Webb v Commonwealth of Australia

Legal principles 5 A strike out application is directed to the sufficiency of the pleadings or equivalent documentation, as opposed to the underlying prospects of success of the proceedings: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [23], citing Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at 309. 6 Where the evidence shows that a person may have a reasonable cause of action or reasonable prospect of success, but the person's pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21(1)(e) of the Rules. An application for the striking out of pleadings may also be made on a number of other grounds contained in r 16.21, which relevantly includes that the pleading: contains scandalous material: r 16.21(1)(a); contains frivolous or vexatious material: r 16.21(1)(b); is evasive or ambiguous: r 16.21(1)(c); is likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(1)(d); or is otherwise an abuse of the process of the Court: r 16.21(1)(f). 7 Rule 16.21 is critically concerned with the sufficiency of the pleadings. Rule 16.02 sets out the general rules concerning the content of pleadings. Failure to comply with any of the requirements in r 16.02 may found an application to strike out a pleading under r 16.21. Rule 16.02 states: 16.02 Content of pleadings - general (1) A pleading must: (a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and (b) be as brief as the nature of the case permits; and (c) identify the issues that the party wants the Court to resolve; and (d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and (e) state the provisions of any statute relied on; and (f) state the specific relief sought or claimed. (2) A pleading must not: (a) contain any scandalous material; or (b) contain any frivolous or vexatious material; or (c) be evasive or ambiguous; or (d) be likely to cause prejudice, embarrassment or delay in the proceeding; or (e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (f) otherwise be an abuse of the process of the Court. (3) A pleading may raise a point of law. (4) A party is not entitled to seek any additional relief to the relief that is claimed in the originating application. (5) A party may plead a fact or matter that has occurred or arisen since the proceeding started. 8 The requirements for a pleading were described in Wride v Schulze [2004] FCAFC 216 at [25] (Wride v Schulze) as follows: [T]he pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A "reasonable cause of action" for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant. 9 The general principles concerning the Court's power to strike out a pleading were summarised in Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 (Polar Aviation) at [43], citing Beaumont J in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226. 10 A pleading will be insufficiently specific where it is cast at such a high level of generality that it fails to inform the respondent of the case it has to meet: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413, at 417-418; Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; (2010) 267 ALR 494 at [98]-[99]. Pleadings must fulfil the basic function of identifying the issues between the parties, disclosing an arguable cause of action or defence, and ensuring that parties are apprised of the case to be met: Plaintiff M83A-2019 v Morrison (No 2) [2020] FCA 1198 (Plaintiff M83A-2019 v Morrison) at [50]. 11 A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, such that the opposite party does not know what is alleged against him or her: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 at [18], citing Meckiff v Simpson [1968] VR 62 at 70. A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the extent it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 (Fuller v Toms) at [80], [83]. It has been said that a pleading is embarrassing if it "is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense": Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434 at [25]; Faruqi v Latham [2018] FCA 1328 at [94]. 12 For the purposes of r 16.21, a "reasonable cause of action" is one that has some chance of success having regard to the allegations pleaded: Polar Aviation at [42]-[43]; Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 (Chandrasekaran) at [102], [108]-[110]. 13 The power to strike out will not be exercised unless no reasonable amendment could cure the alleged defect such that there is no reasonable question to be tried: Polar Aviation at [43]. 14 Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the Federal Court of Australia Act 1976 (Cth), which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Chandrasekaran at [101].

Evidence 15 The respondent read the affidavit of Thomas Miller dated 15 July 2021 in support of the application, which was directed to the issue of repleading. This was opposed by the applicant on the basis that it contained "false and misleading and wrong information." Annexed to the affidavit was, inter alia, a transcript of a conversation between the National Customer Service Line and Ms Webb from 23 September 2019. Although the applicant did not dispute the conversation, she complained that there was missing conversations that led to this annexed excerpt. I admitted the affidavit. 16 The applicant read the affidavit of Gayle Webb dated 9 August 2021 in opposing the application.

Respondent's submission 17 The respondent submitted that to make out a cause of action for defamation, the applicant must establish that the respondent published "matter" of and concerning her which carried one or more defamatory imputations. The term "matter" is defined in s 4 of the Defamation Act 2005 (NSW), and its counterparts in other jurisdictions. "Published" in this context means that the allegedly defamatory matter must have been read or otherwise comprehended by a third party, that is, someone other than the applicant or the respondent. It submitted that the pleading is not capable of establishing any of the essential matters required to make out a cause of action. 18 The respondent read the affidavit of Thomas Miller in support of the application, which was particularly directed to the question of leave to replead. 19 The respondent made submissions directed at the pleadings which included [10], recited above at [1]. The respondent submitted it does not plead any specific "matters" within the definition of s 4 which are alleged other than by reference to Schedule A. 20 In relation to the ten "articles" the respondent submitted the following: (1) Articles 1 and 2 are letters from Services Australia to the applicant dated 29 July 2020 and 25 November 2020. (2) Articles 3 and 4 are "incident reports" in respect of incidents occurring on 6 May 2019 and 11 September 2019 involving the applicant. It is not apparent from the pleading where or how she alleges these incident reports were recorded. Article 3 contains no information about the nature of the incident. Article 4 states "JS [job seeker] went on a rant, was verbally abusive and threatening to staff onsite" and "Severity Level: MODERATE". (3) Article 5 is a document titled "Incident Report Alert Popup", apparently dated 21 January 2020. The applicant asserts this document was generated by Services Australia and distributed to "DESE [Department of Education, Skills and Employment] and other departments/agencies and 3rd parties". The document contains no information about the nature of the "incident" beyond the words "Severity: SERIOUS" in the top right-hand corner. (4) Articles 6, 7 and 8 were obtained by the applicant pursuant to her freedom of information requests to DESE, but substantial parts of each document were redacted prior to release. They are alleged to relate to a "disability assessment" performed on the applicant by "SA [Services Australia]/Medicare, Department of Health", but there is no evidence of such assessment beyond the words "Disability completed" (Article 6) and "Disability assessment outcome: withdrawn" (Article 8). It is alleged that "These departments then published this information with their Service Providers and other 3rd parties". (5) Article 9 is an online claim form which was provided by Services Australia to the applicant for completion. The applicant complains that she was "targeted" by the form's pro forma answer "I am not in prison and/or a psychiatric institution and was not in prison and/or a psychiatric institution for more than 25 weeks in total during the 2014-2015 financial year", apparently on the basis that this pro forma answer might imply that she was in prison or a psychiatric institution for less than a total of 25 weeks. (6) Article 10 is apparently a print-out of the applicant's "file". There is no basis in the pleading to be satisfied as to where this file was maintained or who had access to it. The applicant complains about the fact that Services Australia and DESE "providers" have annotated the file with the comment that "The Customer would benefit from referral to either SEE or [blank]". The Applicant alleges that the [blank] is "AMEP". SEE is the Skills for Education and Employment program and AMEP is the Adult Migrant English Program. 21 The respondent submitted that each defamatory "matter" is a separate cause of action under s 8 of the Defamation Act, and as such the statement of claim should precisely identify the matters on which the applicant sues. In no instance has the applicant pleaded that any specific "article" was published to any specific person on any specific date. Rather the pleading makes a general allegation that she has had her "character and reputation gravely damaged" and then purports to set out those "articles" in a schedule, rather than in the body of the pleading. It was submitted this does not establish the essential fact which completes the cause of action, because until an act or acts of publication are established, the cause of action is not complete: Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276 at 288 per Dixon J. 22 Defamatory matter is only actionable when it has been published to a third party. It was submitted that publication to the applicant alone is not actionable, citing Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordan CJ. Some of the articles appear not to have been published to any third party. 23 The statement of claim does not demonstrate that any publication of the articles occurred within the limitation period of 12 months preceding the commencement of the proceedings: see s 14B of the Limitation Act 1969 (NSW). The majority appear to be have been initially created more than 12 months prior to the commencement of the proceedings. The only two "articles" demonstrably published within the limitation period are Articles 1 and 2, which were only published to the applicant and therefore are not actionable. 24 It was submitted that a fundamental problem with the articles is that they appear to have only adjectival relevance to the applicant's case. It was submitted that the applicant's real case seems not to be that those documents themselves are the defamatory publications, but that they evidence the sort of the alleged defamatory information which she presumes was published to third parties on other, unspecified occasions. 25 In this Court, it is an invariable requirement that an applicant plead the imputations of which he or she complains: Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [15]. It was said the statement of claim does not plead the defamatory imputations which are alleged to be carried by the articles. 26 It was submitted that leave to replead should be refused. The Court may exercise its discretion not to grant leave to replead where it is clear that there would be no utility in doing so (i.e. because the pleading is not capable of being "fixed"): see Nulyarimma v Thompson [1995] FCA 1192; (1999) 96 FCR 153 at [208]. It was submitted that it appears very unlikely that any reasonably arguable claim for defamation could be constructed on the basis of the ten "articles". Given the "articles" appear to be merely adjectival to the real allegation as to publication. For the applicant to replead an arguable claim based on specific acts of publication to third parties within the limitation period, she would need to identify an entirely new set of matters. To grant leave to replead in these circumstances would effectively be to sanction a fishing expedition. 27 The content of the articles are, with one exception, not reasonably capable of being regarded as defamatory. In respect to that article, Article 4, the documents annexed to the affidavit of Mr Miller, and relied on by the respondent, would be admissible in any proceedings pursuant to s 69 of the Evidence Act 1995 (NSW), and would amply prove the substantial truth of an imputation that the applicant went on a rant and verbally abused or threatened staff.

Applicant's submission 28 The applicant opposes the application. The applicant filed written submissions and an affidavit annexing additional material of the type in Schedule A. 29 The applicant submitted in writing that the cause of action is related to Article 1, but that this is not the "matter" in this case. The applicant submitted that the "defamatory 'matter' and defamatory imputations concerning me, and caused harm, are those published by the Department of Education Skills and Employment (DESE), and the same as those in Service Australia's (SA) letter (dated 29 July 2020), but DESE published the 'matter' on their 'ESS Web' on-line system….on 24 August 2020. This was accessible to the National Customer Service Line and read out to me during a telephone conversation on the same date in Sydney". She submitted that the published "matter" also relates to incident reports. The applicant referred to one incident which was said to be defamatory, created on 21 January 2020 and has a limitation date of 20 January 2022. The applicant submitted that the date 24 August 2020 is also relevant as that is when the National Customer Service Line read to her extracts from the incidents they claim were on her file. 30 The applicant explained this during the hearing of the application as follows: And those letters - that happened on 24 August 2020….And those letters are defamatory. The first letter and the second one, articles 1 and I believe article 2 in my submission, they did happen on those dates. They are defamatory. They were given to me, by they were also given to the Department of Education, Skills and Small Business. And it was from then that I heard that they were holders of those documents also on their records. Well, they told me that by having access to my record. Hence they said there was all these incident - there was eight incident reports or something. She said she could see the popup. And when I went through the freedom of information stuff I could see some of that. Hence, I put that in my document. To try and get that information through the freedom of information to give to you now, or to submit, would take me two or three years, in which case I would be out of the timeframe once again to submit my statement of claim. So what I'm claiming is the date that the cause of action occurred was 24 August 2020. The cause of action are those letters on my record that has been shared and published - well, published first and then shared, because obviously it goes across different systems, from the Department of Human Services across to Department of Skills, Education and Small Business, and then across to their providers, which is Employment Plus in most of those cases. 31 The applicant submitted that the respondent's supporting documentation "contains information, statements and transcripts that have either been doctored, and or, contains wrong, false and misleading information about me". The applicant made submissions on specific aspects of the documents in the affidavit of Mr Miller. The applicant claims the contents of the documents are defamatory. 32 The applicant submitted that since 2015, she has "made numerous enquiries, requested documents and information, raised complaints with Commonwealth government departments and agencies and their third parties, to try to resolve some of the issues" and provided information as to what she had done. 33 The applicant submitted that she should have a right to replead because she is not a legal practitioner. The applicant submitted that she has "a right to be heard" and this case must proceed, "preferably before a jury".

Respondent's submission in reply 34 The respondent submitted that the matter identified by the applicant, referred to above at [29], does not have any apparent relation to anything currently pleaded in the statement of claim. There is no engagement with the statutory concept of a matter, nor identification of any specific occasion of publication. It was submitted that the further allegations in the submission, which are also unrelated to anything currently pleaded in the statement of claim, "demonstrate that her case amounts to mere speculation about when some matter may have been published, and to whom it may have been published". 35 The respondent submitted that the applicant makes a series of general complaints about her interactions with the Commonwealth, none of which have any relevance to the determination of her defamation claim. It was submitted that it "appears there is a prospect that these proceedings would be used as a platform for ventilating generalised grievances, rather than pursuing a specifically identified complaint of defamation". In relation to the applicant's submission summarised at [31], the respondent also submitted that the applicant has made "extreme and inherently improbable allegations [about the business records relied on by the respondent], which the applicant makes casually, without offering any examples or evidence in support". From that it was submitted that the repetition of implausible assertions about the integrity of documents would inevitably increase the length, complexity and cost of the proceedings far beyond what is proportionate.

Consideration 36 I accept the respondent's submission that the pleading does not identify the specific matters of which the applicant complains. It fails to identify when such matters were published and to whom; demonstrate that any actionable publication occurred within the 12 months prior to the commencement of the proceedings; or plead the defamatory imputations which are alleged to be carried by the matters complained. 37 I am mindful that the applicant being unrepresented is not unsurprisingly unfamiliar with the rules of pleading and the drafting of a statement of claim, and is therefore at a disadvantage. This calls for particular caution to be exercised: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536 per Kirby P; cited in Re Morton, Ex parte Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 (Morton) at 513-514; Taylor v Department of Health (Cth) [2020] FCA 1364 at [60]. On the other hand the Court "must ... have regard not merely to the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources": Corporate Affairs Commission v Solomon, Court of Appeal, unreported, 1 November 1989 per Mahoney AP, cited in Morton at 514. 38 In that context, and taking into account the caution with which an application for strike out is approached, nonetheless the statement of claim does not fulfil its necessary function in any way. It is likely to cause prejudice, embarrassment or delay in the proceedings and fails to disclose a reasonable cause of action. 39 In those circumstances, the statement of claim is to be struck out, with the issue being whether the applicant should be given leave to replead. 40 Ordinarily, a party whose pleadings have been struck out will be afforded an opportunity to replead so long as it is clear that there is purpose in doing so and that the further time and opportunity will have utility. That is, where an amendment may remedy the deficiencies. The guiding principle is doing what is just: Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 71 ALJR 767 at 774-775 per Kirby J; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [175] per Kirby J (in dissent); Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153 (Nulyarimma v Thompson) at [208], Merkel J (Wilcox and Whitlam J relevantly agreed). Where no reasonable cause of action is available to be pleaded, liberty to replead may be refused: Takemoto v Moody's Investor Service Pty Ltd [2014] FCA 1081 at [87] per Flick J. 41 A number of observations can be made. 42 First, as the respondent submitted, the applicant's complaint appears to be that these articles are not necessarily defamatory, but they evidence the type of allegedly defamatory information which she presumes was published to third parties on other, unspecified occasions. This is reflected in the applicant's submission which acknowledged that the cause of action is Article 1, but that however is not the defamatory matter. Further, this is reflected in the statement of claim which states that the articles were obtained by freedom of information applications and more may surface. 43 Second, the defamatory matter identified by the applicant in her submissions as being the matter relied on does not form part of the statement of claim. The matter identified by the applicant, recited above at [29], is in very broad terms. Any reliance on that matter would involve, in effect, a new claim. That said, it does appear to relate to the same type of subject matter. The defamatory matter is said to be reflected in the letter to her from Services Australia dated 29 July 2020 which again is not part of the statement of claim. Although the applicant contends that it contains a number of imputations, it is a letter to her alone and could not found any action: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordan CJ. Her claim now appears to be based on what was said to have been read to her over the telephone which she claims is such a letter. The letter is not an incident report. The breadth of the matter as now alleged seems also to relate an incident report of 20 January 2020. This Job Seeker incident report is annexed to the applicant's affidavit. The report, apart from referring to the date of an incident being 21 January 2020 provides no information except that it relates to behaviour and is classified as "serious". There is no information about the nature of the incident. The final document is a print out from records said to be from 2019, outside the window of any defamation claim. This supports the respondent's submission that if leave to replead were given then they would be met with new claims (albeit the applicant had identified this claim in her submission). 44 Third, the applicant's written submission, apart from the reference to Article 1, does not address any of the other articles in Schedule A. That said, during the applicant's oral submissions she appeared to include matters relating to some of the other articles as defamatory. This does not sit with the applicant's submission that the matter is what she identified, referred to above at [29]. Rather, it reflects that the applicant has not formulated the basis for a claim, with it being expanding, wide ranging and fluid. 45 In that context, the applicant submitted that: The imputations are a whole - some of the imputations are in the - obviously, what Mr Olson has provided to you [referring to the material in the affidavit of Mr Miller], as well as what I have provided in my submissions, statement of claim - and statement of claim, I should say. There is a whole lot of other evidence that is still to come before the court, and it all ties in to those letters and those imputations, as such, and there's whole bunch of stuff. And I think when it all comes together, there's no doubt whether I have a target painted on my back or what the case is, that the Commonwealth has definitely defamed me. 46 And further: And there's a number of them [job applications] instantly rejected. So I know this information has been published. Now, what that information is exactly I can't say, okay. I can't say, because I don't have access to it. And you know, once again, to try and get that information through the Freedom of Information, that's one, two or three years away. I will be retired before I can even get it at this rate. 47 Leaving aside the identification of the matter, the issue of publication of any identified matter has not been addressed. I note as an aside that the purported event on 24 August 2020 is said to be based on a conversation with someone from DESE, a Commonwealth government department. 48 Fourth, and aligned with that, the applicant's statement of claim and submissions make and refer to many complaints about the conduct of various agencies over many years, which is not relevant to the issue of a whether the statement of claim properly pleads a claim for defamation. 49 The applicant submitted that: So with what Mr Olson is saying, he said I swore, I swore. I swore a couple of times. I'm not denying I didn't swear and I'm not - and that certainly wasn't a good use of words, but I was pushed - I've been pushed and pushed and pushed to breaking - I've been pushed and pushed and pushed to breaking point, because all that I am is just a money-making machine for these providers. This all commenced after the first three months point, because all that I am is just a money-making machine for these providers. This all commenced after the first three months, when I - that I've been with these providers, because then I start making money for them, big money for them and that's what it's all about. 50 The applicant's submission was not confined to what was said to be defamatory but rather was a ventilation of these many complaints, which could not be within the proper scope of any defamation claim. Given the applicant's submission, it appears that she views this action as a forum to address her complaints generally, when it is not. 51 In this context also, it is apparent that the applicant considers herself having been pushed into doing things. For example, as noted above, the applicant's complaint about the transcript of the conversation attached to Mr Miller's affidavit is not its accuracy, but that the lead up to the conversation which pushed her to that stage was not included. This illustrates the applicant's perception of the nature of the inquiry she considers would occur in any defamation action. However, such an approach is misguided. The respondent would likely be able to rely on such material in the affidavit as business records. 52 Fifth, the respondent correctly submitted that apart from Article 4 in Schedule A, the remaining articles could not reasonably be defamatory. As to Article 4, it suffers the deficiencies referred to above at [36]. The articles as described above at [20], are otherwise not reasonably capable of carrying any defamatory imputation. The articles are dated from November 2015 onwards. They include a pro forma questionnaire and forms sent to the applicant. Noting that the applicant does not rely on any of the 10 articles as the matter, it nonetheless follows that it is very unlikely that any reasonably arguable claim for defamation could be constructed out of the articles in Schedule A. In that context, and although not necessary for the conclusion, Mr Miller's affidavit relied on in respect to repleading reflects that a good defence of substantial truth could be advanced. That said, the material relied on in Mr Miller's affidavit appears to relate to articles in Schedule A, although the transcript of the conversation may be of broader import. 53 The applicant's request to replead her claim is to be considered in the above context. 54 The claims, in so far as they can be ascertained from the submissions, which are sought to be advanced as the defamatory matter are claims of the same nature but a different factual basis. Certainly, simply attempting to replead the matters in the articles would be insufficient. I note the applicant's submission referred to above that she lacks material which she says she needs and that it will take years for her to obtain such material. In so far as the applicant appears to suggest that that explains any deficiency in pleading, if the applicant repleads, that will not excuse a pleading that does not comply with necessary requirements. 55 This is not an assessment of the substantive merits of any claim, but is a matter of pleadings. The applicant is unrepresented, and has submitted that she now understands more clearly what is required. It is unclear what material the applicant has and the basis on which she has to found her claim. Ordinarily an applicant is given leave to replead. In those circumstances I grant leave to replead. Conclusion 56 The applicant's statement of claim is struck out, with leave to replead granted. The applicant is to pay the costs of the respondent, to be agreed or assessed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.