Gaynor’s Motion dismissed

NSW Crest

District Court
New South Wales

Medium Neutral Citation:
Burns v Gaynor [2018] NSWDC 358
Hearing dates:
8 November 2018
Date of orders:
30 November 2018
Decision date:
30 November 2018
Jurisdiction:
Civil
Before:
Gibson DCJ
Decision:
(1) First defendant’s Notice of Motion dismissed.
(2) Stand over the plaintiff’s application for substituted service on the second defendant on Thursday 6 December 2018 in the Defamation List.
(3) Any claim by the plaintiff for reasonable disbursements by way of a costs order is reserved.
(4) Parties have liberty to bring in Short Minutes of order for a timetable in these proceedings.

Catchwords:
TORT – abuse of process – plaintiff brings a series of proceedings against the first defendant under the Anti-Discrimination Act 1977 (NSW) – first defendant brings proceedings for defamation against plaintiff – plaintiff abandons his most recent anti-discrimination claim for publications by the first defendant after adverse High Court jurisdictional rulings – whether the plaintiff’s claim for defamation based on those same publications should be struck out as an abuse of process on the basis of the plaintiff having an ancillary dominant improper purpose, namely the intimidation of the first defendant – whether the defamation proceedings are an abuse of process because they are brought in lieu of a claim under anti-discrimination legislation which is impermissible at law – whether action liable to be stayed or dismissed as an abuse of process on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – whether the claim should be struck out on the basis that liability for publication cannot be made out – application for summary dismissal refused
Legislation Cited:
Anti-Discrimination Act 1977 (NSW), s 49ZT
Civil Liability Act 2005 (NSW), ss 56 – 62
European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 10
Federal Court of Australia Act 1976 (Cth), ss 23 and 31A
International Covenant on Civil and Political Rights, Art 19
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28
Cases Cited:
Ainsworth v James [2005] NSWSC 338
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Balzola v Burns [2018] NSWCATAD 246
Bleyer v Google Inc (2015) 88 NSWLR 670
Bristow v Adams [2012] NSWCA 166
Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386
Burns v Gaynor [2015] NSWCATAD 211
Commonwealth of Pennsylvania v Knox No 3 WAP 2017 (21 August 2018)
Culleton v Kershaw (No 2) [2018] WASC 236
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Gaynor v Burns [2015] NSWDC 194
Gaynor v Burns (No 2) [2015] NSWDC 283
Gaynor v Burns [2016] NSWCA 44
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Ghosh v Miller (No 2) [2018] NSWCA 212
Gill v Eatts (1999) Aust Torts Reports 81-529
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Google Inc v Duffy (2017) 129 SASR 304
Habib v Radio 2UE Pty Ltd [2009] NSWCA 347
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495
Johnson v Gore Wood & Co [2002] 2 AC 1
Joyce v Sengupta (1993) 1 WLR 347
Kalsbeek v Commonwealth [2018] WADC 79
Lazarus v Azize [2015] ACTSC 344
Lonhro Plc v Fayed & Ors (No 5) [1994] 1 All E R 188
Mahommed v Unicomb [2018] NSWSC 291
Manefield v Child Care NSW [2010] NSWSC 1420
Morris v IMF Bentham Ltd [2018] FCA 1009
Nyoni v Pharmacy Board (No 6) [2018] FCA 526
Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Trkulja v Google LLC (2018) 356 ALR 178
UBS AG v Tyne [2018] HCA 45
Un v Chow [2018] NSWCA 287
Williams v Spautz (1992) 174 CLR 509
Category:
Procedural and other rulings
Parties:
Plaintiff: Garry Burns
First Defendant: Bernard Gaynor
Second Defendant: Blair Smith
Representation:
Counsel:
Plaintiff: In person
Defendants: Mr R Rasmussen

Solicitors:
Plaintiff: In person
Defendants: Robert Balzola & Associates 

File Number(s):
2018/159836
Publication restriction:
None

JUDGMENT

  1. The first defendant, by notice of motion filed on 18 October 2018, brings an application for summary dismissal of these defamation proceedings pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that it is an abuse of process.
  2. The first defendant is one of two defendants in proceedings the plaintiff has commenced for defamation for website publications made on or about 19 April 2018. The plaintiff’s application for substituted service on the second defendant (brought by notice of motion filed on 4 October 2018) has not yet been determined.

The plaintiff’s prior proceedings for anti-discrimination

  1. The first defendant resides in Queensland (affidavit sworn 30 October, paragraph 2, Exhibit A), whereas the plaintiff resides in New South Wales. The relevance of their residence in different States of Australia to this application is explained in more detail below.
  2. The plaintiff has brought a large number of proceedings against the first defendant and others with similar views about matters which could broadly be described as complaints of anti-discrimination based on online publications which criticise “LGBT freedoms”, to quote Schedule A of the statement of claim in these proceedings. The publications the subject of this action for defamation (two posts on the first defendant’s website, one of which was made by the second defendant) were in fact inspired by the most recent of these proceedings, namely the plaintiff’s application for orders under the Anti-Discrimination Act 1977 (NSW) against the first defendant and another person: Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386.
  3. The subject matter of those proceedings, and the result, may briefly be described as follows. The plaintiff had brought proceedings in the NCAT against the first defendant and Mr Corbett, complaining that statements they made were public acts which vilified homosexuals, contrary to s 49ZT of the Anti-Discrimination Act 1977 (NSW). The plaintiff’s complaint was dismissed on the basis that there was no “public act” in New South Wales: see Burns v Gaynor [2015] NSWCATAD 211. There were further interlocutory hearings which resulted in an appeal (Gaynor v Burns [2016] NSWCA 44), in the course of which the first defendant successfully argued that the NCAT had no jurisdiction to determine matters relating to citizens resident in a state other than New South Wales, as well as to make any order in the nature of prohibition or to enforce its orders. The High Court dismissed Mr Burns’ appeal on 18 April 2018: (2018) 353 ALR 386.
  4. While some might be of the view that these limitations of anti-discrimination law in New South Wales, particularly in the internet age, may not be a felicitous result, that was not the first defendant’s view. He made a lengthy post on Facebook on 19 April 2018, describing the High Court victory in court in terms of a magnificent personal victory for himself. In doing so, he did not mince his words, either in relation to the plaintiff or the court system generally. He stated that the plaintiff was not the problem but “a symptom” of the “Thought Police” at the Anti-Discrimination Board of New South Wales, warning the members of that Board of “the world of hurt coming their way” after “a long reign of terror” caused not only by the plaintiff but also by “the anti-discrimination industry” and its “rainbow legal bullying”, which was in turn “scandalously aided and abetted” by misuse of taxpayers’ money (Annexure B to the statement of claim; the full text is set out below). (I note that the term “world of hurt” is, according to The Phrase Finder, the American equivalent of the term “world of pain” (https://www.phrases.org.uk/bulletin_board/39/messages/337.html) and that it signifies some form of unpleasant retribution).
  5. A number of Facebook posts by third parties then appeared in response to the first defendant’s account of his big win in court. Posts by the second defendant, Mr Blair Smith, and another person, identified only as “Struth”, appeared on the Facebook page on that date. Mr Smith called the plaintiff an advocate for paedophile rights, while “Struth” said the plaintiff was “excrement.” Other posts (not sued upon) compared the plaintiff to Himmler, warned that “there’s a war coming” and that there was “a war of information and pc crap” and that the plaintiff ought to be in gaol. Some of these posts (such as the claim that he ought to be in gaol) were answered by the plaintiff in posted replies.

The plaintiff commences proceedings under the Anti-Discrimination Act 1977 (NSW)

  1. On 30 April 2018, the plaintiff commenced proceedings under the Anti-Discrimination Act 1977 (NSW) against the first defendant. (The plaintiff agreed in oral argument that this was effectively the first notice he gave to the first defendant of any intended legal action, which is in contradiction of the purported letter of concerns attached to the statement of claim, as this is dated 19 April 2018; this is one of several confusing and contradictory assertions made concerning the disputed issues of facts in this case). The plaintiff’s initiating process under that legislation was served by the court on the first defendant on 15 May 2018 and the first defendant removed the relevant posts later that same day (affidavit on 30 October 2018, paragraphs 5 and 6).
  2. On 19 June 2018, the plaintiff withdrew the complaint under the Anti-Discrimination Act 1977 (NSW). This was because the court could not hear a claim made against a person who was not a resident of New South Wales.
  3. In the interim, however, the plaintiff had taken a series of other steps in relation to the defamation action, namely:
  1. He notified the first defendant on 19 April 2018 that the posts were defamatory and asked him to take them down (a copy of this document is the second annexure to the original statement of claim). The evidence about whether this letter was received is unclear.
  2. He notified the second defendant on 22 April of the proposed defamation action by direct message and received a reply by telephone in the course of which the second defendant refused to take down the post.
  3. He forwarded his statement of claim to the District Court registry on 7 May 2018; and
  4. He complained to police on 22 May 2018 about the asserted threats of the second defendant.

The plaintiff’s letter to the first defendant

  1. On 19 April 2018 the plaintiff sent a letter to the first defendant at a post office box in Queensland setting out a series of posts which included the post by “Struth” but not the post by the second defendant, although three other posts (including the post saying the plaintiff “looks like Heinrich Himmler”) were also the subject of objection. He then stated:

“Mr Gaynor, some of these comments published could be defamatory and I ask that you are [sic] to remove them immediately after receiving this Concerns Notice.

I would like your confirmation in writing that those comments have been removed from Facebook along with an apology from you for their publication on a public page of which you are the Administrator.

If I do not receive the [sic] confirmation by the 3rd May 2018 the comments have been moved [sic] along with an apology I will have no alternative but to take legal action against you alleging defamation.”

[Annexure B to the original statement of claim sent to the court on 7 May 2018]

  1. This letter is not referred to in the affidavit of Mr Gaynor, but I understand, from Mr Rasmussen’s oral submissions, that a disputed issue of fact at the trial may be whether any such letter was in fact ever sent.
  2. This letter does not refer to the publication concerning Mr Smith, whom the plaintiff contacted directly.

The plaintiff’s conversation with Mr Smith and subsequent complaint to the police

  1. The plaintiff sent a direct Facebook message to Mr Smith on 22 April 2018 stating that he was “taking legal action against you for alleged defamation”, that he had “identified you and know where my lawyers can contact you to serve the statement of claim” (Affidavit of 25 September 2016, Exhibit 4). The defamatory statement in the post was identified as being “you published a comment on Mr Gaynor’s Facebook page that I was either a paedophile or condone or promote the criminal activity of raping male children” (Exhibit 4). The plaintiff went on to state that he sought compensation and that Mr Smith’s lawyers could contact him on the mobile number provided “to offer to retract the comments” (Exhibit 4).
  2. The plaintiff received a telephone call from this Mr Smith on that same day at 9:06am. According to paragraph 5 of the plaintiff’s police statement, after Mr Smith identified himself, the conversation went as follows:

“He said: “It’s not defamation, it’s got to be tagged.”

I said: “No it is, you published a comment that I either support or condone child molesting, and I do not. I am taking legal action against you.”

He said: “You’ll get nothing from me.”

I said: “You cannot publish material like that about someone, it’s defamatory. I am not a paedophile at all. I have no sexual interest in children, male or female.””

  1. According to paragraph 6 of the statement, Mr Smith then said, “Well I’ll smash your fucking head in. I’ve spent years in jail and I don’t care.” The plaintiff replied, “I’m not a paedophile. You need to fix this up. I’ve reported this to the police.” He then hung up.
  2. The plaintiff’s explanation for making a statement to the police was that he feared for his life following the above threat, which was made on 22 April 2018.
  3. The chronology in relation to this asserted threat is curious. There is no doubt the plaintiff made a statement to police on 22 May, as that is the date on which the signature of Constable Gralton appears, as the author of the statement. The date “22 March”, the typed date in the statement, is crossed out in paragraph 4 of this document and “22 April” inserted in its place. The date of the police statement, however, is 22 May 2018, and no explanation is given as to why the plaintiff waited a month after being threatened if he was as concerned as he said he was. However, as counsel for the first defendant did not refer to this time gap in his submissions, I do not propose to draw any conclusions from it.

The plaintiff commences proceedings for defamation

  1. The plaintiff forwarded a statement of claim for defamation to the District Court registry on 7 May 2018, together with an application for waiver of fees. The statement of claim includes a verification of the pleadings (although this is not a requirement for defamation proceedings), which is also dated 7 May 2017. Neither the statement of claim no that verification refer to any specific request to the first defendant to take the relevant posts down, although there is a statement in the pleading to the effect that the first defendant was a “publisher” in that he allowed the authors of the two relevant posts to make derogatory and hurtful statements “by failing to remove them.”
  2. In the interim, on 15 May 2018, the statements the subject of these proceedings had been removed from the website in the manner described above. The plaintiff claims he was unaware of this at the time, although he could not tell the court with certainty when he did become aware of this.
  3. The statement of claim fee waiver is stamped 22 May 2018, as is the statement of claim. Personal service was effected by the plaintiff on the first defendant on 23 May 2018 in rather unfortunate circumstances, in that the first defendant was sitting outside a courtroom in this building at the time.
  4. It should be noted that if the first defendant had no notice of the defamation claim on 15 May 2018, when he took down the posts after being served with the anti-discrimination proceedings, there could be a significant issue in relation to liability. Liability for publication of such a post is restricted to the period after notification: Bleyer v Google Inc (2015) 88 NSWLR 670 at [12] and [76] – [85].
  5. Mr Rasmussen submitted that no such notice had ever been sent to his client prior to the taking down of the matters complained of. However, the evidence on this issue, which must be construed in the plaintiff’s favour on this application, is to the contrary. First, the plaintiff is clearly aware of the nature of concerns notices; in addition to the notices to both defendants set out above, on 25 June 2018 he sent a further concerns notice to the first defendant in relation to other publications stating that he was a serial extortionist (affidavit 5 July 2018, exhibit “C”). Second, the text of the separate concerns notices he claims to have sent to each of the defendants is before the court.
  6. The plaintiff was of little assistance on this issue. Although he initially claimed, during his oral submissions, to have made a request for the first defendant to take the posts down before serving him with proceedings for defamation, he could not produce any email or letter, and accordingly withdrew that claim, without referring me to the letter of 19 April 2018 he attached to the statement of claim, which is clearly self-described as a notice of concerns. I have to assume he sent it and that this is what he means when he refers, in the statement of claim, to the plaintiff having “failed to remove…and permitted those posts to remain” (statement of claim, paragraph 2(d)).
  7. Then there is the question of whether the defendants had any discussion between each other following the plaintiff’s separate message to the second defendant. This is only one of a series of problems that the plaintiff had in terms of his self-representation, which has made the resolution of issues difficult.
  8. Mr Rasmussen needs to establish, for this application, that his client cannot be liable for these posts if they had already been removed prior to the defamation action being filed, in circumstances where no prior concerns notice had alerted the first defendant to the asserted defamatory nature of what had been published. These concerns notice issues are of particular relevance to the third and fourth of the four bases upon which these proceedings are asserted to be an abuse of process, namely that there is either no cause of action at all or that the extent of publication is so limited that the claim is disproportionate to the harm caused.

The defamation pleadings are amended

  1. The statement of claim filed on 22 May 2018 has been substantially amended. In addition to the correction of pleading defects, the plaintiff now seeks to add Mr Smith as a second defendant. Those amendments do not include any reference to the service of a concerns notice at any time on either of the defendants.
  2. The plaintiff served Mr Smith by post. Upon being informed by the court that this does not amount to effective service, he now seeks substituted service orders against him. By reason of the amount of time spent on this application, the question of substituted service has yet to be dealt with.
  3. This means that Mr Smith is formally unaware of these proceedings or this application. However, it also means that I must consider the application for summary dismissal in the context of a claim for defamation where a form of concerns notice was sent to the second defendant on 22 April 2018 and responded to, by that defendant, with a refusal to take it down.

The matter complained of and the imputations pleaded

  1. The matter complained of is an article set out on a website for which the first defendant is pleaded to be “a controller and publisher” namely www.bernardgaynor.com. Only a small portion of the publication is sued upon.
  2. By way of context, the following article was published by the first defendant on 19 April 2018 (which is Annexure B to the statement of claim):

“If Garry Burns had any integrity, he’d go after Israel Folau

Posted By Bernard Gaynor on Thursday, April 19, 2018 12:45 pm | 7 comments

I’m going to briefly mention Garry Burns today.

But let it be known that he is not the problem. Rather, he is a symptom of it. And I have my sights firmly fixed on the Anti-Discrimination Board of New South Wales.

I do not think the ‘Thought Police’ have the slightest clue about the world of hurt coming their way.

But a few comments are required about Burns.

He is nothing more than a rainbow bully. And like all good bullies, he needed to be beaten.

I am happy that has happened. His ‘hard work’, as he describes it, ‘has come to nothing’. It might leave him feeling ‘disappointed, distraught and gutted’ but I cannot say the same.

Whatever he has been doing, it cannot remotely be described as ‘work’. Instead, it has been a long reign of terror that has been scandalously aided and abetted by taxes raised off the back of the hardworking people of New South Wales.

There are a few coughs and splutters left in that ‘work’, but it is coming to shuddering halt after yesterday’s legal belting.

And to highlight the bullying side of this, I think it is fair to say that Burns thought he had me beat.

I am, for all practical intents and purposes, a nobody.

The mainstream conservative institutions in Australia were not prepared to assist me. The media has largely ignored this fight. Defence sacked me. And I have been involved in minor party politics, securing a grand total of 1.08% of the vote at the 2016 election.

I had to rely on donations (thank you) simply to get to court.

All of that is hardly world-beating stuff.

It also shows that in the grand scheme of things I am not a threat to ‘LGBT freedoms’. There are surely more important targets.

Yet Burns chose to come after me. And he thought victory was assured.

After all, he is the most high profile homosexual legal activist in Australia with a string of victories. He went into this case knowing that the New South Wales Anti-Discrimination Board and Civil and Administrative Tribunal believed they had the power to process his complaints. He also had the backing of all states (except South Australia) and pro-bono representation from the ‘award winning’ LGBT firm, Dowson Turco Lawyers.

On the surface, one can see why this must have looked like a slam dunk case.

But when you scratch that surface, you can see the foundations of LGBT anti-discrimination legal success is rotten to the core. There is a façade of strength but the entire movement is on the shakiest legal ground.

Almost every one of Burns’ legal successes have been won against a bankrupt man who suffers from a brain injury and who has mostly had no legal representation. He is entirely incapable of defending himself. And he is now set to go to jail for publishing incomprehensible and unpunctuated ‘Westborough Baptist’ type views to an audience that pretty much consisted entirely of Garry Burns.

This, by the way, is in the same state that was not prepared to lock up Man Haron Monis, the Lindt Café terrorist.

I’ll have more to say about this in coming days.

But the key point is this: almost all precedent regarding homosexual vilification laws in Australia has been set because the anti-discrimination industry in New South Wales has allowed war to be waged on a disabled man who can’t even speak properly.

The entire system knows this man’s physical and mental incapacities exist. Yet it carries on as if he is the anti-Christ orchestrating campaigns of hate because he serves the LGBT bullies’ purpose: creation of case law.

This is how rainbow legal bullying works. They don’t pick on the high profile candidates. They pick on those they perceive to be weak to build precedents that slowly tighten the anti-freedom noose around mainstream Australia.

And you can see the strategy.

Win against a disabled loser. Done.

Win against a pensioner grandmother who did not even show up. Done.

Set the process in place for both to go to jail. Done.

Win against an ‘extremist’ blogger. They thought that was done.

And then move on to the fringes of the mainstream. Complain against a number of sitting councillors. That is underway and ongoing today.

The intent is to send a message that these laws have teeth and silence is required.

If I had gone down on the jurisdictional argument, the councillors would surely have followed. And then the stage would have been set for bigger targets.

It’s only once the groundwork has been laid to silence people like me that the Cory Bernardis of this world can then be isolated and attacked for their ‘extremist’ views.

And then you move in from there.

This is the strategy of bullies. But it failed because we stood up to them.

Unfortunately, yesterday’s ruling does not change this fact: if you live in New South Wales, you are still fair game for its ‘Thought Police’.

That’s why Burns, if he had any integrity at all, would complain against Israel Folau.

He’s argued all along that my Catholic beliefs do not entitle to me the ‘fair comment’ defence under the Anti-Discrimination Act 1977 (NSW). And the Anti-Discrimination Board has agreed with him every time.

So let’s see if he really is something more than just a bully. Let’s see if he actually believes in the principle of his position.

Is Burns prepared to put a complaint in against Israel Folau, a really high profile individual with far more of a following than me?

I think not. It simply does not fit in the with LGBT strategy of knocking off the weak and helpless. More importantly, Burns won’t go there because the LGBT movement won’t let him (yet).”

  1. Annexure A to the statement of claim contains a link to a series of web postings, also dated 19 April 2018, described in paragraph 2 of the statement of claim as having been published as follows:

“2. On or about the same date of the 19th April 2018 the Defendant linked to and published to his face book page the same article of his Website / Blog allowing statement’s concerning the Plaintiff to be published on his Facebook Page / wall by his followers / supporters without being moderated or vetted by the Defendant a certain defamatory matter a copy of which is annexed hereto and marked “A”.”

  1. The publications are:

“Blair Smith: The same Garry Burns who is on record advocating for peadophiles [sic] rights, & acceptances of their practises[sic] with the rainbow world.

This sick filthy piece of human filth needs to be put down, just like we do to sick animals. After all….it would be the humane thing to do!

Struth: Good to see a photo of this excrement… copy it and keep it folks – you can show your kids what such a person looks like…”

  1. This matter complained of (“A”), namely the publication of the two comments, is asserted to convey the following imputations:
  1. The plaintiff advocates for paedophile rights and or, condones, promotes the acceptance of their practices within the rainbow world (within the homosexual community) (paragraphs 1, 2 on Attachment A on page 3).
  2. That the plaintiff is parading as a homosexual man but is actually a paedophile.
  3. The plaintiff should be put down humanely (killed) because paedophiles are viewed in society as nothing but filth and excrement (human waste).
  4. A photo of the plaintiff’s face should be kept and shown to children everywhere to warn them of what the plaintiff looks like because he is a paedophile and a danger to small children.
  1. The extent of publication is asserted to be substantial in that the first defendant has 19,938 people following him as listed on his Facebook page. Particulars of downloading are provided in relation to the publication.
  2. The liability of the second defendant is restricted to the single posting containing the comment that he published.

The first defendant’s application for summary dismissal

  1. The first defendant submits that the entire claim should be struck out as an abuse of process, on the following four bases:
  1. The history of the proceedings and the conduct of the plaintiff show that these proceedings are not brought for the vindication of reputation but for an ancillary dominant improper purpose (namely harassment and intimidation of the first defendant) and are thus an abuse of process (Williams v Spautz (1992) 174 CLR 509).
  2. The plaintiff stated in court on 23 August 2018 that “I cannot get relief in NCAT”, this being a reference to his inability to commence anti-discrimination proceedings against the first defendant because he lives in Queensland. The proceedings are a substitute for such a claim and thus an abuse of process because they have been brought for an improper purpose, in that the plaintiff not only said to the court on 23 August 2018 that he could not get “relief” in the NCAT but also withdrew the proceedings under the Anti-Discrimination Act 1977 (NSW)This is asserted to be an abuse of process of the kind described in UBS AG v Tyne [2018] HCA 45.
  3. The limited extent of publication and conduct of the plaintiff of litigation warrants the dismissal of these proceedings under the proportionality principles set out in Bleyer v Google Inc.
  4. The first defendant cannot be liable for matters said to have been published on his Facebook page by third parties until after notice was given to take them down, which did not occur: Google Inc v Duffy (2017) 129 SASR 304.

The relevant principles of law

  1. The test for summary dismissal of defamation proceedings has been explained by the High Court of Australia in Trkulja v Google LLC (2018) 356 ALR 178 at 183 at [22].
  2. In Trkulja v Google LLC, the Court referred to its earlier decision in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [118] as to the question of whether the test for summary judgment prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth) (namely, that the court was satisfied that the other party has “no reasonable prospect of successfully prosecuting the proceeding or … part of [it]”) differed from the General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). The High Court noted that, in its earlier (majority) decision in Spencer v Commonwealth of Australia, the Court had emphasised that the power to dismiss an action summarily should not be exercised lightly ([at [24] per French CJ and Gummow J, [60] per Hayne, Crennan, Kiefel and Bell JJ]). In addition, Hayne, Crennan, Kiefel and Bell JJ added that the legislative purpose set out in s 31A would be defeated if its application were confined to cases falling within the General Steel test [at [56], [60]].
  3. These decisions and principles were referred to specifically in Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190 at [16], where the issue of whether a deed operated to extinguish a claim for defamation in relation to a related corporation which had not been a defendant in the earlier proceedings in the District Court of New South Wales.
  4. One of the decisions referred to in Sarina v Fairfax Media Publications Pty Ltd is UBS AG v Tyne [2018] HCA 45. This significant decision, handed down only shortly before Sarina v Fairfax Media Publications Pty Ltd, appears to have widened the basis upon which proceedings may be considered an abuse of process. It may be that the full impact of the High Court’s significant reworking of the concepts of abuse of process may have a greater impact than was realised in Sarina v Fairfax Media Publications Pty Ltd, and that the law in relation to abuse of process is undergoing a fundamental change. That was certainly the position of Mr Rasmussen in this application, not only in relation to UBS AG v Tyne but in relation to the principles of abuse of process generally.

The Williams v Spautz (1992) 174 CLR 509 abuse of process argument

  1. As to the first of the four bases upon which these proceedings are argued to amount to an abuse of process, the first defendant submits that the purpose of the plaintiff in bringing these proceedings is not to vindicate his reputation, but to crush the defendant under the sheer weight of multiple, expensive and hopeless litigation. This is abuse of process of the classic kind identified in Williams v Spautz.
  2. As to the number of cases involved, in his written submissions, Mr Rasmussen stated that the plaintiff had made 36 complaints about the first defendant pursuant to the Anti-Discrimination Act 1977 (NSW) which had resulted in 70 separate legal actions none of which had been successful. This was refined in the course of oral submissions to being 68 court cases and 36 complaints. The plaintiff agreed that there had been a large number of court cases (he estimated these as being 38 in number and about 34 complaints). Examination of the judgments of the NCAT on Caselaw suggests a far smaller number, and it is unclear whether this total relates only to claims brought by the plaintiff against the first defendant or also includes his claims against other persons referred to in the annexure to the statement of claim, such as Mr Sunol and Mr Corbett. Prior proceedings between the parties should also include prior proceedings for defamation brought by the first defendant against the plaintiff: Gaynor v Burns [2015] NSWDC 194 and Gaynor v Burns (No 2) [2015] NSWDC 283, but I was not addressed as to whether this action had been included or not.
  3. In telling me that there were so many proceedings and complaints under the Anti-Discrimination Act, Mr Rasmussen was effectively inviting me to look at them. I have accordingly read online judgments relating to proceedings between the plaintiff and first defendant as well as the defamation judgments. I will not set their contents out here, but I make the general observation that the contents of those judgments do not demonstrate (unlike Williams v Spautz) a one-sided attack, but instead paint a picture of two self-appointed crusaders bringing claims and counter-claims against each other in a battle the ferocity of which is equal on both sides. It is noteworthy, in this regard, that the first defendant was the plaintiff in the 2015 defamation proceedings, and the plaintiff in these proceedings was the defendant (see the judgments referred to in paragraph 42 above).
  4. In addition to those proceedings, there have been exchange of correspondence between the parties the tenor of which puts both of them in a poor light. Copies of these missives have also been sent to third parties in circumstances where the choice of language appears unfortunate. For example, on 10 October 2014, the plaintiff sent an email not only to the first defendant but to the Attorney-General of New South Wales which stated:

“Mr Gaynor will have orders made against him where he will be forced to publish grovelling apologies to homosexuals…

Feed this hatemonger bread and dripping whilst sitting in a jail cell full of Muslims and homosexuals.

Revenge is a dish best served cold Minister.

I know Mr Gaynor is going to lose and become a laughingstock to all his Catholic bigoted supporters. His right winged [sic] agenda against Islam and Homosexuality will be his undoing.

HALLELUJAH and praise the Lord.”

(paragraph 29, affidavit of Mr Gaynor sworn 30 October 2018)

  1. However, the first defendant has made statements of equal ferocity concerning the plaintiff, not only in the publications related to these proceedings, but in the other publications which the plaintiff in written submissions states included calls for “blood and murder” (submissions, 28 November 2018).
  2. There are two aspects to this complaint by the first defendant relevant to the claim of abuse of process, namely the number of proceedings and the level of invective employed by the plaintiff.
  3. As to the first of these, in what circumstances will multiple proceedings before the court amount to an abuse of process? This was the subject of consideration in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at [80]-[84], where the Court of Appeal set aside the ruling by the trial judge that there was no evidence of malice on the part of the respondent fit to go to the jury in circumstances the large number of complaints amounted to a “vendetta” by the plaintiff against the defendant, a police officer who had arrested the plaintiff (at [93]). The trial judge had become unwell and was not able to deal with the abuse of process claim, but Kirby P (with whom Mahony and Clarke JJA concurred) stated that evidence of this kind would be sufficient to go to the jury in support of a submission that the defamation proceedings commenced against the police officers were “intimidatory and diversionary” (at [96]).
  4. At that time, actions for abuse of process, even where there had been multiple proceedings, were rarely brought and still more rarely successful (Goldsmith v Sperrings Ltd [1977] 1 WLR 478). It was not until the landmark decision in Williams v Spautz that the courts came to set down principles upon which the commencement of court proceedings could be considered as capable of amounting to abuse.
  5. The facts in that case were as follows. Dr Spautz was dismissed from his position as a senior lecturer at the University of Newcastle, following which he commenced over 30 proceedings, the majority being prosecutions for criminal libel against persons who occupied positions of authority at the university. Applications were brought to stay the proceedings, on the basis that all of them (and especially the criminal libel proceedings) were an abuse of process, in that the real purpose was to bully the university into reinstating Dr Spautz. As the court was satisfied that Dr Spautz’s predominant purpose was improper (namely that the threat of proceedings was being used, as was his maintenance of them, as a means of securing his reinstatement at the university) the proceedings were stayed, and the High Court took the opportunity to set down a series of principles relevant to abuse of process generally.
  6. The applicability of these principles to cases such as the present faces a series of high hurdles. In addition to the need for caution expressed by the High Court in Trkulja v Google LLC, the power to grant a stay of a criminal prosecution was considered in Spautz to fulfil an additional purpose, namely to prevent the prosecution of a criminal trial (namely for criminal libel) which was unfair. This purpose is generally not recognised in civil proceedings, as civil proceedings will not generally be stayed on the basis of unfairness, in the same manner as criminal trials: Ainsworth v James [2005] NSWSC 338.
  7. The High Court stressed that it was not necessary to demonstrate that the cause of action is hopeless. As the Court noted at 643, the power to stay must extend to proceedings even where the moving party has a prima facie case, or may be assumed to have a prima facie case. The rationale is that abuse of process connotes that the court’s process is being employed for some purpose other than the attainment of the claim for relief sought in the action. However, that purpose must be clearly established by some identifiable means which, in the case of Williams v Spautz, was the misuse of proceedings to intimidate the university into re-employing him.
  8. Mr Rasmussen submits that the purpose of these proceedings is to silence and intimidate the first defendant. The evidence to support this is inference, and the construing of statements in his affidavit which appear to hint at this purpose.
  9. However, it is clear from the plaintiff’s submissions that his desire to clear his name of the slur of paedophilia is at the forefront of his concerns, whatever other objections he may have to the first defendant’s views on LGBT issues.
  10. One aspect of Williams v Spautz would appear to have some significance in this application, namely the potential for abuse in repeated use of court proceedings, whether those proceedings were successful or not, as multiple court proceedings may give the appearance of a vendetta for the reasons explained by the High Court in Williams v Spautz and by Kirby P in Hanrahan v Ainsworth.
  11. However, the degree to which the bringing of multiple proceedings may be viewed as an abuse of process is problematic. I note for example that in Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495, Jagot J dismissed a claim for abuse of process for a defamation claim for a chapter of a book describing events from 1963 onwards which were the subject first of a 1980 Sixty Minutes broadcast and then a series of newspaper reports, leading to the Chelmsford Inquiry in 1988 – 1990. This was despite actions for defamation against print and broadcast media, for similar imputations arising out of the same subject matter, being struck out as an abuse of process on the basis that, in 1989, Dr Gill “had viable defamation actions ready to be listed for hearing” which he “elected for tactical reasons not to pursue” (Gill v Eatts (1999) Aust Torts Reports 81-529 at [76]).
  12. While this decision was handed down before UBS AG v Tyne [2018] HCA 45, and thus is arguably problematic, it would appear to stand for the principle that a party should not lightly be denied a day in court, a principle endorsed in the High Court in Trkulja v Google Inc. I note, in passing, that the plaintiff in those proceedings has brought many defamation proceedings over the past decade, and that he has not necessarily been successful in all of them. Mere numbers, in terms of the number of cases, will not be sufficient.
  13. There is perhaps a more compelling reason in these proceedings why the plaintiff may argue that he is entitled to bring multiple proceedings, although it is not a basis for refusal of such an application so far as I am aware. This arises from the contents of the first defendant’s website, with its continuous stream of insulting and intimidatory invective against not only the plaintiff but others of his kind. Judging by the stream of angry litigation where the parties appear to alternate as the bringer and the recipient of proceedings for defamation and relief under the Anti-Discrimination Act 1977 (NSW), the first defendant is not so much intimidated as spoiling for a fight.
  14. Nor is the first defendant afraid to use the court system as a sword as well as a shield. I note the litigation involving the first defendant and others in his claque includes claims of contempt of court, a charge which seems to be increasingly in vogue in civil proceedings in New South Wales. This has included not only complaints by the parties but an application by the first defendant’s solicitor against the plaintiff (Balzola v Burns [2018] NSWCATAD 246).
  15. While reading through the evidence tendered on this application, I was reminded of Mercutio’s retort, “a plague on both your houses” (Romeo and Juliet, Act III, Sc.1), this being the term employed by the Court of Appeal of the United Kingdom in a claim of abuse of process where each of the litigants was equally repellent: Lonhro Plc v Fayed & Ors (No 5) [1994] 1 All E R 188. Dillon LJ (with whom Stuart-Smith and Evans LJJ concurred) explained the court’s duties in such circumstances as follows:

“The temptation is great to say ‘a plague on both your houses and let not the court’s time be wasted with any further litigation between them’ …But the issue as to what the plaintiff’s purpose is in bringing this action is an issue of fact which is disputed and it cannot, in my judgment, be decided at an interlocutory stage on the tendentious affidavits of the solicitors for each side. It can only be decided at the trial: cf Speed Seal Products Pty Ltd v Paddington [1986] 1 All E R 91; [1985] 1 WLR 327.”

  1. While the “tendentious affidavits” for each side in these proceedings have been prepared by the parties rather than the plaintiffs, the result is the same. There is an evidentiary basis for abuse of process but, unusually, this evidence arises on both sides. Both parties in this litigation appear to be locked in a long-running struggle to outdo each other in insult and abuse. This suing and countersuing each other, in different jurisdictions but over the same subject matter, namely the first defendant’s hatred and disgust for what he calls “the anti-discrimination industry” of courts and lawyers who want to stop him expressing his views about “LGBT freedoms”, is a feature common to both.
  2. The facts in this case raise a situation novel to the principles of abuse of process, but common to internet hate sites of the kind published by the first defendant. To impose a stay on one of these litigation aficionados would be to permit the other to continue unrestrained and make one or the other of the parties “libel-proof”.
  3. It may be that principles of abuse of process will need to evolve to deal with this unfortunate development. For example, a party seeking summary dismissal or orders of a Bleyer v Google Inc kind may need to demonstrate that the attack in question was not provoked. For example, if the university had published attacks on Dr Spautz of the kind the first defendant has published about the plaintiff, or brought proceedings for defamation against Dr Spautz, the court may have taken a very different view of Dr Spautz’s multiple actions for criminal libel and defamation.
  4. These observations aside, there are disputed issues of fact as to motive which must await a contested hearing. In those circumstances, conformably with the principles enunciated by the High Court in Trkulja v Google LLC and by the UK Court of Appeal in Lonhro Plc v Fayed & Ors (No 5), I must regretfully conclude that the principles of abuse of process set out in Williams v Spautz are issues for the trial.
  5. The next question is whether some more specific basis for a stay can be made out by reliance upon recent authority, and it is to this issue that Mr Rasmussen directs his more specific complaints in the remaining three grounds he puts forward.

The UBS AG v Tyne [2018] HCA 45 argument

  1. Mr Rasmussen next submits that the bringing and withdrawing of proceedings under the Anti-Discrimination Act amounts to a basis for the dismissal of these proceedings for abuse of process pursuant to the principles set out by the High Court in UBS AG v Tyne. The facts giving rise to the claim for abuse of process were as follows.
  2. Proceedings were brought in the Federal Court by Mr Tyne and his wife in relation to advice given to Mr Tyne and through him to what were described as “Tyne related entities” including a company named Telesto. Mr Tyne, the company which he was trustee, and Telesto had earlier sought similar relief in the Supreme Court of New South Wales but those proceedings had been permanently stayed (as against Telesto) on the basis that the substance of the dispute had been determined in still earlier proceedings, in the High Court of Singapore, in circumstances giving rise to res judicata estoppel. Tyne and the trust had not been to a party to the Supreme Court judgment because they had earlier discontinued the action. UBS AG argued that the proceedings in the Federal Court were an abuse of process, given the earlier litigation history and the proceedings were permanently stayed under s 23 of the Federal Court of Australia Act 1976 (Cth).
  3. On appeal, the majority (Jagot and Farrell JJ) held that there was no abuse of process because the trust claims had not been decided on the merits as the trust as well as Mr Tyne had discontinued the proceedings. There was, however, a strong dissenting judgment from Dowsett J, who considered that the discontinuance in the Supreme Court had been for forensic advantage with a view to renewing the claim in the event that the Telesto claim was unsuccessful, and that this amounted to abuse of process.
  4. The High Court largely concurred with this view and with the view of the primary judge. In doing so, the court had regard to the explanation of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31, namely the consideration of abuse of process required the court to make “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”
  5. Mr Rasmussen’s submission is that the plaintiff has brought these proceedings for defamation because he cannot get a remedy under anti-discrimination legislation because of the unfortunate gap in the legislation where the plaintiff and defendant are not residents of the same jurisdiction. He submits that the discontinuance of those proceedings amounts to the same misuse of proceedings for forensic advantage as occurred in UBS AG v Tyne.
  6. However, a plaintiff is generally entitled to commence more than one set of proceedings in relation to the publications the subject of these proceedings, and to bring more than one cause of action in the statement of claim (for example, a claim for injurious falsehood, as occurred in Ballina Shire Council v Ringland (1994) 33 NSWLR 680; see also Habib v Radio 2UE Pty Ltd [2009] NSWCA 347 and Joyce v Sengupta (1993) 1 WLR 347) and to persist with that claim even when its alternative has been struck out or discontinued.
  7. The real difficulty the first defendant faces is, however, that the claim cannot be brought under this legislation for the reasons explained by the High Court in Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386. The discontinuance of the Anti-Discrimination Act is not an acknowledgement that the defamation claim amounts to the seeking of a forensic advantage. As the plaintiff and defendant reside in different states, there is no jurisdiction to hear and determine that claim under the Anti-Discrimination ActThe correct cause of action, and the correct court in which to bring these proceedings, is a defamation action brought in the District Court of New South Wales, or some other court with jurisdiction to hear defamation proceedings.
  8. Accordingly, these proceedings are not an abuse of process by reason of the commencement and abandonment of proceedings under the Anti-Discrimination Act.

The Bleyer v Google Inc (2014) 88 NSWLR 670 argument

  1. This submission is put forward on the following bases:
  1. The plaintiff made a “walk-away” offer which means that the continued conduct of these proceedings is a waste of time in that he does not seriously seek vindication of his reputation;
  2. The extent of publication is so trifling that the continuation of these proceedings is disproportionate to the harm.
  1. I make the following preliminary observations about the difficulties of such applications. The principles enunciated in Google v Bleyer Inc were noted with approval by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5], but I also note that these appear to be contrary to his Honour’s earlier observations in Bristow v Adams [2012] NSWCA 166 at [41]). There has been no appellate acceptance of the principles enunciated in Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75 (the “Jameel principle”) in the intervening period since this decision was handed down in 2005; to the contrary, these principles were rejected, in a general sense, in Habib v Radio 2UE Pty Ltd [2009] NSWCA 347.
  2. In addition, the main basis upon which English decisions on proportionality have been rejected in Australia appear to conflict with earlier authority. The principal reason has been that the doctrinal underpinning of Jameel principles is Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is in appropriate for the determination of issues in Australia: Bristow v Adams at [41] per Basten JA; see the discussion of first instance decisions to this effect in Bleyer v Google Inc at [43]ff, citing Manefield v Child Care NSW [2010] NSWSC 1420 at [185].
  3. However, this view of the inapplicability of principles derived from the International Covenant on Civil and Political Rights is contrary to the observations of the Court of Appeal in Ballina Shire Council v Ringland, where these same principles were relied upon to adopt “the Derbyshire principle” (Derbyshire County Council v Times Newspapers Ltd [1993] AC 534), namely denying government bodies the right to bring proceedings for defamation. Gleeson CJ (as his Honour the former Chief Justice of Australia then was) explained these principles as follows:

“As a matter of judicial precedent, this Court is not bound to follow decisions of the House of Lords. Especially in recent years, there have been a number of examples of ways in which the common law in this country has developed differently from that of England. …

This is the more so where the House of Lords found that the common law of England was in conformity with international norms. Australia is not a party to the European Convention, but art 19 of the International Covenant on Civil and Political Rights, to which Australia is a party, is in similar terms to art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Recent decisions of the High Court, finding in the Commonwealth Constitution a guarantee of free speech in relation to governmental and political matters, reinforce the persuasive effect of the decision in the Derbyshire County Council case: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106. In the former case, Deane J and Toohey J said (at 75):

“The implication of freedom of communication about the government of the Commonwealth most obviously applies in relation to Common­ wealth, as distinct from State or other regional, governmental institutions. Under the Australian federal system, however, it is unrealistic to see the three levels of government — Commonwealth, State and Local — as isolated from one another or as operating otherwise than in an overall national context … Political parties or associations are likely to exist in relation to more than one level of government and political ideas are unlikely to be confined within the (1994) 33 NSWLR 680 at 689 sphere of one level of government only. Clearly enough, the relationship and interaction between the different levels of government are such that an implication of freedom of communication about matters relating to the government of the Commonwealth would be unrealistically confined if it applied only to communications in relation to Commonwealth governmental institutions.””

  1. Gleeson CJ went on to explain that, although Australia is not a party to the European Convention, Art 19 of the International Covenant on Civil and Political Rights, to which Australia is a party, is “in similar terms” (at 688). It was for these reasons that, despite the Derbyshire principle arising in part from Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the NSW Court of Appeal (by majority) accepted the Derbyshire principle and dismissed the council’s claim for defamation.
  2. If these principles can be relied upon to accept the Derbyshire principle, they should be similarly applicable to the Jameel principle. However, that has yet to be judicially considered, and applications based on Bleyer v Google Inc accordingly remain controversial.
  3. Those preliminary difficulties aside, there are factual differences of significance in the present case that render the principles in Bleyer v Google Incinapplicable.
  4. The first basis upon which a lack of proportionality is asserted relies upon the fact that the plaintiff made an offer of settlement dated 16 August 2018 in relation to these proceedings which indicates, by its small size, that the plaintiff is not bringing this case for the purpose of vindication. Its terms were as follows:

“I refer to your Calderbank Offer dated 31st July 2018.

My apologies for the late reply but I’ve been overseas on holiday.

I would only be prepared to compromise the proceedings on the below following terms numbered 1 – 8;

1. Your client is to agree to pay $5,000 to the Anglicare Christian Charity through me via a bank cheque within 7 days of the deed’s signing.

2. Your client is to remove from every internet website site [sic] he has control over, including Facebook articles written about me within 7 days of the deed’s signing and not to continue writing articles of an inflammatory nature in relation to me.

3. Each party to pay their own costs.

4. Mutual releases in deed form.

5. Terms of settlement are to be confidential.

6. Your client is to also forward me a letter of apology.

7. I would also agree to withdraw / discontinuance [sic] the diversity proceedings currently before the local court in relation to your client.

8. I would also agree to not lodge any further alleged homosexuality vilification complaints against your client under the Anti-Discrimination ACT [sic] (1977) (NSW).

This would effectively end the litigation between your client and myself.

I have a [sic] arguable case in relation to defamation against your client and am prepared to proceed with the matter.

However, I have learnt in litigation one won’t get everything so compromise is a better way forward.”

  1. It is standard practice for plaintiffs in defamation proceedings to make offers of this kind. The most recent example is Un v Chow [2018] NSWCA 287, where Leeming JA noted that the plaintiffs had made an offer to accept an apology and had not even sought costs (at [13]). The making of a modest offer, or the exchange of such offers, does not mean that a plaintiff does not value his or her reputation. What the plaintiff is in fact saying is that he is asking the defendant to stop publishing material about him, a position commonly taken by plaintiffs in defamation proceedings, particularly where the publications in question are online. (This is one of many areas of the law where defamation legislation fails to answer the problems of online technology by providing appropriate remedies for plaintiffs in this position). This request is not indicative of the plaintiff wanting to vindicate his reputation.
  2. This brings me to the principal basis upon which this application is brought, namely that the extent of publication is asserted to be limited to a handful of persons, many if not most of which already held the plaintiff in contempt.
  3. Whether the Jameel principle as explained in Bleyer v Google Inc is, or ought to be, a basis upon which actions for defamation may be struck out, the difference in the factual situation is stark, in the present case. Although Mr Rasmussen submits (14 November 2008 submissions) that there is “no evidence of extensive publication”, the first defendant’s Facebook page has over 20,000 followers, some of whom, by their comments in the posts which follow, appear to have read this entry with interest. Nor can it be said that the imputations are trivial; allegations of paedophilia are at the top of the scale in terms of seriousness.
  4. Another significant difference between this publication and Google v Bleyer Inc arises from the question of defences. The availability of a First Amendment defence to the publication in Bleyer v Google Inc was a significant factor in favour of the defendant. No such defence was identified by Mr Rasmussen in the course of his submissions beyond the challenge to liability for publication of these admittedly defamatory posts. (I note in passing that, if the matters complained of in these proceedings had been published in the United States, that even the First Amendment defence would have been unsuccessful; in Commonwealth of Pennsylvania v Knox No 3 WAP 2017 (21 August 2018) the Pennsylvania Supreme Court rejected a free speech claim for a “rap” song on YouTube which the court was satisfied was specifically intended to intimidate and insult).
  5. For the above reasons, the very limited circumstances in which proportionality would be a relevant factor in the dismissal of these proceedings would not be made out on the material put before me by the first defendant.

The Google Inc v Duffy (2017) 129 SASR 304 argument

  1. This argument is based upon the asserted failure of the plaintiff to send a concerns notice to the first defendant, failing which the first defendant cannot be liable; the relevant factual material is set out above.
  2. The first defendant does not dispute the plaintiff contacted the second defendant, and his affidavits are silent as to any contact he had with the second defendant over this period. The questions of whether the first defendant was put on notice by the concerns notice sent to him on 19 April 2018 (and whether it was in fact received, if this is challenged), and/or to the second defendant on 22 April 2018 (when the second defendant refused to take the post down) should be a disputed issue of fact for the trial.
  3. Conformably with the views expressed by the Full Court of the Federal Court in Sarina v Fairfax Media Publications Pty Ltd, this is not an appropriate basis for summary dismissal.

Conclusions concerning abuse of process

  1. Each of the bases upon which the first defendant has sought summary dismissal of these proceedings as an abuse of process has failed. The notice of motion must accordingly be dismissed.

The future conduct of these proceedings

  1. The plaintiff represents himself. He does not understand the relevant legal principles and devotes much of his oral presentation to angry and emotive claims, such as his repeated claim that if he is unable to conduct these defamation proceedings he will “end up in a body bag”, to use the phrase he has employed on more than one occasion. That has included reluctance to disclose his address or to provide an email address, which makes contact difficult. His submissions were of limited assistance at best, and he was at times in an upset state. I thank Mr Rasmussen for his forbearance on more than one occasion.
  2. The difficulties that the court faces where litigants act for themselves in defamation proceedings have been referred to in many judgments over the past few years. This is not a problem confined to this court, or even to New South Wales; recent discussions of problems in pleading and self-representations include Kalsbeek v Commonwealth [2018] WADC 79 at [11], Culleton v Kershaw (No 2) [2018] WASC 236 (passim) and Morris v IMF Bentham Ltd [2018] FCA 1009 at [53] – [58], [106] and [127]. At the same time, the increasing cost of defamation litigation has come to dwarf the damages awarded (see, for example, the comparative damages awards and legal costs cited in Lazarus v Azize [2015] ACTSC 344, where Mossop AsJ noted the almost total absence of insurance). There is, in addition, the strain placed on court resources where a litigant in person brings proceedings, particularly in courts where the absence of summary procedures means that actions of this kind may take years to complete as well as bankrupt a party (as occurred in Nyoni v Pharmacy Board (No 6) [2018] FCA 526, where a litigant in person’s action for defamation and related remedies took over three years to complete and required a five-day trial; the litigant in person became bankrupt).
  3. In Ghosh v Miller (No 2) [2018] NSWCA 212, the New South Wales Court of Appeal, dealing with a litigant in person who had difficulty progressing her claim without legal representation, made orders for that litigant in person to proceed with that claim only if she was represented. This is not an uncommon order to make; I note that the Court of Appeal recently made similar orders in commercial/equity proceedings (Mahommed v Unicomb [2018] NSWSC 291 at [22] – [23]). While I do not propose to take any such step at the present, if the plaintiff continues to conduct this litigation in the same manner, he is on notice that I may consider making a similar order, for reasons relevant to court resources as well as the principles enunciated in ss 56 – 62 Civil Liability Act 2005 (NSW).
  4. By way of general observation, almost every aspect of these proceedings (including the lacunae in the Anti-Discrimination Act) demonstrates the widening gap between online technology and legislative defences and remedies. The increasing use of websites and social media to express extreme and at times violent opinions, the widening gap between legislation and adequate regulation of online technology, the increasing number of litigants in person and the scramble for courts willing to act as a forum for such debates do not augur well for the future. Arriving at effective resolutions for applications such as the present will be a difficult task as the increasingly large number of defamation actions (and related costs) continue to pile up. These are, however, matters for the legislature and the appellate courts, as opposed to judges in the busy trial courts currently tasked with determining these issues on the basis of increasingly outdated legislation.

Costs

  1. The plaintiff is a litigant in person and, as such, is not entitled to costs, other than reasonable disbursements incurred in the course of the conduct of these proceedings. I propose to reserve the issue of costs, to enable the first defendant to make submissions concerning costs, and for the plaintiff to advise the court what these disbursements (if any) may be.

Orders

  1. First defendant’s Notice of Motion dismissed.
  2. Stand over the plaintiff’s application for substituted service on the second defendant on Thursday 6 December 2018 in the Defamation List.
  3. Any claim by the plaintiff for reasonable disbursements by way of a costs order is reserved.
  4. Parties have liberty to bring in Short Minutes of order for a timetable in these proceedings.

**********

I certify the preceding 95 paragraphs and 4 ordersto be a true copy of her Honour Judge Gibson’sreasons for decision dated 30 November 2018.……………………………………… (Associate)

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 30 November 2018

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