Young v Racing NSW

The procedural history of this application

1. On 22 August 2019, Levy SC DCJ made the following orders and notation: 1. Any defendant wishing to bring a strike out application is to do so by 19 September 2019; 2. Plaintiff to file and serve any evidence in response by 3 October 2019; 3. Defendants to file and serve any evidence in reply by 10 October 2019; 4. Defendants to file and serve submissions on applications by 17 October 2019; 5. Plaintiff to file and serve submissions on applications by 24 October 2019; 6. The proceedings are listed in the defamation list on 7 November for hearing of the strike out applications; 7. Liberty to restore if no applications brought; 8. Pursuant to UCPR r 7.35 the Registrar is directed to refer the plaintiff and the proceedings to the Pro Bono Manager of the NSWBA to obtain assistance for the plaintiff to redraft his pleading. Note: The plaintiff will appear by telephone on next occasion
2. The plaintiff did not comply with the timetable to file evidence. Instead, on 16 October 2019, he sought a variation of the timetable from Levy SC DCJ, namely for leave to file an Amended Statement of Claim by 25 October 2019. Those orders were made in chambers on 16 October 2019 by his Honour, clearly under the apprehension that this short adjournment was by agreement as a result of the earlier timetable.
3. Counsel for the defendants served their submissions in accordance with the timetable date of 17 October 2019. Both counsel confirm that the defendants were never notified of the extension granted by Levy SC DCJ; this is why they provided written submissions on the existing pleading, rather than waiting for any amended pleading.
4. The pleading now before the court is an amended statement of claim filed on 25 October 2019 and headed "Amended Statement of Claim".

The statement of claim in its current form

1. It is not possible to do more than to describe in a general sense the five "causes of action" (to use the plaintiff's term) pleaded, by reason of their confusing content, repetition and prolixity, but these appear to be as follows: 1. The first matter complained of is the ABC hyperlink referred to above (which does not identify the plaintiff by name) which, when clicked on, contains the ABC report of trial proceedings dated 12 December 2012 which, it is pleaded, remained online until "2019". This hyperlink is asserted to be a defamation which was downloaded by unknown persons at unknown times, including employees or officers of the Casino Racing Club Ltd. The plaintiff provides "particulars of meaning" for the contents of this hyperlink (but not for any publications containing it), all of which appear to be pleaded as imputations, followed by "particulars of extrinsic facts" to the effect that the general public's purported reaction to reading about the plaintiff's convictions. A claim for aggravated damages and special damages is pleaded "to the limit of this court's jurisdiction" (paragraph 18(8)). 2. The second cause of action for defamation, against the Casino Racing Club Ltd and Racing NSW, is essentially in the same terms as the first publication. 3. The third cause of action, brought against Casino Racing Club Ltd and the Richmond Valley Council is substantially the same, although there is some additional material concerning the refusal of the plaintiff's renewed licence. 4. The fourth cause of action is for negligence, "failure and duty of care", "denial of procedural due process", "denial of natural justice" and is brought against the Casino Racing Club Ltd and Richmond Valley Council. A claim for general, aggravated and exemplary damages is sought, as well as a declaratory order (paragraph 55(2)) which lies outside this court's jurisdiction. A previous claim for misfeasance of office has been abandoned. 5. A fifth claim for negligence is in similar terms and appears to be made against all defendants.
2. Although the plaintiff readily acknowledged he had been materially assisted by reading the defendants' submissions served on 17 October 2019 concerning the inadequacies of the previous pleading, the drafting of this amended statement of claim does not cure the defects identified in these written submissions. The result is that Mr Dawson SC has relied upon the same submissions, with some marked-up changes, and Mr Karam has effectively adopted a similar course.
3. As a result, the defendants wished to proceed with the hearing of their applications on 7 November 2019, despite these last-minute amendments.

The plaintiff seeks an adjournment of the 7 November fixture

1. The plaintiff sought an adjournment, on the basis that the defendants should be obliged to identify their objections to the newly drafted statement of claim in formal correspondence. He wrote to the court as follows: "I intend to make an application before Judge Gibson on 7 November 2019 for similar orders that were made on 24 October in the related case and along similar lines. I would ask your consent to same and thereby save costs and an unnecessary hearing on 7 November. 1. Given that the application seeks to strike out matters in the original statement of claim and there is now a statement of claim filed on 31 [sic: this may be the date it was served] October 2019 which supersedes the original statement of claim and [sic] 2. Plaintiff seeks an order that the defendant respond to the plaintiff by letter with any opposition to the new statement of claim on or before November 2014 3. That the Plaintiff reply by letter to that opposition by letter on or before 25th November and 4. That the matter be set for mention on 28 November alongside the related matter and 5. Should the defendants still seek to strike out the new statement of claim a hearing date be set to hear same with a time required to be set on the 28th November."
2. The plaintiff (who appeared by telephone for this application) made a fresh application for an adjournment and for a timetable for objections to the new pleadings when the hearing commenced. I set out my reasons for refusing to adjourn the hearing.
3. First, this was a special fixture set down three months ago, at a date convenient to the parties. The relevant objections to the amended statement of claim resulted in a pleading which has not cured them, and the defendants essentially repeat these objections. The plaintiff has been given time, albeit short, to provide written submissions in reply. He has done so by repeating his request for a further timetable and by informing me that he has used the Geoffrey Rush statement of claim as a template, which means that his statement of claim must be accepted as correct, and that I should "declare this to be [correct] after a reading of the Geoffrey Rush template".
4. Second, the "related case" is subject to a separate timetable which bears no relation to this application.
5. Third, there are case management and court resources issues for consideration. Parties who unilaterally file amended pleadings in circumstances where there is a special fixture for hearing should not expect that the hearing will simply be vacated. Additionally, the circumstances in which the plaintiff sought orders in chambers for leave to file an amended pleading without notifying the defendants of that application should not be viewed with indulgence.
6. As noted above, the plaintiff's claim is not brought against the media outlet which published the hyperlink, but against three organisations whose employees and officers, the plaintiff alleges, read the material in the hyperlink.

The defendants to the proceedings

1. Racing NSW, the first defendant, is a body corporate established under s 4 of the Thoroughbred Racing Act 1996 (NSW). The Thoroughbred Racing Act 1996 (NSW) confers certain functions and powers with respect to the regulation and administration of racing on the first defendant. These functions and powers relevantly include powers: 1. to register or licence, or refuse to register or licence, or cancel or suspend, the registration or licence of a trainer: s 14(2)(b); and 2. to supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing: s 14(2)(c).
2. Casino Racing Club Ltd, the second defendant, is a racing club registered with Racing NSW.
3. Richmond Valley Council, the third defendant, is the council of the area in which the plaintiff resides. The plaintiff's claim is that he is entitled to use council assets such as the Casino race track and the Casino Racing Club and, as he had been denied the entitlement to do so, this defendant is liable to him for damages in negligence.

The relevant statutory provisions and principles of law

1. UCPR r 13.4 provides: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
2. UCPR r 14.28 provides: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

The defendants' submissions

1. The defendants seek summary dismissal on the following bases: 1. The causes of action as pleaded and particularised are hopeless and, as the amendments in the current pleading demonstrate, beyond cure, in that the whole claim is misconceived. Where it is apparent from the face of the pleading that the whole of the cause of action is hopeless, despite the facts stated being accepted, and there is a sufficiently high degree of certainty as to the ultimate outcome of the proceedings if it were to go to trial in the ordinary way, a court may strike the pleadings out: Agar v Hyde (2000) 201 CLR 552 at 575-576; Hanshaw v Channel Seven Network Australia Pty Ltd [2014] NSWSC 178. Where several attempts have failed, the court will be more ready to order summary dismissal: Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69; Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595. 2. The plaintiff is effectively seeking judicial review of the second defendant's refusal of his request for permission to train horses at the Casino Race Club, which amounts to an abuse of process: Williams v Spautz (1992) 174 CLR 509. 3. The first and second defendants bring an additional claim for dismissal on the basis of proportionality, in that the plaintiff's interest in vindicating his reputation is out of all proportion to the cost to court resources, as well as legal costs of the defendants, in proceeding to trial (Bleyer v Google Inc (2014) 88 NSWLR 670).
2. Alternatively, the defendants submit that, even if a cause of action can be ascertained, the whole of the pleading should be struck out because not only does the pleading fail to comply with UCPR rr 14.6, 14.8, 14.14, 14.30 and 19.5, but also contains material which is not merely unintelligible but also objectionable.

The "first cause of action"

1. The plaintiff pleads three groups of publications as a "cause of action". Each of the three defamation claims depends upon the publication of the ABC hyperlink published online on 12 December 2012 and its remaining available by hyperlink, as well as a Google search engine result of the plaintiff's name.
2. These two online publications, described in the pleading as the "first matter of note" and the "second matter of note", are firstly the ABC hyperlink by itself and secondly a series of separate Google searches which appear when the words "Gary Young Fraser Anning" and/or "Gary Young Gunadary emaciated horse" and/or "Gary Young RSPCA ABC" are searched for (these documents are only attached to the original statement of claim, but are clearly intended as attachments to the amended pleading).
3. The following should be noted: 1. The Google searches printout shows that the ABC article "NSW man fined $118k for animal cruelty" was downloaded onto animal websites www.horsetalk.co.nz and www.liveexportsshame.com at some unspecified date in the past and apparently shortly after the 2012 download. No other online publications containing the hyperlink result from the search, so there is no evidence of publication capable of assisting the plaintiff with his claim. The Google searches also show other material concerning the plaintiff's association with a Mr Fraser Anning. The final search shows the "page not found" search for the ABC article after it was removed. 2. The only attachment showing any connection to the defendants is Mr Rudge's email of 22 January 2019, the contents of which are set out above.
4. Although there are numerous references to "club publication" (see for example paragraphs 5 - 7) there is no identification of any actual publication as an existing document or documents.
5. The plaintiff initially sought to rely upon the email Mr Rudge sent to him on 22 January 2019 as being evidence of downloading of a defamatory publication. However, publication to a third party is required.
6. The plaintiff then nominated "Belinda Penney" (see the previous statement of claim at page 21, paragraph 2(a); 5-6; page 23 at paragraph 10) as having downloaded the ABC link from the email sent to the plaintiff by Mr Rudge. The plaintiff told the court that she is his partner, and that she read the email from Mr Rudge as well as downloading the document on the hyperlink. Additionally, in the course of argument, the plaintiff claimed to have received confirmation from a Mr Ruxton in or about January 2019 that he had accessed the link as well (I note, however, that the letter ultimately produced by the plaintiff is a letter dated 12 September 2019 noting that "litigation is going on", which is of no assistance to the plaintiff).
7. However, these claims of third parties reading this particular email are of no assistance in identifying the matter(s) complained of. Even the plaintiff does not identify Mr Rudge's email as a defamatory publication; he essentially seeks to rely upon its contents as evidence that unknown third parties were accessing the ABC hyperlink and that, in doing so, they were defaming the plaintiff, either by merely accessing the link or by them using the information obtained in subsequent defamatory publications of an unknown nature. The fact that Ms Penney read her partner's email and what was in the hyperlink does not establish evidence of other persons publishing the hyperlink other than Mr Rudge's non-actionable email to the plaintiff.
8. The central problem is that these other publications are not identified in any way. The plaintiff says that they can be "inferred", but does not provide any particulars necessary to identify them. The many pleading problems which result may be seen from the way these claims are constructed in paragraph 2: "From July 12 2018 and thereafter and at times and places within New South Wales unbeknown to the plaintiff at this time but from a time close to the first application to the club by [sic] plaintiff [sic] the club, its secretary and the clubs [sic] directors/members and on behalf of the club [members] [sic] were republishing among themselves and other third parties google search information referred to below as "hyperlink 2" via a carriage service and the world net and emails that in combination and conjunction with Attachment 1 severely defamed damaged and vilified and caused persons to shun and shame the plaintiff by the publication of hyperlink 2 within those emails which when clicked on then opened attachment 1 hereto, both of which publications are further described in detail."
9. Unfortunately, those publications were not further described in detail; there is no information anywhere capable of identifying a single instance of someone having not merely downloaded the document but made any publication, defamatory or otherwise, about it.
10. The plaintiff argued that there must have been a defamatory publication by somebody for Mr Rudge to have been given the hyperlink information in the first place. However, the plaintiff needs to identify that publication with precision in terms of date, person and content. There has to be actual evidence of a document containing a hyperlink where there is some kind of an inducement to download (for example, see Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764 at [10]: "READ FULL STORY"). This is all the more the case, in cases such as the present, where the hyperlink to be clicked on does not actually name the plaintiff (compare Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33).
11. A generalised assertion of publication is always insufficient. In El-Mouelhy v Q society of Australia Inc (No 2) [2015] NSWSC 990, the plaintiff gave specific instances of publication but particularised "worldwide" publication of the matter complained of. McCallum J held (at [16]) that this was not maintainable unless further particulars were provided, or the particulars in question would be struck out (at [19]). The same is the case here. There is, additionally, a more fundamental problem, in that, if all that is done is to access a hyperlink, the person accessing the hyperlink may only be a reader, not a publisher.
12. It is on this slender basis that the plaintiff's "combined publication - presumed one publication - club publication [sic]" in paragraph 5, which includes persons who merely accessed the link as readers, is said to have been "widely circulated" (paragraph 7) to club members whose identities are unknown to the plaintiff. One of those persons is asserted to have given this link to Mr Rudge (paragraph 8).
13. Two sets of imputations in the natural and ordinary meaning are then set out, followed by imputations asserted to arise by extrinsic facts, followed by a claim for damages, including special damages, to the maximum jurisdictional limit.
14. A further illustration of the pleading problems may be seen in the particulars of extrinsic facts set out at paragraph 14 to the first cause of action: "14 Particular of extrinsic facts The General public's reaction to a person [allegedly] convicted of such acts as described in the first publication would be a] To think such acts were horrendous actions undertaken by the most loathsome human being b] That such acts are one of the most outrageous actions a person could be accused of and c] That to be accused of such cruel and inhuman acts as described in the club publication creates a sensation and feeling within a normal persons mind that plaintiff is of the lowest and most vile class of humankind d] that a person convicted of such acts will of the very lowest and most vile class of society e] That such a person convicted of such an abhorrent action should never be allowed to have animals around him again f] That such a person is on the same level as a paedophile and must be vilified and avoided by normal persons of good behaviour g] That such a person has no right of respect from anyone at all h] All of the matters set out above a] to g] are notorious facts well known to the general public."
15. These are not extrinsic facts known to a recognised subset of readers of the matters complained of.
16. These pleading problems are not merely matters of correcting the form of the claims. Until such time as the plaintiff has identified each of the publications upon which he sues and to whom it was published, his cause of action is not complete: Emmerton v University of Sydney [1970] 2 NSWR 633.
17. There are also limitation issues. Paragraph 2 of the statement of claim identified 12 July 2018 as the date when these publications are asserted to have commenced, which is more than a year before the claim was brought. I note that the hyperlink was removed on 17 April 2019.
18. Although the plaintiff submitted the limitation period should run from the date that he filed the statement of claim, the relevant date is the date of publication. In practical terms, unless the plaintiff can identify the publications prior to expiry of the limitation period, he faces limitation arguments as well.

The second and third "causes of action"

1. The second (pp. 9 - 15 of the amended statement of claim) and third (pp. 15 - 21) claims for defamation (called "causes of action") are largely identical to the first cause of action.
2. As to the second, once again, there is reliance upon "club publication" as demonstrated in the email send by Mr Gary Rudge and its downloading by "a member unknown to the plaintiff at this time" prior to his letter. None of these publications is attached or even identifiable in terms of date, author, content and/or recipient.
3. The "third cause of action" suffers from similar defects, with the added disadvantage that the email is asserted to have been published to the Richmond Valley Council (paragraph 8), followed by a claim that this was then "republished by Council persons, among Council staff and management persons and Council employed parties and this constituted a new publication by a new publisher, the Council, for each time the downloads and publication occurred". Once again, none of those publications is attached, and it is clear that liability is predicated on mere downloading (i.e. reading the publication) as opposed to a publication or republication in another document.

The fourth and fifth causes of action

1. The fourth and fifth causes of action, brought against the second and third defendants, raise different issues, which I summarise as follows: 1. Although framed as claims for negligence against two of the defendants there are also claims of "denial of procedural due process" and "denial against natural justice" (amended statement of claim, p. 21) which appear to include the first defendant as well (see paragraphs 4 - 6 and 27). 2. The material facts necessary to establish that any of the defendants against whom this claim is brought owed the plaintiff a duty of care and was in breach of that duty need to be spelled out with care. For example, an assertion that the second defendant's status as "assignee" or "lessee" of the third defendant and a supervisee of the first defendant does not amount to a pleading either of duty of care or breach of duty. The same is the case with the assertion that, by leasing the Casino racetrack, the Council takes on the duty of care of ensuring the plaintiff's licence to train "is treated as if it would be treated by Council itself". I note the alternate claim (in paragraph 12 on page 22) that if this duty is found by the court not to exist, the court should find that it should have been imposed and the Council is negligent on that alternative basis. The pleadings of duty of care and breach, in relation to the negligence claim, are a maze of incomprehensible pleadings which should be struck out on this basis alone. 3. The plaintiff complains that he was denied due process, procedural fairness and natural justice by the refusal of his training rights (paragraphs 21 and 24 of the amended statement of claim). The proper remedy for non-discharge of the second defendant's duty to consider and/or process his request for permission to train at Casino is an action brought as a prerogative writ of mandamus or an order pursuant to s 65 of the Supreme Court Act 1970 (NSW), for which this court has no jurisdiction. 4. The plaintiff submitted that his claim is based on an implied covenant of good faith and dealing within the lease, which is asserted to mean that the Casino Race Club must, at all times, accord natural justice and that their conduct is a breach of the lease. The court would not infer that there were such implied covenants: Commonwealth Bank of Australia v Barker [2013] FCAFC 83; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169. 5. Does this claim include a claim for breach of statutory duty? Mr Karam points to s 46 Civil Liability Act 2005 (NSW), which restrict the liability of a public and other authorities for negligence, and notes the exceptional circumstances required for the award of damages (as to which see Sutherland Shire Council v Hayman (1985) 157 CLR 442 at 467). Even if one or more of the defendants had neglected their statutory duties as claimed, the proper remedy is mandamus. 6. The claims for breach of contract, negligence and other inchoate claims (of which breach of statutory duty appears to be one) are hopelessly intertwined in terms of remedies as well as causes of action. As is the case with the other three defamation claims, the claims for general and aggravated damages are impermissibly pleaded. All three claims essentially refer to the plaintiff being "constantly taunted and damaged on a day in day out basis daily basis [sic] without his knowledge" (exemplary damages), "the continuous day after day continuous [sic] course of deliberate and malicious conduct" (aggravated damages), "massive damage to plaintiff's reputation" (general damages). In addition, a claim for relationship breakdown is made in relation to the fourth claim.

Should the proceedings be dismissed?

1. The court's power to terminate proceedings at an early stage where the plaintiff has no prospect of success include power to dismiss proceedings under rr 13.4 and 14.28, but only in the clearest and most obvious cases, where the plaintiff's claim is so obviously untenable that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 30.
2. Both the court and the defendants have given the plaintiff material assistance in terms of endeavouring to help the plaintiff plead his case. The plaintiff was offered not only a timetable but given a pro bono referral in circumstances where he should have appreciated that there were serious difficulties with his claim as pleaded. He was given an extension to file an amended claim, which he effectively did after receiving and reading the submissions from the defendants which set out at length the many pleading problems he had. The plaintiff acknowledged that these submissions had been of considerable assistance to him, but continues to maintain his pleading in relatively similar terms, with only minor amendments such as dropping the claim for misfeasance of office.
3. Three aspects of this application should be noted: 1. First, striking out a whole cause of action should not be embarked upon if there is any part of the plaintiff's claim which can be salvaged, particularly where one or more of the causes of action is a claim for defamation where there is a limitation period running. The difficulty here, however, is to find any part of the claim which is capable of survival. 2. Second, while the plaintiff may submit that his claim should not be struck out summarily, he is in real difficulty if he seeks to oppose the striking out of the claim in its current form, as the cumulative effect of the defects of pleading is overwhelming. The whole claim must be struck out and the question is whether further leave to replead should be granted. 3. Third, while courts are slow to make findings that proceedings are an abuse of process, the proper course to take, when abuse is established, is summary dismissal.
4. The defendants seek summary dismissal on three bases, each of which is discussed below.

Abuse of process: Williams v Spautz (1992) 174 CLR 509

1. The defendants submit that, as there are in fact no defamatory publications able to be identified and there is no viable cause of action in negligence, these proceedings should be struck out as an abuse of process as they are an attempt to obtain a collateral advantage to the plaintiff, namely to force some reconsideration of his ongoing dispute in relation to permission to train horses at Casino: Williams v Spautz.
2. The facts in Williams v Spautz may be briefly stated as follows. Following a dispute between an academic and a professor which resulted in the dismissal of the academic, he commenced over 30 proceedings (the majority of which were criminal prosecutions for defamation and related claims). The defendant in those proceedings brought an application to have the proceedings declared an abuse of process of the court.
3. Essentially, what was in issue was whether the proceedings were commenced to exert pressure in order to force the university to reconsider his dismissal. The High Court noted the definition of abuse of process by Hunt J in Spautz v Williams [1983] 2 NSWLR 506 at 539 as follows: "The essence of an abuse of process action is that the proceedings complained of were instituted and/or maintained for a purpose other than that for which they were properly designed or exist, or to achieve for the person instituting them some collateral advantage beyond that which the law offers, or to exert pressure to effect an object not within the scope of the process. The focus in such a suit is on the purpose for which the proceedings exist, and on the dominant purpose of the person charged with abuse of process in instituting them."
4. Although very rarely exercised, the House of Lord acknowledged, in Connelly v DPP [1964] AC 1254 at 1301, that a superior court has power to prevent an abuse of process where the cause of action amounts to oppression (per Lord Reid at 1296, Lord Morris at 1301-1302 and Lord Devlin at 1355). The resulting superior position of the English courts in relation to misuse of defamation law (when compared to the courts in Germany prior to World War II) is explained by David Riesman in "Democracy and Defamation: Fair Game and Fair Comment" (1942) 42 Columbia Law Review 1085 at 1117-1123, is a telling example. It is a power now enshrined in case management legislation, but it has a distinguished history of being used where the circumstances are compelling.
5. The plaintiff's complaint is that he cannot race his horses at Casino, and that people in the club must have done this because they read the ABC article. What proof is there for this? Essentially what the plaintiff puts forward in his pleadings is not a series of publications but a "conspiracy theory" (to use Mr Dawson SC's description) of persons whispering behind his back as a result of accessing the ABC hyperlink at a range of unknown times which could conceivably go back to 12 December 2012.
6. Additionally, Mr Dawson SC submits, the manner in which the plaintiff's pleadings and damages claims are constructed make it clear that, while he complains of defamatory publications, his real intention is to obtain some form of review or reversal of the Casino Racing Club's decision to refuse to permit him to train.
7. I am satisfied that this is a clear example of proceedings being used for an ancillary dominant improper purpose, namely to obtain a collateral advantage which would not otherwise be available to the plaintiff, by the use of expensive and oppressive court proceedings. This ground of abuse of process is made out.

Abuse of process and hopeless pleadings

1. I have set out above the many objections taken by each of the defendants to the entirety of the claim as currently pleaded. Despite this being the plaintiff's third attempt, in circumstances where he had the benefit of reading written submissions as to one of his previous drafts, he has adhered to pleadings which are so prolix and disorganised as to be incomprehensible.
2. Although summary dismissal is largely seen as a modern case management approach, there are examples of such orders being made in appropriate cases over the previous decades. In Turner v Bulletin Newspaper Co Pty Ltd at 88, Menzies J stated: "An order striking out the whole of a statement of claim because, as it stands, it would tend to embarrass the fair trial of the action, is usually accompanied with leave to deliver a further statement of claim and again, in this action, such leave was given unconditionally on two occasions. It is clear, however, that the Full Court came to the conclusion that the leave given on previous occasions had been abused and the plaintiff was persisting in an attempt to use an action for damages for libel of himself as a means of inquiry into the merits of what he alleged was a campaign by the defendants against communism and subversion in Australian Universities and in particular in two departments of the University of Melbourne. To attempt this was clearly enough an abuse of the process of the Court and the Full Court made an order designed to allow the plaintiff's cause of action for libel to be tried by permitting the delivery of a further statement of claim while, at the same time, preventing further abuse of the process of the Court."
3. In the 45 years that have followed the handing down of this decision, courts have come to take a sterner view of pleadings which disclose no cause of action.
4. The pleadings in this case are not merely hopeless in the sense of being incomprehensible or discursive, but fail to demonstrate even the glimmer of a cause of action. As to the defamation claim, no leave to replead should be granted because there is still no identifiable cause of action despite this being the plaintiff's third attempt. The negligence claim fails to identify the duty of care as well as the breaches, as the defendants have pointed out at some length in their written submissions, and appear to be some form of claim for judicial review, which is outside the jurisdiction of this court. No purpose can be obtained by the continuation of any of the five "causes of action" and they should be struck out on this basis.

The proportionality claim

1. The first and second defendants submit that, even assuming proper particulars of downloading were provided, any harm to the plaintiff's reputation occurred in circumstances where the audience for the alleged publication was closed and the number of publications, since the plaintiff cannot point to any, let alone attach them, must be few. The same principles would apply to any claim for negligence (assuming one could be properly identified). The cost in judicial resources and in legal costs to the defendants of the plaintiff being permitted to continue these proceedings, given the history of multiple pleadings to date and the unlikelihood that the actual publications being able to be located prior to the limitation period expiring is so far out of proportion to the benefits the plaintiff stands to gain by these proceedings as they constitute an abuse of process. Accordingly, conformably with the principles of law enunciated by McCallum J in Bleyer v Google Inc, as recently endorsed by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246, they submit that these proceedings should be struck out on the basis of proportionality.
2. Mr Dawson SC drew my attention to the New South Wales Court of Appeal judgment in Ghosh v NineMSN Pty Ltd and in particular to the observations of Macfarlan JA at [44] as to the availability, on an alternative basis, of dismissal on the basis of proportionality of pleadings in a case such as the present.
3. I do not consider that the issues in this case fall within the parameters of the pleadings in Ghosh v NineMSN Pty Ltd, where there were approximately 54 causes of action and issues arising from inadequate pleading, related to a period of time over 18 months. In the present case, the gravamen of the defendants' complaint is the total absence of any publication of any kind capable of giving rise to a cause of action for defamation, coupled with the hopelessness of the asserted pleas of negligence.
4. The same principles would apply to the claim for negligence (assuming a claim for negligence could be struck out on proportionality principles, which is a novel proposition).
5. This is an unusual case, in that the total absence of any identifiable claim makes it impossible to determine any of the issues necessary for proportionality. It is not clear whether there is only one claim for publication or (as the plaintiff appears to claim) hundreds, or when or to whom these were published, or what demand would be made on court resources by this litigation if it were to continue. Identifying the negligence claim is even more difficult, and I was not addressed as to the applicability of proportionality issues in negligence claims.
6. Accordingly, I do not consider that the plaintiff's claim should be struck out on proportionality principles.

Costs

1. I reserve the issue of costs with liberty to apply. Any application for a gross sum costs order must be accompanied by affidavit evidence, preferably from a costs assessor or suitably qualified practitioner with costs expertise.

Orders 1. Pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW), these proceedings are struck out and dismissed. 2. Costs reserved, with liberty to apply.

Amendments 14 November 2019 - Paragraph 3 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2019