Young v RSPCA NSW - [2019] NSWDC 754 - NSWDC 2019 case summary — Zoe

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Young v RSPCA NSW

[2019] NSWDC 754

District Court of NSW|2019-11-28

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At a glance

Source facts

Court

District Court of NSW

Decision date

2019-11-28

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Liristis [2011] NSWDC 40 Armstrong v McIntosh [No 2] [2019] WASC 379 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 Bleyer v Google Inc (2014) 88 NSWLR 670 Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB) Buswell v Carles [2012] WASC 509 Cameron v James [1945] VLR 113 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682 Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288 Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Davis v Gell (1924) 35 CLR 275 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Derbyshire County Council v Times Newspapers Ltd [1993] AC 634 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575 Duke v New South Wales [2005] NSWSC 632 El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990 El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306 Emmerton v University of Sydney [1970] 2 NSWR 633 Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 Feldman v Nationwide News Pty Ltd [2016] NSWSC 1890 Fleet v District Court of NSW [2002] NSWCA 25 Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB) Ford v Nagle [2004] NSWCA 33 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Georgitsis v Lend Lease Interiors Pty Ltd & Ors (1989) 17 NSWLR 106 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Google Inc v Duffy (2017) 129 SASR 304 Grenning v Ware & Ors [2005] QSC 82 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Hanson v Hunter [2015] NSWDC 220 Harvey v John Fairfax Publications [2005] NSWCA 255 Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 Howie v New South Wales Lawn Tennis Ground Ltd (1956) 96 CLR 132 Johnston v Nationwide News Pty Ltd & 1 Or [2005] NSWA 17 Kable v State of NSW (2010) 203 A Crim R 66 Leerdam & Anor v Noori & Ors [2009] NSWCA 90 Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805 Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 Mantell v Molyneux [2006] NSWSC 955 McGinn v Peter Clisdell Pty Ltd (No. 2) [2018] NSWSC 1856 Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 Mohareb v Kelso [2017] NSWCA 98 Mohareb v Kelso (No 2) [2017] NSWCA 173 New South Wales v Landini [2010] NSWCA 157 Palmer v Mohareb [2019] NSWSC 975 Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) Powell v Gelston [1916] 2 KB 615 QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 Quirk v State of New South Wales [2011] NSWSC 341 R v Beydoun (1990) 22 NSWLR 256 Reilly v. Bissonnette, 2008 BCCA 167 State of New South Wales v Quirk [2012] NSWCA 216 Tamiz v Google Inc [2013] EWCA Civ 68 Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253 Wickstead v Browne (1992) 30 NSWLR 1 Young v RSPCA NSW [2019] NSWDC 613 Category: Procedural and other rulings Parties: Plaintiff: Gary Young First Defendant: RSPCA NSW Second Defendant: Jean Sprague Third Defendant: Andrew Wozniak-Smythe Fourth Defendant: Australia Broadcasting Corporation Fifth Defendant: Google Representation: Counsel: Plaintiff: In person First, Second and Third Defendants: Ms S Chrysanthou Fourth Defendant: Ms M A Cowden Fifth Defendant: Mr M J Lewis

[4]

An overview of these proceedings

The plaintiff, by statement of claim filed on 26 June 2019 (currently in the form of a Further Amended Statement of Claim filed on 23 October 2019), brings four claims against five defendants. The pleading comprises 51 typed pages with 21 annexures and the claims are listed numerically as "The First Cause of Action" and following. These claims may be summarised as follows: 1. "The First Cause of Action" (pp 1 - 16 of the further amended statement of claim): This is a claim for malicious prosecution. The first defendant is the Royal Society for Prevention of Cruelty to Animals ("RSPCA"). The second defendant is Inspector Jean Sprague, who was the prosecutor in relation to charges laid against the plaintiff pursuant to ss 5 and 6 of the Prevention of Cruelty to Animals Act 1979 (NSW), conducted in Goulburn Local Court, which resulted in his conviction. The third defendant, Mr Andrew Wozniak, is a partner in the law firm retained by the RSPCA for the prosecution. The plaintiff was convicted on 12 December 2012 but, on appeal, the conviction and fine were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which the plaintiff submits amounts to an acquittal. 2. "The Second Cause of Action" (pages 16 - 17 of the further amended statement of claim): This is a claim for abuse of process, based upon the same facts as those set out in 3(a) above and is brought against the same defendants. 3. "The Third Cause of Action" (pages 17 - 21 of the further amended statement of claim): This is a claim for "defamation by the defendants ABC and RSPCA", according to the heading on page 17 of the statement of claim (the ABC is the fourth defendant). The matter(s) complained of is/are identified as a press release dated on or about 11 December 2012 which it is asserted the RSPCA subsequently "requested or took actions" for the ABC to publish. This is asserted to have resulted in the four-sentence trial report published by the ABC on 12 December 2012, which remained online "until 2019" (p. 18). Alternatively, the ABC is solely liable for "a continuous course of conduct" of publications over the period 12 December 2012 until the link was removed in 2019. 4. "The Fourth Cause of Action" (pages 23 - 51 of the further amended statement of claim): This is a claim for defamation for nine publications and is brought against Google LLC (the fifth defendant). 5. A defamation claim made against the sixth and seventh defendants was discontinued and is the subject of a gross sum costs order: Young v RSPCA NSW [2019] NSWDC 613.
The basis upon which the defendants seek summary dismissal of each of these claims may be summarised as follows: 1. The First Cause of Action (malicious prosecution): Although raising other issues (such as pleading problems and proportionality), the first to third defendants principally argue that the plaintiff did not obtain a successful termination of the prosecution. 2. The Second Cause of Action (abuse of process): The first to third defendants submit that the claim for abuse of process is so hopelessly pleaded that it should be struck out without leave to replead. 3. The Third Cause of Action (defamation): The first defendant submits there is no evidence of any publication by them either within the limitation period or at all. As to the 12 December 2012 publication by the fourth defendant, the first to fourth defendants submit that any claim reliant on this publication should be struck out on the basis that a defence under s 29 Defamation Act 2005 (NSW) is made out. Alternatively given the limited evidence of download, these defendants rely upon the proportionality issues developed by Mr Lewis, not only on behalf of the fifth defendant, but in relation to all defamation claims. 4. The Fourth Cause of Action (defamation): Google submits that there is no actionable publication. Alternatively, any publication capable of being identified as being downloaded within the limitation and after notification is so limited that the principles of proportionality enunciated in Bleyer v Google Inc (2014) 88 NSWLR 670 are made out. Mr Lewis's submissions are also relied upon by the defendants in the Third Cause of Action and the first to third defendants also rely on these principles in relation to the claims the subject of the First and Second Causes of Action.

[5]

Summary dismissal of proceedings

The relevant principles for summary dismissal, as set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, constitute a high bar.
However, traditionally cautious judicial approaches to such applications appear to be changing as case management principles incorporated into legislation such as the Civil Procedure Act 2005 (NSW) carry increasing importance. An example of these changing views may be seen in the observations of Neave JA, in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at [41], where his Honour explained the importance of the role of "the over-arching purposes" of such legislation in Victoria as follows: "[41] Nevertheless I am concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s 63 having little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s 1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposes of that Act, imposed by s 8."
Similarly to the Victorian legislative regime, the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (NSW) flows through to the provisions of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Rule 13.4 UCPR 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)."
Rule 14.28(1) UCPR 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)."
In addition, in relation to proportionality, UCPR r 12.7 provides: "12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit."

[6]

Summary dismissal applications in defamation proceedings

Unlike some other areas of the law, where summary dismissal applications are rare, or may even be actively discouraged (see Supreme Court Practice Note SC Eq 3 at paragraph 62), applications for summary judgment for defamation (other than in the Federal Court) have become increasingly common. This is partly because of the requirement for plaintiffs to reach a "threshold" for online publications by identifying a specific downloading of the publication, partly by the availability of summary dismissal for certain defences (such as absolute privilege) and, over the past five years, because of the increasing number of applications for summary dismissal for proportionality reasons: Bleyer v Google Inc. All three of these bases for summary dismissal have been invoked in these applications.
However, the entitlement to strike out claims for non-defamation actions (such as malicious prosecution) on the basis of proportionality is, as I noted in my previous decision (Young v RSPCA NSW [2019] NSWDC 613), novel. The usual basis for such applications is poor pleading. However, courts generally exercise caution in striking out the whole action on such a basis, particularly where the defective pleading is being examined for the first time.
As to poorly pleaded defamation claims, it is not uncommon for applications for summary dismissal to be brought on the basis that, despite a number of attempts, the pleadings are insufficient: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. Whether or not summary dismissal is granted may be a question of the degree of delinquency involved, and the granting of such relief in terms of abuse of process is rare: Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 at [41] per Macfarlan JA. However, where there has been no proper identification of the matter complained of, in terms of content, timing and extent of publication, the courts have taken a firmer stance: Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306; Emmerton v University of Sydney [1970] 2 NSWR 633.

[7]

The circumstances leading to the bringing of this claim

The first defendant, a not-for-profit organisation, is empowered to prosecute offences under the Prevention of Cruelty to Animals Act 1979 (NSW). On or about 18 July 2011, the plaintiff was issued with five court attendance notices for offences under ss 5 and 6 of the Prevention of Cruelty to Animals Act 1979 (NSW). Those notices named the second defendant, Inspector Sprague, as the prosecutor on behalf of the RSPCA. The offences in question included a failure of the plaintiff to provide adequate food and treatment to a chestnut mare which was subsequently put down. An employed solicitor from the same law practice in which the third defendant was a partner instructed Mr Bodor QC on behalf of the RSPCA. The plaintiff gave evidence and was cross-examined. Magistrate Beattie delivered judgment on 11 December 2012, finding that the charges were proved beyond reasonable doubt.
The plaintiff appealed the convictions on that same day. The three-year delay between the judgment of Magistrate Beattie on 11 December 2012 and the judgment of Jeffreys DCJ on 25 July 2016 is not the subject of any complaint by any of the parties and, in particular, not by the plaintiff. It is Jeffreys DCJ who explains this delay in his judgment, where his Honour notes that the proceedings had been before the court for "some considerable time" to enable the obtaining of a series of medical reports, the "latest" of which was a report of Dr Williams of 16 June 2016.
Jeffreys DCJ set out the nature of the application before the court and the charges as follows: "HIS HONOUR: This is an application for the consideration of s.32 of the Mental Health (Forensic Provisions) Act 1990. The appellant is charged with offences shortly described as cruelty offences. The facts, briefly, are that between 29 July and 31 August 2010 the appellant is charged with being in charge of a chestnut mare, did commit an act of cruelty upon it by failing to provide it with proper sufficient food, causing the mare hunger and distress and did fail to provide the mare with veterinary treatment for internal and external parasites and dental and tongue problems, thus contravening the provisions of s.5(1) and 5(3)(c) of the Prevention of Cruelty to Animals Act 1979 in a way that resulted in serious disablement of the mare. He was also charged with three counts of failing to provide veterinary treatment in relation to lice, worm and bots and dental and tongue problems, and one count of failure to provide proper and sufficient food. Those four counts are effectively subsidiary to the principal charge and basically form the circumstances that set out the elements of the principal charge. On 31 August 2010 some neighbours became aware of a horse they believed to be the appellant's which was recumbent on a neighbouring property. They left a message for the appellant about the horse being down and then met him at the gate and drove into the property. There they observed the horse to be lethargic, in a poor condition, it appeared to have been down for quite a while and was dehydrated. They took the horse home for veterinary treatment and then called the vet, Dr Wright. Dr Wright examined the horse the following day. He observed rain scald, heart murmur, urine building, a sunken rectal perianal area, extremely malnourished and emaciated, lice, ocular discharge, unsteady gait, worn teeth and ulcerated tongue. Ms Sprague, an inspector from the RSPCA, then attended at the vet's request and made similar observations of the condition of the horse. The following day, on 2 September, an equine vet, Mr Doherty, inspected the horse. At that stage the horse was standing and able to walk. He says it had been of very poor body condition. He had a guarded view which was to be taken day by day. By the following day the horse had gone down again and the RSPCA were notified. Dr Wright attended, saw the horse was in distress, unable to rise and gave it pain relief. He returned later in the day and he was accompanied by Dr Johnson. The horse was still recumbent and both were of the opinion that it was cruel to keep the horse alive and so it was euthanased. They performed a post-mortem later that day and noted a heavy internal parasite burden, extremely worn teen, chronically ulcerated tongue and that this was a long term condition."
Jeffreys DCJ set out the provisions of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and then explained: "These proceedings are an appeal pursuant to the Crimes (Appeal and Review) Act against the convictions from the Magistrate. It is quite clear in my view, and the respondent to the appeal does not submit otherwise, that I am able to consider the provisions of s 32."
Having noted Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93, his Honour went on to summarise the circumstances in which the plaintiff suffered a serious head injury after being kicked in the head by a horse on 12 April 2012, which resulted in major depression which the psychiatrist considered was a matter coming within s 32. It was as a result of this report and the subsequent treatment plan that Jeffreys DCJ noted the matter had been before him for some considerable time.
His Honour was satisfied that the plaintiff "still comes within s 32 of the Act" notwithstanding certain findings of the psychiatrist and went on to explain the sentencing process as follows: "I have taken into account the seriousness of the offence when balancing the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating or regulating to the greatest extent practicable the conduct of individuals suffering from any of the mental conditions referred to in s.32(1). In my view, it is appropriate in this matter to divert the appellant from the criminal justice system."
His Honour went on to make the following orders: "Accordingly, the appeals are upheld. The convictions, bonds and orders made by the learned Magistrate are set aside. Pursuant to s.32(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I order the charges be dismissed and the appellant discharged subject to the following conditions: . That he comply with and continue treatment with Dr Wiliams or such other medical practitioner as is recommended by Dr Williams. . That he comply with any medical regime prescribed by Dr Williams or such other medical practitioner. . That he attend counselling and other treatment as recommended by Dr Williams or other medical practitioner."

[8]

The First Cause of Action - Malicious prosecution

The relevant principles for a claim for malicious prosecution are set out in A v State of New South Wales & Anor (2007) 230 CLR 500 at [1] as follows: "[1] … For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause."
At paragraph 2 of the first to third defendants' submissions, Ms Chrysanthou describes the plaintiff as making "claims in defamation and malicious prosecution against the defendants" for which summary dismissal is sought. She outlines the position of both of these claims in an intertwined fashion as follows: "5. As to the claims for malicious prosecution and abuse of process, they are hopeless. In relation to the third defendant, Mr Wozniac, he clearly was not the prosecutor. Further, the plaintiff was not acquitted - the offences were in fact proved but the charges were dismissed, with conditions imposed, by reason of the operation of s.32 of the Mental Health (Forensic Provisions) Act 1990. 6. Finally, the FASOC, being the plaintiff's third attempt at a pleading, is incomprehensible, and liable to cause expense and delay that is disproportionate to any potential benefit that the plaintiff will achieve if the proceedings are allowed to proceed."
Ms Chrysanthou repeats these submissions in the following detail: 1. The pleading is "unintelligible" (written submissions, paragraph 27), in that the facts relied upon are not identified and consist of a "lengthy narrative" (written submissions, paragraph 27); 2. The prosecution did not terminate in the plaintiff's favour (written submissions, paragraph 28); 3. The claim against the third defendant is "utterly hopeless" (written submissions, paragraph 29); 4. The tort is not complete unless evidence of damage is provided, which has not been done: New South Wales v Landini [2010] NSWCA 157 at [20].
The plaintiff's general response to the criticism of his pleadings was that, as a litigant in person, he should be given more than one attempt to get the pleading right, for both the malicious prosecution and abuse of process claims.
In relation to the claim that he was not successful on appeal, the plaintiff relies on the language of the orders made by Jeffreys DCJ confirms that the convictions were in fact set aside. The plaintiff says that the orders flowing from this judgment amount to a finding that no crime has been proved and this is the equivalent of being convicted.

[9]

Were the proceedings determined in favour of the plaintiff?

The plaintiff draws my attention to the language of the sentencing judge, and in particular to the following: 1. "the appeals are upheld"; 2. "the convictions, bonds and orders made by the learned magistrate are set aside pursuant to [the relevant portions of the Act]; 3. "I order that the charges be dismissed and the appellant discharged subject to the following conditions…"
Ms Chrysanthou submitted that the prosecutions did not terminate in the plaintiff's favour, in that the facts set out in the sentence clearly demonstrate that the offences were proved beyond reasonable doubt.
I note generally the importance of analysis of the statute in question in relation to issues relevant to malicious prosecution generally: Kable v State of NSW (2010) 203 A Crim R 66 at [47] per Hoeben J, regarding the Community Protection Act 1994 (NSW); see also Reilly v. Bissonnette, 2008 BCCA 167 at [52]-[57]. For this reason, close attention must be paid to the language of the statute.
The convictions were set aside only on the basis of the finding under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which provides as follows: "32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013 , (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section. (5) The regulations may prescribe the form of an order under this section. (6) In this section: "cognitive impairment" means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following: (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder."
Ms Chrysanthou told the court that she had been unable to find any authority, either under the Mental Health (Forensic Provisions) Act 1990 (NSW) or similar legislation. This is incorrect. After I reserved, my researches led me to Quirk v State of New South Wales [2011] NSWSC 341, a claim for malicious prosecution, abuse of process and other claims, where the same argument Ms Chrysanthou put before me was rejected by Grove AJ.
In Quirk v State of New South Wales, Mr Bodor QC (who was coincidentally the prosecutor in the proceedings brought against Mr Young as well) submitted that a dismissal of charges under s 32 of the Act was not a favourable termination of proceedings for the purposes of malicious prosecution. Grove AJ gave the following reasons for rejecting this argument (at [80]-[82]): "80 The defendant has submitted that the plaintiff has not pleaded (nor proven) favourable termination of the relevant charges. It is admitted on the pleadings that the charges were dismissed as above recounted on 2 November 2007 (sic 2 November 2006). At the risk of repeating comments made during the hearing about the quality of pleading, I am content to approach the issue on the basis that it was intended by the expression of dismissal to assert a relevant termination in the plaintiff's favour. 81 In support of its contention, the defendant drew attention to the remarks of Isaacs ACJ and Starke J in Davis v Gell (1924) 35 CLR 275 concerning proof of innocence where a prosecution had been brought to an end by the entry of a nolle prosequi. The observations in that case must be understood in the light of the later authority of Commonwealth Life Assurance Society v Smith (1938) 59 CLR 527 where it was noted (at page 540) that, before Davis v Gell, no one appears to have supposed that, where the prosecution broke down before a magistrate a plaintiff was in a less favourable position than a plaintiff who had been acquitted after trial. The joint judgment (Rich, Dixon, Evatt and McTiernan JJ) proclaims that, except in the case of a nolle prosequi, the guilt or innocence of a plaintiff is not an issue going to the cause of action in malicious prosecution (at page 543). 82 Given the structure of the mental health provisions above noted, the plaintiff is not in jeopardy of further prosecution and, to the extent that it might be sought to argue its relevance, the plaintiff possesses a presumption of innocence in respect of the charges. I am satisfied therefore that the plaintiff has established the element of the tort that the proceedings terminated in his favour."
Grove AJ specifically referred to the provisions of s 32(4) as the basis for this finding, as it provides that the dismissal of the charges against the defendant "does not constitute a finding that the charges against the defendant are proven or otherwise".
Mr Quirk failed in relation to other elements in the claim for malicious prosecution but succeeded on other claims, resulting in an appeal by the State of New South Wales in relation to the malicious prosecution findings: State of New South Wales v Quirk [2012] NSWCA 216 at [8]. One of those should have been the rejection of Mr Bodor QC's submissions as to s 32 of the Act. However, Tobias AJA (with whom Beazley and Hoeben JJA agreed) commenced his judgment at [3]: "On 1 and 7 March 2006 the respondent was arrested by police after encounters at Kingswood and in Sydney city respectively. Arising out of both incidents, the respondent was charged with various offences. The proceedings with respect of those offences were relevantly terminated in favour of the respondent. As a consequence, the respondent instituted proceedings in the Supreme Court against the appellant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988. At all material times the appellant was vicariously liable pursuant to ss 8 and 9 of the Law Reform (Vicarious Liability) Act 1983 for the alleged tortious acts of the police officers concerned." [Emphasis added]
Was this issue canvassed in argument? Whether or not it was, the view of the Court of Appeal is clear. Whether or not this elevates Grove AJ's findings as to s 32(4) to appellate level, both these judgments are directly on point (they are also relevant to the abuse of process claim, as Mr Quirk brought a claim of abuse of process in addition to the malicious prosecution claim).
Where parties have overlooked a decision of central relevance to the issues before the court, the appropriate course to take is that adopted by Walmsley DCJ in Ford v Nagle [2004] NSWCA 33, namely to relist the matter for argument or to seek further submissions. As there were problems with both the malicious prosecution and abuse of process claims, my associate contacted the parties to draw their attention to the relevant sections of the decision Quirk v State of New South Wales (at first instance) and State of New South Wales v Quirk (the decision of the Court of Appeal). I have now received replies from both parties in relation to these decisions.
Ms Chrysanthou argues that the finding by Grove AJ "appears to have turned on the fact that the plaintiff had never been convicted of the offence in question, and that the charges had been dismissed pursuant to s.32" (written submissions, paragraph 7) whereas, in the present proceedings, the plaintiff was convicted at first instance. Ms Chrysanthou, asserts that, on appeal, "the only issue in question was whether Mr Young came within the confines of s.32" (written submissions paragraph 8). In those circumstances, "[t]he presumption of innocence relied on by Grove AJ in Quirk is thus not relevant in this matter - Mr Young was in fact convicted" (written submissions paragraph 8). On this basis, it is asserted that a person found guilty of an offence at first instance who is diverted from the criminal justice system under mental health provisions on appeal has not had the criminal proceedings terminated in their favour, as the factual findings of Magistrate Beattie were "not disturbed (and indeed adopted) by Jeffries [sic] DCJ" (written submissions paragraph 9).
The plaintiff's submissions are that the decisions of Grove AJ at first instance and the Court of Appeal on appeal are correct and that I should follow them.
Ms Chrysanthou's explanation of Grove AJ's reasoning overlooks his Honour's careful analysis of s 32(4) which is the clear basis for his Honour's finding, rather than the stage the proceedings had reached before the s 32(4) orders. Whether or not a plea had been entered (or for that matter, if the person coming before the court was actually "innocent": Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Liristis [2011] NSWDC 40 at [20], citing Mantell v Molyneux [2006] NSWSC 955 at [39]), the whole purpose of s 32(4) is to ensure that a decision to dismiss charges does not constitute a finding that the charges against the defendant are proven or otherwise - which would mean that the judgment appealed from, which results in these orders, would similarly not stand as proof of anything.
These findings must turn on the words of the statute, and caution must be exercised when considering how other legislation which dismisses charges is to be interpreted. For example, charges dismissed under s 556A of the Crimes Act 1900 (NSW) are not viewed as meaning that there was no conviction, as otherwise the conviction could not be appealed (Fleet v District Court of NSW [2002] NSWCA 25 at [9]; see also Cameron v James [1945] VLR 113).
The section therefore operates to ensure that a decision to dismiss the charges under s 32 does not constitute a finding that the charges are proven. However, s 32(4) has some additional wording. What, then, is to be made of the additional words "does not constitute a finding that the charges against the defendant are proven or otherwise" (emphasis added)? I was not addressed on this issue by the parties.
The key is the words "or otherwise". Orders under s 32 are a result, but are not proof of a result which can be regarded as one of success or failure by the plaintiff in the criminal proceedings, in terms of the requirement for a favourable termination. This is not a right restricted to the proving of the charges but to any finding, favourable or otherwise. The words "or otherwise" in s 32(4), in my view, deprive the plaintiff of that entitlement. The first to third defendants may not say that there is an unfavourable termination, but the plaintiff may not say that he has a favourable termination either.
The phrase "or otherwise" occurs in other statutes: see for example Georgitsis v Lend Lease Interiors Pty Ltd & Ors (1989) 17 NSWLR 106. While the interpretation of this phrase will depend upon its context, these words should not be regarded as mere surplusage. To the contrary, this phrase may be a term of the widest import; in Howie v New South Wales Lawn Tennis Ground Ltd (1956) 96 CLR 132 the High Court unanimously held that, where the phrase "whether by way of compensation, damages or otherwise" was used in an agreement, "the clear purpose seems to be to exclude all rights enforceable by action for damages or in any other way".
There is no discussion of the words "or otherwise" in Quirk v State of New South Wales. Nor was this issue considered in any detail by the Court of Appeal, despite clearly being a significant issue at first instance as well as a matter of some importance, in that this interpretation has ramifications for the operation of s 32(4).
The plaintiff is entitled to rely upon both these judgments as being binding upon this court. Ordinarily, that would be the end of the argument.
However, I propose to follow the course taken by Hoeben J in Kable v State of New South Wales (albeit in relation to another element in the tort of malicious prosecution), namely to focus upon the language of the statute. For the reasons set out above, I accept that s 32(4) means what it says, namely that no conclusions or proofs arise at all where findings are made under s 32.
I am accordingly satisfied that Grove AJ was plainly wrong to reject the submissions of Mr Bodor QC and to determine that there had been a favourable termination. The Court of Appeal, if endorsing that approach, would similarly be wrong. If the Court of Appeal overlooked this issue entirely, as appears likely to be the case, its decision may be disregarded, or treated as plainly wrong for this reason.
In such circumstances, I am satisfied that the s 32 findings do not constitute proof of a successful termination and the plaintiff's claim for malicious prosecution accordingly fails.
I propose to strike out this claim on the basis that favourable termination cannot be established. In the event that I have erred, I set out, in brief terms, my reasons for rejecting Ms Chrysanthou's submissions that the malicious prosecution claim should be struck out on the basis that the pleading is hopeless.

[10]

Malice and absence of reasonable and probable cause

Ms Chrysanthou submits that, the pleading in relation to the remaining elements of the tort of malicious prosecution are so unintelligible that the proceedings should be struck out and dismissed without leave to replead.
This is the first time the court has been asked to rule on the pleading. In Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682 at [4], where an application of this kind was abandoned part-way through and leave to cure the deficiencies agreed to, Adamson J stressed the need for courts to balance the requirements of both parties: "As a matter of general principle, it is important in the interest of justice that plaintiffs have an opportunity to put their claims properly and that proceedings not be dismissed lightly when there could well be reasonably arguable causes of action available. However, it is also important, in the interests of justice, that causes of action be properly pleaded. This is an aspect of procedural fairness in that a proper pleading not only enables a defendant to understand the case it has to meet, but it also enables the Court to appreciate what is in issue between the parties."
I note similar observations by Hidden J in Duke v New South Wales [2005] NSWSC 632 and also in Reilly v. Bissonnette, where summary dismissal of the malicious prosecution on such grounds was set aside on appeal.
There are other reasons for reluctance. The extraordinary generality with which Ms Chrysanthou's complaints were put would make it difficult for me to determine the issue in relation to each of the elements of malice and reasonable and probable cause. Beyond making the general complaint that the pleading is "unintelligible" in that it "repeatedly refers to judgments and transcripts in other matters without identifying what facts are relied on", as well as containing a "lengthy narrative", no further specifics are given.
That is not to say that the pleadings are in acceptable form. The first problem the plaintiff has is that he has run together the particulars of "lack of probable cause" and "deliberate malicious intent", in paragraphs 5 to 84 of the statement of claim. While this pleading impermissibly intertwines lack of probable cause and malice (and would need to be repleaded for that reason alone), Ms Chrysanthou does not refer to this defect at all.
Despite the pleading defects, there is material set out which could amount to malice, such as prior hostility and ill-will from two prosecution witnesses, Mr and Mrs Cook, who were the subject of adverse findings by the magistrate in relation to credit in other proceedings brought against them by the plaintiff.
There is also material capable of establishing absence of reasonable and probable cause. For example, paragraph 84 sets out that the first to third defendants knew that the horse for whose treatment the plaintiff was prosecuted was not his at all, but was owned by the tenant who had been evicted from the property on which the horse was found. What is more, it is asserted that this "true owner" of the horse in question had been previously investigated by the RSPCA for cruelty to other animals on the same farm, only a few months prior to this horse being found. If any of these particulars is able to be demonstrated as true, there may be sufficient disputed issues of fact for such material, in properly pleaded form, to go forward to trial.
For the same reasons as those set out by Hidden J in Duke v New South Wales, the plaintiff would, if I have erred in relation to my finding as to absence of favourable termination, be permitted at least one more opportunity to plead his case properly. While the claim in its present form must be struck out, there is material that may potentially outline a claim for malicious prosecution; the real problem is the non-legal manner in which it had been presented.
The same is the case in relation to the first to third defendants' complaint concerning the failure to plead special damage (Davis v Gell (1924) 35 CLR 275). The plaintiff has pleaded a claim for general, aggravated and exemplary damages but needs to identify proof of special damage and has not done so. This is not a basis for striking out the claim, but for permitting an amendment.

[11]

Is the third defendant a prosecutor?

Ms Chrysanthou submitted that, whether or not I accepted her arguments on other issues, the proceedings against the third defendant should be struck out as manifestly hopeless.
I do not propose to do so. First, the plaintiff is entitled to rely upon Davis v Gell as authority for the proposition that the informant does not have to be the prosecutor for the purpose of an action for malicious prosecution. In Davis v Gell, Isaacs ACJ explained the reasons for permitting a claim against a civilian complainant, although the prosecution had been conducted by the police, as follows (at 282-283): "For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position."
In Duke v State of New South Wales, Hidden J similarly permitted a claim against not one, but a total of four, persons to go ahead on this basis (at [38] - [41]).
Second, there is also the general undesirability of summary dismissal against one of a number of defendants: see the discussion of Wickstead v Browne (1992) 30 NSWLR 1 and UCPR r 29.9 in Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 at [239]-[244], where Hamill J notes that this decision and these principles were approved in Ford v Nagle (at [240]).
Accordingly, I would not have been prepared to strike out the claim as against the third defendant at all, and certainly not without granting leave to replead.

[12]

The second cause of action

The second cause of action, set out on page 16 of the further amended statement of claim provides: "Second cause of action Abuse of process by Rspca, Sprague, Wozniak 1.. Plaintiff incorporates every paragraph in the first cause of action herein as if fully set out in this cause of action Defendant RSPCA, Sprague and Wozniak issued and served 5 Court attendance notices on plaintiff returnable at Goulburn Local Court on or about 24 August 2010. Plaintiff attended at the court and plead not guilty. Thereafter a trial took place and plaintiff was convicted on 11/12/2012 Thereafter plaintiff was successful on appeal as plead and the matters dismissed and the appeal upheld 2.. Defendants Rspca, Sprague and Wozniak abused the process of the court by wrongfully issuing the courts process for A]……. An improper use of the court's process; and for B] ……. An ulterior or improper motive of the defendants in exercising such illegal/unlawful use of process; C] ……. Continuing damages to the plaintiff has now resulted and is continuing from the abuse of the courts process Further particulars see first cause of action 3.. The defendants one two and three issued the courts process to begin the malicious prosecution of plaintiff in Rspca v Young local Court Goulburn with an ulterior motive to severely damage and vilify plaintiff and not for the proper and lawful purpose and use of the courts processes and all of which actions have caused severe damages to plaintiff Wherefore plaintiff claims-GENERAL DAMAGES-AGGRAVATED DAMAGES EXEMPLARY DAMAGES-as set forth in the first cause of action"
The instigation of the proceedings which are asserted to be the abuse of process is pleaded as commencing "on or about August 2010" and continuing until 12 December 2012, when the plaintiff was convicted. Thereafter, according to the pleading, the plaintiff prosecuted his appeal, but there is no particularisation of malicious continuation, or indeed any actionable conduct in relation to the appeal after that time. This could have ramifications in relation to the limitation period which runs from the accruing of the cause of action (12 December 2012) and not the date of the appeal and s 32 orders in 2016.
The only submissions made in relation to the claim for abuse of process are that this claim is "also unclear and should not be allowed to proceed for the same reasons" as the malicious prosecution (written submissions, paragraph 30). The orders sought, as for the malicious prosecution claim, are for this claim to be struck out without leave to replead.
In Quirk v State of New South Wales, a claim for abuse of process as well as a claim for malicious prosecution was brought (as Grove AJ notes at [15]). However, the plaintiff in those proceedings made the same mistake that the plaintiff in these proceedings had made, in that he considered that favourable termination was a necessary element of the claim. This is wrong; as Grove AJ stated in [73] of his Honour's judgment: "I turn to the action for malicious prosecution. To succeed upon such a cause of action the plaintiff must prove the institution of criminal proceedings by the defendant, the termination in favour of the plaintiff, the absence of reasonable and probable cause for the institution of proceedings and malice by the prosecutor in the sense of having a purpose other than that of carrying the law into effect. The distinction relevant to the pleaded alternative (abuse of process) lies in the misuse of legal process, even if properly obtained, for some improper purpose. I mention that no such improper purpose was sought to be identified nor was it evidenced." (Emphasis added)
Although I drew this paragraph to the attention of the parties when requesting further submissions on Quirk v State of New South Wales, they appear to have overlooked this aspect of my request. It is obvious that the plaintiff does not understand that favourable termination is not a necessary factor for abuse of process and, given the observations set out in paragraphs 5 and 28 of the first to third defendants' written submissions, this error has not been picked up by the first to third defendants.

[13]

The nature of a claim for abuse of process

Hunt J explained the nature of claims for abuse of process in R v Beydoun (1990) 22 NSWLR 256 as follows: "Civil actions such as malicious prosecution and abuse of process are not precluded by the [witness immunity] rule, however, because they are based not directly upon statements made in the course of the judicial proceedings, but rather upon the instigation of the proceedings themselves (or upon their continuation), and notwithstanding that the plaintiff may seek to support his case by proving the falsity of statements made in those proceedings which form the basis of such a claim… The availability of such actions appears to me to accord satisfactorily with the twofold rationale of the rule which the cases have identified." [Emphasis added]
It is "the instigation of the proceedings" (and any asserted continuation) that is actionable; whether or not the plaintiff was acquitted on appeal is not an issue for determination at the trial.
The history of the cause of action of abuse of process is comprehensively set out by Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 374-376, where his Honour notes (at 375E) "the fundamental differences between an action for damages for abuse of process and an action for damages for malicious prosecution". Hunt J sets these out as follows: "The difference principally relevant here is the need in the action for malicious prosecution, but not in the action for abuse of process, for the plaintiff to plead and to prove that the earlier proceedings have terminated in his favour. Thus there is not in the action for abuse of process (as there is in the action for malicious prosecution) necessarily an adjudication in the earlier proceedings in relation to the present plaintiff's entitlement to costs. If the earlier proceedings had terminated in favour of the present plaintiff, then his expenses would have been recoverable in those proceedings and they would not support his subsequent action for abuse of process. But, where those earlier proceedings have not so terminated in favour of the present plaintiff, I see no reason why his expenses in relation to those proceedings should not validly support his present claim."
As already noted above, the first flaw in the abuse of process pleading is that the plaintiff sets out that he was successful on appeal, in the same way that he has set this out in relation to the malicious prosecution claim. As there is no requirement for a successful outcome for the tort of abuse of process, unlike the malicious prosecution claim, which requires a favourable outcome, the elements of the tort were complete in 2012, on the facts as pleaded. If so, the abuse of process claim may fall outside the limitation period (a problem overlooked by the parties, despite my referring to them to the observations of Grove AJ in Quirk v State of New South Wales at [73]).
What approach should the court take when a limitation issue arises in a claim of this kind? In Reilly v. Bissonnette, a similar problem arose in relation to a claim for negligent investigation by the police (at [59]-[75]). As was the case here, counsel for the respondents in those proceedings did not address this issue, including identifying any particulars of negligence which could be struck out as a result. The court was reluctant to decide on a summary basis that the plaintiff's cause of action had become complete prior to his ultimate acquittal in those proceedings and to make a finding (at [72]) that the action was statute barred. The same should be the case here.

[19]

Fair report of proceedings

Whatever the parameters of the claim brought against the ABC, a discrete question capable of determination without consideration of publication issues is whether a defence of fair report of proceedings of public concern is so self-evident that any claim based on liability for the 12 December 2012 news item should be struck out on the basis that a complete defence is provided under s 29 Defamation Act 2005 (NSW).
Section 29 provides: "29 Defences of fair report of proceedings of public concern (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section - "proceedings of public concern" means - … (e) any proceedings in public of a court or arbitral tribunal of any country;"
The issues for determination on a summary dismissal application are set out in Feldman v Nationwide News Pty Ltd [2016] NSWSC 1890 at [2]-[8] and in Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263. I note the following relevant factors: 1. These are proceedings of "public concern" (Barrow v The Herald & Weekly Times Pty Ltd at [24]). 2. I must accept whatever imputations the plaintiff may assert may be carried by the matter complained of (Feldman v Nationwide News Pty Ltd at [8], Barrow v The Herald & Weekly Times Pty Ltd at [33]). 3. Although no defence has been filed, I may accept that the ABC proposes to plead a s 29 defence (Barrow v The Herald & Weekly Times Pty Ltd at [31]). 4. I may consult the transcript of the hearing (Barrow v The Herald & Weekly Times Pty Ltd at [31]). 5. A key factor will be whether the publication is a summary of what occurred, or contains opinion or observations.
The ABC has provided the following table, the contents of which (with one exception, set out below) are not in dispute. I have also had the benefit of reading the transcript before the magistrate which is the subject of the report. ABC Article RSPCA Proceeding transcript NSW man fined $118k for animal cruelty T12.38-T13.5 (re costs order for vet disbursements totalling $2,588.27 ex GST) T13.7-18 and T18.11-14 (re costs order for prosecution's legal fees totalling $115,021.01) T1.23-30 and T9.32-43 (re guilty finding of aggravated cruelty) A man from Gundary near Goulburn in southern New South Wales has been ordered to pay more than $100,000 after being found guilty of animal cruelty charges. T1.32-36 and T11.33-38 (re subsidiary animal cruelty charges) T12.38-T13.5 (re costs order for vet disbursements totalling $2,588.27 ex GST) T13.7-18 and T18.11-14 (re costs order for prosecution's legal fees totalling $115,021.01) RSPCA inspectors were called to Gary Young's property in 2010 where they found an emaciated chestnut mare heavily infected with lice. T2.5-11 The RSPCA says the mare had to be euthanised when its condition worsened. T2.13-20 T1.23-30 and T9.32-43 (re guilty finding of aggravated cruelty) Yesterday, the Goulburn Local Court found Young guilty of aggravated animal cruelty, placing him on a good behaviour bond and ordering him to pay almost $118,000 in costs. T12.16-25 (re imposition of good behaviour bond) T12.38-T13.5 (re costs order for vet disbursements totalling $2,588.27 ex GST) T13.7-18 and T18.11-14 (re costs order for prosecution's legal fees totalling $115,021.01)

[20]

The reason why applications of this kind generally fail is that "fair" is generally a trial issue (Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at 587-8). A report will not be fair if it substantially alters the impression its recipient would have gained had he or she been present during the proceedings (Feldman v Nationwide News Pty Ltd at [12]). In Feldman v Nationwide News Pty Ltd, the question was whether there were nuances in the plaintiff's evidence (at [18]-[22]) and commentary (at [23]-[24]).
This report is entirely different to those under consideration in these earlier judgments. First, it consists of a summary of the findings of fact made by the magistrate, all of which, apart from the word "fine" in the heading, are clearly accurately reported, as can be seen from the Table above and from examination of the court transcript. Second, as to the word "fine", the plaintiff was ordered to pay this sum as legal costs, and not as a fine, as the second and final sentences of this four-sentence-long article make clear.
I accept the ABC's submission that this is sufficient to warrant "fair" being considered to be a trial issue. The ordinary reasonable reader is taken to have read the whole of the matter complained of. As was the case in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, the meaning must be read in the context of the whole publication, which is sufficient in my view to make it clear that the plaintiff was ordered to pay a total which was a fine and court costs.
The plaintiff's submits that the ABC had a duty to find out about the appeal and either to rewrite or withdraw the article. He told the court that he was aware of the ABC article being online at the time it was published and that he and his partner Ms Penney (on his behalf) checked from time to time to see if it was still there. However, he admitted that he had never told the ABC that there was any inaccuracy, or that an appeal had been brought, or the result of that appeal, and adds that he considered it was the ABC's duty to find this out.
The time at which the defence succeed or fails is at the time of the court proceedings. The fact that there is an appeal is irrelevant.
The plaintiff additionally submitted that the evidence was all perjured and that the ABC had an obligation to look behind the evidence set out in the trial. However, the purpose of the defence is to protect the reporting of proceedings of public concern. The ABC clearly discharged that duty in reporting the result of the prosecution in neutral and fact-based terms.
The short and fact-laden content of this report, the total absence of any commentary and the overall accuracy of its contents are sufficient for the s 29 defence to succeed.
The proceedings against the ABC and the first defendant should be dismissed summarily on this basis.
I alternatively note my findings in favour of the ABC on the issues of absence of actionable publication and proportionality.

[23]

The Fourth Cause of Action - defamation

The defamation claim brought against the fifth defendant is carefully analysed in the clear and thorough submissions provided by Mr Lewis of Counsel and the affidavit of Imogen Elizabeth Niney Loxton affirmed 25 November 2019.
The first that Google knew of these defamation claims occurred when the statement of claim filed on 26 June 2019 was served. That document set out only 4 partial URLS, arising from content appearing on an ABC webpage and a search engine result page ("SERP").
As the correspondence attached to Ms Loxton's affidavit of 25 November 2019 demonstrates, there was a chain of correspondence between the plaintiff and Google from 16 July to 1 August 2019, in the course of which Google endeavoured to identify the publications about which the plaintiff complained. In particular, on 19 July 2019, Google wrote to the plaintiff, pointing out both the failure to give prior notice and the inadequately provided URLs, as well as the fact that one of the matters complained of, a URL containing content published by the ABC, had been removed by the ABC. Google was able to remove from the Australian edition of Google Search another matter complained of that contained an excerpt from, and a link to, the content removed by the ABC, but the plaintiff was advised that Google's removal team needed a copy of a judgment/order and adequate particulars of the URLs for each of the remaining matters complained of to evaluate his complaint.
The plaintiff's emails in reply (sent between 22 and 31 July 2019) failed to provide this, in that these replies simply attached more screenshots with incomplete URLs and demanded that Google remove "all references" to the plaintiff in the search generated by his name and "emaciated horse" and "Fraser Anning". In his reply dated 1 August 2019 he stated: "I am not a computer geek type person to comply with your requests."
He went on to add that he could not provide the court documents without a 2,000 kilometre round trip and complained that Google was "placing the burden on me…to do your job."
The plaintiff's response to Google's legal representatives, in correspondence from August 2019 onwards, was similarly unhelpful. On 21 August 2019, Ashurst Australia wrote to the plaintiff as follows: "Dear Mr Young Young v RSPCA & Ors, District Court of NSW, Proceedings 2019/198201 We refer to the above proceedings. As you know, we are instructed to act for Google LLC (Google) in these proceedings. Please direct all correspondence in relation to this matter to us. Service and Jurisdiction As we have pointed out in previous correspondence with you, Google was not validly served with your Statement of Claim. This is because service of a District Court initiating process outside Australia is not provided for under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (part 11 applies only to the Supreme Court) or Service and Execution of Process Act 1992 (Cth). Nevertheless, Google yesterday submitted to the jurisdiction of the District Court and will appear at the Directions Hearing on Thursday 22 August 2019. Default judgment We note that your application for default judgment was rejected by a Registrar of the District Court of NSW on 19 August 2019. To the extent you seek to take any further step in relation to any future application for default judgment, we request that you provide notice to us in writing. Statement of Claim We note your email to us sent yesterday evening at 6:09pm indicating your intention to file an Amended Statement of Claim. We do not oppose an order to that effect. Noting your intent to amend the Statement of Claim, we invite your attention to what we consider to be inherent defects in your present pleading. In particular, in its current form, the Statement of Claim fails: 1. to plead any (or any adequate) cause of action against Google; 2. to provide adequate particulars of: (a) any publication upon which you rely to establish the cause of action (please see UCPR.15.19(l)(a)); (b)any publication upon which you rely on the question of damages (please see UCPR.15.19(l)(b)); (c) specify each imputation on which you rely (please see UCPR 14.30(2)(a)); (d) to specify whether the imputations you complain of are in their natural ordinary meaning or otherwise (please see UCPR.15.19(l)(c)); and (e) to specify the parts of the matter(s) complained of that support each pleaded imputation (please see UCPR 15.19(l)(e)); (f) the matters complained of (please see UCPR 15.19(2)); 3. to specify in the purported imputations any act or condition that is defamatory of you and appear to impermissibly repeat an extract of unidentifiable online content that you complain of; and 4. to succinctly and specifically set out the relevant factual matters you will seek to establish against Google. In its current form, the Statement of Claim is discursive, prolix, repetitive, argumentative and pleads matters of evidence. In this context we note you would appear to have been involved in similar litigation in the Federal Court of Australia: Young v Facebook Pty Ltd 2015 FCA 1440. In dismissing your claim, his Honour Justice Griffiths observed (at [45]): "Much of [your pleading] is in a narrative or discursive form and large parts are argumentative and repetitive" We therefore invite your attention to UCPR 14.7-14.8 as to the requirements for a pleading in this Court. Furthermore, our client has already removed from its search results for Australia all complete URLs that you have provided, and has requested complete URLs in relation to any other matters complained of. Our client confirms that there's no process by which it can identify allegedly defamatory material on the Web without the material being first identified to it. Our client's preference is to resolve your concerns in as efficient a manner as possible, however it will require your cooperation to identify the matters of concern to you. The alternative will involve a wasteful use of your, our client's, and the Court's resources. Next Steps We attach draft Short Minutes of Order, proposing a timetable for the filing of an Amended Statement of Claim, which we will provide to the Court at Thursday's Directions Hearing. Please let us know at your earliest convenience whether you agree with these orders. We otherwise reserve Google's position which includes seeking to strike out the Statement of Claim or apply for summary dismissal of these proceedings. In the meantime, our client again invites you to provide URLs for the matters of concern to you so that it can consider those matters and take appropriate action. Yours faithfully, Ashurst"
On 29 August 2019, Ashurst Australia wrote to the plaintiff as follows: "Dear Mr Young Young v RSPCA NSW & Ors, District Court proceeding 2019/198201 As you know, we act for Google LLC (Google). We refer to orders made in the District Court of NSW on Thursday 22 August 2019 by Levy J, including order 1, that you have leave to file an Amended Statement of Claim by 30 September 2019. In order to comply with the Uniform Civil Procedure Rules 2005 (NSW), particularly rule 15.19(l)(a), your Amended Statement of Claim will need to provide particulars of the publications of which you complain, sufficient to enable the publications to be identified. For the purpose of internet search results, this means you must provide complete URLs. In addition, a defence of innocent dissemination (section 32, Defamation Act 2005 (NSW)) will be available to Google for at least the period before you notify our client of complete URLs for each Google Search result of which you complain. As you are aware, around 19 July 2019, soon after receiving your Statement of Claim containing the complete URL from you, our client removed the following webpage: • http://www.liveexportshame.com/news2/index.php?topic=8354.0 We have also previously confirmed that our client has reviewed the webpages at the following URLs and found that they do not have any substantive content: • https://www.news.com.au/national/federal-election/fear-and-loathing-inside-fraser-annings-conservative-national-party/news-Story/61e47c6fdd3eclc8b9e8ae355albdb08 • https://www.abc.net.au/news/2012-12-12/nsw-man-charged-118k-for-animal%C2%ADcruelty/442445. In the above circumstances, we ask you to provide complete URLs of any remaining Google Search results which you are concerned may be defamatory of you. Google remains willing to consider and evaluate the removal of search results. The voluntary evaluation and removal of these results by our client will be the most effective means to address your concerns and to resolve the ongoing litigation with our client. Yours faithfully Ashurst"
On 29 August 2019 the plaintiff replied as follows: "Rachel Thank you for your letter of todays date I do not concede any points you make in that letter. 1...Google are smart enough to be able to search and find ALL defaming articles of myself and the mere fact they have an algorythm to "catch" this defaming stuff in the first place...with zero fact checking... and then put it to work ..WHILE at the same time not having an Algorythm to remove defamatory stories is the work of a "Human Hand" [more correctly a failure of a human hand] so if they do not have that algorythm then let them explain it to the court..why they did not make both algorythms workable before using ANY OF THEM 2..I have repeatedly advised you I am not a computer person and what you are asking is that someone sit here with me for a few hours to search and then advise you..So far I have not been able to find that someone in this rural farm area.. Additionally The courts have already found your innocent dessimatation defence not to be workable. Please advise why your client cant sit an expert at a computer and REMOVE ALL references to these articles in mere minutes. Why does Google LLC probably the richest biggest company in the world require those damaged actually do the work..for them.. I have tried to follow your instructions several times and have not been successful so far. I will keep trying I dont think a defamation Jury is going to be foolled by your self rightous letter writing all the while doing so only to save your client monies.. Have YOUR CLIENT REMOVE ALL DEFAMING ARTICLES ABOUT ME...IMMEDIATELY I have sent them pictures of the problem and meanwhile they do nothing...but sit back and laugh at me.. Regards Gary Young"
The difficulties caused by the plaintiff's refusal to assist appear at first blush to be so unreasonable as to warrant summary dismissal on this basis alone. However, I must be cautious in this regard, as the Practice Note for defamation actions in the Federal Court (Defamation Practice Note (DEF-1)) will require all defendants not only to identify all publications prior to the first return date, but also to be in a position to justify failure to do so, as well as filing a defence to all of them, presumably including publications not yet identified or sued upon by the plaintiff. Cases such as the present show just how difficult compliance with such orders will be, even for experienced litigants and their legal representatives, as there is no reference in the new Practice Note to the plaintiff having any obligation to help the respondent in the search for and collation of such information.
The plaintiff's response to Google's request for more information was to file an amended statement of claim on 1 October 2019 and, when that resulted in a letter of objection, to file a further amended statement of claim on 23 October 2019. As Google's solicitors noted in their letter to the plaintiff of 8 November 2019, the URLs for the fourth and sixth matters complained of were only identified in the 23 October 2019 pleading for the first time; both of these have now been removed from the Australia edition of Google Search.
Following the directions hearing on 28 November 2019, the solicitors for the fifth defendant sent an email to the plaintiff responding to further identified sites: "We refer to your emails dated 21 November 2019. From the screenshots you sent us, our client was able to identify the following URLs: 1.https://aussieactu.com/index.php/2019/05/16/inside-fraser-annings-bizarre-party/?PageSpeed=noscript 2.https://news.glonaabot.com/search/australia?keyword=queensland%20horse&page=2; 3.https://www.loveanimals.org/campaigns/help-emaciated-horses; 4.https://eprints.utas.edu.au/ruse_whole_thesis; and 5.https://sayurkool.website/hefty-bill-in-australian-case-of-horse-neglect; and 6.https://australianewstoday.com/fraser-anning-candidatesa%C2%80%C2%99-bizarre-histories/. The URLs numbered 1-5 do not resolve to any substantive content and we are instructed that, other than the URL numbered 2, none of these URLs are currently in the Google Search index (and that Google expects the URL numbered 2 also to drop out of the index once its crawlers recognise that the webpage does not contain any substantive content). Out of an abundance of caution, our client has now cleared its cached versions of these webpages. After they delete the cached copy of a page, the page's title and URL may continue to display for the same search queries until their crawlers revisit the site. The URL numbered 6 appears to be a news report which is relevantly the same as the content that was formerly at the following URL: https://www.news.com.au/national/federal-election/fear-and-loathing-inside-fraser-annings-conservative-national-party/news-story/61e47c6fdd3ec1c8b9e8ae355a1bdb08. Because there is no longer any content at the latter URL, Google is comfortable removing the URL numbered 6 from the Australian country edition of Google Search. We are instructed that that removal should be processed shortly. Our client has removed these webpages from the Australian country edition of Google Search. Our client was also able to identify the following URL, and is in the process of reviewing the webpage at the URL for removal: https://australianewstoday.com/fraser-anning-candidatesa%C2%80%C2%99-bizarre-histories/. Our client was also able to identify the following URLs, however We have further reviewed the following URLs, and found that they do not have relevant substantive content and we do not understand how they are relevant to your case: 1.; and 2.. Using the information available from your screenshots, we have been unable to locate a webpage relevant to the following text identify a complete URL for the following results in your screenshots: (a) "Hefty bill in Australian case of horse neglect - News …" in your emails titled "Fw: Google 2" and "Fw: Google 4"; and (b) for the pictures of horses in your email titled "Fw:Google 9". In these circumstances, we ask you to provide complete URLs of the relevant third party webpages or images Google Search results above which you are concerned may be defamatory of you. Our client remains willing to consider and evaluate the removal of search results. The voluntary evaluation and removal of these results by our client remains the most effective means to address your concerns and to resolve the ongoing litigation with our client. Yours faithfully Ashurst"
To summarise this maze of poorly particularised publication claims, Google has tendered a Schedule of Removal (Exhibit E) which is correlated with identifiable publications as well as the actionable recipients referred to in the statement of claim (in the "actionable recipients" column) as follows: Matter complained of Schedule URL Action/Removal from Google Search Exhibit "IENL-1" reference Actionable Recipients* On 2 July 2019, Statement of Claim (first complaint) received by express post. Page 1. First G2 https://www.abc.net.au/news/2012-12-12/nsw-man-charged-118k-for-animal%C2%AScruelty/4424454 On 19 July 2019, Google responded: url has no substantive content. (Actioned within 17 days). Page 2. Two persons. FASOC 5-(d). On 23 October 2019 (FASOC): Plaintiff complained (for the first time) that the content still appeared in Google Search. FASOC, [6(d)]-[6(e)]. By 8 November 2019, Google cleared the Cache. (Actioned within 17 days). Page 307 (Point 9 of page) Third G5 http://www.liveexportshame.com/news2/index.php?topic=8354 On 2 July 2019, Statement of Claim (first complaint) received by express post. Page 1 One person - FASOC 18 By 19 July 2019, Google had removed the url from Google Search. (Actioned within 17 days) Page 2 On 22 July 2019, Plaintiff emailed Google (attaching screenshot - not of search results but of a Facebook page) Page 3-4 Fourth G8 Facebook.com/AustralianHorseWelfareAndRescueNews By 31 July 2019, Google responded - not displayed in Google Search or has been removed. Requested URL of the page. (Actioned within 9 days). Page 9 (point 2 of page). One person. FASOC, 25. /posts/140399956111699 On 23 October 2019 (FASOC): Plaintiff complained that content complained of appeared in search results. FASOC, [24]-[25] By 8 November 2019, Google had removed the URL from Google Search. (Actioned within 16 days) Page 307 Sixth G11 Animalsaustralia.org/media/in_the_news.php?article=4013 On 23 October 2019 (FASOC): Plaintiff complained that content complained of appeared in search results. FASOC, [36]-[37]. One person: FASOC, . By 8 November 2019, Google had removed the URL from Google Search. (Actioned within 16 days) Page 307 On 23 October 2019 (FASOC): Plaintiff complained that content complained of appeared in search results. FASOC, [43]-[44] Seventh G12 By 8 November 2019, Google requested the complete URL. Page 307 One person. FASOC . On 21 November 2019, the Plaintiff emailed to Ashurst Australia various screenshots. One of which was the seventh matter complained of. P.327 By 28 November 2019, Google informed the Plaintiff that that matter complained did not appear in Google Search, but the cache had been cleared in any event (Actioned in 7 Days) On 23 October 2019 (FASOC): Plaintiff complained that the content complained of appeared in search results. FASOC, [49]-[50] Eighth G13 By 8 November 2019, Google requested the complete URL. Page 307 One person. FASOC -(d). On 21 November 2019, the Plaintiff emailed to Ashurst Australia various screenshots. One of which was the eighth matter complained of. P.322 By 28 November 2019, Google informed the Plaintiff that that matter complained did not appear in Google Search, but the cache had been cleared in any event (Actioned in 7 Days).

[24]

In summary, the plaintiff's claim is that Google "selected" all nine matters complained of (which are webpages) and "republished" that internet content "worldwide" to unknown persons. If the plaintiff includes himself, he identifies at most three persons as having downloaded the first matter complained of; two persons are identified as having downloaded the remaining eight matters complained of. Apart from the first matter complained of, the pleaded downloads occurred on 20 October 2019, which is after the statement of claim had been not only filed, but amended, and where the table above confirms the identifiable links had been removed or, for those two which were first notified in the 23 October 2019 pleading, removed shortly thereafter.
Downloading is an essential element in online publication, so who are the persons identified in the last column of the Table above as having downloaded this material? The publishees are: 1. The plaintiff relies upon publication to himself, which is impermissible: Powell v Gelston [1916] 2 KB 615. 2. Mr Rudge of NSW Racing, who wrote to the plaintiff on 21 January 2019 attaching a URL to the ABC webpage, asking if he was the person identified and, if so, whether he appealed the court's finding. There does not appear to be any claim that he visited any other URL. The plaintiff argues that Mr Rudge's email can be read as suggesting the URL was given to him by another person; if so, there would be at least two persons who visited this URL. 3. The plaintiff's partner, Ms Belinda Penney, is identified as having downloaded these publications. The plaintiff told the court that Ms Penney had downloaded the publications at his request and to assist him, which must cast doubt upon actionability for publication to her, for the reasons explained in Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 and Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) at [30]-[39] (but see also Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253 at [3] - [7]). 4. The plaintiff asks the court to infer that other persons must have read one or more of these links, but in the absence of identification of when and by whom, over the year prior to commencement of proceedings (there being no application for extension of time), this is not evidence of publication but of mere speculation.
I shall first set out the basis upon which Google asks for the proceedings to be struck out without leave to replead.

[25]

The hopelessness of the claim

For a defamation claim to be brought against Google, the plaintiff must pass through the following gateways: 1. Google cannot be liable prior to notification: Bleyer v Google Inc at [76], [79] and [85]; Google Inc v Duffy (2017) 129 SASR 304 (at [182]-[184]). The same principles have been applied in the United Kingdom: Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 at [51]; Tamiz v Google Inc [2013] EWCA Civ 68 at [26]. There must be evidence of publication after that date. There is no such evidence. 2. Each online publication is a separate wrong and gives rise to a separate cause of action. Each publication must thus be separately identified as the tort is akin to one of strict liability, but that liability arises only after publication on a specific date, to a third party, which is its essence: see Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, where the relevant authorities are set out at footnote [224]; see also Grenning v Ware & Ors [2005] QSC 82 at [7], citing Emmerton v University of Sydney [1970] 2 NSWLR 333 at 634, 639 and Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 178. In the case of online publication, evidence of downloading by a named third party is generally required, as is the place of publication (as opposed to "worldwide": El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990). 3. Publication must be within the limitation period which, for a residual claim of this kind, is twelve months prior to commencement of these proceedings: ss 14B and 56A Limitation Act 1969 (NSW); see also Grenning v Ware & Ors at [7].
Failure to identify the publication the subject of the defamation claim with sufficient particularity is fatal. In addition, where a plaintiff does not know what has been published, the expectation is that the plaintiff will take such steps as are necessary to identify the publisher and the text: Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288; Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850; Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101.
As noted above, liability for Google as a publisher cannot arise unless prior notification was given. As the plaintiff admits (at least in relation to the second to fifth publications) and as the above chronology shows, Google had no notification of any of the matters complained of until receiving the statement of claim on 2 July 2019. Any allegation of publication prior to that date is hopeless. Similarly, the chronology demonstrates that any allegation that Google failed to remove the remaining matters complained of within a reasonable period of time, given the repeated unsuccessful requests for the plaintiff to identify the URLs, would be hopeless, as the identifiable publications were taken down in periods shorter than three weeks; as to the remaining matters complained of, despite his obligation to provide adequate particulars pursuant to UCPR r 15.19(1), the plaintiff continues to refuse to provide these.
Publication to Ms Penney falls within the same category as the requests for assistance made in Toomey v John Fairfax & Sons Ltd, which involved reading the matter complained of. There is no publication to any other identified person after 2 July 2019. While a court may be prepared to infer publication in certain circumstances (as noted in Google Inc v Duffy), the total absence of any identification of when and to whom the publication(s) were made must be fatal to any such claim in these proceedings.
As to the limitation period, the plaintiff's claims for publications prior to the commencement of these proceedings (see, for example, at page 18 for "continuous publishing" by the ABC since 12 December 2012; at page 26 and elsewhere for publication by Google from 17 December 2012) are not actionable in that form, and should be limited to those downloaded in the 12 month before commencing proceedings. No dates are provided.
The same principles apply to the claim brought against the ABC and first defendant in relation to the 12 December 2012 online article. This site was removed promptly following notice and there is no evidence of publication in the intervening period after notification. There is no evidence whatsoever of any publication by the first defendant, either in December 2012 or subsequently. The plaintiff appears to acknowledge as much by his alternate plea, in relation to the Third Cause of Action (see paragraph 18).
The essential nature of publication, in terms of the tort of defamation, has resulted in courts being more willing than would be the case in other causes of action to strike out a claim where the publication is not identified with clarity. Independently of the principles of proportionality, the plaintiff's failure to provide any of the essential elements for any of the asserted publications warrant the dismissal of the defamation claims on a summary basis.
Alternatively, the defendants submit the claims should be dismissed on the basis of proportionality.

[26]

Proportionality

A comprehensive list of all relevant decisions on the issue of proportionality is set out in Armstrong v McIntosh [No 2] [2019] WASC 379. The only additional material to note, in relation to this comprehensive overview, is that the concern expressed in some of the decisions referred to as having little relevance because of the impact of European Court of Human Rights decisions on legal principles applicable in the United Kingdom may warrant reconsideration in light of the observations of Gleeson CJ and Kirby P in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 in relation to the Derbyshire principle (Derbyshire County Council v Times Newspapers Ltd [1993] AC 634).
The first point to note is the age of the publications and the plaintiff's apparent acknowledgement, in his submissions, that in the years following publication on 12 December 2012, the ABC link became harder to find online. This is because the more recent publications tend to make the older search engine results harder to access.
The applicability of the principles of proportionality to newspaper and journal archives, and older publications generally, has been considered in a number of decisions in the United Kingdom which are of relevance here. In Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805, the Court of Appeal considered the availability of the matters complained of in archives maintained by one of the United Kingdom's oldest and most respected newspapers in its capacity as an information provider as part of its "watchdog" functions was insufficient to outweigh the damage to personal reputation. The Court also noted that archives could be maintained in such ways as to ensure that a person was not defamed, such as by appropriate notice: "74. We do not accept that the rule in the Duke of Brunswick case imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material."
In Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), Tugendhat J added: "233. Whether or not the scale of a website publication, and any resulting damage, is likely to be modest compared with that of the original publication, will depend on the facts of each case. But the judgment in Loutchansky was delivered eight years ago, in 2001. Since then the use of the internet, and in particular of internet search engines has increased. What has also increased is the amount of material on the internet. In 2001 there were relatively few years of back numbers of newspapers available on the internet. Since then each year's publications have been added. In most cases, as time passes, the original print publication will become increasingly difficult to access, and would be forgotten."
The concept of "archived" publications, in terms of proportionality, received more detailed consideration in Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB) at [88]-[119]. Mr Budu had made a complaint about website articles some years beforehand and a note was placed online as an addition, containing the additional information he sought to be added (at [91]). There was then no further communication for a number of years, or in fact prior to the statement of claim being served (at [91]).
The principles discussed in this decision are particularly pertinent here, for two reasons. The first is because the plaintiff's name is not included in the URL; it appears only in the downloaded publication, which makes any name-based search much harder. The second is because of the lengthy period of time between the initial publication (when, in proportionality terms, the damage is most likely to have been done) and the complaint. As to both of these important factors, Sharpe J captured the limited nature of the damage by describing the plaintiff's cause of action as "a residual claim" (at [93]), in that the only claim which could be made would be for a portion of the time during which the matter complained of remained online. While noting the problems caused by potential continuing liability in respect of internet news archives as considered in Loutchansky v The Times Newspapers Ltd, her Honour noted, in the context of a challenge to the proportionality of the action, the special nature of residual claims, warranting a greater willingness to strike out the claim: "[128] I am conscious that the abuse jurisdiction is exceptional. But if the Claimant were to succeed at trial in relation to a vestigial case, the cost of the exercise would in my judgment, have been out of all proportion to what had been achieved. If it were it necessary for me to do so, considering the matter "in the round" I would take the view that the BBC should not have to be put to the cost and trouble of defending these proceedings so many years after the initial publications, taking into account all the factors to which I have referred, including the potential prejudice to it in doing so; and that permitting this action to continue, on the facts of this case, would constitute a disproportionate interference with the BBC's article 10 rights and would be an abuse of the process."
The plaintiff's claim is (at best) based on publication to two or possibly more persons of the first matter complained of and, in respect to the remainder of publication, to his de facto partner, Ms Penney.
The added problem is that the statement of claim relates to publication only for twelve months prior to the further amended statement of claim, and residual claims of this nature must always attract additional attention in terms of proportionality issues, given the disproportionate costs to the parties and to the resources of the court.
The burden on court resources is particularly heavy where the opposing party is unused to the complexities of defamation. Statistical analysis of defamation actions confirms that defamation actions have long ceased to be claims brought by the well-off against the well-represented media. Increasingly, community organisations, charities and ordinary working families with no experience of complex litigation are the parties who find themselves caught up in trial-oriented court proceedings which are financially and emotionally destructive. Injustice through oversight is more likely to occur as a result, generally from delayed response and inadequate representation, as the saga of applications and appeals set out by Fagan in Palmer v Mohareb [2019] NSWSC 975 vividly demonstrates.
These errors are not just restricted to the parties; courts make mistakes as well. For example, some (perhaps all) of the appeals listed in Palmer v Mohareb may have been incompetent, for the reasons set out in Johnston v Nationwide News Pty Ltd & 1 Or [2005] NSWA 17. In Johnston v Nationwide News Pty Ltd & 1 Or at [22], the Court of Appeal unanimously held that a reference under s 203 of the District Court Act 1973 (NSW) is not a judgment or order under s 127(1) of that Act, and that any appeal against the refusal to make such a reference was incompetent. Mr Mohareb had no right to appeal at all in relation to the refusal to make orders under s 203 (his other appeals from the District Court's refusal make orders under s 338(c) Crimes Act 1900 (NSW) may arguably have been similarly without basis, for the same reasons).
There are also additional burdens placed on both the courts and the parties when one of the parties is a litigant in person. This is because the first instance judge is expected not only to deal with the applications before the court but applications that the litigant in person might have brought, whether these issues are raised by the opponents or not: Mohareb v Kelso [2017] NSWCA 98 at [37] - [40]; Mohareb v Kelso (No 2) [2017] NSWCA 173 at [20] - [23]). The conduct of these proceedings has been a good example of such problems.
In addition to the issue of court resources and legal costs, there is the question of the damages likely to be awarded. The findings of fact, set out on the first two pages of the appeal, are stark. At trial, a certificate of conviction may be tendered in defamation proceedings under s 42 (although it is an interesting question of law, given the "proof" barrier in s 32(4), whether this step is even possible.) If so, that may be a strong factor in terms of mitigation of damages, which could be nominal or even derisory.
As to the publications asserted to have been made by the ABC and/or Google, whether all or only some can be established, I am satisfied that, in all the circumstances, this is one of those rare cases where any vindication to the plaintiff's reputation would be wholly disproportionate to court resources and judicial time, let alone the cost to the parties: Bleyer v Google Inc at [62]-[63]; Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 at [5]. Although I was not addressed on Farrow v Nationwide News Pty Ltd in any detail, I consider the facts of the present case are almost identical, in that the plaintiff will seek to challenge the findings of fact set out in Jeffreys DCJ's judgment.
In the event that I have erred in my findings that the first defendant did not make any publication of and concerning the plaintiff and/or are liable for any publication made by the ABC, the same findings concerning proportionality would apply.
Mr Lewis alternatively submits that the plaintiff's claim is so hopelessly drafted as to invoke the warnings of the New South Wales Court of Appeal in Ghosh v NineMSN Pty Ltd for the following reasons: 1. The plaintiff's claim contains inconsistent and embarrassing pleadings in respect of matters of substance such as publication and/or republication. 2. The plaintiff's claim makes embarrassing allegations of worldwide publication: El-Mouhley v QSociety of Australia Inc (No. 2) at [8]-[9]. 3. The plaintiff's claim embarrassingly particularises publication to the plaintiff: Powell v Gelston at 619. 4. The plaintiff's claim fails to distil any defamatory act or condition: Harvey v John Fairfax Publications [2005] NSWCA 255; McGinn v Peter Clisdell Pty Ltd (No. 2) [2018] NSWSC 1856. 5. The plaintiff's claim contains a wholly inadequate claim for special damages: Hanson v Hunter [2015] NSWDC 220. 6. The plaintiff's claim makes allegations at paragraphs 6(c), 12(c), 19(c), 25(c), 31(c) 37(c), 44(c), 50(c), 56(c) and 60(2)-(3) that are either scandalous within the meaning of UCPR r 14.15 and/or contrary to UCPR r 14.30(1).
Independently, such failures would not warrant the summary dismissal of the claim but, when taken into account with the issues raised in relation to proportionality, this would, in my view, be a sufficiently compelling case to warrant such summary dismissal.
As set out above in more detail, the same is the case in relation to the claims brought against the first and fourth defendants in the third cause of action.

Young v RSPCA NSW

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (53)

Cited By (3)