Federal Court of Australia

Webb v Commonwealth of Australia (No 3) [2023] FCA 558

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from transcript)

BROMWICH J:

1    The applicant, Ms Gayle Webb, applies for an extension of time and leave to appeal from orders made by a judge of this Court in relation to allegations of defamation made against the respondent, the Commonwealth, by reason of conduct by its employees. The primary judge, after considering the pleadings, statutory provisions and rules of the Court, and relevant well-established pleading, strike out and summary judgment principles:

(a)    struck out Ms Webb’s statement of claim with costs, upon the basis that it failed to disclose a reasonable cause of action, but granted leave to replead over the objection of the Commonwealth: Webb v Commonwealth of Australia [2021] FCA 1215, delivered 7 October 2021 (1st judgment); and

(b)    summarily dismissed the proceeding with costs, upon the basis that the amended statement of claim, filed purportedly in pursuance of the leave to replead granted on 7 October 2021, but which in fact pleaded an entirely new cause of action, had no reasonable prospect of success: Webb v Commonwealth of Australia (No 2) [2022] FCA 89, delivered 11 February 2022 (2nd judgment).

2    As each set of orders were interlocutory, leave is required to appeal from them: s 24(1A), Federal Court of Australia Act 1976 (Cth). Additionally, an extension of time is required because the application was not filed until 24 October 2022, over a year after the 1st judgment and over eight months after the 2nd judgment, in both cases a long time after the 14 days within which an application for leave to appeal is required to be filed: r 35.13(a), Federal Court Rules 2011 (Cth).

3    The 1st judgment was solely concerned with the sufficiency of the pleading of the original statement of claim. In Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J said at 286-287:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) 22 CLR 490 at 517-518].

4    As correctly identified in the written submissions by the Commonwealth, Ms Webb needed to demonstrate:

(a)    in relation to the application for leave to appeal, whether the decision of the primary judge in the 1st judgment and/or the 2nd judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and whether substantial injustice would result if leave was refused, assuming the decision to be wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 per Sheppard, Burchett and Heerey JJ at 398-9.

(b)    in relation the application for an extension of time in relation to 1st judgment and/or the 2nd judgment, that the proposed appeal has such prospects of success as not to render that extension an exercise in futility: EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; 262 FCR 304 per Perry, Derrington and Wheelahan JJ at [19], citing WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

The 1st judgment (7 October 2021)

5    Ms Webb’s originating application dated 29 April 2021 and filed on 3 May 2021, sought damages for defamation, take down orders, costs and interest, upon the grounds in the accompanying statement of claim. The primary judge isolated the following three paragraphs of the statement of claim containing the pleaded allegations of defamation at [1] of the 1st judgment:

[10]    In short, the respondent, the Commonwealth of Australia is vicariously liable for the actions of this departments/agencies including but not limiting to the policies, laws, bills, legislation, regulations and acts they use and rely upon and does not give the Commonwealth government departments such as the Departments of Human Services, the right to misuse these to defame the applicant. The defamatory Articles are referred to in this document under Schedule A below.

[11]    The respondent has failed to resolve and remove all defamatory articles and information its departments hold about the applicant and instead has continued to share this information between other departments/agencies, their providers and other third parties.

[12]    The applicant has tried multiple times to have the respondent investigate and rectify the issues of defamatory, wrong and misleading information being captured, stored on commonwealth systems and other systems where it is responsible for the data is stores, uses, distributes and shares, to no avail.

6    The primary judge also:

(a)    observed at [2]:

Schedule A to the statement of claim is a bundle of what the applicant describes as ten “articles”. Two “articles” are letters from Service Australia addressed to applicant, and the remaining documents appear to be printouts of internal documents obtained by freedom of information requests (which include, inter alia, Job Seeker incident reports and other documents, the nature of which is not apparent on their face although the applicant asserts their identity). These articles are described in more detail below.

(b)    observed at [20]:

(1)    Articles 1 and 2 are letters from Services Australia to the applicant dated 29 July 2020 and 25 November 2020.

(2)    Articles 3 and 4 are “incident reports” in respect of incidents occurring on 6 May 2019 and 11 September 2019 involving the applicant. It is not apparent from the pleading where or how she alleges these incident reports were recorded. Article 3 contains no information about the nature of the incident. Article 4 states “JS [job seeker] went on a rant, was verbally abusive and threatening to staff onsite” and “Severity Level: MODERATE”.

(3)    Article 5 is a document titled “Incident Report Alert Popup”, apparently dated 21 January 2020. The applicant asserts this document was generated by Services Australia and distributed to “DESE [Department of Education, Skills and Employment] and other departments/agencies and 3rd parties”. The document contains no information about the nature of the “incident” beyond the words “Severity: SERIOUS” in the top right-hand corner.

(4)    Articles 6, 7 and 8 were obtained by the applicant pursuant to her freedom of information requests to DESE, but substantial parts of each document were redacted prior to release. They are alleged to relate to a “disability assessment” performed on the applicant by “SA [Services Australia]/Medicare, Department of Health”, but there is no evidence of such assessment beyond the words “Disability completed” (Article 6) and “Disability assessment outcome: withdrawn” (Article 8). It is alleged that “These departments then published this information with their Service Providers and other 3rd parties”.

(5)    Article 9 is an online claim form which was provided by Services Australia to the applicant for completion. The applicant complains that she was “targeted” by the form’s pro forma answer “I am not in prison and/or a psychiatric institution and was not in prison and/or a psychiatric institution for more than 25 weeks in total during the 2014-2015 financial year”, apparently on the basis that this pro forma answer might imply that she was in prison or a psychiatric institution for less than a total of 25 weeks.

(6)    Article 10 is apparently a print-out of the applicant’s “file”. There is no basis in the pleading to be satisfied as to where this file was maintained or who had access to it. The applicant complains about the fact that Services Australia and DESE “providers” have annotated the file with the comment that “The Customer would benefit from referral to either SEE or [blank]”. The Applicant alleges that the [blank] is “AMEP”. SEE is the Skills for Education and Employment program and AMEP is the Adult Migrant English Program.

(c)    at [36] said:

I accept the respondent’s submission that the pleading does not identify the specific matters of which the applicant complains. It fails to identify when such matters were published and to whom; demonstrate that any actionable publication occurred within the 12 months prior to the commencement of the proceedings; or plead the defamatory imputations which are alleged to be carried by the matters complained.

(d)    at [37]-[40], considered the principles and key authorities applicable to the grant of leave to replead, noting in particular that Ms Webb was not legally represented;

(e)    at [42]-[54], made five detailed observations evidently directed to providing Ms Webb with some guidance as to what she needed to do to replead her case, expressly warning that although she is not legally represented, that does not absolve her from compliance with the necessary pleading requirements; and

(f)    at [55]-[56], decided to strike out the statement of claim, but granted Ms Webb leave to replead the statement of claim, over the objection by the Commonwealth.

7    It was for Ms Webb to demonstrate that each of the conclusions reached by the primary judge at [36], reproduced above, which were the basis for the striking out of the statement of claim, were attended by sufficient doubt to warrant being reconsidered by a Full Court. She was unable to do this as to any of those conclusions. The fundamental reason that she was unable to do so, on a careful reading of the struck out statement of claim, is that her Honour was plainly correct. The struck out statement of claim:

(a)    did not identify the specific matters about which Ms Webb complains beyond stating what she considers was the correct factual position, contrary to some of the references to her or her conduct in the documents referred to in the Schedule;

(b)    failed to identify when publication took place or to whom;

(c)    failed to demonstrate publication within the 12 months prior to the commencement of the proceedings; and

(d)    failed to plead any alleged defamatory imputations in the manner required, if at all.

8    Any of those defects would have been fatal, but in combination, they were unanswerable. The statement of claim was incapable of being responded to by any meaningful defence. As the primary judge was correct in deciding to strike out the statement of claim, none of the conclusions reached by her Honour were attended by any doubt, let alone sufficient doubt to warrant being reconsidered by a Full Court. It follows that there is no issue of any injustice in refusing leave to appeal, which is the only conclusion open.

9    Ms Webb advances a range of explanations for the lateness in applying for leave to appeal. Taken as a whole, I would be strongly inclined to the view that they do not provide a sufficient explanation for the delay. However, as there is no proper basis for granting leave to appeal from the 1st judgment, granting an extension of time would be futile, such that it too must be refused upon that basis alone.

The 2nd judgment (11 February 2022)

10    On 4 November 2021, Ms Webb filed an amended statement of claim (ASOC). In the 2nd judgment, the primary judge described the ASOC and the Commonwealth’s objection to it as follows:

[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[(2)](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.

11    The primary judge then considered Ms Webb’s arguments to the contrary, which she apparently seeks to maintain on appeal, and rejected them. None of those arguments are of any substance, and do not bear repeating. As a result, her Honour summarily dismissed the proceeding with costs.

12    The determinative issue is whether the primary judge erred in finding that absolute privilege applied to the sole matter relied upon for the amended statement of claim (ASOC), being the affidavit of Ms Bailey.

13    The ASOC pleads at [13] (the second paragraph numbered “13”; bold emphasis added):

Article

[13]    On the 14 May 2021, Ms Katherine Whittemore of Sparke Helmore Lawyers, Melbourne, Victoria (representing the Chief Executive Office, Services Australia), published an article of and concerning Gayle Webb, entitled “Jan Bailey – Executed Affidavit (79059731.1).pdf)” as an attachment to an email dated 14 May 2021 and entitled “Gayle Webb v Chief Executive Officer, Services Australia – 2020/5077 – Respondent’s documents’ [SPARKE-MATT.FID5663756])”.

The defamatory Article (Jan Bailey – Executed Affidavit (79059731.1).pdf), was published to the Registry at sydney.registry@aat.gov.au, (whom Derek D was the Associate to Senior Member Chris Puplick, Administrative Appeals Tribunal (AAT), Sydney Registry) on 14 May 2021 in the State of New South Wales. A shortened copy of which is Schedule AS-1.

Publication particulars

a)    The Article is 69 pages in size, a shortened version is Schedule AS-1.

b)    The Article “Jan Bailey - Executed Affidavit (79059731.1).pdf)” is 69 pages in length. Schedule AS-1 attached is the shortened version.

c)    The article can be downloaded and opened. The article “Jan Bailey - Executed Affidavit (79059731.1).pdf” shows Date affirmed 14 May 2021 and identifies the applicant as Gayle Webb and carries a number of defamatory imputations.

d)    On, about the 28 May 2021, the same Article was republished by the AAT’s Sydney Registry, Associate Derek D, in an email entitled “2020/5077 - RE Webb and Chief Executive Officer, Services Australia - Pre hearing check [SEC=OFFICIAL: Sensitive, ACCESS=Personal-Privacy] [SEC=OFFICIAL]” to both parties. This email contained an attachment entitled “1s0tc1nd9o5sie1ya-Webb - Member's File Index for PreH Check.pdf”. This attachment contained a link to the same Article. A copy of which is marked Schedule AS-2.

e)    On 1 June 2021, the same Article was republished to Senior Member Chris Puplick for and during the hearing for Case No. 2020/5077 (Freedom of Information Division) that took place at the AAT in Sydney, NSW on the same day. (The AAT’s final decision was published on 21 June 2021). A copy of which is marked Schedule AS-3.

f)    At the time of this pleading, it is not known if further publications of this article have occurred on websites such as https://www.austlii.edu.au, and other legal research and educational platforms.

g)    The applicant (Gayle Webb), will rely on only the article “Jan Bailey - Executed Affidavit (79059731.1).pdf” affirmed 14 May 2021, the defamatory imputations and the secondary imputations. A copy of which is marked Schedule AS-4.

14    Thus, it is clear that the primary judge correctly found at [17], reproduced above:

(a)    that first:

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.

and

(b)    that secondly:

The first and third of those publications are expressly addressed in s 27[(2)](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).

15    Despite Ms Webb’s dismay at the notion that an affidavit published in the course of a proceeding in the Administrative Appeals Tribunal could contain defamatory matter, yet be wholly protected from an action in defamation, that is precisely what s 27(2)(b) of the Defamation Act 2005 (NSW) provides. It is not to the point that Ms Bailey’s affidavit was not ultimately relied upon when Ms Webb sought to cross-examine Ms Bailey. Nor was there any basis for any constitutional challenge as sought to be advanced by Ms Webb, based upon the operation of s 27(2)(b) in relation to the Tribunal as opposed to a court.

16    As the primary judge was plainly correct in deciding to summarily dismiss the proceeding by reason of the affidavit of Ms Bailey clearly being published on occasions of absolute privilege, this conclusion cannot be attended by any doubt, let alone sufficient doubt to warrant being reconsidered by a Full Court. It follows again that there is no issue of any injustice in refusing leave to appeal, which again is the only conclusion open.

17    Again, while the range of explanations Ms Webb advances for her lateness in applying for leave to appeal probably do not provide a sufficient explanation for the delay, as there is no proper basis for granting leave to appeal from the 2nd judgment, granting an extension of time would be futile, such that it too must be refused upon that basis alone.

Conclusion

18    The application for leave to appeal and an extension of time must be dismissed with costs.

Associate:

Dated:    5 June 2023