Woolf v Brandt

The defendant's application

1. The defendant, by notice of motion filed on 14 April 2023, seeks summary dismissal of the 11 May 2021 claim, on the following bases: 1. The proceedings are an abuse of process, in that the resources of the court and the parties expended to determine the claim are out of all proportion to the interest claimed by the plaintiff: Bleyer v Google Inc (2014) 88 NSWLR 670. The plaintiff can only name three persons who saw this post during the ten days that it was up and, given that the plaintiff was assertedly demonstrating stalking behaviours, the prospects of success were slim. (This is a difficult argument to mount if the second publication is also taken into account). 2. The proceedings are brought not to vindicate reputation but to intimidate and harass the defendant as part of an ongoing campaign: Williams v Spautz (1992) 174 CLR 509 at 526-7. This applies to both publications. 3. The proceedings are a vendetta: Hanna v Maks [2003] NSWSC 158 at [41]-[42]; Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 8. This applies to both publications. 4. The claim is a hopeless one, in that the extensive material evidencing stalking and harassment by the plaintiff of the defendant is such that the claim would, even if successful, result in a judgment of zero damages: Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150; Dank v Nationwide News Pty Ltd [2016] NSWSC 295 at [77]. This would apply to both publications. Mr Smartt also draws to my attention the plaintiff's last-minute commencement of proceedings as well as the failure to proceed with restoring his other defamation claim since I handed down my judgment. 5. The evidence of justification is so strong that the claim should be struck out; if the evidence of justification were so weak that the court would strike the defence out, the reverse should apply if the evidence is as strong as it is in this case. This largely applies to the first publication. 6. The orders made by the Court on 9 and 16 June 2022 should be set aside under r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") as the legal representatives of the plaintiff did not disclose to the court that the limitation period had expired. This applies to both publications.

Abuse of process and summary judgment applications

1. The circumstances in which summary judgment may be granted arise out of common law principles concerning abuse of process, as modified by UCPR r 13.4 or, alternatively, pursuant to UCPR r 14.28. However, the categories for abuse of process are not closed, and this application raises a series of distinct challenges to these proceedings based on a series of recognised categories of abuse of process.
2. Both counsel address the nature of abuse of process in their submissions and the relevant principles of law are not the subject of dispute. These are helpfully summarised in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; 227 FLR 210 at [75] and Robinson v State of New South Wales [2021] NSWSC 1571 at [31] ff. I accept the summary of these principles as set out by both counsel, noting in particular (at Mr Smartt's request) that abuse of process does not simply apply to the commencement of proceedings; it may also arise from their continuation.
3. I should mention, however, that a feature of abuse of process that I consider of particular importance in this application is the role of court resources in such applications. In Ugur v Attorney General for New South Wales [2019] NSWCA 86, White JA said (Meagher and Brereton JJA agreeing) at [70]: "One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications." (Emphasis added)

The plaintiff's response

1. The plaintiff makes a "proffer of further evidence" (submissions, 29 May 2023, paragraph 9) that the defendant phoned him on 25 May 2021 and in the course of a 25-minute call, asked for help with moving. They also had a discussion about the defendant removing the first matter complained of, which the defendant agreed to take down. He claims that the defendant said "It's not that what you were doing was wrong". He also says he said to the defendant "you know that I'm not stalking you" and the defendant responded "yeah" (submissions, paragraph 17). This is followed by a section headed "Clarification about culture") where the plaintiff says he can show: 18 "…how the Defendant stalked me" [sic; underlining in original]) which is relevant because "it establishes the culture of 'stalking and harassment' within the relationship. There is a certain hypocrisy in how the defendant actually stalked and harassed me - by his own admission (Police Statement [40]) - over a period of two weeks - only to complain in MCO1 after a day of intermittently reciprocating communication [sic] me - that he is being "stalked and harassed". This blatant hypocrisy makes sense in the context of him trying to distance himself from his criminal offences. I have some feedback that this is being misapprehended as "a culture of 'stalking and harassment". I am very concerned that this critically important point may be missed. 19 Properly read, this means that the nature of stalking and harassment is somewhat culture-bound, both generally, but especially within the culture of the relationship, and maybe completely different to how outsiders may see it. This is especially so in the LGBT community. 20 An example can be found in the recent and infamous Johnny Depp trial (albeit a different jurisdiction):- One might say that in order for Amber Heard's (the defendant) imputation that "she was a victim of domestic violence and Mr Depp was an abuser" was valid, all she needed to do was show any purported evidence of domestic violence against her by Mr Depp. This is not so. Instead, a juror (a factfinder) explained that within [the culture of] the relationship, where they were both arguably abusive, she was significantly more abusive than Mr Depp, and so it did not rise to the point where she could impute that she was a victim of domestic violence, and hat accordingly he was a perpetrator (See: various news articles). 21. So too, in this case. When the defendant actually stalked and harassed me for 2 weeks (by admission) as described in POLICE ("incident 6") then that establishes the culture-bound bar of what stalking and harassment looks like in the relationship, and the defendant should not be able to offer a vignette of what looks like harassment - not even stalking - to tank the whole proceedings at an interlocutory stage." [punctuation and underlining in original retained]
2. The plaintiff relies on the conciliatory tone of the defendant's responses, both before and after publication, and also on other emails the defendant had sent the plaintiff in February 2019 saying "I'm sorry for what I've put you through" and "I hate how I treated you" as evidence that he was not stalking the defendant and that the defendant had agreed this was so. There are similarly conciliatory messages sent in February - April 2021.
3. The plaintiff's argument that he could not have been stalking the defendant because not only did the defendant accept his behaviour, both before and after publication of the matter complained of, but the defendant was guilty of this conduct himself, is replete with errors of law. Contrary to his description of the Depp judgments, that was not an argument accepted by either the first instance court or on appeal: Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB); Depp v News Group Newspapers Ltd [2021] EWCA Civ 423 (I do not regard a jury verdict from the United States of America as being able to provide any form of assistance). The concept of consenting to conduct amounting to a crime (such as an act of violence (R v Brown [1994] 1 AC 212) and in particular domestic violence, including stalking) is fraught with difficulty. As to the defendant's purported complaisance concerning this conduct, as Besanko J stated in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [2190]: "…I bear in mind the warnings against applying stereotypical expectations of how victims will respond to certain offences. It seems to me that those offences include, not only sexual assault, but also domestic violence (Nguyen v R [2022] NSWCCA 126 at [57]-[58]; Rao v R [2019] NSWCCA 290 at [98])."
4. In the plaintiff's latest submissions, he says that there were only 47 missed calls (paragraph 5). He seeks to exclude the occasions when the defendant responded to say "STOP" and blocked his phone and argues that some of those calls (for example, asking the defendant to take down the post and the plaintiff providing a "retraction", all of which are made after the matter complained of was published) should not be included. They are, however, not included. I counted the calls the plaintiff made to the defendant on 9 May 2021, whether these calls were responded to or not. That they made the defendant feel harassed is evident from the responses he made to this effect, as well as his conduct in blocking his phone.

Are there special rules relating to the striking out of justification evidence?

1. While acknowledging that claims may be struck out as an abuse of process if the necessary compelling evidence of conduct amounting to abuse can be established, Mr Rasmussen submits that no court would ever strike out proceedings because of the strength of a defence of justification, no matter how strong the defendant's particulars of justification may appear to be.
2. I agree that it would only be in an extreme case that evidence of justification would be looked at on an interlocutory application and considered to be a basis for the striking out of a defamation claim. It must be acknowledged, however, that this has not been the case for defendants who have weak justification defences; the failure to provide proper particulars of justification has, in a number of cases, resulted in the striking out of defences of justification where the particulars of the defence are insufficient: Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [12]-[13]; MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347; Fogarty v Nationwide News Pty Ltd [2013] WASC 477; Saraceni v Mentha [2013] WASC 95 at [50]; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448-449. If courts have been prepared to strike out justification defences on an interlocutory basis as being hopeless, should they also be prepared to consider striking out a claim on the basis that any challenge to the particulars is similarly hopeless?
3. The plaintiff replies that the conduct in question, while needing to be seen in context, is as described, but that the defendant is in no position to complain. The "context" in this case is that the defendant filmed video of the plaintiff and defendant having sex (with the plaintiff's consent) and placed it on Pornhub (without the plaintiff's consent) and the defendant's own conduct in stalking the plaintiff on one occasion for two weeks. Again, this is an appeal to "stereotypic" thinking of the kind warned against in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) at [2190].
4. Both parties' submissions are misconceived. Disputed issues of fact are matters which should be determined at trial, not summarily. The plaintiff's conduct needs to be considered in the context of the conduct of both parties, but that is for the reasons explained by Besanko J in his Honour's analysis of the evidence in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41), and not for the reasons put forward by Mr Rasmussen and his client. Justification should remain a trial issue.
5. I would have made such a finding whether the plaintiff provided his belated evidence or not, but this evidence is of considerable - indeed, crucial - importance in relation to abuse of process.

The Williams v Spautz abuse of process argument

1. The principal claims for summary dismissal for abuse of process are the commencement and continuation of this litigation, not to prosecute it to completion, but to use them as a means of harassment or some other collateral advantage beyond the remedies that the court offers (Williams v Spautz at 526 - 527) in circumstances where the action is part of an asserted vendetta.
2. Over the past decades, courts have warned that it is improper for the predominant purpose of the defamation action to be for the purpose of punishment, intimidation or revenge, as opposed to vindication of reputation. In Hanna v Maks at [42], Levine J stated: "As I have remarked, the Court does not lightly dismiss an action as an abuse of process (see Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 498H per Scarman LJ). However, in the instant case I am persuaded that not only were these proceedings commenced against all the defendants, including the first and second, after a threat constituted by the Notice to Produce and thus amount to an abuse upon their initiation, I am also persuaded in relation to the first and second defendants (in relation to the latter especially in the light of my findings as to her non-involvement) that the purpose, and that the predominant purpose of the plaintiff is not to vindicate his reputation but to punish, out of revenge, the first and second defendants for having cooperated with Commonwealth authorities in giving evidence in the Local Court leading to his conviction of a criminal offence. The institution and purported prosecution of proceedings in those circumstances clearly amounts to an abuse of the Court's process (see also Packer v Meagher (1984) 3 NSWLR 486 at 492D)."
3. The factual circumstances in that case were, however, extraordinary. The plaintiff brought proceedings for contraventions of ss 300(1)(a) and (1)(b) of the Crimes Act 1900 (NSW) (false instrument); s 328 of the Crimes Act (perjury); s 319 of the Crimes Act (intention to pervert the course of justice); s 102 of the Crimes Act (threatening to accuse the plaintiff of serious indictable offence) and s 285(1) of the Migration Act 1958 (Cth) (advertising that another person, not registered as an agent, gives immigration assistance). He also sought leave to commence proceedings against the first and second defendants for criminal defamation (Defamation Act 1974 (NSW), s 50(4)). In the civil action for defamation which was the subject of the dismissal application, he sued more than fifty persons for an article in an Arabic language newspaper reporting court proceedings in which his certificate as a migration agent had been cancelled. Those sued included persons who had advertised in the newspaper. Many could not read English and were in some distress.
4. The newspaper defendants argued that this was a vendetta and campaign to put the newspaper out of business in revenge for their having assisted the prosecution in prosecuting the plaintiff, a submission that Levine J accepted. Levine J added that the statement of claim was hopelessly drafted (at [3]) but this was a minor matter compared to the other issues in the application for dismissal.
5. In the two decades which have passed since Levine J's observations, complaints about defamation actions being brought to crush or punish the defending party have become more frequent. Neologisms such as "lawfare" and "oligarch litigation" have been used in the United Kingdom, in order to encapsulate the developing nature of these kinds of abuse, with members of parliament expressing concerns about it (see the debate in the House of Commons on 20 January 2022 https://hansard.parliament.uk/commons/2022-01-20/debates/4F7649B7-2085-4B51-9E8C-32992CFF7726/LawfareAndUKCourtSystem). The introduction of a serious harm test (s 1 of the Defamation Act 2013 (UK)) had earlier sought to achieve a similar result for trivial claims; this has now been added to by further legislation in the United Kingdom during 2022.
6. However, that is not the case in Australia. As confidently predicted in Aleksandrov v Dimovski [2005] NSWDC 19 at [45], Australian courts displayed no interest, prior to McCallum J's landmark judgment, in proportionality or the Jameel principle (Dow Jones & Co Inc v Jameel (Yousef Abdul Latif) [2005] EWCA Civ 75 at paras [52], [55] and [69]). Other English judgments on this point, notably Wallis v Valentine, have been referred to in Australian courts only in the briefest terms, or as a footnote (Rock v Henderson [2021] NSWCA 155 at [46]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [154]). More recently, however, there has been legislative concern as to the need to alleviate the financial and emotional stress caused by publications of a limited and trivial nature, particularly where there is a waste of court resources. These concerns form part of the rationale for a jurisdictional requirement for preliminary determination of "serious harm" (s 10A of the Act) in Australian defamation law, a provision based on the apparent success of s 1 of the UK legislation, but even this modest reform has been criticised in some quarters: Selkirk v Hocking [2023] FCA 432.
7. The matter complained of the subject of this application was published before those reforms came into force, and this application must be dealt with on the basis of the common law principles applicable to such publications. The question is whether the evidence reaches the very high level identified by Levine J in Hanna v Maks.

Disproportionality

1. Mr Smartt submitted that this is a case where the "resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest": Bleyer at [62]. That is because: 1. The plaintiff has suffered no reputational damage. He is suing over a post that his ex-boyfriend made on Facebook more than two years ago and which was only ever online for about ten days. Furthermore, he is only able to name three people who read it and those who read it (as has been found) would have known that the defendant was posting about the plaintiff after a relationship breakdown. As a result, the plaintiff has not suffered any reputational damage of any substance. 2. The defendant has high prospects of proving the imputations true. As is comprehensively set out in paragraph 8 of these submissions, the plaintiff stalked (imputation (a)) and harassed (imputation (b)) the defendant in text messages and calls to him before the matter complained of was published. This conduct should be reported to the police, as it is an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (imputation (c)). 3. Even if the imputations were not true, and the plaintiff succeeded, the plaintiff's reputation will be destroyed by these proceedings. All of his conduct relevant stalking and harassment can be put before the Court in mitigation, in accordance with the principle that the conduct of a plaintiff proven during the trial can be relied on in mitigation of damages if it is relevant to the part of the plaintiff's reputation capable of being harmed by the defamatory material (with that part sometimes being called the "sector" of reputation): Rayney v The State of Western Australia [No 4] [2022] WASCA 44 at [159]-[161]. In this case, the plaintiff's conduct towards the defendant is so disgusting that it would likely result in a nominal damages award, even if he is technically successful. 4. The plaintiff will very likely receive no damages and will destroy his reputation by maintaining these proceedings. 5. Despite the fact that the plaintiff stands to gain nothing from these proceedings - only reputational self-immolation - he apparently expects the parties to expend hundreds of thousands of dollars on bringing this case to trial, and the Court to expend a significant amount of judicial resources in hearing the case. Such a use of the court's processes is an affront to taxpayers: Feldman v The Daily Beast Company LLC [2017] NSWSC 831 at [18]. Their resources should not be committed to "disproportionately small ends" in defamation cases brought by an ex-partner against another.
2. Mr Rasmussen objected (as to (d) and (e)) that there was no financial evidence provided and that submissions about the costs of legal proceedings needed to be supported by an affidavit by a solicitor with recognised expertise in defamation who could be cross-examined on its contents. He warned that any attempt by me to make such an estimate would be contrary to my judicial obligations to have regard to the necessary evidentiary requirements. He submitted that I should draw an adverse inference from the plaintiff's failure to provide an affidavit. He also expressed confidence in the success of any application to extend time for the second matter complained of, given the generosity of recent decisions on limitation issues, and in the litigation in general, and argued that no claim of proportionality could succeed as the number of persons who read the second matter complained of was very high in that, although published to the same persons as the first matter complained of, there would be a substantial grapevine effect for both publications.
3. In practical terms, while there remains uncertainty over whether the plaintiff will in fact bring an application to this Court (or another court) to bring fresh proceedings in relation to the second matter complained of, it is too early to decide this point. If only the first matter complained of were before the court, a challenge to proportionality for a publication which was online for 10 days read by three known persons would appear to have some prospects of success, but it is too soon to determine, if further publications are added. Accordingly I do not propose to make any determination of the issue of proportionality at the current time.

[2013] WASC 477

[2013] WASC 347

[2003] HCA 70

[2013] WASC 95

(2014) 88 NSWLR 670

(1994) 34 NSWLR 289

(1998) 19 WAR 440

(2009) 255 ALR 553

(1980) 147 CLR 35

(1912) 15 CLR 679

(1988) 20 FCR 540

(1992) 174 CLR 509

(1984) 3 NSWLR 486

[2009] NSWCA 231

[2014] NSWSC 1472

[2022] NSWCA 150

[2021] NSWSC 1571

[2019] NSWCA 178

[2020] NSWCA 360

[2019] NSWCCA 290

[2023] FCA 432

[2014] NSWCA 244

[2016] NSWSC 295

[2017] NSWSC 831

[2023] FCA 555

[2021] NSWCA 155

[2019] NSWCA 86

[2022] NSWCCA 126