FEDERAL COURT OF AUSTRALIA

Massarani v Kriz [2022] FCA 80

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory applications filed on 1 December 2020 and 9 December 2020 be dismissed.

2.    The respondents pay the applicant’s costs of the interlocutory applications.

3.    The matter be listed for case management at 9.30am on 28 February 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Patrick Heydar Massarani is aggrieved by an article written by Rosemary Ryan and published on the crowdfunding platform, Chuffed.org (the matter complained of or the Ryan article). The article encouraged readers to attend a function to help raise money for legal fees for Georgia Kriz, a respondent to a defamation action launched by Mr Massarani in the District Court of New South Wales. In its terms and conditions of use Chuffed describes itself as an online platform where people and organisations can campaign and raise funds for projects to benefit social, community or charitable causes and where supporters can donate money to support those social projects.

2    A few months after the Ryan article was uploaded to the Chuffed website, the action in the District Court was summarily dismissed (Massarani v Kriz [2020] NSWDC 26) and the Court of Appeal refused Mr Massarani leave to appeal (Massarani v Kriz [2020] NSWCA 252).

3    Mr Massarani believes that he was defamed in the Ryan article although it did not mention his name. On 29 October 2020, more than 12 months after it was published and 16 days after the Court of Appeal refused him leave to appeal from the summary dismissal of his District Court action, he filed an originating application in this Court against Ms Kriz, Ms Ryan and Chuffed. In that application he seeks the following relief: damages, including aggravated damages, and/or an account of profits generated from the publication of the matter complained of (the monies raised); a permanent injunction to restrain the respondents from publishing the allegedly defamatory matter or matter containing or conveying any of the defamatory meanings and matter to the same or substantially the same effect; and a mandatory injunction requiring the defamatory matter or any matter in substantially the same form to be permanently removed from the Chuffed website. At the same time Mr Massarani filed a statement of claim, which was amended within hours because a number of the schedules had not been attached.

4    Defences have not been filed. Rather, the respondents filed interlocutory applications seeking orders, amongst other things, that the amended statement of claim be struck out, leave to re-plead be refused, and that the proceedings be dismissed or permanently stayed.

The interlocutory applications

5    Two interlocutory applications were filed, one by Ms Kriz and Ms Ryan, the other by Chuffed.

6    Ms Kris and Ms Ryan applied for orders that:

(1)    the amended statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the Rules or FCRs) and leave to re-plead be refused;

(2)    the proceedings be dismissed as against Ms Kriz under r 26.01 of the Rules;

(3)    the proceedings be dismissed as against Ms Ryan on the same basis;

(4)    Mr Massarani not commence proceedings in this Court arising from, or relating to, the matter complained of in the District Court proceedings without the leave of the Court (the “vexatious proceedings order”);

(5)    Mr Massarani pay their costs;

(6)    in the alternative to (4), pursuant to r 39.03 of Rules, any proceedings commenced by Mr Massarani against either Ms Kriz or Ms Ryan in respect of the same, or substantially the same, cause of action be stayed until such time as Mr Mr Massarani has paid the costs pursuant to (5).

7    Chuffed applied for orders that, as against it, the statement of claim be struck out, summarily dismissed or permanently stayed and that Mr Massarani pay its costs on an indemnity basis.

8    It alleges that the claim is beyond the Court’s jurisdiction and it is statute-barred, and, in any case, the resources required to have the claim determined are out of proportion to the interest at stake such that it would be an abuse of process to allow it to proceed.

9    Chuffed’s application was supported by two affidavits sworn by Duncan Mark McKenzie Fine, the solicitor with the carriage of the matter on its behalf. Both Ms Kriz and Ms Ryan filed affidavits in support of their application. Mr Massarani also filed an affidavit. All the affidavits were read at the hearing of the interlocutory applications. There were two exhibits to Ms Kriz’s affidavit but they were not tendered. Two paragraphs of Ms Ryan’s affidavit ([28] and [29]) were not read but were tendered in evidence by Mr Morris QC who appeared with Mr McLean for Mr Massarani.

The matter complained of

10    The Ryan article was entitled:

Smash the Patriarchy-Help Raise Funds for Georgia’s Legal Fees

11    It was subtitled: “Survivors deserve to be heard, we can’t let them be silenced”.

12    Ms Ryan was named as the author.

13    The article went on to say:

Our girl Georgia, lover of dogs, fighter for equality, talented internet queen and incredibly smart writer, is facing a court battle for an article she wrote 5 years ago sharing the story of a survivor of alleged sexual assault.*

The article was written for a university paper, where she outlined the experience of the woman, who reported her alleged assault by a member of the university community.

We believe her source. And we believe that Georgia did an important thing by sharing her story.

But now Georgia is being sued for defamation.

We want to help Georgia as she faces going to trial, just for reporting on a woman’s experience.

And if you can make it come along for an evening of drinks, fun and smashing the patriarchy on the 29th October from 6pm at Freda’s in Chippendale.

NB: In the event that the funds are no longer needed, we’ll donate them to the Women’s Legal Service NSW, who have defended other respondents in the case.

*Please do not attempt to find the article as this will only make things more difficult for Georgia.

(Emphasis added.)

14    The university paper to which the Ryan article referred was Honi Soit, Sydney University’s student newspaper.

15    Defamatory meanings are alleged to have been conveyed by the words in the second and third paragraphs of the matter complained of emphasised above, more particularly by the words in the third paragraph. The alleged defamatory meanings are pleaded in the following way:

23.    By the [words emphasised in [13] of these reasons], the defamatory matter conveyed either:

(a)    that the allegations concerning the alleged malefactor contained in the previous defamatory matter were true; or

(b)    alternatively, that substantial and credible grounds existed for believing that the allegations concerning the alleged malefactor contained in the previous defamatory matter were true[.]

24.    In the premises of the last preceding paragraph and the contents of previous defamatory matter, the following meanings (herein called “the defamatory meanings”) were conveyed, by way of true innuendo, by the defamatory matter; that is to say –

(a)    that [Mr Massarani] is the perpetrator of the sexual assault referred to in previous defamatory matter, whereby he severely harassed and assaulted a student at the University of Sydney for his own sexual gratification; and

(b)    that [Mr Massarani] attempted to silence the victim of his sexual assault as set forth in the previous defamatory matter.

16    It is evident that there is nothing in the natural and ordinary meaning of the words in the matter complained of which is capable of conveying either imputation. That is because Mr Massarani was not named. Mr Massarani’s case is one of true innuendo, explained by Mason and Jacobs JJ in Mirror Newspapers Limited v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 in the following way:

When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to or different from their natural and ordinary meaning. This special or ordinary meaning is not one which the words viewed in isolation are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts.

17    Thus, as Tobin and Sexton put it where a matter only acquires its defamatory sting from facts not generally known, publication only occurs when the matter is conveyed to at least one person with knowledge of those extrinsic facts. The test is objective. It requires the applicant to prove that an ordinary reasonable reader, with that knowledge would be likely to identify the applicant or think less of him, as the case may be. See Tobin T K and Sexton M G, Australian Defamation Law and Practice (LexisNexis Butterworths, subscription service) (update 92) at [5115].

18    In para 25 of his amended statement of claim Mr Massarani pleads that the defamatory meanings were conveyed to persons:

(a)    by whom the defamatory matter was downloaded and viewed, and to whom the defamatory matter was thereby published; and

 (b)    who either:

(i)    at the time when the defamatory matter was downloaded and viewed by them, and when the defamatory matter was thereby published to them, knew of either the public record extrinsic facts or the quotidian extrinsic facts; or

(ii)    subsequently came to know of either the public record extrinsic facts or the quotidian extrinsic facts.

19    The amended statement of claim alleges that the first five paragraphs of the matter complained of identified Mr Massarani as “the alleged malefactor” to any person who was already aware, or who later learned, of “the public record extrinsic facts” and “the quotidian extrinsic facts” (collectively, “the extrinsic facts”). The extrinsic facts are pleaded in paras 17–18:

17    At all times material to this proceeding since not later than 31 January 2019, the following facts (herein called “the public record extrinsic facts”) were matters of public record; namely –

(a)    the facts set forth in paragraph 6 of this pleading;

(b)    that [Mr Massarani] was the plaintiff in the District Court proceedings;

(c)    that [Ms Kriz] was the first defendant in the District Court proceedings;

(d)    that the District Court proceedings concerned the previous defamatory matter; and

(e)    that [Mr Massarani], as plaintiff in the District Court proceedings, claimed that he could be identified as the alleged malefactor, either:

(i)    from the contents of the previous defamatory matter; or

(ii)    by persons with knowledge of relevant extrinsic facts.

18    At all times material to this proceeding, the following facts (herein called “the quotidian extrinsic facts”) were widely known amongst persons who knew, or knew of, [Mr Massarani]; that is to say –

(a)    the facts set forth in paragraph 6 of this pleading [set out below];

(b)    that [Mr Massarani] was:

(i)    a political activist;

(ii)    an active member of the Australian Labor Party (herein called “the ALP”); and

(iii)    aligned with the Right faction within the ALP;

(c)    that, as a student at the University of Sydney and subsequently, [Mr Massarani] was:

(d)    the contents of the previous defamatory matter;

(e)    that the previous defamatory matter included allegations that the alleged malefactor was both:

(f)    that there was widespread speculation and conjecture, especially amongst students at the University of Sydney and more particularly amongst those active or interested in student politics, regarding the identity of the alleged malefactor;

(g)    that such speculation and conjecture had narrowed down the range of persons suspected of being the alleged malefactor to a small group comprising no more than three persons (herein called “putative alleged malefactors”) who were:

(i)    male; and

(ii)    Senate Fellows; and

(iii)    members of the Student Disciplinary Committee;

(h)    that such speculation and conjecture further posited that, amongst the putative alleged malefactors, [Mr Massarani] was the most plausible possibility for being the alleged malefactor, on account of:

(i)    his age (as compared with the ages of the other putative alleged malefactors);

(ii)    his being unmarried and not in an ongoing relationship (as compared with the marital and relationship status of the other putative alleged malefactors); and

(iii)    the background circumstances set forth in the previous defamatory matter; and

(i)     from 2019, that [Mr Massarani]:

(i)    had commenced the District Court proceedings against the [Ms Kriz] in respect of the previous defamatory matter; and

(ii)    thereby identified himself as the alleged malefactor.

20    Paragraph 6 reads:

[Mr Massarani] was:

(a)    from 2009 to 2014, a student at the University of Sydney; and

(b)    between 1 December 2012 and about October 2014:

(i)    a Fellow of the Senate of the University of Sydney; and

(ii)    a member of the Student Disciplinary Committee.

21    In para 21 Mr Massarani pleaded that the people by whom “the defamatory matter” was downloaded and viewed and to whom it was therefore published included those who knew of either the “public record extrinsic facts” or the “quotidian extrinsic facts” at the time they downloaded and viewed “the defamatory matter” or who came to know of them later. In para 22 he nominated three individuals who are said to be included in the people described in para 21.

The background facts

22    The background facts are not in dispute. Indeed, for the most part they are indisputable.

23    On 30 July 2015 an article written by Ms Kriz was published in Honi Soit, in which Mr Massarani considers he was defamed.

24    The article, entitled “Make Her Life Hell” and subtitled “Georgia Kriz struggles with student teacher intimacy”, reported on the experiences of a number of women, some of whom had been in consensual sexual relationships, others of whom claimed to be victims of sexual assaults and harassment, allegedly committed by members of the University staff, principally academic staff, while students at the University.

25    There is no evidence to suggest that Mr Massarani was ever a member of the University staff. He believes he was defamed in one paragraph of the article which relevantly read as follows:

…I speak to one student who was recently severely sexually harassed and assaulted by a member of the Senate, the University’s ultimate governing body. She tells me how she knew he could “make her life hell” if she reported him and how he boasted that he sat on the Student Disciplinary Committee. She recalls how afraid she was because she felt like any complaint she made wouldn’t have been taken seriously, or would have been tied up in more bureaucracy to save face for the University. She’s adamant that I anonymise her as much as possible, because she is still terrified of his reach, and of his power.

26    Mr Massarani was a fellow of the Senate of the University and a member of its Student Disciplinary Committee from 1 December 2012 until October 2014. He professed to be the only male who was both a fellow of the Senate and a member of its Student Disciplinary Committee between March 2013 and October 2014.

27    On either the same day the article was published or the following day, Mr Massarani contacted the editors of Honi Soit to request the deletion of the whole of the article or at least the portion of the matter complained of identifying him as a member of the Student Disciplinary Committee. The editors agreed to delete the reference to the Student Disciplinary Committee in the online issue and it was deleted: Massarani v Kriz [2020] NSWDC 26 at [6]. The article was republished with the reference to the boast omitted such that the second sentence subsequently concluded with the words “if she reported him”.

28    More than three years later, in October 2018, a young woman (Grace Franki), who considered that she had been sexually harassed by Mr Massarani, contacted Ms Kriz to ask whether he was the alleged assailant mentioned in the article and Ms Kriz said he was: Massarani v Kriz [2020] NSWDC 26 at [7].

29    On 24 January 2019 Mr Massarani filed a summons in the District Court seeking preliminary discovery and other orders against Ms Kriz and another woman, Ashley Forsyth, whom he believed to be Ms Kriz’s source. As against Ms Forsyth, the summons was dismissed on terms later the subject of a deed on 4 April 2019: Massarani v Kriz [2020] NSWDC 26 at [8]. In correspondence with Mr Massarani, annexed to his affidavit in the District Court proceeding which, in turn, was part of an exhibit in the present proceeding, the woman denied contacting Honi Soit or speaking to Ms Kriz.

30    The District Court defamation proceeding was filed on 3 April 2019. Six defendants were sued. They included Ms Kriz, Ms Forsyth and Ms Franki. Ms Kriz was legally represented. She had an agreement with her barrister that she would work on a pro-bono basis and not charge any fees until (or presumably unless) a costs order were made against Mr Massarani and then only to the extent of that order. The proceeding was plagued by numerous applications by Mr Massarani to amend his pleading.

31    Ms Kriz and another defendant applied for summary dismissal. Those applications were heard by Gibson DCJ on 21 November 2019 and 5 December 2019, when judgment was reserved, and 13 February 2020. By the time judgment was reserved, the actions against three of the defendants, including Ms Forsyth and Ms Franki, had been settled or discontinued. On 26 February 2020 her Honour made orders striking out the claims against the remaining defendants, dismissing the proceeding, and refusing leave to re-plead. On 13 October 2020 the Court of Appeal made orders dismissing Mr Massarani’s application for leave to appeal with costs.

32    In the amended statement of claim filed in this Court Mr Massarani pleads that the article remained on the Honi Soit website until 6 August 2020. During the course of the hearing of the present application, however, Ms Saunders, who appeared for Ms Kriz and Ms Ryan told the Court that this was not the case and she was not contradicted by Mr Massarani, who was represented by Mr Morris QC.

33    Moreover, in Massarani v Kriz at [24] Gibson DCJ found:

Articles published by Honi Soit remain on line for an unspecified period of time and thereafter they are archived. There were two sites for this publication and, although the link to the archive was removed in January 2019, the link to the second site was not removed until approximately May 2019 …

34    Ms Ryan is an organiser with the Community and Public Sector Union. She was a contemporary of Ms Kriz at university and they have been close friends ever since. She deposed to having no memory of reading the Honi Soit article. Indeed, she went further, saying she did not believe that she did read it. She said that she had graduated by the time it was published and it had been years since she had been a regular reader of the paper. She deposed that she learned in early 2019 that Ms Kriz was being sued. She went on to say:

19.    I discussed the District Court proceedings with Georgia. She explained the article to me in general terms. I understood that, at the time Georgia was writing about problems that could arise relationships between lecturers, tutors and students, a woman reported to her that (in her view) she had been seriously sexually harassed and assaulted by Patrick, and that Georgia thought at the time that this was an important allegation to publish (without naming anyone involved).

20.    I am aware that sexual harassment and assault is often underreported or, where women do report this, they are not believed. It is a strongly held political position of mine that, as a starting point and absent evidence to the contrary, people who report sexual harassment and assault should be believed.

21.    As I set out above, I know Georgia well and trust her judgment. She took student journalism seriously; writing is something she wanted to pursue a career in (and she is now in fact working in communications). She would not have made something up in an article, and certainly nothing this serious. I formed a view that Georgia must have had a credible source before reporting an allegation like this.

22.    I could see Georgia was very distressed about the proceedings, and stressed out. In particular, she explained was worried about the idea that the Court might order her to pay Patrick’s legal costs, or damages.

23.    I found it absurd that anyone would consider suing someone over an Honi Soit article years later. I was shocked that Patrick had done this, and upset for my friend. I did not have a particularly good opinion of him to begin with, but his actions in doing made him irredeemable in my eyes.

24.    I didn’t read any of the materials filed as part of that case. I have only read the article as part of these proceedings.

35    Ms Ryan helped to organise a fundraiser to help Ms Kriz. She explained that Ms Kriz had found a barrister to act for her pro bono, “so the idea was that the funds raised would either go to paying any damages or costs order made against [Ms Kriz] or, if she won, be donated to the Women’s Legal Service”.

36    The webpage carrying the Ryan article went “live” on 27 September 2019. On 24 October 2019 Mr Massarani became aware of it after receiving a phone call from someone who had seen it. At the time Mr Massarani was on his way to see his psychiatrist, Dr Sturrock, for a regular therapy session. After reading the Ryan article and perusing the list of donors, he had an acute panic attack. He deposed to knowing many of the donors personally, counting some of them among his closest friends.

37    After becoming aware of the Ryan article he made his solicitor and counsel aware of it and provided them with a copy.

38    An in-person fundraiser was held on 29 October 2019.

39    As I mentioned at the outset, the originating application was filed in this Court on 29 October 2020. Ms Ryan’s evidence is that by this time 190 people had donated to the fundraiser and 31 people donated after 30 October 2020. She deposed that she knew most of the latter donors live in NSW and that one lives in the ACT.

40    Mr Massarani served Chuffed with the amended statement of claim on 2 November 2020. Until that time Chuffed had no idea that there was any issue with the fundraising campaign or that it was possibly defamatory. Within a few hours, at about 7.29 pm the same day, Chuffed removed the Ryan article from its website.

41    On 7 November 2020 Ms Kriz and Ms Ryan wrote to Mr Massarani setting out their concerns about the viability of the proceeding and inviting him to rectify the alleged defects with it and, if he could not, to withdraw the action.

42    On 16 November 2020 Mr Massarani replied, rejecting all their contentions and refusing to accede to their invitation.

43    In the meantime, on 12 November 2020, Mr Fine emailed Mr Massarani advising him that Centennial Lawyers had just received instructions from Chuffed and inviting him to telephone to discuss the matter before substantial legal costs were incurred. He spoke to Mr Massarani later that day and informed him of the problems he perceived Mr Massarani to have with the claim. Mr Massarani rebuffed every proposition that was put to him. He also told Mr Fine he was engaging a lawyer the following day who would call him. No such call was made.

44    On 17 November 2020 Mr Fine put his concerns in writing and invited Mr Massarani to discontinue the proceeding within seven days on the basis that each party pay his and its own costs. Amongst other things, he contended that:

    the amended statement of claim failed to disclose a factual basis for federal jurisdiction;

    the claim was statute-barred and no application had been made for an extension of time;

    the pleaded imputations do not arise from the matter complained of and are not capable of doing so, even on the basis of the alleged extrinsic facts;

    in any case, the amended statement of claim only pleads that three people who could have identified Mr Massarani read the matter complained of;

    even if those people could have identified him, the publication was made on an occasion of qualified privilege and there could be no proper basis to allege malice against Chuffed;

    Chuffed has a defence of innocent dissemination under s 32 of the Defamation Act 2005 (NSW) (Defamation Act or the Act); and

    the proceeding amounts to an abuse of process because any benefit from the claim is far outweighed by the costs that will be incurred in prosecuting it.

45    Mr Massarani was unmoved. In a detailed response dated 24 November 2020 he insisted that there were no issues with the amended statement of claim and urged Mr Fine to file a defence.

46    The broad substantive issues raised by the respondents’ applications and submissions are these:

(1)    whether this Court has jurisdiction to hear and determine the application;

(2)    whether Mr Massarani requires leave to proceed against Ms Kriz;

(3)    whether the proceeding is an abuse of process and should be summarily dismissed because it was commenced for an improper purpose and/or the costs and time which would be expended in pursuit of it are disproportionate to any benefit Mr Massarani might derive from it; and/or

(4)    whether the proceedings should be summarily dismissed because they are statute-barred and/or the amended statement of claim (pleading) does not disclose a reasonably arguable cause of action and the application has no reasonable prospect of success.

47    I will deal with these issues seriatim.

Does the Court have jurisdiction?

48    The Court has such original jurisdiction as is vested in it by the laws made by the Australian Parliament. The source of its jurisdiction in defamation is s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which picks up, as Commonwealth law, the jurisdiction of the Supreme Courts of the Australian Capital Territory (ACT) and the Northern Territory to hear and determine such an action. Thus it has jurisdiction in actions for defamation in circumstances in which the ACT and the Northern Territory would have jurisdiction. See Crosby v Kelly (2012) 203 FCR 451 at [35] (Robertson J with whom Bennett and Perram JJ agreed at [1] and [2] respectively).

49    It is common ground that the Court’s jurisdiction in defamation matters is engaged when an applicant alleges that the matter complained of was published in the ACT or the Northern Territory (whether or not it was also published elsewhere in Australia): Crosby v Kelly (2012) 203 FCR 451 at [35]–[39] per Robertson J (Bennett and Perram JJ agreeing); Rana v Google Inc (2017) 254 FCR 1 at [24] (Allsop CJ, Besanko and White JJ); and Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61 at [13] per Allsop CJ and Besanko J. See, too, Lin v Google LLC [2021] FCA 1113 at [25] (Wigney J).

50    For the purpose of determining jurisdiction, it is generally sufficient if an applicant pleads that the matter complained of was published in the jurisdiction (in this instance the ACT or the Northern Territory): Wing at [13]. See also Rana at [21]–[22], [40] (Allsop CJ, Besanko and White JJ) and Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [90] (Bromwich J). As Allsop CJ and Besanko JJ observed in Rana at [21]:

Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton at 374 per Barwick CJ; Moorgate at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate at 476.

51    In this context, a colourable assertion is one which is not made in good faith (Hopper v Egg and Egg Pulp Marketing Board (Vict) (1939) 61 CLR 665 at 673 per Latham CJ) or for the improper purpose of “fabricating” jurisdiction (Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 (FC) at 219, citing Lane PH, Lane’s Commentary on the Australian Constitution (Law Book Co, 1986), pp 367–368 and the authorities mentioned there). “Improper purpose or lack of bona fides carries with it the notion of an abuse of process”: Allsop J, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Rev 29 at 45. The mere fact that a claim is untenable or misconceived does not mean that it is colourable: see Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) at 40–1 and the authorities referred to there.

52    The gist of an action in tort is damage. The tort is not complete without proof of damage. The tort of defamation is concerned with damage to reputation. The place of the tort is the place (or places) where the applicant’s reputation is damaged. Damage to reputation is done through publication of the defamatory matter and occurs when a defamatory publication is comprehensible to the reader, listener or observer, as the case may be. Information posted on the internet is not in comprehensible form unless and until it is downloaded onto a computer. Thus damage to reputation from a defamatory publication on the internet is not done until the publication is downloaded so that it can be comprehended and the tort is committed in the place where the material is downloaded. See Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [25]–[44] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

53    An inference that a publication has been downloaded will not be drawn from the mere fact that the material has been posted on the internet. A person who claims to have been defamed by such material must plead and prove facts which establish that the material complained of has been downloaded and viewed by someone. See Sims v Jooste (No 2) [2016] WASCA 83 at [18]–[20] (Martin CJ, Buss JA and Mitchell J).

54    It follows that the Court has jurisdiction in the present case if a non-colourable allegation is made that the matter complained of was downloaded and viewed by someone in either the ACT or the Northern Territory.

55    Publication is pleaded in the following way in paras 10 to 12 of the amended statement of claim:

Part D: Publication of the Defamatory Matter

10.    Since the defamatory matter was made available on the Chuffed.org website, it has been downloaded and viewed by, and thereby published to, persons in each Australian State and internal Territory.

11.    Amongst the persons by whom the defamatory matter was downloaded and viewed, and to whom it was thereby published, are persons who made donations in accordance with the solicitations contained in the defamatory matter, including:

(a)    persons who chose to be identified as such donors, being the 182 persons listed in Schedule D to this pleading;

(b)    not fewer than 36 persons who made such donations anonymously on-line; and

(c)    not fewer than 7 persons who made such donations anonymously off-line.

12.    Amongst the persons by whom the defamatory matter was downloaded and viewed, and to whom it was thereby published, are persons who provided support for and encouragement of the First Respondent by way of “comments” uploaded to the relevant URL, including:

(a)    persons who chose to be identified as the source of such comments, being the 9 persons listed in Schedule E to this pleading; and

(b)    two persons who provided such comments anonymously.

56    Ms Chrystanthou SC, who appeared with Mr Olson for Chuffed, informed the Court without demur that it was not in dispute in the present case that the matter complained of had to have been downloaded in the ACT (to a person who understood it was referring to Mr Massarani). I took that to mean that, despite the allegation in para 10 of the pleading, Mr Massarani does not believe that the matter complained of was downloaded and viewed by anyone in the Northern Territory.

57    Chuffed argued that, since publication is not complete in a case such as this until the item in question is downloaded from the internet and comprehended, it was necessary to plead that publication occurred within the relevant time in the ACT or the Northern Territory and that someone who downloaded and comprehended it in the ACT or the Northern Territory also identified Mr Massarani as the assailant. The statement of claim contains no such pleading. And publication in the present case can only be proved if someone not only downloaded and comprehended the matter in either the ACT or the Northern Territory but also knew the relevant extrinsic facts. Of the three people identified in the pleading as having knowledge of the relevant facts, none is said to have downloaded the matter in the ACT or the Northern Territory. Consequently, Chuffed submitted, to the extent to which the pleading alleges that the publication was made to people in the ACT or the Northern Territory, the pleading must be colourable.

58    It is trite that, where an applicant is not referred to by name in an allegedly defamatory publication, it is an element of the cause of action which must be proved that it was published to a third party who reasonably understood it to refer to the applicant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373–4 per Samuels JA. But I can find no authority for the proposition that it is necessary, in the case of an internet publication, for an applicant to plead that such a person was within the jurisdiction at the time the matter was published to her or him. Certainly, no such case was cited.

59    Mr Massarani contended that there is no basis to suggest a lack of bona fides. His counsel submitted that “[i]t may be taken that [Mr Massarani] knows a substantial number of the listed donors, and it may therefore readily be inferred he knows where they reside, and elected to invoke the jurisdiction of this Court upon that basis in good faith”. That may well be so. In a letter to Mr Fine of 24 November 2020, annexed to his first affidavit, Mr Massarani wrote:

4.    By virtue of the medium of publication the matter complained of has been published in each of the States and Territories of the Commonwealth.

5.    I make particular note of the fact that publication was made to a significant number of individuals ordinarily resident in the Australian Capital Territory. Those persons include Mr Joseph Scales, Ms Alice Crawford, Ms Sabina Husic and Mr Timothy Gartrell. Each of them are presently employed by the leader of the Federal Opposition Mr Anthony Albanese MHR in his Canberra office save for Ms Husic whose resignation in recent days is a matter of public record.

6.    Further, publications were made to persons resident in Queensland, South Australia, Western Australia and Victoria.

7.    It follows that there is no question whatsoever as to the jurisdiction of the court to deal with this matter.

60    Mr Morris also relied on an alleged admission by Ms Ryan in paras 26 to 30 of her affidavit that publication was made to a friend of Mr Massarani resident in the ACT, Bryce Roney, who he described as “an employee of the National Secretariat of the ALP”, one of the people who made a donation and chose to be identified. But there is no such admission.

61    Without more, the fact that Mr Massarani does not say that any of those people or the individuals named in his amended statement of claim downloaded or read the Ryan article while in the ACT does not support the conclusion that the claim was brought in bad faith. And Mr Massarani could have elected to bring the action in this jurisdiction for any one of a number of valid reasons.

62    But the fact that no evidence was adduced to indicate that Mr Massarani was in a position to prove that the Ryan article was downloaded in the ACT (or the Northern Territory) by Vanessa Seagrove, Kathleen Studdert, or Siobhan Fox (or anyone else for that matter), notwithstanding that he was on notice for months of Chuffed’s objection and had retained the services of Queen’s Counsel who settled the pleading as early as October 2020, provides some support for the Chuffed submission. It has been said that the weakness of a case may be relevant to determining whether a claim is colourable if, and to the extent that it can, “rationally inform an assessment as to whether the claim was advanced for an improper purpose to fabricate jurisdiction”: Mulley v Hayes [2021] FCA 1111 at [73] (Lee J). In Tucker v McKee [2021] FCA 828 Anastassiou J held that an action in defamation was colourable on the basis that the applicant had amended his pleading to artificially invoke the Federal Court’s jurisdiction by including a passing reference to the Fair Work Act 2009 (Cth) and asserting that the alleged defamatory document was published outside Victoria, including in the ACT (at [43]). His Honour found that there was insufficient evidence to establish that the relevant document was published and downloaded outside of Victoria (at [69]). His Honour rejected the applicant’s submission that the dispatch by email to two organisations which operated nationally and the fact that the document was stored on email servers outside Victoria and could theoretically be accessed in those locations were sufficient to prove publication in those jurisdictions (at [49]).

63    But Mr Massarani’s statements in his letter to Mr Fine do not rest on so flimsy a basis. While it does not necessarily follow from the fact that some of the people who downloaded the Ryan article ordinarily lived and worked in the ACT that they did so while they were in the ACT, it is not unreasonable to think that at least one of them did. Certainly Mr Massarani could have done more to satisfy the Court that the Ryan article had been published in the ACT but his failure to do so does not smack of either bad faith or improper purpose.

64    In these circumstances, I am not persuaded that the assertion of federal jurisdiction is colourable. Accordingly the challenge to jurisdiction fails. I find that the Court has jurisdiction.

Is leave required to proceed against Ms Kriz?

65    As against her, Ms Kriz insists, in effect, that the present application is not competent because leave is required to sue her and leave has never been sought, let alone granted. She relies on s 23 of the Defamation Act, which relevantly provides:

(1)    This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter.

(2)    The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

66    In Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [48] Beazley JA considered that leave under s 23 could not be granted nunc pro tunc (that is to say, retrospectively, after a proceeding had been filed). But her Honour was in the minority on this issue. McColl JA and Sackville JA held otherwise. Beazley JA’s position was consistent with the approach taken to the predecessor of s 23, s 9(3) of the 1974 Act, which similarly prohibited a person from bringing further proceedings against the same defendant “in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought”: see Spautz v Kirby (1989) 21 NSWLR 27 at 30D (Hunt J); Lee v Kim (2006) 68 NSWLR 433 at [33] (Handley JA, Beazley and Santow JJA agreeing). According to the NSW Law Reform Commission, the purpose of s 9(3) of the 1974 Act was to remedy the defects of the 1958 Act, “arising because of the multiplicity of causes of action which may attend the dissemination of defamatory matter”: NSW Law Reform Commission, Report on Defamation (Report 11, 1971) at app D, [51].

67    In Spautz at 30D, Hunt J said:

The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined). There is nothing in the statute that warrants an interpretation of s 9(3) that the plaintiff may validly bring the proceedings without leave provided that leave is obtained subsequently if and when objection is taken to them. The abuse has already happened by that stage.

68    In Carey Beazley JA expressed the same view. Her Honour also observed (at [46]):

If retrospective leave were permitted by the section, the fact that a court may refuse leave is neither an answer to nor a panacea for the abuse that will have occurred already by the bringing of proceedings without leave.

69    Regardless, Mr Massarani has made no application for leave. He insists that this proceeding is not “in relation to” the Honi Soit publication or “the same or like matter”. In correspondence with Ms Kriz and Ms Ryan, annexed to Ms Kriz’s affidavit (GK-2), he stated that “[he does] not intend to seek a grant of leave nunc pro tunc”.

70    The present proceeding is not a suit in relation to the same publication with which the District Court proceeding was concerned or another publication of the same matter. Insofar as it is brought against Ms Kriz, however, is it another proceeding “in relation to the same or any other publication of the same or like matter”?

71    As Simpson J observed in Rastogi v Nolan [2010] NSWSC 735 at [7], it is obvious that what is “like matter” is a question of degree and evaluation. In Buckley v The Herald and Weekly Times (No 2) [2008] VSC 475 at [15] Kaye J held:

[I]n order that there be a relevant “likeness” for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be “like” the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications.

These remarks were cited with approval in Waterhouse v The Age Company Limited [2011] NSWSC 159 at [48]–[49] (Nicholas J).

72    Ms Kriz submitted that the pleading in the present case treated the Ryan article, in substance, as a form of republication of the matter complained of in the District Court proceeding. This was because the pleading referred to “the contents of [the] previous defamatory matter” when it identified the defamatory imputations said to be conveyed by the Chuffed article. She contended that this case was analogous to the situation in Dank v Whittaker (No 4) [2014] NSWSC 732.

73    In Dank, the plaintiff commenced six separate proceedings for defamation arising out of the publication of three articles (both in print and online) in The Daily Telegraph concerning Dank’s alleged involvement in the suspected administration of performance-enhancing substances to footballers. Apart from the headline, the online and print versions of each article were identical. In one article the entire contents of one of the other matters complained of was reproduced with some additional material. The proceedings in relation to the online versions of the articles were only brought against the corporate proprietor of the website, Nationwide News Pty Ltd. The proceedings in relation to the printed articles were brought against various editors and journalists employed by Nationwide News. The defendants applied for the proceedings to be consolidated into one proceeding on the basis that the maintenance of six separate proceedings amounted to an abuse of process. McCallum J refused to consolidate the proceedings into one on the basis that the three articles were not the same. Her Honour said at [40]–[43]:

In my view, the application to consolidate all six proceedings into a single proceeding must be rejected. On no view can the three discrete sets of allegedly defamatory matter be said to amount to the same defamatory matter.

The defendants submit that the articles in each set of the three sets of proceedings, whilst not the same, concern generally the same subject matter, namely, alleged wrongdoing by the plaintiff in connection with his role as a sports scientist engaged by Cronulla-Sutherland District Rugby League Football Club.

Mr Blackburn SC, who appeared with Ms Barnett for the Nationwide defendants, accepted that proceedings 487 and 493 deal with matters that seem to be “quite separate” from the others. He acknowledged that the articles sued on in the first and third sets of proceedings are also separate publications but submitted that a consideration of the imputations relied upon by the plaintiff reveals that they deal with very similar matters. It was submitted that those articles are closely aligned in that they both relate to an alleged link between the administration of peptides by the plaintiff to Jon Mannah and the acceleration of Mr Mannah's cancerous condition.

Nothing in the principles and statutory provisions to which I have referred has persuaded me that a person defamed by different articles on different dates, who chooses to commence two separate proceedings in respect of each different article (and to pay the additional filing fee) must face the consolidation of those proceedings simply because he or she has been defamed twice in the same newspaper. In my view, subject to the application of s 23, the publication of a different defamatory article may properly be regarded as a different wrong giving rise to an entitlement to claim a separate amount of damages for non-economic loss.

74    Section 23 was not engaged in Dank, however, because the plaintiff chose not to sue the same defendant in the subsequent proceedings.

75    Ms Kriz drew attention to McCallum J’s decision to consolidate the six proceedings into three proceedings (by consolidating the proceedings concerning the online and print version of each article), despite those proceedings being brought against different defendants and the articles being published in different mediums. But this is not to the point. In Dank, the online and print versions of each article were identical, apart from the headline, and were published on the same dates. In the present case, the Honi Soit article and the Ryan article were published on different dates and are far from identical. Despite the reference to the “previous defamatory publication” in the pleading, the Ryan article is not a “republication” of the Honi Soit article. In any event, McCallum J’s decision to refuse to consolidate the six proceedings into one in circumstances where one matter complained of entirely reproduced the contents of another does not assist Ms Kriz.

76    Ms Kriz submitted that the Ryan article is “like” the Honi Soit article because it relates to the same underlying dispute and contains the same imputations. She relied on Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 at [39]–[43]. In that case, while not expressing a concluded view, Wigney J preferred an interpretation of s 23 that would only require an applicant to seek leave to commence proceedings in relation to the republication of the same or like matters as that previously sued upon, rather than in relation to the publication of matters containing the same or like imputations. I fail to see how this assists Ms Kriz. Furthermore, Wigney J doubted that an article which expressed an opinion about a defamation proceeding could ever be said to be “like” the original article which gave rise to that proceeding (at [42]). That situation appears to be similar to the present case.

77    In Buckley at [13] Kay J held:

The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.

78    See also Lee v Kim at [27] (Handley JA); Ennis v TCN Channel Nine Pty Limited [2007] NSWSC 1106 at [13] (McClellan CJ at CL); Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [206] (McColl JA); Rastogi at [5] (Simpson J).

79    Various other considerations are identified in the case law that may be relevant, for example, whether the texts of both publications are similar (Lee v Kim at [27] per Handley JA); whether the subject matter of each publication is the same (Reynolds v Nationwide News Pty Ltd [2012] VSC 226 at [25] per Beach J); whether the publications are “distinctly separated in time” (Ennis at [13] per McClellan CJ at CL) or whether the second publication “post-date[s] the publications the subject of the earlier proceeding” (Duffy v Google LLC [2019] SASC 157 at [137] per Blue J); whether the proceedings are brought against different defendants (Habib at [206]); and whether the “medium in which the publications are said to have been made is different” (Rastogi at [7] per Simpson J).

80    In Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127, the applicant sought injunctive relief against the respondents with respect to any possible republication of the same or like matters which were found to be defamatory, being a poster which the Sydney Morning Herald promoted its print edition and two tweets published by The Age. White J said the following in respect of s 23 (at [22]–[23]):

The purpose of s 23 is obvious on its face. It is to limit the potential for a multiplicity of proceedings when a single publication gives rise to multiple causes of action or when several publications of the same or similar kind give rise to multiple causes of action…

Given that purpose, s 23 should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications. In a case of that kind, it is improbable that the later publication would satisfy the description of a “publication of the same or like matter” for the purposes of s 23.

81    In that case, injunctive relief was refused on the basis that the applicant would not require leave under s 23 to commence new proceedings in relation to any future republication of the defamatory matters. White J observed (at [25]–[26]):

…I consider that any future publication of the kind postulated by Mr Hockey is likely to be regarded as so separated in time and circumstance from the publication of the SMH poster and the two tweets as not to be regarded as a publication of “the same or like matter” for the purposes of s 23.

Even if that view of s 23 be wrong, and Mr Hockey would require leave, it would not be an impediment to his commencement of proceedings as it would be open to him to commence the proceedings and to seek the leave for their commencement as part of the relief in the proceedings: Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90.

82    There are a number of similarities between the matters complained of in the present case and the Honi Soit article.

83    First, the Ryan article arises out of the publication of the Honi Soit article.

84    Second, the publications are relevantly concerned with the allegations of sexual assault made anonymously by the same woman and reported by Ms Kriz.

85    Third, the Honi Soit article stated that the woman was “sexually harassed and assaulted”. The Ryan article similarly described her as a “survivor” of sexual assault and asserted belief in the truth of her account.

86    Fourth, the imputations alleged to arise from the Ryan article are substantially the same as those pleaded by Mr Massarani in relation to the first matter complained of in the District Court proceedings.

87    The imputations said to arise from the Honi Soit article were:

(a)    [Mr Massarani] severely sexually harassed a student of the University of Sydney;

(b)    [Mr Massarani] severely sexually assaulted a student of the University of Sydney;

(c)    [Mr Massarani] would abuse his power as a member of the Senate to make the student’s life hell if she reported him to the University of Sydney.

88    The imputations pleaded in the present case are that:

(a)    [Mr Massarani] is the perpetrator of the sexual assault referred to in [the Honi Soit article] whereby he severely sexually harassed and assaulted a student at the University of Sydney for his own sexual gratification.

(b)    [Mr Massarani] attempted to silence the victim of his sexual assault as set forth in the previous defamatory matter.

89    In substance, insofar as it is brought against Ms Kriz, the present proceeding concerns the same report in the same article the subject of the previous proceeding.

90    On the other hand, there are a number of obvious differences between the two publications.

91    First, the articles are different in nature, tone and purpose. The Honi Soit article is a piece of long-form journalism. Its purpose is to inform. While it detailed the accounts of a number of individuals, its pre-eminent concern was with the culture of the University and the perceived inadequacy of its systems for addressing it. The Ryan article is in the nature of a call to arms. Its purpose was to encourage people to assist Ms Kriz. It set out to achieve that purpose (at least in part) by asserting a belief in the truth of Ms Kriz’s account.

92    Second, the two were published at very different times, years apart.

93    Third, they were apparently directed to different audiences, publication of the Ryan article going beyond the University population.

94    Fourth, apart from Ms Kriz, the respondents are different from those sued over the Honi Soit article.

95    For these reasons I am not persuaded that leave is required to proceed against Ms Kriz.

Should the proceeding be summarily dismissed or permanently stayed as an abuse of process?

96    It is convenient to deal first with the application to dismiss or permanently stay the proceeding as an abuse of process.

General principles

97    The power to summarily dismiss a proceeding, whether as an abuse of process or for some other reason, is contained in s 31A of the FCA Act and r 26.01 read with r 1.40. The Court also has an implied (sometimes referred to as an inherent) power to grant a permanent stay to prevent an abuse of process: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. [2021] FCAFC 77; 389 ALR 612; 159 IPR 58 at [115] (Katzmann, Beach and Markovic JJ); Jackson v Sterling Industries Ltd (1986) 12 FCR 267 at 272 (Bowen CJ).

98    In his written submissions Mr Morris argued that, to succeed on their application for summary dismissal, it was “uncontroversial and well settled” that the respondents must prove that the proceedings are “manifestly groundless” or “so obviously untenable that [they] cannot possibly succeed”, citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

99    As Mr Morris properly conceded in oral argument, however, the General Steel test no longer applies in this Court. The burden on the respondents is not so heavy. Section 31A of the FCA Act, which was inserted into the Act over a decade ago, is a radical departure from the approach taken in the earlier cases including General Steel: Spencer at [53] (Hayne, Crennan, Kiefel and Bell JJ). The respondents need only prove that Mr Massarani has no reasonable prospect of successfully prosecuting the proceeding.

100    Section 31A relevantly provides that:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

101    Hayne, Crennan, Kiefel and Bell JJ observed in Spencer at [51]–[56]:

51    [T]he central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.

52    [E]ffect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail” …[T]he combined effect of sub–ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

53    In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).

…

56    Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.

(Footnotes omitted.)

102    Their Honours also counselled against any paraphrase of the statutory expression “no reasonable prospect” (at [58]–[60]). They said at [60] “full weight must be given to the expression as a whole”. They emphasised that “the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes”.

103    That said, the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] (Hayne, Crennan, Kiefel and Bell); cf. [24]–[25] (French CJ and Gummow J).

104    It is appropriate to heed the warning given by French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24] which has broader application:

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.

(Footnotes omitted.)

105    A convenient summary of the legal principles applying to applications to dismiss or permanently stay a proceeding as an abuse of process appears in Ashby v Commonwealth (No 4) (2012) 209 FCR 65 at [4]. There, Rares J observed:

The Courts have an unlimited power over their own processes to prevent those processes being used for the purpose of injustice. That is why the categories of abuse of process are not closed: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [27]–[28] per French CJ, Gummow, Hayne and Crennan JJ. Proceedings that are seriously or unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment are examples of abuses of process. So too are proceedings where the Court’s process is employed for an ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right thinking people: 239 CLR at 93–94 [27]–[28]. In Williams v Spautz (1992) 174 CLR 509 at 529 Mason CJ, Dawson, Toohey and McHugh JJ held (applying what the English Court of Appeal had held in Metall & Rohstoff v Donaldson Inc [1990] 1 QB 391 at 469) that a party who alleged that a proceeding had been brought, or was being prosecuted, as an abuse of process had to show that the predominant purpose of the other party in using the legal process “has been one other than that for which it was designed”. They held that the onus of satisfying the Court that there was an abuse of process lay on the party alleging it and that this onus was “a heavy one”. Their Honours cautioned that the power to grant a permanent stay in such cases could only be exercised in the most exceptional circumstances.

106    In Walton v Gardiner (1993) 177 CLR 378 at 392–3 (where the application was for a permanent stay) the majority (Mason CJ, Deane and Dawson JJ) explained that:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

(Footnotes omitted.)

107    Similarly, Brennan J said at 410–11 that proceedings are an abuse of process regardless of whether they are well-founded in fact and law if they are brought for an ulterior purpose; if the proceedings will “inevitably and manifestly fail”; if they “unnecessarily duplicate proceedings already pending or determined”.

108    Ms Ryan and Ms Kriz contended that the proceeding should be dismissed as an abuse of process because it was instituted and continued for an improper purpose and also because the interest at stake is out of all proportion to the resources the proceeding will consume. Chuffed contended that it should be dismissed (or permanently stayed) for the second reason only. It submitted that, as Mr Massarani was not named in the publication, any actionable publication to persons who identified him as the alleged assailant is “likely to be extremely limited” such that, if he succeeds, any award of damages will probably be low and the costs undoubtedly high.

109    In her affidavit Ms Kriz claimed that the proceedings are an abuse of process because the matter complained of is “a smokescreen” to enable Mr Massarani to pursue her for the publication in 2015 of the Honi Soit article and also because the time and resources the litigation is likely to expend are out of proportion to the possible value of the claim. Ms Kriz claimed that Mr Massarani consented to the republication of the Honi Soit article with the reference to his membership of the students disciplinary committee omitted. Based on comments he and his solicitor have made, she submitted that “he is at least in part pursuing [the present action] to find the identity of [her] source in 2015”. She also submitted that the proceeding is vexatious because it has been brought:

(1)    without reasonable grounds in circumstances where a claim as to the same or similar matter has been dismissed, relying on s 23 of the Defamation Act;

(2)    to circumvent the limitation period which would apply to a suit with respect to the 2015 article; or

(3)    in circumstances involving “the repetitive and burdensome filing of frivolous claims”.

Was the proceeding commenced or continued for an improper purpose?

110    Ms Ryan and Ms Kriz submitted that the Mr Massarani’s affidavit makes it clear that the primary purpose of this proceeding really has nothing to do with the matter complained of. Rather, they submitted, it is apparent that he has been preoccupied with the Honi Soit article ever since it came out and his most troubling preoccupation is with identifying Ms Kriz’s source for the statements he alleges were made about him in the Honi Soit article. They argued that it can be inferred that this is to facilitate him pursuing her in the same way he has pursued two other women, one of which was Ms Forsyth, who he had previously surmised to be the source. They maintained that this was not a proper use of court processes.

111    In the affidavit he filed in this proceeding, Mr Massarani candidly admitted that he was at least in part pursuing this action in order to identify Ms Kriz’s source in 2015. He deposed:

Ms Kriz asserts at [35] of her affidavit that I am “at least in part pursuing this to find the identity of [her] source in 2015”. To the extent that I am determined to disprove the allegation she is correct. Ms Kriz has not offered anything in the way of evidence to support her allegation nor has she offered anything to disprove my reasoned hypothesis regarding Ms Forsyth.

112    He proceeded to describe at length the steps he had taken to uncover her source. Those steps began in early 2019, well before the publication of the Ryan article, let alone the institution of the present proceeding.

113    The basis of the case against Ms Kriz is set out in the amended statement of claim which pleads that she:

(a)    is the person identified in the defamatory matter as “Georgia”

(b)    was the source of the narrative account (herein called “the Kriz Story”) which formed the basis of the defamatory matter;

(c)    provided the Kriz Story to [Ms Ryan];

(d)    provided the Kriz Story to [Ms Ryan] with the intention that:

(i)    the Kriz Story would be used is writing the defamatory matter; and

(ii)    the defamatory matter, containing or conveying the Kriz Story, would then be     made available on the Chuffed.org website; and

(e)    authorised and approved:

(i)    the defamatory matter; and

(ii)    that the defamatory matter be made available on the Chuffed.org website.

114    One might well suspect that the case has been brought against Ms Kriz in order to force her to reveal her source, whether by interrogating her or cross-examining her on the subject if she were to testify and/or to prosecute her over the Honi Soit article when his attempt to do so in the District Court had failed. After all, he only instituted the proceeding after the District Court proceedings were dismissed and he was refused leave to appeal. Mr Massarani deposed in his affidavit to becoming aware of the matter complained of on 24 October 2019. At that time the District Court proceedings were still on foot. The summary dismissal application had not yet been heard. He is clearly angry with Ms Kriz as a result of the article. His own evidence indicates that he was gravely injured by the effect it had on him and that he perceives it caused irreparable damage to his reputation.

115    Nevertheless, I am not persuaded that the application should be dismissed as an abuse of process for either of the reasons advanced.

116    First, an allegation of abuse of process is a serious one. The respondents bear a heavy burden: Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ), 537 (Brennan J), 542 (Deane J).

117    Second, subject to s 23, which I have found to be inapplicable in this case, a plaintiff may sue a publisher for the original publication and any republication, whatever form the republication takes. It is a long established rule of the common law, arising out of “[t]he bilateral nature of publication” that every communication of defamatory matter gives rise to a separate cause of action: Gutnick at [26]–[27] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

118    Third, as Brereton JA observed in Rock v Henderson [2021] NSWCA 155 at [37], Bell P agreeing at [3]:

The species of abuse of process in question here is that where the proceedings are used as a ‘stalking horse’, to achieve an outcome which is outside the result for which the law provides. There will not be a collateral abuse of process where the plaintiff institutes and maintains the proceedings with the intention of prosecuting them for the purpose of obtaining the remedy claimed in them, even if there are collateral or ulterior motives and benefits. If a plaintiff sues to redress a genuine grievance, no object which the plaintiff may seek to obtain in the proceedings can be condemned as a collateral advantage, and to that extent improper, if it is reasonably related to the provision of redress for that grievance. If a plaintiff with a genuine cause of action, which the plaintiff would wish to pursue in any event, can be shown also to have an ulterior purpose as a by-product of the litigation, the plaintiff cannot be debarred from proceeding. On the other hand, a plaintiff’s pursuit of an ulterior purpose unrelated to the subject matter of the litigation which, but for the ulterior purpose, the plaintiff would not have begun, is an abuse of process.

(Citations omitted.)

See also Wright J at [84]–[85] to the same effect:

119    In Williams at 532–3 Brennan J explained:

The purposes which legal proceedings are designed to serve are the protection or vindication of particular legal rights or immunities, the maintenance or affection of particular legal relationships, and the imposition or enforcement of particular legal penalties, liabilities and obligations. The means by which these purposes are achieved in a proceeding consist in the verdict which might be returned or the order which might be made in the proceeding, in the consequences that flow naturally from a verdict that might be returned or from an order that might be made (for example, the vindication of a plaintiff’s reputation flowing from a verdict in a civil action for defamation) and in compromise of the claims made in the proceeding. The achievement of any of the purposes mentioned by any of the means mentioned is within the scope of the remedy for which a proceeding is designed.

120    In correspondence with Mr Massarani, Ms Kriz confirmed that he was the alleged assailant mentioned in the Honi Soit article and also said that at all times “and on a reasonable basis”, she believed the allegations made by her source to be true. It is therefore likely and certainly possible that she will plead truth in her defence if this matter proceeds any further. Ms Saunders indicated as much during oral argument. Ms Ryan relied on what Ms Kriz told her. Mr Massarani insists the allegations are false. As Mr Morris submitted, vindicating the reputation of an applicant by proving that the imputations arising from a publication are false is an entirely proper purpose for instituting defamation proceedings. The source of the allegation could be revealed during the proceedings and, if it should have been apparent to Ms Kriz that she could not be relied upon, that may aggravate damages. If she promised her informant not to disclose her identity, Ms Kriz may not be compelled to do so (see Evidence Act 1995 (Cth), s 126K(1)), unless the exception in s 126K(2) is invoked and established, which is unlikely. Be that as it may, Mr Massarani’s concern to identify the source is not unrelated to the remedy he seeks.

121    It follows that I am not satisfied that the proceeding has been brought or continued for an improper purpose.

Are the time and costs likely to be expended if the action is pursued out of all proportion to the benefit Mr Massarani will derive from it, so as to render the proceeding and abuse of process?

122    In Bleyer v Google LLC (2014) 88 NSWLR 670 at [62] McCallum J held that in an appropriate case an action may be stayed or dismissed as an abuse of process on the basis that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. Her Honour went on to say at [63]:

It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation. Undoubtedly, like considerations will arise in other kinds of cases.

123    I do not doubt that this Court has the same power. Mr Massarani did not argue otherwise. The relevant provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules are substantially the same as those provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) on which McCallum J relied. The respondents accept that the power is one which must be exercised with caution and only in the rare case where the disproportion is so great that the proceedings are correctly considered an abuse of process. The question here is whether this is one of those rare cases.

124    It is unnecessary for an applicant in a defamation case to prove that a defamatory publication caused them damage. Damage to reputation is presumed on proof of publication of a defamatory publication. But the extent to which the defamatory publication damaged their reputation is another matter. So, too, is the extent to which it may have caused them any other harm.

125    An award of general damages in a defamation suit serves three purposes — to provide consolation for the personal distress and hurt the defamatory publication causes the applicant; to redress the harm to the applicant’s reputation; and to vindicate that reputation: Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60 (Mason CJ, Deane, Dawson and Gaudron JJ).

126    In para 26 of the amended statement of claim Mr Massarani alleges that:

By reason of the publication of the defamatory matter, [he] has:

(a)    been greatly injured in his credit, character and reputation;

(b)    suffered significant and ongoing psychiatric injury, in that:

(i)    he has been diagnosed with major depression, severe anxiety and post-traumatic stress disorder on account of the publication of the defamatory matter and the previous defamatory matter; and

(ii)    this has required acute treatment and will require ongoing treatment at considerable cost;

(c)    been brought into hatred, ridicule, public odium and contempt;

(d)    suffered hurt and embarrassment; and

(e)    will continue to suffer loss and damage.

127    It is inevitable that, if this matter were to proceed to trial and judgment, costs will be high. Although no evidence was adduced to show the likely costs (as there was in Bleyer), common experience indicates that it is likely to be in the hundreds of thousands of dollars. On the evidence before the Court, if Mr Massarani were to succeed his damages are unlikely to be substantial. Unless he can satisfy the Court that he should receive the value of the donations (his claim to an account of profits), which must be doubtful to say the least, his claim is confined to general damages. The evidence is that the donations were $21,870. And unless he can satisfy the Court that he should receive aggravated damages, general damages are limited by the statutory cap (currently $432,500).

128    The scope of publication as pleaded is small. Thus far, Mr Massarani has only been able to nominate three people to whom the Ryan article was published who knew the extrinsic facts and only one to whom it was published within the limitation period.

129    Further, his own evidence is to the effect that his “credit, character and reputation” were gravely injured before the Ryan article was uploaded to the Chuffed website.

130    In the affidavit sworn on 17 January 2019 in support of his preliminary discovery application in the District Court, Mr Massarani deposed that in 2014 he was “confronted sternly” at a dinner party with an accusation (conveyed to the guests by a mutual friend) that he had abducted, raped and held a woman hostage at a Sydney hotel. One of the guests at the dinner, Thomas Harris-Brassil, made a donation via the Chuffed website. In oral argument Mr Morris said that Ms Studdert was the person who confronted Mr Massarani with the allegation.

131    In his affidavit in this proceeding Mr Massarani deposed that:

Since 2015 I have been increasingly shunned in social circles connected to Ms Kriz and the “Socialist Left” grouping generally. Whereas I had enjoyed a happy, close and and [sic] friendly relationship with members of that opposing faction that bonhomie has crumbled in recent years being replaced by constant rumours, open hostility and social isolation.

132    He also said that in 2018 he was told by a senior member of the NSW Labor Left that his behaviour towards women was “unacceptable”.

133    Mr Massarani deposed that he tried to get to the bottom of the rumours. On the day of the conversation in the preceding paragraph, he asked a friend, James Fox, the husband of Siobhan Fox, why he was being “excluded and shunned” and was told that there was a rumour circulating that he had sexually assaulted a number of women. He also deposed that on 21 January 2019, he was told by a close friend that James and Siobhan Fox, had refused to attend a dinner the friend had planned to host because Mr Massarani had been invited. The same day, he went on to say, he was told by someone else that Ms Fox had recently commented that she could not believe that he still had his job “after what he’s done”.

134    Indeed, Mr Morris conceded in argument that all three of the women named in para 22 of the amended statement of claim (the only people he identified as having knowledge of the extrinsic facts) already had an adverse view of him before they saw the Ryan article. He submitted that it should be inferred that the Ryan article “harden[ed] their view to the point that they were prepared to do something that cost them money as a result of an assurance that what Mr Massarani was previously alleged to have done was based on a believable source”. That is a possible inference but it is not the only one. As I have already observed, in substance Ms Ryan’s statement of belief was not materially different from what Ms Kriz said in the Honi Soit article. In any case, the three women named in para 22 and, indeed, other donors, may well have contributed solely because they wanted to help Ms Kriz and did not need, or receive, any assurance from anything Ms Ryan wrote.

135    Moreover, while there is no dispute that Mr Massarani is genuinely distressed and that he has been diagnosed with major depression, anxiety and post-traumatic stress disorder, all these conditions predated the publication of the Ryan article.

136    In his District Court affidavit, Mr Massarani deposed that he reacted “volcanically” to what he was told at the dinner party in 2014, denied the accusation “aggressively”, became “very distressed”, stormed out of the house, and drove home “in a rage”. He said he immediately suspected Ms Forsyth to be the accuser. He claimed they had had consensual sexual relations and that she made a false complaint to the police. He said he felt completely humiliated and was distressed for days after the dinner. When in the summer of 2014/2015 he told by the mutual friend that the source was indeed Ms Forsyth he said he “again became highly distressed and [had], since that evening been able to focus on little else”. He added that he had taken leave from his employment.

137    Mr Massarani also deposed that he became “highly distressed” by what he was told on 21 January 2019, left work, became “hysterical”, was “suicidal” and was taken to hospital. Clinical notes from Liverpool Hospital disclose that he presented to the emergency department with suicidal ideation.

138    Mr Massarani asserted that:

In all these allegations have caused me to be hospitalised on four separate occasions since they were brought to my attention.

139    Dr Sturrock’s first report, which is dated 15 March 2020 (within five months of the time Mr Massarani became aware of the matter complained of), makes no mention of the Ryan article. Indeed, in that report he wrote:

[Mr Massarani] has been particularly symptomatic since January 2019, although he has been symptomatic for five years. Prior to 2019 he did not seek help for himself as he tried to manage alone through isolation and some intermittent drinking.

140    It will be recalled that it was in January 2019 that Mr Massarani first brought proceedings in the District Court. At that time, Dr Sturrock reported he was acutely suicidal.

141    In May 2019, five months before he became aware of the matter complained of, Mr Massarani spent three weeks in a psychiatric clinic under the care of Dr Sturrock. He was readmitted the same day his District Court action was dismissed. Dr Sturrock again described him as “acutely suicidal”.

142    In March 2020, in a report to his then solicitors, Dr Sturrock diagnosed him with major depression, post-traumatic stress disorder and attention deficit disorder. He said that his symptoms included “[p]anic attacks which consist[ed] of feelings of imminent hopelessness, shaking, palpitations, fear of losing control, fears of going crazy, persisting concern about additional panic attacks, especially in public settings and profuse sweating”. He said that his symptoms of post-traumatic stress disorder included “repeated disturbing and unwanted memories of the accusation” against him made to the police and a “growing sense of social isolation and exclusion”. He reported that Mr Massarani had lived in social isolation for 15 months.

143    Mr Massarani was then on a range of medications including to treat depression and anxiety, to control his sweating and his nightmares, and to help him sleep. Dr Sturrock went on to say:

In my opinion his psychiatric disorder is directly caused by the matters associated with FASOC that I have been made aware of.

“FASOC” is a reference to the Further Amended Statement of Claim filed in the District Court.

144    Dr Sturrock considered that he was at risk of continued harm from his psychiatric condition.

145    As I said, the Ryan article was not mentioned in that report. The first and only mention of the Ryan article was in a report by Dr Sturrock of 28 January 2021 obtained in connection with the present application. There, Dr Sturrock wrote:

I have reviewed the Amended Statement of Claim you have provided me. The publication of the fundraising page had an immediate impact upon you. On the day you learned of the publication we met (25th October 2019). You were in crisis, appeared very distressed and reported panic attacks. The effect of the publication had compounded the distress you already felt as a result of the underlying anonymous allegation.

146    It is not entirely clear whether the conclusion is a report of what Dr Sturrock was told or an expression of the doctor’s opinion. For present purposes, however, I will assume that it was his opinion at least as at 28 January 2021 that the publication of the matter complained of had “an immediate impact” on Mr Massarani in that it “compounded the distress [he] already felt as a result of the underlying anonymous allegation”. That opinion appears to be referable to Mr Massarani’s presentation on 25 October 2019. Certainly Dr Sturrock does not say that the publication of the matter complained of had any enduring effect on Mr Massarani. But evidence may emerge at trial to suggest otherwise. Put another way, the extent of the damage Mr Massarani may have suffered from the Ryan article is “a triable issue”: Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495 at [32] (Jagot J). Thus, while I am persuaded that that the costs of prosecuting the proceeding will likely outweigh the damages Mr Massarani could reasonably recover, taking all relevant matters into account and bearing in mind the need for caution, I am not persuaded that the proceedings should be regarded as an abuse of process for this reason. I am not oblivious to the vexation the proceeding is likely to cause the respondents, particularly Ms Kriz and Ms Ryan. Ms Ryan spoke in her affidavit of the stress and distress she has already experienced as a result of the litigation. But that is an unfortunate consequence of litigation in general.

Should the proceedings be summarily dismissed for other reasons?

Is the proceeding statute-barred?

147    All the respondents submitted that the proceeding should be summarily dismissed because it was statute-barred.

148    It is common ground that the substantive law of NSW is the law that must be applied to determine the cause of action based on the publication. That is the effect of the choice of law provisions of the Uniform Defamation Law. See, for example, Civil Law (Wrongs) Act 2002 (ACT), s 123 and s 11 of the Defamation Act. Limitation provisions in statutes are part of the substantive law: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [100] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

149    Section 14B(1) of the Limitation Act 1969 (NSW) provides that:

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

150    Section 63(1) of the Limitation Act provides that:

Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person’s successors, extinguished.

151    Section 63(2) provides that there shall be no extinguishment where the action is commenced before the expiration of a limitation period fixed by or under the Act.

152    Section 36 of the Interpretation Act 1987 (NSW), which deals with the reckoning of time, relevantly provides:

(1)    If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2)    If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:

(a)    on a Saturday or Sunday, or

(b)    on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

…

153    The effect of these provisions in the present case is common ground that any action in defamation with respect to publication before 29 October 2019, being one year before the proceeding was commenced, would be statute-barred. But a court has power to extend the period for up to three years from the date of the publication, including after the period has expired (Limitation Act, s 56D) if it is satisfied that “it was not reasonable in the circumstances” for the plaintiff to have commenced the action within a year of that date (Limitation Act, s 56A).

154    Chuffed submitted that the onus was on Mr Massarani to demonstrate that the proceedings have been brought within the one year limitation period, otherwise they are “not maintainable”. For the following reasons it argued, in effect, that he could not discharge that onus. Of the three people who Mr Massarani alleges had knowledge of the extrinsic facts, the pleading does not disclose when the matter complained of was published to each of them. The allegation in para 4(a) of the amended statement of claim that the matter complained of was “made available” on the Chuffed website “from about October 2019” is insufficient to ground a claim that the action was commenced within a year of publication to those persons who identified Mr Massarani. The allegation in para 22 that three people made a donation (and therefore read the matter complained of) on or before 29 October 2019 is insufficient unless those persons also identified Mr Massarani.

155    In his first affidavit, Mr Fine deposed that he was instructed by the CEO of Chuffed and believed that the three people named in para 22 who are alleged to have read the matter complained of and to have identified Mr Massarani did so more than 12 months before the filing of the statement of claim.

156    It will be recalled that Ms Saunders argued that on the current pleading Mr Massarani will be unable to prove that he is identifiable to any person to whom the matter was published within the limitation period so that the claim is statute-barred. No application to amend the statement of claim was made or foreshadowed.

157    There are problems with these arguments.

158    For a start, Mr Massarani bears no onus of proof. He is a respondent to the interlocutory applications.

159    Secondly, r 16.08 requires a party to expressly plead a matter of fact or point of law that the party alleges makes the other party’s claim not maintainable. Unless the applicable limitation period not only bars the remedy but also extinguishes the right, it does not arise for consideration “until such time as a defendant raises the plea in bar to the remedy”: Commonwealth of Australia v Mewett (1995) 59 FCR 391 at 398 (Cooper J). The High Court confirmed this on the appeal in Commonwealth of Australia v Mewett (1997) 191 CLR 471. There, Gummow and Kirby JJ explained at 534–5:

[A] statutory bar, at least in the case of a statute of limitations in the traditional form, does not go to the jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for consideration of the court. This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right.

(Footnotes omitted.)

160    In WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 at [30]–[31] five members of the High Court endorsed these remarks, observing at [30] that this is “especially so” in the context of the Limitation of Actions Act 1974 (Qld) which, like the NSW Act, provides for a power to extend the period in certain circumstances. At [31] the Court concluded:

Accordingly, a general limitation on a personal action does not affect the liability of the wrongdoer; rather it acts as a bar, when pleaded, to any remedy the plaintiff may seek when bringing an action for damages pursuant to that liability.

161    Mewett involved three actions for damages in contract and tort. Mewett was injured on board a naval ship in Victorian waters. The other respondents, Rock and Brandon, were exposed to dangerous gases on another naval ship on the high seas on a voyage from Sydney. Each of the men filed his initiating process in the Sydney registry of the High Court, which remitted the proceedings to this Court. The Commonwealth filed defences pleading, relevantly, that the actions were not maintainable and were extinguished by ss 14 and 63(1) of the Limitation Act. Rock and Brandon, each filed a reply in which they contested these pleas and in the alternative each of them claimed they were entitled to an extension of time and filed applications for extensions of time. Section 14 relevantly provided that an action on a cause of action founded on tort is “not maintainable” if brought more than six years after the date the cause of action first accrues. Before the applications were heard, the Commonwealth applied to strike out the statements of claim.

162    At first instance Foster J dismissed the Commonwealth’s strike out application and, while leave to appeal was granted, the Full Court (Spender, Cooper and Lindgren JJ) dismissed the appeals. The High Court dismissed the Commonwealth’s appeal and held that the causes of action had not been extinguished.

163    Dawson J said at 509:

When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statute-barred under s 14(1) but not extinguished under s 63(1).

164    In other words, it was the remedy but not the right which was extinguished.

165    Toohey J took a different approach. Nonetheless his Honour held at 517 that until the extension of time contemplated by the NSW Act was refused, it was not possible to say with any certainty that the cause of action had been extinguished because the extinguishment effected by s 63(1) would be annulled if an extension of time were granted. See also Gaudron J at 530; McHugh J at 533.

166    Section 14B of the Limitation Act is not materially different from s 14(1).

167    To make it abundantly clear, s 68A(1) of the Limitation Act now provides that:

Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, the party has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished.

168    In the present case, since no defences have been filed, if the originating application is not dismissed or struck out for other reasons, it is open to the respondents to plead a limitation defence if they wish and then to Mr Massarani to apply for an extension of time. Mr Morris asserted that, even if the claim were found to be out of time, “this is a clear case for granting an extension”. No submissions were advanced, either orally or in writing, in support of the assertion. That said, I note that in his affidavit Mr Massarani provided an explanation for the delay in commencing proceedings. He deposed that in not commencing proceedings immediately he acted on the advice of his former counsel “and also with a view to minimising the emotional and financial toll on me personally and not unnecessarily duplicating proceedings directed at the same vindication”. He also deposed that, after the Court of Appeal refused leave to appeal from the judgment of the District Court he was hospitalised and, at first, heavily sedated. He said that as soon as he was able he took steps to draft an originating process and to instruct Mr Morris.

169    When I raised with counsel during argument my concern that the respondents’ claim was premature for the reasons I have given above, Chuffed submitted that the proceedings should still be dismissed because they are statute-barred. It informed the Court that, if its application for dismissal were unsuccessful, it would file a defence and plead that the action is not maintainable on that account so that it is inevitable that the issue will arise. I accept this is so. Chuffed first gave notice of the limitation period issue by letter dated 17 November 2020 (especially at paras 5–8), a copy of which is DF-2 to Mr Fine’s first affidavit, and it has never resiled from that position.

170    Mr Morris submitted that, contrary to Chuffed’s submissions, the evidence discloses that the offending publication took place within the limitation period (and indeed within the relevant geographical territory). He argued that para 22 of the amended statement of claim is not an exhaustive pleading of the persons to whom the offending publication was made and, in any event, the evidence concerning publication to those persons is that it took place within the limitation period. The evidence cited in support of the argument were statements:

(1)    by Ms Kriz that Ms Seagrove donated through the webpage on 29 October 2019 and Ms Studdert and Ms Fox on 27 September 2019; and

(2)    by Ms Ryan based on inquiries made of Chuffed which was to the same effect but also particularised the precise times the donations were made and included a reference to another donor, who donated on the same day as Ms Studdert and Ms Fox but who was not mentioned in para 22 and who, the pleading alleges, is “a senior member of the Left faction within the ALP in New South Wales”.

171    The evidence supports the proposition that during the limitation there was publication to at least one person who knew the extrinsic facts — Ms Seagrove. It is reasonable to infer from the evidence given by Ms Ryan and tendered by Mr Morris that Ms Seagrove downloaded and read the Ryan article on 29 October 2019. Contrary to the respondents’ submissions, that was within the limitation period (albeit just within it), not outside it.

172    For this reason I am not persuaded that any limitation defence is likely to succeed.

Does Chuffed have a defence of innocent dissemination?

173    Chuffed submitted that it was clear it has a defence under s 32 of the Defamation Act because it was a subordinate distributor within the meaning of the section; it received no notice of the defamatory nature of the publication before proceedings were commenced; and it removed the matter complained of immediately after it was informed. Mr Massarani argued that it had no defence of innocent dissemination either under the statute or at common law.

174    The common law defence of innocent dissemination emerged from Emmens v Pottle (1885) 16 QBD 354: see Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 591 (Gaudron J); 618 (Gummow J). Its purpose was “to mitigate the harshness of the law relating to publication” which is a matter of strict liability; that is to say a person will be a publisher for the purpose of the law of defamation if that person voluntarily participated in the communication of the defamatory matter regardless of whether they knew of the defamatory content or intended to convey it: Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; 392 ALR 540; 95 ALJR 767 at [22], [26]–[36] (Kiefel CJ, Keane and Gleeson JJ); [59], [77]–[78], [88] (Gageler and Gordon JJ) In that case the majority approved the observation in Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] 5 HKC 253; 16 HKCFAR 366 at [19] that a person is a publisher of defamatory matter if “by an act of any description” the person “intentionally assisted in the process of communicating the matter containing content conveying the defamatory imputation to a third party, regardless of whether the person knows that the matter contains that content”. As Gageler and Gordon JJ put it at [88], liability in defamation depends on “‘mere communication’ of the defamatory matter to a third person provided the defendant intentionally participated to any degree in that process”. The defence is designed to protect those who have no practical ability to control and supervise the material they publish: Defteros v Google LLC [2021] VSCA 167 at [144] (Beach, Kaye and Niall JJA).

175    Section 32 provides:

Defence of innocent dissemination

(1)    It is a defence to the publication of defamatory matter if the defendant proves that:

(a)    the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)    the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)    the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

(2)    For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person:

(a)    was not the first or primary distributor of the matter, and

(b)    was not the author or originator of the matter, and

(c)    did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3)    Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:

(a)    a bookseller, newsagent or news-vendor, or

(b)    a librarian, or

(c)    a wholesaler or retailer of the matter, or

(d)    a provider of postal or similar services by means of which the matter is published, or

(e)    a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or

(f)    a provider of services consisting of:

(i)    the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or

(ii)    the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

(g)    an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator has no effective control, or

(h)    a person who, on the instructions or at the direction of another reprints or reproduces or distributes the matter for or on behalf of that other person.

(Emphasis added.)

176    According to the Explanatory Note to the Defamation Amendment Bill 2005 (NSW):

The defence largely follows the defence of innocent dissemination at general law. See, for example, Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. However, the provision seeks to make the position of providers of Internet and other electronic and communication services clearer than it is at general law. For example, the provider of an Internet email service will generally not be treated as being the first or primary distributor of defamatory matter contained in an email sent using the service. Accordingly, a service provider of that kind will be treated as being a subordinate distributor for the purposes of the defence unless it can be shown that the service provider was the author or originator of the matter or had the capacity to exercise editorial control over the matter.

177    In Voller at fn 132 Gageler and Gordon JJ described s 32 as “the additional statutory defence of innocent dissemination”. No doubt that remark was made because of s 6(2) of the Defamation Act which provides that the Act does not affect the operation of the general law of defamation except to the extent that the Act (expressly or by necessary implication) provides otherwise. It is difficult to see what room s 32 leaves for the common law defence, which was considered in Thompson, and it may well be that the section necessarily implies that there is none. Indeed, it appears that s 32 provides greater protection for broadcasters and operators like Chuffed, who would not be regarded as subordinate distributors at common law (see Thompson, discussed below). But this question may be put to one side for present purposes since there was no argument on the subject and Chuffed only relied on the statutory defence.

178    Chuffed’s terms and conditions of service are annexure PM-01 to Mr Massarani’s affidavit. Mr Fine confirmed in his second affidavit that these terms and conditions were in effect at all relevant times. His evidence was as follows.

179    None of Chuffed’s employees, officers or agents reviews every aspect of every “campaign” that applies to use its website. Chuffed has only six employees, none of whom monitors fundraising campaigns as part of their role. If anyone were to make a complaint about a campaign, it would fall to its “customer support person”. The software Chuffed uses automatically reviews whether all the “technical” parts of a campaign, such as name and banking details, are filled in correctly and completely. If a person is a new campaigner (in that they have not previously used Chuffed), then one its employees or officers carries out a review to ensure that the campaign fits into one of certain specific topic areas.

180    Once the eligibility review is complete, no check is made of the content of the campaign. The terms and conditions do not state that Chuffed undertakes such a review and it would be a “misconstruction” of Chuffed’s role and duties for it to do so. None of its employees carries out a review of every campaign for defamatory content and they are not qualified to do so. When campaigners sign up to its terms, they warrant a number of things about the content they will upload. This warranty is contained in cl 4.24 and there is a specific warranty regarding defamatory material contained in cl 4.24(b). Chuffed relies on the warranties and is not in a position to check the veracity of each of them.

181    In November 2018 Ms Ryan uploaded an unrelated campaign to Chuffed’s website and it was approved in the way described above. Once a campaigner has had one campaign approved, they do not need to be approved for any future campaigns. While Chuffed has the power to edit, modify or remove content as provided for in cl 4.8(c), it would only exercise the power if it had good reason to do so, such as if it became aware of, or suspected, fraud or error.

182    Before it was served with the originating process on 2 November 2020 Chuffed had no idea there was any issue with the campaign or that it was possibly defamatory. No concerns notice was sent and Mr Massarani had not previously been in contact with Chuffed . Chuffed first became aware of the matter complained of when it was served with the amended statement of claim and removed the article from the website within hours of receiving it.

183    Clause 4.8 of the terms and conditions of use state:

Chuffed reserves in its sole discretion the right, at any time and without notice [to]:

 (a)    cancel, reject, or suspend a Social Project campaign or User account;

 (b)    cancel or reverse a Donation made to a Social Project; and

(c)    remove, edit, or modify any Content, including, but not limited to, any User submission, for non-compliance with these Terms of Service, and in cases where Chuffed suspects fraud or error, or for any other good reason.

(Emphasis added.)

184    It is not in dispute that Chuffed did not know that Ms Ryan’s article was possibly defamatory until it was served with the amended statement of claim. Neither was it suggested that Chuffed ought reasonably to have known that the matter was defamatory at the time it was published. Rather, Mr Massarani submitted that a defence of innocent dissemination was bound to fail because Chuffed was not a “subordinate distributor” within the meaning of that term in s 32. Mr Morris QC argued that Chuffed was the “first or primary distributor”. He also argued that the evidence adduced by Chuffed effectively “concede[s]” that before publication it had the capacity to exercise editorial control but made a commercial decision not to do so.

185    I need not consider whether Chuffed’s supposed defence would be bound to fail. The real question is whether it is bound, or at least very likely, to succeed.

186    Chuffed was not the author or originator of the alleged defamatory matter. Nor, contrary to Mr Morris’s argument, was it the first or primary distributor. That argument paid no heed to the terms of s 32(3).

187    Chuffed argued that it fell within s 32(3)(g), that is to say, that it is an operator or provider of access to a communication system by means of which the matter is transmitted or made available by another person over whom it has no control. That is debatable. But if it is not that it is at least an operator or provider of a system or service by means of which the matter is distributed or made available in electronic form and therefore comes within the scope of s 32(3)(f)(ii). In these circumstances I am not persuaded that it was the first or primary distributor. As I suggested earlier, in this respect the defence provided by s 32 seems to be broader than the common law defence.

188    The problem for Chuffed, it seems to me, is not with the first part of the statutory definition of “subordinate distributor” in s 32(2) but with the last.

189    In order to fall within the statutory definition of a subordinate distributor, it is not sufficient that Chuffed is not “the first or primary distributor” (or “the author or originator”) of the matter. It must also prove that it did not have the capacity to exercise editorial control over its content or publication before it was first published. “Published” in this context must mean published to a third party.

190    In Thompson at 589–90 Brennan CJ, Dawson and Toohey JJ observed that, while Channel 7 did not participate in the production of a program it broadcast live to air, it had the ability to control and supervise the material it televised. Their Honours went on to say:

Channel 7’s answer is that time did not permit monitoring the content of the program between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the program and hence a subordinate disseminator. It was Channel 7’s decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the program but which was still its decision.

191    Chuffed submitted that the first time it sees material is after it has been uploaded. Chuffed also submitted that it is not well placed to assess whether the particular content of the articles it publishes are true due to limited staff and resources. But I see no reason in principle why Chuffed could not have reviewed the content for the purpose of satisfying itself that it was not defamatory before a matter is uploaded in the same way it reviews a “campaign” where the user is a new campaigner. That it had a practice of not undertaking checks in the case of a repeat “campaigner” is not to the point. I accept that is Chuffed’s business model but that does not mean it lacked the capacity to exercise editorial control over either the content or the publication of material submitted in connection with a second or subsequent campaign by the one campaigner. Nor, it seems to me, is it to the point that Chuffed may not have had the resources or expertise to do so. Both the number and expertise of the people it employs at any particular time and the extent to which as a matter of practice it reviews material are the products of commercial decisions. Furthermore, as Mr Morris argued, by its terms and conditions of use Chuffed reserved to itself the right both to vet requests before they go online and to edit them afterwards. While cl 4.24(b) does contain an agreement not to submit defamatory content, Chuffed recognised that that is a possibility and addressed it by requiring campaigns to provide an indemnity from liability (cl 4.25(c)).

192    Thus, irrespective of whether Chuffed knew or ought reasonably to have known that the matter complained of was defamatory and regardless of whether its lack of knowledge was not negligent, I am not presently satisfied that it published the matter merely in the capacity of a subordinate distributor. It follows that I am not satisfied that a defence of innocent dissemination would likely succeed. I do not rule out the possibility that such a defence might ultimately prevail. But on the evidence adduced on its interlocutory application that is unlikely.

Does the amended statement of claim disclose a reasonably arguable cause of action?

193    The power to strike out a proceeding is contained in r 16.21 read with r 1.40. It includes the power to strike out a pleading if it fails to disclose a reasonable cause of action. Rule 26.01 read with r 1.40 gives the Court the power to summarily dismiss a proceeding for the same reason. In the present case, an order of that nature would only be made if there is a defect in the pleading which could not be cured.

194    Ms Kriz and Ms Ryan contend that the pleading does not identify a reasonably arguable cause of action and the defects are such that they could not be corrected by re-pleading. They submitted that:

(1)    the imputations cannot sensibly be said to arise from the text of the matter complained of and the matter complained of is itself incapable of injuring Mr Massarani’s reputation to anyone in “the relevant cohort”;

(2)    all three of the people Mr Massarani nominated as having knowledge of the relevant extrinsic facts accessed the website on or before 29 October 2019, such that the claim in respect of publication to them is out of time;

(3)    the amended statement of claim relies on text which never appeared online (membership of the students disciplinary committee) and is said to be critical to the question of identification;

(4)    the claim for aggravated damages relies in part on publication to Ms Ryan herself;

(5)    the host of available defences and “the flimsy nature of the claim” make it unlikely that Mr Massarani will be able to successfully prosecute his case.

195    The second point must be rejected because it is based on the misconception that the limitation period ends on 29 October 2019 rather than 30 October 2019 as discussed above. The third point is factually incorrect as an unamended version of the Honi Soit article was available on the newspaper’s website until at least 6 August 2015 and remains accessible online, albeit through an online archive hosted by the National Library of Australia, a link to which was contained in Mr Massarani’s submissions. The fourth and fifth points were not developed either in written submissions or oral argument. The fact that a number of defences may be available does not mean that any one of them is likely to succeed. In correspondence with Mr Massarani which was annexed to Ms Kriz’s affidavit, Ms Kriz and Ms Ryan claimed to have available “a multiplicity of defences”, “notably justification, honest opinion, qualified privilege and triviality” which, they asserted, would “inevitably” defeat any claim Mr Massarani could make out. But no attempt was made to explain to Mr Massarani or the Court why any of these defences were bound to succeed. What is more, no attempt was made to articulate the precise scope of them.

196    That leaves the question of whether the matter complained of is incapable of conveying the pleaded imputations.

197    Ms Kriz and Ms Ryan submitted that the extrinsic facts do not give new meaning to the words in the matter complained of. Rather, they claimed, at best someone with knowledge of the extrinsic facts would be reminded of something they already knew about Mr Massarani because he, himself, had disclosed it through his decision to institute and prosecute the District Court proceedings. For this reason, they maintained, the imputations cannot sensibly be said to arise from the text of the matter complained of.

198    Without knowledge of the extrinsic facts, the matter complained of is not capable of conveying either of the pleaded imputations. But the complaint about the pleading is ill-conceived.

199    The pleading does not allege that Mr Massarani identified himself as the assailant (to which the Ryan article referred) to any of the three women specifically nominated as having knowledge of the extrinsic facts. The submission advanced on behalf of Ms Kriz and Ms Ryan amounts to this. If a person sues for defamation on a publication in which he or she is not identified by name and thereby voluntarily discloses his or her identity, any defamation case arising from a subsequent publication of the same or similar allegations is doomed to fail. No authority for such a proposition was cited and there appears to be none. Toben and Sexton observed at [6090]:

There is no real authority on the question of the defendant’s liability where the relevant extrinsic facts have been brought to the attention of those persons identifying the plaintiff by the plaintiff himself or herself. If this occurred prior to and in the absence of any knowledge of the defendant’s publication, there would seem to be no reason in principle why the plaintiff should not have a good cause of action.

I respectfully agree.

200    In the present case, all three of the women are said to have known the relevant facts months before Ms Ryan’s article was uploaded to the Chuffed website. With respect to the District Court proceedings, Ms Seagrove is alleged to have been informed of its nature and the issues it raised on 30 July 2019, Ms Studdert is alleged to have confronted Mr Massarani about it and the issues it raised on 6 July 2019, and Ms Fox is said to have discussed the District Court proceedings and the issues it raised in January 2019.

201    Ms Kriz and Ms Ryan also submitted that, for a matter to be defamatory it must objectively have at least the capacity or tendency to damage the applicant’s reputation and there is “no rational way” that the matter itself is capable of lowering the opinion of Mr Massarani of any person in the relevant cohort because those people had already been fully informed, largely by him, of every single matter said to be capable of doing so.

202    I reject this submission, too. Objectively the matter complained of at least has the capacity or tendency to damage Mr Massarani’s reputation to anyone who identified him as the assailant. Whether or not any such person already had such an adverse view of Mr Massarani that the Ryan article could not have damaged him further is a triable issue. It is not properly a question for determination on an application for summary judgment. See, for example, Spencer at [24]–[25] (French CJ and Gummow J).

Conclusion

203    Both interlocutory applications should be dismissed with costs. It follows that the “vexatious proceedings order” sought by Ms Kriz and Ms Ryan should not be made.

Associate:

Dated:    9 February 2022