Wecker v Davison

Wecker v Davison - [2020] NSWCA 264 - NSWCA 2020 case summary — Zoe

Judgment

THE COURT: The applicant seeks leave to appeal from orders of Sackar J of 11 November 2019 made pursuant to reasons given on 8 November 2019 (Wecker v Davison [2019] NSWSC 1612); further orders of Sackar J on 7 February 2020; and orders of Wright J of 27 April 2020 (Wecker v Davison [2020] NSWSC 459).
The applicant filed a statement of claim on 20 September 2019. The statement of claim does not conform with the rules, but it is clear that in substance it alleged that the person named as first defendant, Professor Chris Davison of the University of New South Wales, published material defamatory of the plaintiff by a letter dated 24 June 2010 addressed to the plaintiff, but copied to other parties. The New South Wales Institute of Teachers, University of Sydney, and Blacktown Boys High School were named as second and third defendants, but it is impossible to discern what cause of action was alleged against them. The complaint against Blacktown Boys High School seems to have been based upon a report made by the school to Professor Davison as head of the School of Education at the University of New South Wales, that the applicant was said to have engaged in inappropriate and sexually offensive behaviour towards students at the school during part of his practical teacher training. Professor Davison refers to that complaint in her letter of 24 June 2010.
The orders of Sackar J of 11 November 2019 were: "1. The claim against the first defendant be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules. 2. The proceedings otherwise be stayed. 3. The plaintiff is to pay the first defendant's costs of and incidental to the first defendant's application for summary dismissal."
Sackar J summarily dismissed the proceedings against Professor Davison because they were statute-barred. At all relevant times s 14B of the Limitation Act 1969 (NSW) has provided that an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of. The date of the publication of the matter complained of was 24 June 2010 (J[4]). The proceedings were brought more than nine years later. The period of limitation prescribed by s 14B could be extended under s 56A, but not beyond a period of three years running from the date of the publication (s 56A(2)).
There was no even arguable error in the order for summary dismissal made by Sackar J.
The applicant accepted that his claim against Professor Davison was for damages for defamation. He submitted that he had been denied procedural fairness and Professor Davison's decision was void ab initio. He submitted that the complaint from the school to the School of Education at the University of New South Wales (in which he was enrolled as a student) was inadmissible hearsay. He submitted that the reason for delay in instituting proceedings was because he had applied to the Administrative Decisions Tribunal to overturn the decision and was engaged in those proceedings. Apparently they were unsuccessful. He submitted that Sackar J's reasons were affected by "Muldrock error" (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39).
None of these submissions suggest any arguable error in the reasoning of Sackar J. The validity of Professor Davison's decision communicated by her letter of 24 June 2010, namely that the University would not be proceeding with any further placements in Professional Experience until formal written assessments of the applicant's fitness for practice had been obtained and the University's concerns about the applicant's suitability for teaching had been satisfactorily addressed, is irrelevant to the operation of the limitation period for commencing defamation proceedings.
Muldrock v The Queen concerned the proper construction of the Crimes (Sentencing Procedure) Act 1999 (NSW) and sentencing principles. It is irrelevant. The applicant may have seen some relevance to his circumstances from the High Court's reference to the intellectual disability of the applicant in that case as being relevant to sentencing and the fixing of a non-parole period. He may have seen this as indicating that a liberal approach was required in his case to the extension of the limitation period.
But as Sackar J held, the applicant's personal circumstances and his suggested justification for the delay in commencing proceedings are irrelevant to his application for an extension of the limitation period. Section 56A(2) of the Limitation Act precludes any extension beyond three years after the date of publication.
On 10 December 2019 the applicant filed a notice of motion in the Common Law Division, Defamation List. The notice of motion included a heading: "Notice of motion for an order for extension of time from the decision of Justice Sacker [sic] 11/11/2019. Extension to file summons to commence appeal."
That application was dismissed by Sackar J on 7 February 2020. In the course of submissions before his Honour on 7 February 2020 the applicant said that he presented his case as a summons to the Supreme Court, rather than the Court of Appeal "because my monetary limit excludes me from the Court of Appeal". He said "if a matter in issue is above $100,000 you don't go to the Court of Appeal, you go directly to the Supreme Court." Sackar J corrected this misunderstanding and informed the applicant that he was wrong and if he wished to pursue the matter, he would need to apply to the Court of Appeal.
The notice of motion was dismissed with no order as to costs.
Nothing daunted, the applicant filed a summons in the Defamation List of the Common Law Division on 14 February 2020 and amended on 25 February 2020, seeking effectively the same relief as had been sought in the notice of motion of 10 December 2019. As that relief had been refused by Sackar J on 7 February 2020, and there was no material change of circumstances, the summons filed on 14 February 2020 and amended on 25 February 2020 was an abuse of process. On 27 April 2020 Wright J dismissed the applicant's amended summons commencing an appeal filed on 25 February 2020 with costs.
On 4 August 2020 the applicant filed a document entitled "Summons seeking leave to appeal" in the Court of Appeal. No orders were sought in that document, but from the form used and its identification of the decisions of 27 April 2020 and 7 February 2019 (sic) it can be inferred that the applicant seeks leave to appeal from those decisions.
An unfiled document provided by the applicant with the White Book headed "Summons Commencing an Appeal (Part 50) # Summons Seeking Leave to Appeal (Part 50)" dated 18 June 2020 expresses the applicant's intention to seek leave to appeal from the decision of Wright J of 27 April 2020, Sackar J of 7 February 2019 (sic), and also, as I apprehend (para 5), from Sackar J's orders of 11 November 2019 (misstated as orders of "11/12/19").
On 8 September 2020 the applicant filed a notice of motion in the proceedings in this court seeking a declaration that: "the first defendant's case is, Void Ab Initio, that is Void from the beginning", and an order for "financial compensation due to loss of employment opportunity as a NSW high school teacher, this latter arising from Defamation."
All of the applicant's processes are misconceived. The substantive claim against the respondent (the first defendant) being the cause of action in defamation, was correctly summarily dismissed by Sackar J on 11 November 2019.
In relation to the decision of 7 February 2020, Sackar J was clearly right in saying that an appeal from the orders of 11 November 2019 only lay to the Court of Appeal. An appeal from those orders lay to this Court pursuant to s 101(1)(a) of the Supreme Court Act 1970 (NSW). By reason of s 101(2)(e) an appeal only lies by leave. Perhaps, understandably, the applicant thought that the order summarily dismissing his proceeding against the respondent was a final order. He took the view that the matter in issue amounted to or of the value of $100,000 or more and considered that leave was not required pursuant to s 101(2)(r)). That view, if correct, would have meant that the applicant was entitled to appeal as of right from the orders of 11 November 2019. In fact that view is not correct. Irrespective of whether the matter in issue has a value of $100,000 or more, the orders summarily dismissing the applicant's claim against the respondent are interlocutory rather than final (Macatangay v State of New South Wales (No. 2) [2009] NSWCA 272 at [11]).
As a matter of legal theory the applicant could make a second application for an extension of time under s 56A of the Limitation Act, although such an application would be doomed to fail and would be an abuse of process.
That was not the application made to Sackar J. The order sought was "extension of time to enable 'summons commencing an appeal' from the judgment of Justice Sacker [sic] 11 November 2019".
There being no question of principle and no even arguable error, leave to appeal from the orders of Sackar J and Wright J should be refused.
The notice of motion filed in this Court on 8 September 2020 seeks to relitigate the claim against the first defendant that has correctly been summarily dismissed. Such is the obscurity of the original statement of claim and the notice of motion it is difficult to discern whether the notice of motion seeks to raise a cause of action otherwise than in defamation. It is an attempt to commence fresh proceedings that, if they were to be commenced at all, would have to be commenced by statement of claim in fresh proceedings in the Common Law Division. But any such claim against the first defendant for defamation would be an abuse of process.
A single judge of appeal would have power to dismiss the notice of motion for cause specified in the rules, namely pursuant to r 13.4 of the Uniform Civil Procedure Rules applicable to proceedings in the Court of Appeal pursuant to r 51.1(3) (Supreme Court Act 1970 (NSW) s 46(1)(b)). Such an order may also be made by the Court of Appeal constituted by two judges of appeal to determine the application for leave to appeal in dealing with a question of practice and procedure in a matter in the Court of Appeal (Supreme Court Act s 46B(1)(b); Martin v State of New South Wales (No. 15) [2012] NSWCA 47 at [13]).
It is not clear whether the applicant seeks leave to appeal from order 2 of 11 November 2019 staying the proceedings against the second and third defendants. Sackar J gave no reasons for that order, but the reason can readily be inferred. The statement of claim pleaded no intelligible cause of action against them. Order 2 occasions no injustice to the applicant. If he could formulate an arguable cause of action against those defendants which is not statute-barred and wished to proceed with the claim, he could file a notice of motion for the lifting of the stay.
The third respondent to the summons in this court was named as Blacktown Boys High School. On 14 September 2020 the registrar ordered that the name be corrected to the State of New South Wales. The State of New South Wales entered an appearance in the proceedings in this court. In his submissions in reply the applicant said he wished to withdraw his claim against that respondent. It does not appear that the third respondent entered an appearance in the court below. It is appropriate that the name of the third defendant in the court below be also amended to the State of New South Wales and the proceedings against it be dismissed, but with no order as to the costs of that party in the court below. The third respondent is entitled to its costs of the proceedings in this court.
The second respondent described (or misdescribed) as the NSW Institute of Teachers, did not appear and no affidavit of service on it was filed as ordered by the Registrar. However, the applicant asserted that it had been served and if it incurred costs in connection with the applications made to this court, it is entitled to those costs.
For these reasons we make the following orders: 1. The summons seeking leave to appeal filed on 4 August 2020 and the notice of motion filed by the applicant on 8 September 2020 are dismissed. 2. Order that the applicant pay the respondents' costs of the summons and notice of motion. 3. Order that the applicant's claims for relief in proceeding 2019/294837 against the third respondent be dismissed with no order as to costs.

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