Supreme Court New South Wales Medium Neutral Citation: Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232 Hearing dates: 22 March 2024 Date of orders: 1 October 2024 Decision date: 01 October 2024 Jurisdiction: Common Law Before: Rothman J Decision: (1) The Court dismisses the defendants' motion for summary dismissal and striking out of the pleadings; (2) The Court grants the plaintiff's motion for leave to file a Second Further Amended Statement of Claim; (3) The Court grants leave for the plaintiff to file a Second Further Amended Statement of Claim; (4) The defendants shall pay the plaintiff's costs of and incidental to the motion. Catchwords: Defamation – practice and procedure – notice of motion to file a second further amended statement of claim – notice of motion to dismiss proceedings summarily Legislation Cited: Amendment Act (Act No 16 of 2020) Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW) Interpretation Act 1987 (NSW) Model Defamation Amendment Provisions 2020 Trade Union Act 1881 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Carson v Legal Services Commissioner [2000] NSWCA 308 Devane v Gati [1956] HCA 46; 95 CLR 174 Executive Council of Australian Jewry v Scully (1998) 79 FCR 537; [1988] FCA 66 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Texts Cited: SJ Stoljar,Groups and Entities: An Inquiry into Corporate Theory (1973, Australian National University Press) Category: Procedural rulings Parties: Wafaie (Ray) Gayed (Plaintiff) Father Alexander Aziz (Second Defendant) Representation: Counsel: D Toohey (Plaintiff) D Helvadjian (Second Defendant) Solicitors: Y Bloom Legal (Plaintiff) Griffith Barton Lawyers (Second Defendant) File Number(s): 2023/259442 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: The substantive proceedings seek damages for defamation. By motion, notice of which is dated 22 February 2024, the plaintiff seeks to file a Second Further Amended Statement of Claim which, amongst other things, alters the parties to the proceedings by deleting the earlier named first defendant, the Virgin Mary & St Markorious Coptic Orthodox Church (hereinafter "the Church"), and substituting a new first defendant, Bishop Angelos of London, and a third to eighth defendant, being named clerics, who are said to be the operating management and control of the Church. 2. The plaintiff seeks consequential changes to the claims made and has provided, in the proposed pleadings, particulars of the serious harm suffered by amending paragraphs [10] to [14] of the proposed Second Further Amended Statement of Claim (hereinafter "the Proposed Pleadings"). 3. The defendants, being the currently named defendants, move the Court by motion, notice of which was filed on 5 February 2024, to dismiss the proceedings summarily either pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (hereinafter "UCPR"), r 13.4(1), and/or pursuant to the Court's inherent power as an abuse of process or, alternatively, to strike out the Further Amended Statement of Claim (hereinafter "the Current Pleadings") filed 6 September 2023, pursuant to UCPR r 14.28(1). 4. The purpose of the amendment of the names of the defendants, which is opposed by the current defendants, is that the first and third defendants are not incorporated, and are, as a consequence, not capable of being sued by that name in a court of law. The defendants oppose the filing of the Proposed Pleadings because the newly-named parties will, it is said, be subject to proceedings beyond the limitation period set by the Defamation Act 2005 (NSW) (hereinafter "the Act"). 5. The motion for summary dismissal of the proceedings is based upon the proposition that the plaintiff has not served a Concerns Notice that meets the requirements of the Act and that, therefore, the plaintiff is prevented by the provisions of the Act from commencing proceedings. 6. The Court has been informed that the submission and basis upon which the defendants move for the dismissal of the proceedings is the first time that a superior court of record has dealt with the issue agitated by the defendants under the Act (or its equivalent under the uniform provisions applying to defamation proceedings throughout Australia). 7. It is necessary to deal, very briefly, with the allegations raised by the Current Pleadings, which do not materially differ from those in the Proposed Pleadings. Nature of Substantive Claim 1. The Court, for present purposes, is unconcerned with the merits of the substantive claim except to the extent relevant to the current motions. Further, whether the plaintiff is ultimately capable of proving the elements of the defamation is not a matter that is required to be determined for the purposes of the motions. 2. The plaintiff alleges that he attends the Coptic Orthodox Church, known as The Virgin Mary & St Markorious Coptic Orthodox Church. It is also alleged, at least inferentially, that the persons attending the Church communicate in Arabic, which, given its long history in Egypt, is not surprising. The Coptic community is one of the earliest Christian communities formed, it is said, by St Mark, one of the Apostles. 3. It is alleged that, on or about 31 December 2022, the defendants (seemingly on behalf of the Church) sent an email to approximately 2000 parishioners in Arabic to email addresses that were stored in a mailing list. The Arabic communication was also translated into English. 4. The plaintiff alleges that the communication to the 2000 fellow parishioners of the plaintiff imputed that the plaintiff was involved in laundering money; that the plaintiff was involved in the commission of a murder; that the plaintiff has been involved in fraud and theft from parishioners of the Church; that the plaintiff was involved in the creation of false donation receipts; that the plaintiff was involved in a conspiracy to defraud insurance companies; that the plaintiff has been taking photographs of women's legs without consent and using Church cameras to do so; and that the plaintiff has involved his family in, or caused them to act as beneficiaries of, the stolen funds from which his family had purchased numerous properties. 5. While the evidence at this point is largely formal and the issues between the parties are, with the obvious exception relating to the Concerns Notice, to be determined by construction of the legislation and the pleadings themselves, the evidence includes registration of the current first defendant under the Australian Charities and Not-for-profits Commission (hereinafter "ACNC") and those registration details disclose that it does not have Deductible Gift Recipient (hereinafter "DGR") status, but obtains concessions and rebates under the GST and FBT legislation and is exempt from income tax. 6. The Church operates a fund for the C.O.C. Diocese of Sydney-School Building Fund, which may be an institution with DGR or limited DGR status. I assume the letters "C.O.C" stand for Coptic Orthodox Church. Those registration documents reveal that the Church was established on 1 January 1980 and has other charities operated by the Church. 7. The original Statement of Claim annexed the alleged publication, as does the Proposed Pleadings. 8. The defendants rely upon an affidavit of Matthew Nasralla sworn 5 February 2024, the contents of which are mostly formal, but which annexes certain documents, one of which is a letter dated 1 March 2023 on the letterhead of Hilliard & Berry Solicitors and which bears the heading: "RE: RAY GAYED v AZIZ CONCERNS NOTICE PURSUANT TO DEFAMATION ACT, 2005 (NSW)" 1. The letter is over the signature of Simon Berry, who is identified in the letterhead as a partner of the firm and informs the recipient of the letter that the firm has been instructed on behalf of the plaintiff. It asserts that the plaintiff had been working at the Church on a volunteer basis since 3 November 2016 and had been managing the property maintenance of the Church. It also asserts that on 31 December 2022, an email was forwarded to more than 2000 persons from an address being "righteous.copts.2@gmail.com", containing a document prepared by Jason Jamal, which was created on 2 November 2020. 2. The Concerns Notice alleges that the document circulated contained several "false, defamatory and highly offensive statements" about the plaintiff and was sent from the same IP address as used by Father Aziz from September 2022 until January 2023. 3. The correspondence from Hilliard & Berry asserts that they are confident that Father Aziz is the author of the circulated document or a participant in its circulation. 4. The purported Concerns Notice asserts imputations arising from the publication, which are, essentially, as described above, the imputations in the Current Pleadings and Proposed Pleadings. 5. The solicitor's correspondence also asserts that the publication has "caused considerable harm" to the plaintiff's reputation both within the congregation of the Church and in the wider community. The communication requests an apology published to all persons to whom the impugned publication was sent; a written undertaking that the recipient will refrain from publishing any further false and/or defamatory emails about the plaintiff; and the payment of $10,000. It provides a time limit of 2 March 2023, which by letter dated 2 March 2023 was said to be a mistake and should have read 8 March 2023. 6. If the Court were minded to grant the application to strike out the proceedings, then no purpose would be served by dealing with leave to amend the pleadings and the filing of the Proposed Pleadings. Therefore, the Court will deal first with the motion to dismiss the proceedings summarily. Concerns Notice 1. Stripped to its essential features, the defendants submit that the Concerns Notice purportedly sent on 1 March 2023 does not comply with the Act, and that, as a consequence, the plaintiff is barred from commencing proceedings and was barred at the time that proceedings were commenced. It is necessary to set out the relevant terms of the legislation: "10A Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. (7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element. 12 Application of Division (1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person). (2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise. (3) Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division. 12A Concerns notices (1) For the purpose of this Act, a notice is a concerns notice if— (a) the notice— (i) is in writing, and (ii) specifies the location where the matter in question can be accessed (for example, a webpage address), and (iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern), and (iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question, and (v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question, and (b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice. Note - Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced. (2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice. (3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. (5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section. 12B Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless— (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on— (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court— (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. (5) In this section— limitation law means the Limitation Act 1969." 1. It is unnecessary to extract the remaining sections of Pt 3, Div 1 (ss 13-19), which deal with a publisher's making of amends, the effect of an apology and the binding nature of any agreement that may be reached. Nevertheless, familiarity with those provisions is assumed. 2. The defendants submit that the terms of s 12A(1) of the Act are mandatory, and a failure to specify and/or particularise each of the relevant matters in s 12A(1) renders the Notice, not to be a Concerns Notice and the provisions of s 12B(1) prevent an aggrieved person commencing defamation proceedings. 3. The defendants' submission is that "the plaintiff's claim is a nullity at law, or is incompetent, and any extant proceedings must therefore be dismissed." [1] The defendants rely upon two aspects of the Concerns Notice that they say fails to comply with s 12A of the Act: first, there is a failure to provide the matter complained of pursuant to s 12A(1)(b) of the Act; secondly, the defendants allege that the Concerns Notice fails to inform the publisher of the harm that the person considers to be serious harm to the person's reputation caused by the publication. 4. The amendments inserted in the Act by the promulgation of ss 12A and 12B (and the other provisions of the Part) were part of the amendments to the Model Defamation Amendment Provisions 2020 and inserted by Act No. 16 of 2020, which was passed by the NSW Parliament on 6 August 2020, and assented to on 11 August 2020. Because the provisions are part of provisions that are intended to apply uniformly throughout most of Australia, some care should be taken to ensure that applying autochthonous NSW provisions does not have the effect of differentiating the laws that apply in NSW to the application of the law otherwise. 5. The provisions of the Interpretation Act 1987 (NSW) are slightly different to other statutes that apply under Commonwealth law or the relevant interpretation statutes in other States. 6. In particular, s 34 of the Interpretation Act allows the use of extrinsic material in the interpretation of NSW statutes in circumstances where it is used to confirm the meaning that otherwise would apply as the ordinary meaning or to determine the meaning if the provision is ambiguous, obscure or would lead to an absurd or unreasonable result. Otherwise, only the headings to chapters, parts, divisions, subdivisions and/or schedules are taken to be part of the Act and headings to separate provisions are not part of the Act. Statutes in other jurisdictions may allow for a broader use of extrinsic material. 7. The Amendment Act (Act No 16 of 2020) was introduced into the Legislative Assembly and read a second time by the then responsible Minister, the Attorney General, Hon Mark Speakman SC MP (now Leader of the Opposition), and accompanying the introduction of the Amendment Act was an Explanatory Memorandum. Relevantly, the Memorandum sets out the following aims of the new provisions: to provide for serious harm to be an element of the cause of action for defamation; to require a Concerns Notice to be given to a publisher before defamation proceedings are commenced; and, to make various amendments with respect to form, content and timing for Concerns Notices and offers to make amends. In the body of the Amendment Memorandum and Notes, the note to Sch 1(6) states: "Schedule 1(6) provides, consistently with the approach taken in the UK Defamation Act, for it to be an element of the cause of action for defamation for the plaintiff to prove the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the plaintiff." 1. The Memorandum also makes comment on the necessity for a Concerns Notice before commencing proceedings. It is relevantly in the following terms: "Part 3 of the 2005 Act (a) set out provisions to encourage the resolution of civil disputes about the publication of a potentially defamatory matter without litigation. In particular, the provisions of Division 1 of Part 3 apply if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person). The principal features of these provisions are as follows – (a) the aggrieved person may give the publisher a Concerns Notice setting out the imputations of which the aggrieved person complains and certain other matters, (b) the publisher may seek further particulars after a Concerns Notice is given, (c) the publisher may make an offer to make amends in the form provided by the provisions, but not if it is made after 28 days of the Concerns Notice being given or after a defence is served in defamation proceedings for the matter in question, (d) the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question if the publisher carries out the terms of an offer to make amends accepted by the aggrieved person, (e) the publisher has a defence in defamation proceedings for the matter in question if the aggrieved person refuses to accept a reasonable offer to make amends made in compliance with certain requirements. It is not mandatory under these provisions for the aggrieved person to give a Concerns Notice to the publisher. Consequently, the aggrieved person may commence defamation proceedings instead of giving a Concerns Notice. However, if the aggrieved person does not give a Concerns Notice, it is open to the publisher to make an offer of amends until proceedings are commenced and a defence is filed. The rejection of a reasonable offer of amends might result in a defence for the publisher in these circumstances. Schedule 1(9) provides that an aggrieved person cannot commence defamation proceedings unless – (a) the person has given the proposed defendant a Concerns Notice in respect of the matter concerned, and (b) the imputations to be relied on the person in the proposed proceedings were particularised in the Concerns Notice, and (c) the applicable period for an offer to make amends has elapsed." 1. In the Second Reading Speech in the Legislative Assembly, the Hon Mark Speakman SC MP referred to the review of the Model Defamation Provisions led by the NSW Department of Communities and Justice and the main themes that emerged from submissions to the review. One of them was the modernisation to adapt to digital communications in part by addressing the multiple publication rule. 2. Secondly, and importantly from the perspective of these proceedings, reference was made to the increase in the use of defamation law for trivial and vexatious matters, including neighbour disputes and instances where individuals sue for comments made on digital platforms. The learned Attorney General referred to submissions indicating "that these matters tend to be relatively minor and with low damages but result in disproportionately high legal costs for both the plaintiff and the defendant. Minor claims are also placing a substantial burden on Court resources." 3. The Attorney General then commented: "The ultimate aim is to strike a better balance between, on the one hand, providing fair remedies for a person whose reputation is harmed by a publication and, on the other hand, ensuring defamation law does not place unreasonable limits on freedom of expression, particularly about matters of public interest… The bill achieves this by introducing a serious harm threshold, generally to be determined by the judicial officer as soon as practicable before the trial; by clarifying which corporations may have a cause of action; by making it mandatory to issue a Concerns Notice before proceedings can be commenced and clarifying the form, content and timing of Concerns Notices and offers to make amends; by clarifying that a defendant may plead back imputations relied upon by the plaintiff to establish the defence of contextual truth; by introducing a new defence for the publication of defamatory matter concerning an issue of public interest; by introducing a new defence for peer-reviewed matters published in academic or scientific journals; by clarifying the operation of the defence of honest opinion; and by clarifying that the cap on damages for non‑economic loss sets the upper limit of a scale and that aggravated damages are to be awarded separately." 1. In relation to the issues relevant to the current proceedings, the foregoing comments in each of the Explanatory Memorandum and the Second Reading Speech confirm the construction that should be afforded to the provisions in the Defamation Act on their ordinary meaning as construed in accordance with the law. The principles to be applied in construing a statute are well-known and often cited. 2. A court, in construing legislation, examines the whole of the statute and from the words used in the statute, in the context of the whole of the statute, determines the construction of the statute by giving the words a meaning that is consistent with the purpose of the statute, and which achieves harmonious goals for all the provisions of the statute. [2] 3. The plurality judgment in SZTAL said: "[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." [3] 1. In the same judgment of the High Court, Gageler J (as his Honour the Chief Justice then was) said: "[35] Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd : Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. [36] Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd : [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. [37] Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text". [38] The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies". [39] Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle". [4] 1. The circumstances that Gageler J was then in dissent does not detract from the statement of principle, which is otherwise in accordance with the approach taken by the plurality and by Edelman J. [5] 2. In these proceedings, as a matter of fact, it is uncontroversial that a document entitled "Concerns Notice" was sent. Moreover, it is uncontroversial that the purported Concerns Notice contained the imputations upon which the plaintiff relies in these proceedings now purportedly commenced. 3. There can be no doubt in construing the provisions of the Act that now apply, a plaintiff needs to disclose the serious harm arising from the allegedly defamatory material. 4. Essentially, the submission of the defendants is that a Concerns Notice that does not adequately particularise serious harm is a nullity, and the service of such a Concerns Notice will not serve as a precondition allowing the commencement of proceedings. The difficulty with the submission, apart from the terms of the Explanatory Memorandum and the Second Reading Speech, is the terms of ss 12A and 12B, respectively. 5. There is little doubt that the Act, properly construed, has the effect that a Concerns Notice is required to be served prior to the commencement of proceedings. The difficulty with the defendants' submission is whether a Concerns Notice that does not comply strictly with the requirements of s 12A(1) is still a Concerns Notice for the purposes of s 12B of the Act. 6. There are a few difficulties in treating compliance with the contents prescribed by s 12A(1)(a) of the Act as strict. One of the difficulties is the existence of s 12A(3). By ss 12A(3), a publisher may require "further particulars". If further particulars are necessary, then, almost by definition, some or other of the material that would otherwise be within the contents of the Concerns Notice has not been fully articulated. 7. More obviously, the express provisions of s 12B(1) of the Act is a matter that qualifies the necessity for strict compliance with the contents prescribed by s 12A(1)(a). If a Concerns Notice needed strictly to comply with all of the contents contained in s 12A(1)(a) of the Act, then the terms of s 12B(1)(b) would be otiose. 8. On the submission of the defendants, the Concerns Notice is required to inform the publisher of the defamatory imputations that the aggrieved person considers may be carried and, by virtue of that provision, the plaintiff is confined to the imputations particularised in the Concerns Notice or imputations that are substantially the same. If strict compliance with s 12A(1)(a)(iii) were required, s 12B(1)(b) would be wholly unnecessary. 9. The terms of 12B of the Act, in my view, make clear that substantial compliance only is required with the provisions of s 12A of the Act, and where there are no or insufficient particulars of any matter required in the Concerns Notice, the putative defendant is entitled to request further and better particulars, but the Concerns Notice is not, for such reason, a nullity. 10. Further, s 12B of the Act makes clear that the Concerns Notice (i.e. a notice that substantially complies with s 12A of the Act) must be served before the commencement of proceedings and that such a Concerns Notice needs to specify the imputations that may arise from the impugned publication. Section 12B(2) clarifies that a putative plaintiff is confined, in commencing defamation proceedings, to imputations that are particularised in the Concerns Notice (or, presumably, the subject of an answer to further and better particulars), or imputations that are substantially the same as those in the Concerns Notice. 11. The requirement in the Concerns Notice to specify serious harm arises from the introduction into the tort of defamation of an element of serious harm that is required to be proved by the plaintiff. Previously, damage in defamation was assumed, and it may well continue to be assumed, but it is now necessary to disclose "serious damage" as an element of the tort. 12. The Concerns Notice issued in this matter on 1 March 2023 sets out the nature of the publication and that the publication gives rise to imputations against the plaintiff that he was engaged in the most serious criminal activity of murder, the laundering of money, fraud and theft from parishioners, fraud against others and theft more generally. It is difficult to imagine a more serious imputation than that a person was involved in murder. 13. Moreover, the plaintiff makes it clear that this imputation was given to 2000 fellow parishioners or congregants in a small minority community, all of whom or most of whom would, presumably, be known to the plaintiff, and the plaintiff would be known to each of them. Further, the harm is said to have been caused in the wider community, being the general community not confined to the congregation attending the Church or to whom direct messages were sent. 14. When a defamatory publication that a person is a murderer, a thief and a fraudster is published to all or most of the persons with whom the aggrieved person attends Church, it is difficult to imagine the further particulars that would be given to plead "serious harm". Moreover, the defamatory imputations are said to be conveyed by the Church or clerics who run it. 15. Last, the seriousness of the source of the information becomes, itself, a particular of the serious harm that would otherwise be conveyed. It is unnecessary in the circumstances alleged to have occurred in this case for a plaintiff to monetise the damage. Each of the factors that together require an inference of serious harm is stated in the Concerns Notice, and there has been substantial compliance with the provisions of the Act. 16. As earlier stated, the requirement to plead and to particularise serious harm arises from the circumstance that trivial or inconsequential publications have been the subject of a suit for defamation in which the cost, stress, and anxiety associated with the litigation itself outweighs the damage occasioned by the publication. The element of serious harm was introduced into the Model Law to overcome such "backyard" disputes. This dispute is not in that category. 17. A Concerns Notice that does not strictly comply with all the contents of s 12A(1)(a) of the Act is not void and of no effect. If the Concerns Notice were not to particularise the imputations, then by virtue of s 12B(2) of the Act, no imputations could be pleaded. If it were a document that could not be said to be a Concerns Notice and does not comply substantially with the requirements of the Act, then it may not allow the commencement of proceedings as a consequence of the provisions of s 12B of the Act. That is a very different situation from that which is now before the Court. 18. A Concerns Notice needs only to comply substantially with the requirements of the Act, which, although not a matter that needs to be determined on these motions, would require sufficient information for a putative defendant (the publisher) to understand the imputations said to arise, that the publication has given rise to serious damage and allows the publisher to settle the proceedings without recourse to litigation, if the publisher were so minded. 19. As for the submission that there is a difference between "considerable harm" and "serious harm", I do not consider that the allegation in the Concerns Notice that "considerable harm" was caused does not comply with the proposition that it caused "serious harm". 20. If the particulars that allow the Court to infer the seriousness of the harm are not otherwise provided in the Concerns Notice, then a different result may have eventuated. It is unnecessary for the Court to define or confine the meaning of the word "serious". It is an evaluative exercise that will depend on the circumstances of each case. At the very least, it must mean something that is not insignificant or not ephemeral. 21. The other basis upon which the defendants seek to dismiss the proceedings summarily is the proceedings constitute an abuse of process. The basis for this allegation is that the defendants submit the plaintiff has an ulterior purpose in commencing and maintaining the proceedings. The defendants submit that the proceedings are an abuse of the process of the Court and seek to utilise the provisions of UCPR r 13.4 to dismiss the proceedings generally. 22. The Court is required to be extremely cautious in striking out proceedings summarily and disentitling a party who pleads an arguable case from the party's opportunity to conduct the proceedings. Relevant to the issue raised by the defendants, the Court would be required to be satisfied that the predominant purpose of the plaintiff is to achieve ulterior motives, and in so doing, the proceedings become an abuse of process. [6] 23. The caution that applies to summary dismissal of proceedings applies with even greater force if the allegation is that the conduct of the proceedings is predominantly for an ulterior motive. The heavy onus associated with abuse of process of that kind lies upon the party alleging it. 24. The affidavit of Matthew Nasralla relied upon by the defendants seeks to inform, on information and belief, the Court of several factors that are said to go to abuse of process. Mr Nasralla refers to the fact that on 13 February 2023, the plaintiff was removed by the Bishop from attending Board meetings, which, apparently, he had been attending previously as an observer. 25. Mr Nasralla asserts that "since 13 February 2023, the plaintiff has considered the second defendant to be the reason for his removal". How Mr Nasralla knows the mind of the plaintiff in that respect is not specified. 26. Further, it is said that the plaintiff considers that some of the clerics were not doing a good job. Again, it is not specified how Mr Nasralla is aware of that proposition other than the fact that two of the clerics informed him of certain factors, but it is unclear, other than what will now follow, how those two clerics were aware of the state of mind of the plaintiff. 27. The two clerics were Father Aziz (the second defendant) and Father Morris, who informed Mr Nasralla of certain facts. One of those facts is that the plaintiff had a conversation with a Father Alexander at a funeral. Father Morris was also present. 28. The conversation concerns the accuracy of alleging that Father Alexander was the author or sender of the defamatory email. I do not see that as evidence from which, even if accepted, one could draw an inference that there was an ulterior motive in the commencement of the proceedings. 29. The next aspect upon which the defendants rely is a conversation, again with Father Alexander, relating to whether the plaintiff was to withdraw the proceedings in accordance with a direction of the Bishop. The plaintiff is alleged to have said, "this can all go away if you get Father Sharobim to sit with you and me and you to listen to what I have to say about fixing the issues in the Church". Further, the plaintiff is alleged to have said that he would not withdraw proceedings because the meeting may not go as it should. 30. In my view, neither conversation rises to the point of showing that the plaintiff is exercising his right to sue in defamation on the imputations arising from the publication for a purpose other than the achievement of the litigation. The fact that there are issues between the plaintiff and the clerics in the Church is, frankly, a matter that almost goes without saying. In the absence of such issues, no proceedings would ever be commenced. 31. The issues between the parties may have arisen initially because of issues associated with the running of the Church. But, in the context of those issues, the allegation is that defamatory material was published about the plaintiff, which has caused him "considerable damage". 32. On the facts that are pleaded, as earlier stated, the impugned publication alleges that the plaintiff was involved in a murder, involved in theft and involved in fraud. No doubt, if the underlying issues between the parties had been resolved or were resolved and, as originally suggested, an apology were published to the congregants, then a range of matters could be settled. None of those concerns suggests that the plaintiff, in commencing the proceedings, was predominantly moved by ulterior motives. 33. Rather, it seems that the plaintiff, in light of the issues, is concerned for his reputation amongst parishioners and/or congregants and the wider community and seeks vindication from the imputations that have been made. 34. The defendants' motion is dismissed. Amendment to Pleadings 1. The defendants submit that the plaintiff is out of time for the commencement of proceedings against those persons sought to be joined to the proceedings and sued as defendants in lieu of the unincorporated bodies. The provisions of s 65 of the Civil Procedure Act 2005 (NSW)allow the Court to amend the originating process, after the expiration of the relevant limitation period, to correct a mistake in the name of a party to the proceedings, whether or not the effect of such a change is to substitute a new party, if the mistake in the Court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. 2. It is trite that, ordinarily, court proceedings may not be commenced against an unincorporated association. An unincorporated body is, by definition, not corporate, is not a person and may not sue or be sued in its own name. 3. Without dealing in detail with corporations sole and the capacity to sue officers of churches that have existed since approximately the eleventh century, the Court is prepared to accept that neither body named as the first and third defendants in the original initiating process are bodies capable of being sued in their own name and style. [7] 4. An unincorporated association is a non-juristic body and is not a "person" in the eyes of the law. It is impermissible to maintain court proceedings against an unincorporated association, and proceedings so commenced would be irregular. 5. The rule of common law is that for purposes of suits and proceedings in the ordinary courts of justice, the parties must be named as individual persons. Neither the name of an unincorporated body, association or firm name will satisfy the requirements of the law. [8] 6. Nevertheless, as recognised by the High Court in Devane v Gati, supra, a firm name or the name of an unincorporated association is, for many other purposes, recognised as a collective description of individuals. [9] 7. The issue is whether, in naming the Church as the first and/or third defendant, the proposed defendants were aware that the plaintiff was seeking to pursue, in his justiciable controversy, those persons responsible for the management and control of the aforesaid bodies, thought, initially, to be incorporated. 8. If the naming of the unincorporated associations, which is plainly a mistake, is neither misleading nor such as to cause reasonable doubt as to the identity of the persons intended to be made a party, then the Court has the power under s 65 of the Civil Procedure Act, to substitute the new party, notwithstanding that the limitation period has expired and without recourse to an extension of time. 9. The naming of the unincorporated associations is not a "nullity". When so named, it is necessary for a party receiving the originating process "to go behind the name and consider whether the juristic persons who constitute the unincorporated association" are intended to be named. If they were, s 65 of the Civil Procedure Act applies, and the amendment may be made. [10] 10. In my view, while the commencement of the proceedings naming as defendants the two unincorporated bodies was irregular and did not satisfy the requirement of the law, the persons on the committee of management of the two bodies would have known, on receipt of the information, that it was those bodies that was sought to be named and, to the extent they could not be named, then it was the central management and control of those bodies that was sought to be rendered responsible. 11. In my view, the naming, while irregular and inconsistent with legal requirements, was sufficient to render the substitution of the persons who control the two unincorporated associations as parties, notwithstanding the expiry of the limitation period under the Act. The evidence before the Court, such as it is, is that the newly named defendants are the persons who control the unincorporated associations initially named as defendants. 12. The Court will order judgment on the plaintiff's motion for the plaintiff and allow the re-pleading. 13. The Court makes the following orders: 1. The Court dismisses the defendants' motion for summary dismissal and the striking out of the pleadings; 2. The Court grants the plaintiff's motion for leave to file a Second Further Amended Statement of Claim; 3. The Court grants leave for the plaintiff to file a Second Further Amended Statement of Claim; 4. The defendants shall pay the plaintiff's costs of and incidental to the motion. ********** Endnotes 1. Defendants' written submissions at [15]. 2. SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34. 3. Ibid at [14] (Kiefel CJ, Nettle and Gordon JJ). 4. Ibid at [35] – [39] (Gageler J). 5. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 6. Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34. See also Carson v Legal Services Commissioner [2000] NSWCA 308 at [107]. 7. For an alternative view see: SJ Stoljar, Groups and Entities: An Inquiry into Corporate Theory (1973, Australian National University Press) and many decisions under the Trade Union Act 1881 (NSW)in Australia and the UK. 8. Devane v Gati (1956) 95 CLR 174 at 176 (Dixon CJ, Fullagar and Taylor JJ); [1956] HCA 46. 9. Ibid. 10. Executive Council of Australian Jewry v Scully (1998) 79 FCR 537; [1988] FCA 66 (Wilcox J) and the cases cited therein. 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: 02 October 2024