HEADNOTE
[This headnote is not to be read as part of the judgment]
Richard Woolf (the applicant) sought leave to appeal against an order made by Gibson DCJ (the primary judge) summarily dismissing proceedings which he had brought in the District Court claiming damages for defamation against Nicholas Brandt (the respondent).
The parties had been in a relationship which ended in late 2019 or in 2020. The single matter relevantly complained of in the defamation claim was a Facebook post made on 13 May 2021 in which the respondent stated, inter alia, that the applicant was "a guy who's been stalking me and has been obsessed with me" and asking that if anyone is contacted by the applicant to "please let me know so I can report it to the authorities if needed". The applicant pleaded that the imputations said to arise from the matter complained of were that he had stalked and harassed the respondent and that his conduct was such that he should be reported to the police. At the applicant's request, the respondent took down the post.
The defamation proceedings were dismissed by the primary judge on the basis that they were an abuse of process because the applicant's predominant purpose in maintaining the proceedings was an ulterior one: namely, to continue contact with the respondent and maintain pressure on him as part of a recriminatory process following the break-up of their relationship (the ulterior purpose finding).
The primary judge took into account an affidavit that was read by the applicant's counsel at trial "on instructions" near the end of the hearing which was "quite extensive", which had neither been filed nor served and which was not initially identified to be relied upon by his counsel until after a short adjournment requested by the applicant to speak to his legal advisers. The primary judge also took into account submissions which were sent by the applicant after the judgment had been reserved which extended beyond the leave granted to his counsel to make submissions regarding costs. The first ground of appeal was an alleged denial of procedural fairness related to this material. The applicant alleged error in the primary judge making the ulterior purpose finding in circumstances where this proposition (based on the affidavit) had not been put to the applicant in cross-examination and where her Honour took into account the written submissions which she had been sent after reserving her decision (ground one).
The applicant also sought leave to appeal on the following grounds: that the ulterior purpose finding was erroneous (ground two), that even if it had been established, it was insufficient to make the proceedings an abuse of process since the applicant was also pursuing a legitimate remedy (ground three), the primary judge erroneously relied on Hanna v Maks [2003] NSWSC 158 (ground four) and the respondent's application for summary dismissal ought not to have been entertained as he was subject to an Anshun estoppel, as the respondent's earlier strike-out application was unsuccessful (ground five).
The Court held (Kirk and Adamson JJA) refusing leave to appeal:
Ground one
(1) In the circumstances of this case, the respondent's counsel's decision not to cross-examine the applicant in circumstances where the applicant was plainly on notice of the respondent's intention to rely on his alleged ulterior purpose was not only open but accorded with his obligation under s 56(4)(a) of the Civil Procedure Act 2005 (NSW): [21]-[23].
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, applied.
(2) The principles of procedural fairness did not necessarily prohibit the primary judge from taking the applicant's submissions into account against him. It is not for the applicant to complain that the primary judge considered and took into account his submissions when this was his purpose in sending them to her Honour. In these circumstances, there is no reasonably clear injustice which goes beyond that which is merely arguable: [27]-[28].
Ground two
(3) The primary judge's reasons indicate that the matters raised by the respondent in his application for summary dismissal would, without more, have been insufficient to discharge the onus of proving that the proceedings were an abuse of process on the basis that the applicant's sole or predominant purpose was an ulterior one. However, the applicant's admissions in his affidavit evidence enabled the primary judge to draw the inference that his predominant purpose was an ulterior one. No error in this finding, going beyond a merely arguable one, has been demonstrated: [43]-[45].
Ground three
(4) The ulterior purpose need not be the litigant's sole purpose. That there may be a parallel purpose which is legitimate does not detract from the finding of abuse of process where the ulterior purpose is the predominant one. The primary judge found that the applicant was abusing the processes of the Court notwithstanding that he may have obtained vindication and damages if the proceedings concluded in his favour. The applicant has not established an error of principle or any injustice beyond that which is merely arguable: [46]-[48].
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, applied.
Ground four
(5) The proceedings were an abuse of process because the proper purpose of the proceedings - being to vindicate the reputation of the plaintiff - was not the predominant purpose and there was, in both the present matter and Hanna v Maks, a predominant ulterior purpose. There is no discernible error or reasonably clear injustice which rises beyond the merely arguable: [51].
Ground five
(6) The present case does not give rise to an Anshun estoppel. The respondent's strike-out application, as part of the same proceedings, was entirely separate and distinct from his application to dismiss the proceedings on the basis that they were an abuse of process. This ground does not raise any issue of principle or reasonably clear injustice which is more than merely arguable: [57]-[58].