) Lisa Gumieniuk (New South Wales)." 1. The imputations have been wholly repleaded, in relation to both publications. 2. The particulars of aggravated damages have been substantially amended.
It is as a result of this new pleading (and its particularisation in correspondence) that the defendant brought a second challenge in relation to identification, rather than file a defence conformably with the orders made by Wass SC DCJ on 23 July 2020. The orders made by Wass SC DCJ requiring the plaintiffs to seek leave to file a defence by reason of non-compliance with the 23 July 2020 orders need to be read in that context. It was not a failure to comply, but the bringing of a fresh application by reason of what was seen as a significant change of case in relation to identification, that caused the defendant to fail to file the defence.

The issues for determination

This judgement reflects my reasons for the orders made on 19 November 2020 in relation to each of the applications before the court, namely those set out in paragraph 2(a) and 2(b) above.
I will first set out my reasons for rejecting the defendant's application for summary dismissal of the claim on the basis of the asserted lack of identification in the matters complained of.

Bringing the same application twice?

The plaintiffs submit that Wass SC DCJ has dealt with the identification issue, and that it is an abuse of process for challenges to identification to be raised again, other than in clear circumstances of new evidence. Mr Nelson submits that in order to do so, the defendant must demonstrate a material change in circumstances, or that there has been new material found which could not reasonably have been adduced at that time, although acknowledging that this is not an immutable rule.
Mr Nelson points to the case as pleaded prior to the current changes where, even then, the plaintiffs had clearly set out that they were (albeit mistakenly) identified by those who read the defendant's Facebook posts as "financial partners" of the two named clinics that the defendant was criticising. This was initially challenged by the defendant on the basis that the plaintiffs did not plead that they were financial partners, to which the plaintiffs replied that they were promoters of those clinics and their identification based on the erroneous assumption was permissible because a mistaken identification may be drawn by a reasonable reader, as long as it is a product of the matter complained of (Plymouth Brethren Christian Church v The Age Company Ltd (2018) 97 NSWLR 739 ("Plymouth Brethren")). It was for this reason that Wass SC DCJ rejected the defendant's submission that the plaintiffs must in fact be as described in the matter complained of. It was also for this reason that her Honour recognised that caution would need to be exercised before arriving, on a summary basis, at a finding that no reader could reasonably have understood the words as referring to the plaintiffs.
Mr Dibb submits that the answers to further and better particulars, as well as the manner in which the particulars of identification are now set out in the amended statement of claim (see above), mean that the plaintiffs put forward a new case. The defendant is not asking the court to vary or set aside the orders but to "revisit" the overlap between the terms "promoter" and "financial partner" identified in the course of argument in the previous application (written submissions, paragraphs 21 to 24).
The particulars which are asserted to have changed the landscape sufficiently to warrant this revisiting are as follows: "Preamble Definition: "Promoter" means someone who tries to encourage something to happen or develop (Cambridge University dictionary). Information, in the form of documents and testimony, supporting the responses set out below will be provided in evidence at the final hearing of the Proceedings. Question 1: 'facts, matters & circumstances supporting the allegation that the First Plaintiff is a promoter of Y & C medical Institute': He was seen at the medical premises on a regular basis and it was obvious to anyone attending the practice that he was involved in the promotion of the medical practice. He was identified and/or mentioned in media and marketing materials associated in connection with the medical practice. He was a regular participant in social media groups and chat forums and by virtue of this it became obvious to anyone involved in the Lyme fraternity that he was a promoter of the medical centre. He was identified in various documents, forms and information sheets that made it obvious to patients and potential patients of the medical centre that he was a promoter and or involved in the operation of the medical centre. Question 2: 'facts, matters & circumstances supporting the allegation that the First Plaintiff is a promoter of the Neomed Institute': We repeat our response to question 1 above to the extent applicable and say further that at the relevant time(prior to May 2017), the Neomed Institute was, for many prior months, in the planning & development stage before commencing the provision of medical treatment to patients on 9 May 2017. Question 3: 'facts, matters & circumstances supporting the allegation that the Second Plaintiff is a promoter of the Y & C medical Institute': She was seen at the medical premises on a regular basis and it was obvious to anyone attending the practice that she was involved in the promotion of the medical practice. She was identified and/or mentioned in media and marketing materials associated in connection with the medical practice. She was a regular participant in social media groups and chat forums and by virtue of this it became obvious to anyone involved in the Lyme fraternity that she was a promoter of the medial centre. She was identified in various documents, forms and information sheets that made it obvious to patients and potential patients of the medical centre that she was a promoter and/or involved in the operation of the medical centre. Question 4: 'facts, matters & circumstances supporting the allegation that the Second Plaintiff is a promoter of the Neomed Institute': We repeat our response to question 3 above to the extent applicable and say further that at the relevant time(prior to May 2017), the Neomed Institute was, for many prior months, in the planning & development stage before commencing the provision of medical treatment to patients on 9 May 2017."
The first issue is whether the defendant can in fact bring such an application.

The relevant principles of law

Although it may appear attractive to a first instance judge to treat a repeated interlocutory application as a form of abuse of process, the relevant authorities demonstrate that this is not necessarily the case. The starting point is that such applications will depend upon the facts of the case. In particular, where there is a claim that new evidence has emerged that was not reasonably available at the time of the initial application, a second application may be reasonable or even necessary.
This issue was considered in detail by the Court of Appeal of New South Wales in Bajramovic v Calubaquib [2015] NSWCA 139, where a second application for leave under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) was brought. At first blush, there were compelling reasons for the trial judge to refuse the relief sought in the summons. Not only was it identical to the orders sought in the first application, but there had been significant delay in bringing it, in circumstances where the first application had been the subject of a fully contested hearing. The second application was adjourned to enable the calling of further evidence which the first instance judge was satisfied could have been called in the first application.
Despite these compelling factors, the appeal was allowed, and the factors relied upon by the trial judge were held by the Court of Appeal, applying the provisions of the Civil Procedure Act 2005 to the principles set out in Nominal Defendant v Manning (2000) 50 NSWLR 139, not to be determinative.
Emmett JA started by noting that the principles of res judicata and issue estoppel do not apply with the same force in relation to interlocutory orders and decisions where there has not been any determination on the full merits of the case: "Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. [5] That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process. It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, [6] that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained."
In particular, the court must seek to give effect to the overriding purposes set out in sections 56 to 60 of the Civil Procedure Act: "A subsidiary question was whether the provisions of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act), particularly ss 56-60, should be taken into account in determining whether a second application for an extension of time to commence proceedings should be permitted where the application is based on evidence that could have been adduced at the time of an unsuccessful first application but, for whatever reason, was not adduced. The overriding purpose of the Civil Procedure Act and the rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must seek to give effect to that overriding purpose when it exercises any power given to it by the Act or rules of Court. Further, a party to civil proceedings is under a duty to assist the Court to further that overriding purpose. For the purpose of furthering that overriding purpose, proceedings are to be managed having regard to the following objects: the just determination of the proceedings; the official disposal of the business of the Court; the efficient use of available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court."
These principles were further developed by the Court of Appeal in Liu v The Age Co Ltd [2016] NSWCA 115. Beazley P stated at [12]: "I agree with the primary judge that it is unnecessary to determine whether the statutory principles stated in the Civil Procedure Act 2005 (NSW), s 56 as to the just, quick and cheap resolution of the real issues in proceedings apply to an application for a stay, although I consider that the better view is that they do. The principle that proceedings in the court be conducted efficiently and in a timely manner is a long-established principle of the common law: see Mullins v Howell (1879) 11 Ch D 763; Hunter v Commonwealth Trading Bank of Australia (Supreme Court, unreported, 12 June 1988); Government Insurance Office (NSW) v Glasscock (1991) 13 MVR 521 at 529-530. As her Honour observed, these underlying principles are applicable to the re-agitation of a preliminary discovery application by the mechanism of the stay procedure."
Her Honour went on to state that there was no preclusive rule in relation to the bringing of second interlocutory applications. The question is whether it is in the interests of justice: "The authorities concerning the bringing of further interlocutory applications after an unsuccessful initial application are discussed by McColl JA below. For my part, I do not consider there is any preclusive rule in relation to the bringing of second interlocutory applications. Rather, the question is always whether it is in the interests of justice that a second application be determined in favour of an applicant who has been unsuccessful either in bringing or defending a prior application and who seeks the re-litigation of the same subject matter that was determined in the prior application: see Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139; Bajramovic v Calubaquib [2015] NSWCA 139."
However, it was not in the interests of justice for a party to be permitted to relitigate issues when decisions of the court are based on tactical or forensic decisions made in the conduct of litigation: "In my opinion, the respondents, as they were entitled to do, have made forensic decisions in the conduct of this litigation. However, I do not consider that it is in the interests of justice that they be permitted to re-litigate matters when decisions of the Court are made contrary to those tactical decisions. Bathurst CJ has already commented upon the length of time that this litigation has been in progress. The respondents could have made the concession they now make in relation to the qualified privilege defence as part of their opposition to the original application for preliminary discovery. As already noted, they could have done so conditionally on the first occasion. The concession that they now make is still made conditionally, in that it is proffered as a condition of a stay that they abandon the defence. If the stay were not granted, I do not understand that the respondents would consider themselves to have abandoned the defence."
Ward JA agreed that the overriding principle is the interests of justice conformably with section 56 to 60 of the Civil Procedure Act 2005, as well as the public interest in the finality of litigation (at [292]). A relevant factor was whether the second application is brought to repair a deficiency on the first occasion: "I do not see the present case as one readily falling within the admonition in Manning by Heydon JA, as his Honour then was, (at [72]) to the effect that a party should bring its best case forward at the earliest opportunity. As McColl JA notes, this was not a case where a second interlocutory application was brought in order to repair a deficiency on the first occasion. Nor, as Ms Liu ultimately conceded, could it be said that there was an abuse of process in the conduct of the newspaper in resisting the initial application for preliminary discovery arising from the fact that the undertaking was not offered on the first available occasion. The newspaper was not at any stage obliged to proffer the undertaking that it ultimately conditionally did. Not only was there no evidence to support the assertion maintained by Ms Liu in her written submissions (but abandoned in oral submissions) to the effect that the newspaper had always intended to offer the undertaking at a later stage if it were unsuccessful in its appellate challenges to the making of the preliminary discovery orders, but also I have difficulty with the proposition that its later decision to do so was at best an afterthought. Rather, there seems to me to be no reason not to proceed on the basis that, knowing of the possibility that an undertaking might strengthen its ability to resist the preliminary discovery application, the newspaper made a forensic decision in the first place not to offer one and then, having failed to resist Ms Liu's application and having failed in its subsequent appellate challenges thereto, it made the opposite forensic decision in the context of its application for a stay of those orders. I see no impropriety in the newspaper taking into account its own interests, as well as the public interest in preserving the anonymity of its sources, in so doing."
There is a distinction between seeking the same interlocutory relief in circumstances where nothing has relevantly changed and one where there is new evidence. However, all the circumstances of the case must be considered: "As to whether, having made the initial forensic decision, the newspaper should in effect be held to it, I see a distinction between the situation where a party seeks for the second time the same interlocutory relief in circumstances where nothing has relevantly changed and no new evidence has emerged that was not reasonably available at the time of the initial application (which is in effect the situation considered in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44) and the position where a party (here, the newspaper), which has unsuccessfully resisted an application for interlocutory relief, later seeks a stay of the interlocutory orders on the basis of an undertaking that it could have (but was not obliged to have) offered at first instance. At least where there has been what Senior Counsel for the newspaper referred to as a change in the legal landscape (that being the fate of its unsuccessful constitutional challenge), there is a real question to my mind as to whether there was any abuse of process involved in the making of the stay application (and the primary judge's view that there was not was, in my respectful opinion, one that was certainly open to her though I accept it was one on which reasonable minds might differ)."
McColl JA made similar observations at [199]. I also note that McColl JA and Beazley P took the same approach in Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 at [29] - [36], which is of relevance given the similar nature of the causes of action pleaded in those proceedings to the factual issues and causes of action in this litigation.
The following general principles may be distilled: 1. Interlocutory orders create no res judicata or issue estoppel, and the court has jurisdiction to set aside, vary or discharge and interlocutory order where it is in the interests of justice to do so. 2. Where an application for interlocutory relief has been refused, the court has jurisdiction to entertain a second application for the same relief in such circumstances. 3. While normally a party is bound by the way in which the case has been conducted on his or her behalf, such principles are not as stringently applied in the case of an interlocutory hearing. 4. The fact that the opposing party is subjected to a second application, including whether this has occurred because of default in relation to the first hearing, is a matter to be taken into account in the exercise of the court's discretion on the second application. The weight to be attributed to this factor is a matter for the court in all the circumstances of the case. 5. It will not ordinarily be an abuse of process to make a second application where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, those are not the only circumstances which are relevant to such a consideration. The court should take into account, in relation to both parties, the provisions of ss 56 - 60 of the Civil Procedure Act, having regard to the factors listed in Liu v The Age Co Ltd at [199]. In particular, the importance of the application to the underlying proceedings will be a relevant factor to take into account. 6. While repeated interlocutory applications made in respect of the same facts and for the same relief may amount to an abuse of process, this will depend on all the circumstances of the case. The overriding principle is that the court should do whatever the interests of justice require in the circumstances of the case.
When determining such applications the court should focus on the following material: 1. What is "different" in the second application and was this information available at the time of the first application? If so, to which party was this information available, and why was it not before the court on the first application? 2. It is in the interests of justice for the application to be determined? Are there relevant factors in the nature of the cause of action and/or the conduct of the litigation to date relevant to the exercise of the discretion not only to hear but to determine the issues in dispute?
In the present circumstances, where there has been very substantial revision of the claim brought by the plaintiffs, both in terms of the amended statement of claim and the revised particulars dated 9 October 2020, the defendant's application is brought where there has been a material change in circumstances as well as new information. The defendant's argument is that the change of wording in paragraph 1 of the particulars to define the word "promoter" as "someone who encourages something to happen or develop", as opposed to having a financial interest, is "decisive". Given the significance of identification in defamation proceedings, it is appropriate for the defendant's application to be heard and determined on the case as currently pleaded. The real difficulty, however, is whether these changes satisfy the very high test required to demonstrate that neither of the plaintiffs was identifiable.

Erroneous beliefs and identification

The first point to note is that intention is irrelevant: Steele v Mirror Newspapers Ltd [1972] 1 NSWLR 348 at 351 per Moffitt P. It is an objective test. The second point to note is that where the defamatory words are published about a class of persons to which the plaintiff belongs, the plaintiff must show that the words are directed to the plaintiff as an individual: Healy v Askin [1974] 1 NSWLR 436 at 439 per Lee J.
What happens when the identification is inconsistent with the facts? In Maxwell-Smith v Warren [2007] NSWCA 270, Basten JA made observations that favour Mr Dibb's arguments at [23]: "23 It is clear from this form of the particulars of identification that each particular relates to the firm: thus the plaintiffs simply sought to rely upon the fact that they were "the two partners" in the firm, as at the date of publication, namely March 2004. It may be accepted that this was well-established. However, it is clear from the material in the publication, and from the evidence given at trial that Mr Warren at least had not been a partner, or even an employee of the firm, for much of the period over which the conduct complained of occurred. That might not matter if the proceedings were brought on behalf of the firm: it does matter in relation to the pleadings by the two plaintiffs as individuals. For the purposes of s 9 of the Defamation Act, they must establish that each of the imputations was conveyed "of" him as an individual. The publication itself makes clear that the events of which it speaks took place over at least seven years. The evidence given by Mr Warren was that the firm first started using the logo in about May 2000: Tcpt, 15/11/04, p 63. That was shortly after he and Mr White became the only partners of the firm."
Basten JA considered that the inconsistency between "the two partners" referred to in the matter complained of and the fact that Mr Warren was not in fact a partner at the time the events described in the matter complained of meant that identification of Mr Warren was not established. This appears to support Mr Dibb's contention that the erroneous belief must be "the product of the matter complained of" (Plymouth Brethren at [68]). However, Maxwell-Smith v Warren has not been cited on this issue since then, and there have been many decisions where a court has been satisfied that an erroneous identification of a plaintiff is sufficient even where it is not a product of the matter complained of. The following three examples demonstrate this: 1. Perhaps the most celebrated of these cases is a case involving the two Judge Halls in the Queensland District Court: Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 where one of them (Judge Robert Hall, of Southport Court) sued for defamation in a scathing commentary of the competence of "Judge Hall". Although most references throughout were to "Judge Hall", there was one reference to "Judge Clive Hall QC" and to events in Townsville Court, where Judge Robert Hall had been the judge some years beforehand. The Court unanimously set aside the jury verdict of non-identification as perverse. 2. In another defamation case involving a judge, Foord v John Fairfax & Sons Ltd (Supreme Court of NSW, 27 February 1987, unreported), the matter complained stated that a New South Wales judge had been photographed drinking beer at a party attended by drug dealers. There was no identification of the judge in the article but, nine months later, the defendant published a rather striking photograph of the plaintiff (a judge) drinking beer at a party. Hunt J declined to strike out the plea of identification as unreasonable notwithstanding the lengthy time lapse. The issue was not whether or not the judge had been actually drinking beer at the party; the issue was whether it was reasonable to identify him. 3. In Hunt J gave another example of such a publication (although in relation to a barrister): "The barrister appearing for the accused before Smith J yesterday was incompetent" (where the barrister is unnamed). Hunt J held it was not necessary for that barrister to prove he was in fact the barrister appearing for the accused if reasonable persons could, from appropriate extrinsic facts pleaded, identify the plaintiff. Those facts, wrong or otherwise, did not have to be contained in the matter complained of.
It is not uncommon for identifying factors to be inconsistent or wrongly stated; the question is whether no reader could reasonably have understood the words as referring to the plaintiffs in circumstances where it would be perverse to conclude otherwise.
The meaning of the term "financial partner" and whether or not this identifies one or both of the plaintiffs will be dependent upon the evidence of identification, which I note includes a screenshot of a post by the first plaintiff which includes his photograph as well as his name. The plaintiffs' support for these clinics could easily result in the Facebook post readers coming to the mistaken belief that the plaintiffs were motivated by their own financial interest, as Mr Nelson points out in paragraph 13 of his written submissions. In particular, the defendant's statements that the people to whom she was referring had denied any financial interest in those clinics, and that this was why she had rejected them from the Facebook group, are of relevance here.
As Mr Nelson points out, whether or not it has always been the case, the plaintiffs made it clear during the earlier application that they were promoters and not financial partners and said then, as they do now, that this is sufficient identification of them if certain of the readers of the Facebook group mistook them for financial partners.
In those circumstances, I am satisfied that the same reasoning as that set out by Wass SC DCJ should be applied in relation to the amended pleadings and particulars, which have the advantage of setting out the plaintiffs' case more clearly, but which do not essentially change the nature of the case as it is now before the court.
There is another reason why I should exercise caution. It is clear that there will be disputed evidence, to be given at the trial, by those who read the posts and identified one or other of the plaintiffs. On a summary dismissal application, the evidence of the plaintiffs must be taken at its highest. The facts and pleadings in this case are wholly unsuited for summary dismissal. I note that I raised with Mr Dibb whether a separate trial under UCPR r 28.2 would be sought and he indicated that he would not seek such an order.
Accordingly, while I have permitted the defendant to bring a second application for the determination of the issue of identification on a summary basis, I do not consider that it has met the very high test required for summary dismissal (as to which, see Spencer v Commonwealth of Australia (2010) 241 CLR 118).

The plaintiffs' application for the defendant to show cause and/or summary/default judgement

Mr Nelson has provided extensive written submissions dated 9 November 2020 which set out the long interlocutory history of these proceedings. He notes that the court has adopted a "generous, forgiving" approach to the defendants health issues but submits that conformably with ss 56 - 62 of the civil procedure act 2005 (NSW), the time has come when the defendant's failures to comply with court orders must result in refusal of leave.
The plaintiffs' failure to comply with the order to file a defence made by Wass SC DCJ was as a result of the application which came before the court where orders for future particulars of identification were included. Given the very substantial changes to the statement of claim, the new material in the particulars of 9 October 2020 and the circumstances in which there was some delay by the plaintiffs in the provision of security for costs during this period of time, I do not consider that the defendant should be denied an opportunity to file a defence by reason of failure to comply with Wass SC DCJ's order to do so. While I note the terms of the further order made by Wass SC DCJ, this was not a self-executing order, and not one where the mere fact that leave to file a defence was provided for should result in that leave being refused.
Accordingly, leave to the defendant to file a defence should be granted, but it should be granted on terms. The history of these proceedings, for a variety of reasons, is one of considerable delay, and these delays must come to an end. The appropriate order to make to ensure that this occurs is an order which is self-executing in nature: Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126.

Costs

I consider that an order for costs to be costs in the cause is appropriate to both applications, for the following reasons: 1. First, whether or not identification can be established will be a significant issue at the trial. The plaintiffs have substantially changed the pleading and particulars of identification. The trial judge will be best placed to determine their adequacy. 2. Second, while there has been much delay in this case, I note the approach taken to case management of these proceedings in the Supreme Court, which was not one of apportionment of blame but of endeavouring to push the matter forward in difficult circumstances. That is an approach which I intend to emulate. Accordingly, the costs of the plaintiffs' application for default judgement and/or to show cause should be costs in the cause as well.

Orders 1. The defendant's application to rehear the challenge to identification, pursuant to Her Honour Judge Wass SC (Judgment 8 September 2020) is granted, but the challenge to identification is dismissed. 2. The plaintiffs' application for default judgment is dismissed. 3. Costs to be costs in the cause. 4. The defendant is to file and serve a Defence in these proceedings by Wednesday 3 February 2021 at 5pm, such order to be self-executing in nature. 5. Matter stood over to the Defamation List for further directions on Thursday 11 February 2021 at 9am.

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: 22 December 2020

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