Federal Court of Australia

Webb v Commonwealth of Australia (No 2) [2022] FCA 89

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application dated 29 April 2021 and amended statement of claim dated 4 November 2021 are summarily dismissed.

2.    The applicant is to pay the costs of the respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 28 April 2021, the applicant lodged an originating application and statement of claim (dated 29 April 2021) alleging that she had been defamed by the respondent. On 7 October 2021, that statement of claim was struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Rules): Webb v Commonwealth of Australia [2021] FCA 1215 (Webb (No 1)). The applicant was given leave to replead.

2    An amended statement of claim (ASOC) was filed on 4 November 2021.

3    The respondent seeks orders that the proceeding be summarily dismissed pursuant to r 26.01(1)(a)-(c) of the Rules, on the basis that no reasonable cause of action is disclosed, the applicant has no reasonable prospect of successfully prosecuting the proceeding or the proceeding is frivolous or vexatious. In the alternative, the respondent seeks the ASOC be struck out pursuant to r 16.21(1)(a)-(e) on the basis that it fails to disclose a reasonable cause of action, is ambiguous, contains frivolous or vexatious material and is otherwise likely to cause prejudice, embarrassment and delay. In that event, leave to replead is opposed.

4    The applicant opposes the orders made, and submitted that a reasonable cause of action is disclosed, that this is a serious case and the ASOC should not be struck out. However, the applicant submitted that if there is an issue with the pleading she should be given leave to replead. The applicant opposes any order of costs on the basis that the respondent has “greater financial advantage” over her, and that the Commonwealth “has been negligent and acted with malice by defaming” her. The applicant also submitted that she should not be “penalised” for any “mistakes” she might have made in her ASOC.

5    For the reasons below, the proceedings are summarily dismissed. Had I not considered that summary dismissal was appropriate in this case, I would have granted the respondent’s application that the pleadings be struck out without leave to replead.

Relevant principles

6    I recited the principles in respect to an application to strike out pleadings in Webb (No 1) at [5]-[16] and it is unnecessary to repeat them.

7    In respect to summary dismissal, I summarised the relevant principles in Quail v Gibson [2021] FCA 1115 (Quail) at [6]-[11] as follows:

[6]    Section 31A of the FCA Act relevantly provides:

(1)    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 prosecuting the proceeding or that part of the proceeding; and

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

(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.

(5)    This section does not apply to criminal proceedings.

[7]    The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [60] and see [24], although it does not require that the proceedings to be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17].

[8]    The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]:

[59]    In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

[60]    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success…

[9]    The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

[10]    The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

[11]    Rule 26.01 provides for circumstances in which a party can make an application to the Court for summary judgment which relevantly includes where the applicant has no reasonable prospects of successfully prosecuting the proceeding: r 26.01(a); where proceedings are vexatious or an abuse of process: r 26.01(b); and where no reasonable cause of action is disclosed: r 26.01(c).

Consideration

8    I am mindful of the difficulties faced by an unrepresented party in this Court when attempting to file appropriate documents and make submissions. I have taken that into account when considering the manner in which the applicant made her submissions and the respondent’s application: see AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at 44-47; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37].

9    The ASOC complains of only one allegedly defamatory matter, an affidavit of Jan Bailey affirmed 14 May 2021 (referred to by the applicant as the defamatory article). Ms Bailey is the National Manager of the Escalated Complaints Team within the Multicultural and Tailored Services Branch in the Child Support, Indigenous and Tailored Services Division of Services Australia. This affidavit was filed by the Chief Executive Officer of Services Australia in Proceedings No. 2020/5077 in the Administrative Appeals Tribunal (Tribunal), which appears to relate to a disputed freedom of information request submitted by the applicant. The ASOC attaches part of the affidavit and exhibits. The ASOC identifies the alleged imputations, with those imputations marked by her on the attachment. It is made plain by the applicant in her written submission that the only matter relied on for the cause of action is this defamatory article. The applicant alleges three publications of the defamatory matter being: (i) emailing the affidavit to the registry of the Tribunal (filing the affidavit); (ii) an email sent by the Tribunal Member’s Associate to the parties checking on their readiness for hearing; and (iii) the tender of the affidavit during the Tribunal hearing.

10    In that context I note that in the ASOC the applicant also refers to defamatory “secondary imputations” which appear to be the 10 articles she relied on in relation to the original statement of claim, which were struck out. Given the above submission, these are not relied on as defamatory matters, but rather, as explained by the applicant during the hearing, evidence of a system of conduct to support proof of the falsity of the affidavit. In any event, in Webb (No 1) at [54], I observed that “simply attempting to replead the matters in the articles would be insufficient”. The issues in respect to those 10 articles, as explained in Webb (No 1) at [42]-[52], still apply.

11    The applicant confirmed during the hearing that only one defamatory matter is relied on, being Ms Bailey’s affidavit. As a consequence, it is necessary to focus on the submissions in respect to that affidavit.

12    This was not a matter referred to or relied on in the original statement of claim. Nor was it the one matter identified in the applicant’s submission in relation to that strike out application: see Webb (No 1) at [43]. This is an entirely new claim.

13    The respondent’s application for summary dismissal is on the basis that Ms Bailey’s affidavit was published on an occasion of absolute privilege pursuant to s 27 of the Defamation Act 2005 (NSW) (Defamation Act).

14    Section 27 is in the following terms:

27 Defence of absolute privilege

(1)    It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2)    Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

(a)    the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—

(i)    the publication of a document by order, or under the authority, of the body, and

(ii)    the publication of the debates and proceedings of the body by or under the authority of the body or any law, and

(iii)    the publication of matter while giving evidence before the body, and

(iv)    the publication of matter while presenting or submitting a document to the body, or

(b)    the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i)    the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii)    the publication of matter while giving evidence before the court or tribunal, and

(iii)    the publication of matter in any judgment, order or other determination of the court or tribunal, or

(c)    the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or

(d)    the matter is published by a person or body in any circumstances specified in Schedule 1.

15    The Tribunal falls within the definition of “Australian tribunal”: Defamation Act, s 4.

16    Absolute privilege applies in respect to allegations of defamation: see for example Quail at [31]-[36], and the cases cited therein.

17    It can be accepted, as the respondent submitted, that each alleged publication in the ASOC was made in the course of the Tribunal proceeding, including the initial filing of the affidavit with the Tribunal by the solicitor for the respondent, the purported republication by the Associate to the Tribunal Member contacting the parties for the purpose of checking their readiness for the hearing, and the use of the affidavit during the hearing. The first and third of those publications are expressly addressed in s 27(b)(i) and (ii) respectively. The second publication, given the circumstance of the email being sent to the parties by the Tribunal, self-evidently falls within the phrase “the course of the proceedings of an …Australian tribunal” in s 27(2)(b).

18    As the affidavit was published on occasions of absolute privilege, it is inevitable that this defence would succeed. It is indefeasible. Accordingly, these proceedings have no reasonable prospects of success.

19    The applicant’s submission that absolute privilege could not be established because the affidavit was not published honestly, relying on s 28(3) of the Defamation Act, is entirely misconceived. Absolute privilege is set out in s 27, with s 28 relating to a different defence in connection with different criteria (defence for publication of public documents). In addition, in so far as the applicant suggested that the affidavit was only presented in the Tribunal and not as “evidence in a criminal trial or as part of any merits review or judicial reviews in any other courts”, and therefore absolute privilege does not apply, that is incorrect. There is no such limit on the application of s 27. As noted above, proceedings before the Tribunal plainly fall within s 27. The submission that absolute privilege cannot apply because the affidavit is false and motived by malice, is also incorrect. Again, such considerations (even if they were to exist) are not relevant to s 27. Absolute privilege under s 27 is based on the circumstances in which the publication was made, not the content of the publication.

20    In any event, to make two general observations. First, much of what is said to be imputations in the affidavit involve a significant misreading of the document and could not possibly have the meaning attributed to them that the applicant contends. Second, it is apparent from the ASOC that, as with the original statement, there are many matters relied on which could not be relevant to any defamation proceedings, but rather are general complaints about the actions of various government departments in relation to her: see for example Webb (No 1) at [48]-[51].

21    If I had not been satisfied that the proceedings should be summarily dismissed, I would have struck out the ASOC. I would not have given leave to replead. As noted above, this is the applicant’s second attempt, and leaving aside the issue of absolute privilege, the ASOC suffers from the same issues as the original statement of claim, typified by the two observations above. This is also an entirely new claim, and not a repleading of the earlier claim. Additionally, the applicant has still included in the ASOC, the 10 articles said to be insufficient for the pleading. Any further repleading would involve a new claim, which is not the purpose of granting leave to replead.

22    As noted above, the applicant opposes a costs order. The matters advanced by her, which include the financial disparity between the parties, are also underpinned by the assertion of the correctness of the applicant’s position. Additionally, the submission that the applicant should not be penalised for the “mistakes” contained in the ASOC by the making of a costs order against her is, with respect, misguided, as it is well-established that an award of costs is compensatory: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ. There is no proper basis advanced as to why costs ought not to be awarded.

Conclusion

23    These proceedings are summarily dismissed, with costs.

Associate:

Dated:    11 February 2022