Woolf v Brandt

JUDGMENT

1. THE COURT: In this matter the Court dismissed an application for leave to appeal from a decision of the District Court summarily dismissing the applicant's claim in defamation as an abuse of process: Woolf v Brandt [2023] NSWCA 290 (First Decision). Orders were made on 30 November 2023, with reasons published on 5 December 2023. The Court subsequently made an order on 15 December 2023 that costs be paid in a specified gross sum: Woolf v Brandt (No 2) [2023] NSWCA 309.
2. This judgment concerns a motion filed by the applicant pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), and/or the inherent powers of the Court, seeking that the Court set aside or vary the orders made on 30 November 2023. The context of the matter is explained in the First Decision and will not be repeated here.
3. The applicant's motion was filed on 14 December 2023, within the required 14 days. On the day it was filed the Court made the following directions: 1. Applicant to file and serve submissions of no more than 5 pages in relation to his motion filed on 14 December 2023, along with any evidence he wishes to rely on, by Thursday 21 December 2023. 2. The applicant's motion is listed for directions before the Registrar on 5 February 2024, unless determined prior to that time on the papers.
4. The Court is able to determine the motion on the papers without requiring the respondent to file any submissions in response. For the reasons that follow the motion will be dismissed. Given that the respondent has not been required to file any submissions in response to the motion it is not necessary to make any order as to costs.
5. On 22 December 2023 the applicant filed 27 pages of written submissions. The applicant thus failed to comply with the Court's directions both as to timing (in a relatively minor way) and as to length (in a substantial way). The applicant did not seek leave to file submissions of greater length than had been permitted. By way of context, on an application for leave to appeal there is a 10 page limit on written submissions (rr 51.12(3)(a) and 51.13(5)(a) of the UCPR).
6. The failure of the applicant to comply with the page limit set by the Court manifests not only a wilful disregard of court orders but illustrates that to a substantial extent the submissions represent an attempt to seek, for a second time, to persuade the Court of the merits of his application. That is not permitted on a re-opening application. It can be noted that in the Court below Mr Woolf also made an application to re-open the decision of the primary judge holding that the proceedings were an abuse of process. That application was refused: Woolf v Brandt (No 2) (District Court (NSW), 28 November 2023, unreported).
7. This Court recently summarised relevant principles applicable to such applications in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283: [17] As is well-established, the power conferred by UCPR, r 36.16 is to be exercised "sparingly and with caution" having regard to the importance of the finality of litigation, and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 ("Majak") at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is "to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal": Majak at [12]. [18] In Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 Mason CJ said: "What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. … However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put ... The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." [19] These principles apply to applications under UCPR, r 36.16(3A): Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 36.16(3A) should be "exercised with great caution, having regard to the importance of the public interest in the finality of litigation": Lawrence v Ciantar (No 2) at [7]. [20] Whilst, as set out above, jurisdiction under UCPR, r 36.16(3A) may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).
8. To some extent the applicant's submissions complain that particular arguments he made were not addressed in the Court's judgment. Those submissions raise the issue of the duty of a court to give reasons. That duty "does not extend to referring to every argument or piece of evidence": Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [43]. Further, the content and detail of reasons to be provided "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision": Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56].
9. The issue for decision by this Court was whether or not to grant leave to appeal, where leave was required. Determining such an application is not the same as determining an appeal. Only restricted argument is permitted by the Court to that end, with limits set on the length of written and oral submissions. To require the same detail of reasoning in a leave application as in determination of an appeal would defeat the purpose of a leave requirement. The issue for the Court is in general whether or not the application for leave raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]. Those matters are the ones for the Court to address. That does not require the Court to engage in a close examination of the merits of the case, let alone to consider every argument raised by either side. That is especially so where, as in this case, the applicant files a number of further documents beyond those permitted: note similarly Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111.
10. Here, it is not necessary to address the applicant's 27 pages of submissions in detail. The material issue is whether or not the Court proceeded under some misapprehension of fact or law, in the relevant sense, or overlooked some point that needed to be addressed in order to determine the leave application. It did not.
11. The applicant complains that the Court proceeded on the incorrect basis of only considering the first matter complained of as being defamatory, where the primary judge had also taken into account the second matter. As was noted in the First Decision at [55]-[56], that second matter had been struck out in an earlier District Court decision on the basis of failure to comply with the concerns notice procedure. That decision was not the subject of the application determined by this Court, which only concerned the dismissal in relation to the first matter. In her decision on the first matter, the primary judge had also taken into account the fact that the second matter had originally been pleaded and, giving the applicant the benefit of the doubt, was likely to be restored. That her Honour did so does not alter the fact that her summary dismissal decision, and the subject of the leave application, was only that pursuit of the proceedings as they stood (ie raising only the first matter) constituted an abuse of process. That order was the subject of the application for leave to appeal, and was appropriately the focus of the First Decision.
12. The applicant makes submissions on how this Court addressed proposed ground of appeal 1(b), relating to the claimed procedural unfairness in the primary judge relying on the further material he provided after the hearing below as a basis for finding that the applicant was pursuing an improper purpose (see First Decision at [16]-[30]). The applicant says that this Court misunderstood what had occurred below in relation to the extent of his permission to file a further document, but seeks to make the point in a self-defeating way by quoting from the transcript in the hearing below as quoted by this Court in the First Decision (at [20]). Then he submits that the further material supplied "also disclosed favourable material" showing a proper purpose (emphasis in original). That submission is an attempt to re-agitate his case.
13. Then the applicant addresses proposed ground 1(a), which alleged a denial of procedural fairness on the basis that the proposition which underpinned the finding of abuse of process had not been put to the applicant in cross-examination. He cites authority in which judges of this Court had discussed the rule in Browne v Dunn (1893) 6 R 67; Rock v Henderson [2021] NSWCA 155; Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247. However, as the applicant himself submits in relation to that rule, "fairness needs to be considered in all the circumstances, not merely in one narrow prism" (emphasis in original). Mr Woolf was not challenged in cross-examination because his affidavit was read only after the close of submissions, by indulgence of the Court: see the First Decision at [23]-[26]. In that context, and in circumstances where he was seeking to rely on the affidavit in order to answer the allegation of improper purpose, it is disingenuous for him now to submit that he "cannot be criticised for not anticipating the primary judge's inference that the applicant was relying on the litigation to continue contact with the respondent".
14. More generally, the applicant sought to argue that the First Decision was inconsistent with Rock and Gwe. The former did not establish any general proposition inconsistent with the First Decision. The latter did not involve issues of abuse of process.
15. The applicant claims that this Court had overlooked his submissions about the need to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Yet, consistently with that principle, the First Decision referred to "the heavy onus which lay on the respondent 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" (at [45]). Relatedly, the applicant submitted that "a serious finding of an abuse of process should not be made on inference". Many serious findings - including ones to the criminal standard - are made based upon inferences drawn by judges or juries. Direct proof commonly is not available in relation to issues involving a person's subjective purposes or knowledge.
16. The applicant makes extensive submissions directed to what he labelled as this Court's "misconceptions of Williams v Spautz principles". In substance these submissions involved an attempt to re-agitate issues already put to this Court: cf First Decision at [31]-[50]. So much is illustrated by the applicant's concluding paragraph of that part of the submissions, in which he states: In any event, it is submitted that leave should be granted because the above comports a question of principle, a question of public importance in clarifying the discordance of the above (and Rock v Henderson) with the primary judge and this Court's analysis, and/or a reasonably clear injustice going beyond something which is merely arguable.
17. If this Court has misunderstood or misapplied the relevant principles then the applicant's remedy lies in seeking special leave to appeal to the High Court. That he is dissatisfied with this Court's legal analysis, or with the result, is not a proper basis to seek that the Court's decision be re-opened.
18. As was indicated in Williams v Spautz (1992) 174 CLR 509 at 526-527; [1992] HCA 34, and reaffirmed in Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [23]-[24], that a litigant may have a broader ultimate motive in pursuing proceedings does not render the proceedings abusive if the immediate purpose of the litigant is "to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event". However, if the predominant immediate purpose of the litigation is not a legitimate one then that suffices to establish an abuse of process even if that is not the litigant's sole purpose: see the First Decision at [37] and [48]-[49].
19. The applicant's submission that the predominant purpose test only applies to the tort of abuse of process is inconsistent with Williams v Spautz, which involved the grant of a stay in a criminal prosecution. The applicant's submission that that test does not apply in civil proceedings is not consistent with authority: see eg Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) (2022) 96 ALJR 166; [2022] HCA 3 at [19] and [131].
20. The applicant makes submissions seeking to distinguish, again, the judgment in Hanna v Maks [2003] NSWSC 158. That case was addressed in the First Decision at [50]-[53]. The applicant again manifests the misunderstanding that he is entitled on a re-opening application to attempt for a second time to persuade the Court of his position.
21. After the parties were notified that judgment was to be delivered on the motion the applicant sent a further email to the Court raising four matters. First, he said he was "surprised and disappointed that this didn't proceed to directions as originally scheduled for Monday 5 February" and requested an oral hearing on his motion. There is no basis for any such surprise given that the Court's second direction made on 14 December 2023 was that "[t]he applicant's motion is listed for directions before the Registrar on 5 February 2024, unless determined prior to that time on the papers". No request for an oral hearing was made until after the delivery of judgment had been notified. It is common for such applications to be determined on the papers: eg, recently, Commissioner of the Australian Federal Police (No 2); Hollingsworth (No 2); Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd (No 2) [2023] NSWCA 169. An oral hearing is not warranted in the circumstances here.
22. The second matter was to note some corrections to his written submissions on the motion. The third matter was to suggest that one sentence at [46] of the First Decision contained an error. The Court does not accept there was any such error. Even if there had been such an error, it would not have been material. The fourth matter involved the applicant imploring the Court to read certain identified paragraphs of three previous decisions, being cases he had already emphasised in his 27-page submission.
23. As the applicant has not established that there is any basis for this Court to re-open its decision to refuse leave to appeal, the applicant's motion will be dismissed.

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