MANN v ECCOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and STEIN JJA 5 August 1998, 19 August 1998 [1998] NSWCA 137 EVIDENCE — admissibility of fresh evidence — s75A(8-9) Supreme Court Act (1970) — criteria for admission — whether evidence reasonably obtainable for use at trial — whether a high probability that evidence would produce a different verdict — whether evidence credible — Akins v National Australia Bank (1994) 34 NSWLR 155 applied. MALICIOUS FALSEHOOD — whether claim statute barred s14 Limitation Act 1969 — whether requisite degree of fraud established for purposes of s55(1)(b) Limitation Act 1969 — absence of some form of dishonesty or moral turpitude — Hamilton v Kaljo (1989) 17 NSWLR 381 applied. MALICIOUS FALSEHOOD — special damage — time runs from when special damage incurred — Insufficient evidence of time or form of special damage suffered. PLEADINGS — struck out for being misconceived and embarrassing — manifest defects in pleadings — abuse of process — Improper purpose — Williams vy Spautz (1992) 174 CLR 509 applied. Priestley JA I agree with Stein JA. So far as concerns Levine J's abuse of process finding, it seems to me that the way the High Court has stated the law in Spautz v Williams (1992) 174 CLR 509, combined with facts found by Levine J which are for practical purposes unchallengeable, has made the finding unappellable. Sheller JA I agree with Stein JA. Stein JA This is an application for leave to appeal a decision of Levine J given on 20 February 1998 wherein his Honour dismissed a Notice of Motion by the appellant (Mr Christopher Mann) and struck out his action pursuant to a motion by the opponents. On the leave application the claimant, who has appeared for himself seeks to rely on further evidence, documentary in nature. This comprises two bundles - 18 documents included in the white appeal book and 14 documents exhibited to an affidavit of the claimant sworn 20 July 1998. After a trial on the merits further evidence may not be received "except on special grounds', s75A (8) Supreme Court Act 1970 (subject to the exception in subs(9)). In Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA indicated that, in general three conditions needed to be fulfilled before fresh evidence can be admitted. These are: (i) It must be that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) The evidence must be such that there must be a high degree of probability that there would be a different verdict; 2 UNREPORTED JUDGMENTS (iii) The evidence must be credible. I turn to examine each document: THE 18 DOCUMENTS Letter dated 16 November 1982 from the Department of Immigration and Ethnic Affairs to the claimant. This is not new and was referred to at p16 of his Honour's judgment. 2. Letter dated 15 March 1990 from Sneddon Hall & Gallop to the claimant. This loner was in evidence before Levine J as an annexure to an affidavit sworn by the claimant on 29 September 1995. 3. Department of Immigration Minute dated 2 October 1991 from Cochrane to Joseph. This was an exhibit before his Honour. Letter dated 24 March 1992 from the Commonwealth Ombudsman to the claimant. This was not in evidence but must have boon available to Mr Mann at the hearing before Levine J in October 1995. Letter dated 19 February 1987 from Mr J Rubinstein (the 5" opponent) to Dr Blewitt, Minister for Health. On 4 December 1996 Levine J heard and determined an application by Mr Mann to reopen and tender further evidence. This loner was one of the documents the subject of the application. It is dealt with at p4 of his Honour's judgment. Leave to reopen was refused. 6. and 7. Letters dated 3 and 17 March 1993 from Lawrence Graham to Robin Harris, Attorney General's Department These were not in evidence. Lawrence Graham, solicitors, acted for the claimant at the time. The documents must have bow available to Mr Mann at the hewing before Levine J. 8. and 14. Memoranda dated 5 and 8 March 1987 of telephone messages from Rubinstein to Joseph, Department of These were in evidence and referred to at p5 and p25 of the judgment. 9. and 10. Letters dated 18 April and 27 October 1988 from Bradshaws to Rubinstein. Thew were not m evidence. Bradshaws acted for Mr Mann at the, time. The, documents should have been available to the claimant at the hearing. 11. Letter dated 7 March 1990 from Benson, Legal Aid to Sneddon, Hall & Gallop. This was not in evidence. Sneddon Hall acted for Mr Mann at the time. The letter must have been available to the claimant at the hearing. 12. Letter dated 2 January 1990 from Pirani, Department of Community Services and Health to Benson, Legal Aid. This letter was not in evidence. Assuming in the claimant's favour that it was not available to him in October/November 1995, it is difficult to conceive how it would have added anything to the evidence already before Levine J. It must fail the second test in Akins. 13. Letter dated 10 January 1994 from Commonwealth Ombudsman to Mr Mann. This was in evidence and referred to in his Honour's judgment at p8, p23 and p39. 15. Letter dated 11 March 1987 from Rubinstein to Joseph, Department of Immigration. This was in evidence and referred to at p5 of his Honour's judgment 16. Letter dated 3 March 1992 from Conybeare, Department of Immigration to claimant. This must have been available to the claimant at the hearing. 17. Report from Dr McCusker dated 2 December 1997. This report on Mr Mann's medical condition post-dated the hearing and the reopening application. However, it adds little to the report of Dr Hislop dated 24 April 1995 which was before Levine J. In any event, it appears irrelevant to any issue on the current leave application. URJ MANN v ECCOTT (Stein JA) 3 18. Letter dated 14 January 1987 from Bradshaws to claimant. This was in evidence and referred to at p16 of the judgment. It is apparent that none of the 18 documents qualify to be received by the court. No special grounds have been made out, nor have the Akins conditions been made out. Moreover, most of them were in conflict before Levine J and referred to in his decision. THE 14 DOCUMENTS EXHIBITED TO MR MANN'S AFFIDAVIT 20 JULY 1998 CPM 1 DCM Notice dated 14 July 1998 in Mann v Commonwealth. This notice relates to separate proceedings brought by the claimant against other defendants. It indicates that the parties am to give discovery by 30 October 1998. It is not relevant to any issue on the leave application, except perhaps the alternative application made by the claimant for a stay of Levine J's orders or an adjournment of the leave application until the discovery has taken place. I will return to this later. CPM 2 and 3 Letter dated 27 June 1980 from Dr Edwards MP to Mr Macphee, Minister for Immigration and undated letter Mr Macphee to Dr Edwards. On their face, it is difficult to understand their relevance to the issues before Levine J. They do not appear to add much to the material already before his Honour. The letters do not approach satisfying the second test in Akins. CPM 4 This is 20 page interview of Mr Rubinstein by a Mr Melrose of the Attorney General's Department made on 21 May 1996. It was discovered on 8 May 1998 in the separate proceedings by the claimant against the Commonwealth. Mr Mann has taken us to various portions of the interview to indicate that he disagrees with some of what is attributed to Mr Rubinstein; that some of Mr Rubinstein's complaints against him are unfair and inaccurate; that it reveals that Mr Rubinstein has misled the English Court in relation to the claimant's discovery and shows that it was Mr Rubinstein who was manipulating the litigation and not him. I have read the document and conclude that it appears, for the very most part, irrelevant to the issues arising on the application for leave to appeal. Again, it fails to approach a satisfaction of the second test in Akins. CPM 5 These are typed and handwritten notes of Mr Rubinstein concerning his visit to Australia in February/March 1987. They were discovered as exhibits to an affidavit of Wendy McMichael of the State Crown Solicitors Office sworn 22 May 1998 in the separate proceedings by the claimant against the Commonwealth and the State of New South Wales. Thew documents had accidentally come into Mr Mann's hands in England in 1990. He was ordered to return all copies of the documents by the English High Court of Justice in 1992. The claimant says that he did so. We understand that a copy was provided to the Australian Federal Police and the Commonwealth Ombudsman but not by the claimant. Mr Mann could not seek to use the document before Levine J because it would have bow in contempt of the UK Court order Now that it has been discovered m the separate proceedings, he seeks to tender it as new evidence on the appeal. Leaving to one side the question of seeking to use a confidential privileged document the subject of an order by the English High Court of Justice, it is difficult to comprehend either the relevance of the document to the issues in the appeal or how it would add much to what was already before his Honour and assist the claimant. It is impossible to see how it would lead to a different verdict. 4 UNREPORTED JUDGMENTS CPM 6 Letter dated 1 February 1996 from Dr Eccott (the first opponent) to Mr Greenaway, Queensland Medical Board. On 15 May 1996, Dr Eccott was struck off the medical register in Queensland by the Medical Assessment Tribunal. At p12 of the Tribunal's reasons, Dr Eccott's letter was referred to and described as "very revealing'. The Tribunal report was sought to be tendered to Levine J on the reopening application on 4 December 1996. His Honour dealt with the matter at p3 of his reasons. I cannot see how the letter has any relevance to an issue arising on the leave application. CPM 7 This is a fax message from Dome Mileham. & Haddock to Mr and Mrs Mann dated 10 October 1990. The Solicitors were acting for the claimant. There is no reason why it should not have hem available to Mr Mann in 1995 or 1996. CPM 8 This is a letter dated 15 November 1996 from Amery-Parkes, Solicitors to Mr Mann. It was in evidence before his Honour at the reopening application as an annexure to an affidavit of the claimant sworn 26 November 1996. CPM 9 This is a fax message dated 20 November 1997 from Wollastons to the claimant. It is not relevant to an issue arising on the leave application. CPM 10 This is a letter from Mr Rubinstein to the Registrar of Civil Appeals in the UK and dated 23 January 1996. Having read the letter, it is difficult to appreciate how it could be seen as relevant to any issue arising on the leave application. CPM 11 This is a fax from Norton Smith & Co to Rubinstein, Callingham, Polden & Gale (the sixth opponent) sent on or about 25 July 1990. It appears to be a response to a fax from Rubinstein on 2 July 1990. The latter document was the subject of the reopening application on 4 December 1996. His Honour found it to be irrelevant With respect this appears correct and it is difficult to we how the subject document is not equally irrelevant CPM 12 This is a faxed message dated 3 June 1988 from Maund & Co. Maund & Co were acting for Mrs Mann and 'helping' the claimant There is no reason why this was not available to Mr Mann in 1995 and 1996. CPM 13 This is a faxed letter dated 21 June 1994 from the sixth opponent to Humphreys & Corish, Solicitors. It was m evidence before Levine J as an annexure to the affidavit of the claimant sworn: 29 September 1995. CPM 14 This is the decision of the Queensland Medical Assessment Tribunal mentioned in relation to CPM 6. It was tendered on the reopening application and dealt with by his Honour at p3 of his decision of 4 December 1996. It will be apparent from the above that it is my opinion that none of the documents ought be received by the Court on this application for leave to appeal. THE LEAVE APPLICATION Reverting to the application for leave to appeal, it is not entirely clear what the claimant is seeking. Clearly he seeks leave to appeal Levine J's decision to strike out his malicious falsehood claim against Mr Rubinstein, the 5" opponent. However, he does not appear to be seeking, by his summons, to contest the decision so far as it concerns the other opponents, nor the claim against Mr Rubinstein in defamation. Second, Mr Mann argues that his Honour's decision to strike out the malicious falsehood claim as statute barred was wrong because it was saved by s55(1)(b) of the Limitation Act 1969. Third, he seeks leave to appeal that part of the decision which held that the proceedings were commenced by the claimant for an improper purpose. URJ MANN v ECCOTT (Stein JA) 5 During the hearing of the application it appeared that Mr Maim wished to extend his application to cover the defamation count also, but not (I think) as against the opponents other than Mr Rubinstein. It also seems that, m the event that the claimant flab to convince the court that he should obtain leave to appeal he seeks a stay of Levine J's orders pending the determination of his separate claim against the Commonwealth or the completion of discovery in that proceeding. Alternatively, that he be granted an adjournment of the leave application until discovery is complete and/or the separate proceedings determined. In my opinion, assuming that the court decides to refuse leave, it would be wholly ate to stay Levine J's orders or adjourn the summons for leave until another action between different pates is determined or even until discovery has been given m that proceeding. No good and sufficient reason has been advanced why the court should follow such a procedure. THE STATUTE OF LIMITATION ISSUE The claimant's action was commenced in January 1995. The Statement of Claim raises causes of action arising in 1981 and 1987. In term of the 1981 causes of action his Honour said: The causes of action against all defendants are statute-barred by reason of the operation of the six year ride in s14 of the Limitation Act 1969 (NSW). S63 of that Act provides that those causes of action were "distinguished" by the very force of the statute itself in May 1987. It must follow, in my view, that no reasonable cause of action in relation to publication in 1981 has been disclosed. Thus against all defendants the 1981 causes of action based on publication in the United Kingdom will be struck out pursuant to SCR Pt15 r26(1)(a) on that basis. This must be correct and I do not understand that the claimant disputes the conclusion. Turning to the 1987 causes of action, Levine J noted that they concerned defamation and malicious falsehood concerning the fifth and sixth opponents only. His Honour noted that para8 of the Statement of Claim alleged that Mr Rubinstein republished the original matter complained of on 11 March 1987 and further published certain malicious falsehoods. Levine J held that, to the extent that any cause of action alleged to have occurred in 1987 was relied on, it was also statute barred. This was certainly so in relation to the defamation claim. Because of the issue of special damage, it is not so clear in relation to malicious falsehood. I will return to this later. In relation to the issue of limitation of action, the claimant had sought to rely upon s55(1) of the Act in the Court below. This provides: Subject to subs(3) where: (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this, Act for the cam of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, don not count in the reckoning of the limitation period for an action on the cause of action by him or by a person claiming through him against a person answerable for the fraud deceit or concealment. His Honour rejected the reliance on the section saying: 6 UNREPORTED JUDGMENTS Not only, in my view, has Mr Mann failed to establish the requisite degree of "fraud" for the purposes of s55(1(b), he has not identified in his place any discernible case as to the cause of action or concealment of it by such conduct... It is difficult to discern any error in his Honour's conclusion. In considering the provision in Hamilton v Kaljo (1989) 17 NSWLR 381 at 386 McLelland J said: For my own part, I would regard it as a misuse of language, and unsound, to apply the statutory expression "fraudulently" in s55 to any conduct which did not involve some form of dishonesty or moral turpitude. Considering the evidence before Levine J, his Honour was entitled to conclude that the claimant had not established any fraudulent concealment of the cause of action by Mr Rubinstein. No arguable basis has been made out to intervene in his Honour's finding under s55. The possible error in Levine Ps finding that the malicious falsehood was statute barred is that damage is the gist of the action (Gatley 9" Ed 20.10 - 20.11). Time will therefore run from when the special damage was incurred. Unfortunately, the complex and lengthy Statement of Claim does not appear to identify when, if at all, special damage was suffered. In the absence of some specificity of such damage it is impossible to know if the claim is statute barred. However, Levine J also struck out the chum for special damage on the basis of it being both misconceived and embarrassing (p40). When one examines the Statement of Claim, accepting its multiple pleading deficiencies, it can be seen why his Honour so concluded. Most of the particulars of damage in para9 predate 1987 so cannot be relevant to the malicious falsehood. Many of the particulars relate to damage said to have been caused to the claimant's company, and not him personally. Other particulars are general and specify no special damage after 1987. Special damage being a necessary element in malicious falsehood, its absence would provide a basis for striking out the claim. Since Levine J's orders had the practical effect of finally disposing of Mr Mann's proceedings, it is recognised that the court may more readily grant leave to appeal. However, leave ought not be granted even when a decision has the practical effect of determining rights unless it is attended with sufficient doubt to warrant consideration on appeal. In my opinion, the issue of the statute of limitation and its relevance to the malicious falsehood count do not ram sufficient doubt to warrant leave being granted. It should also be mentioned that Levine J found that the Statement of Claim as a whole was so flawed with pleading defects that it ought be struck out (p41). This only underlines the failure to properly plead special damage and its effect on the count of malicious falsehood. IMPROPER PURPOSE Levine J also struck out the claim as an abuse of process because it was, as he found, not initiated with a view to vindicating the claimant's reputation, rather it was for the predominant purpose of imposing 'a burden' or creating a 'situation that is not reasonably related to a verdict that might be returned... in the proceeding' against Mr Rubinstein (Williams v Spautz (1992) 174 CLR 509 at 537, Brennan J). His Honour added: I am persuaded and find on all the material that Aft Mum's predominant purpose in the institution of these statute-barred proceedings in 1995 against Mr Rubinstein and the and the sixth defendant (improperly identified as "they" URJ MANN v ECCOTT (Stein JA) 7 appear to be) is by way of "punishment", as submitted for those defendants, and retribution for what Mr Mann perceives to have been the wrongs done to him (particularly by Mr Rubinstein in March 1987 in Australia) and for the catastrophe that befell him by the return of the verdict for 15,000 in 1990 in the face of a rejected payment into Court of 50,010. Further, Mr Mann did not even sue in Australia in respect of the publication of 25 February 1981 in the Sydney Morning Herald. Indeed, Mr Mann at T80 made it quite clear that the reason for instituting the proceedings against an defendants in New South Wales was all the delays which he had suffered so he asserted, in the United Kingdom. The claimant maintains that his Honour was in error in relation to such a conclusion. His principal submission is that, contrary to the judge's finding, he was not tying to punish Mr Rubinstein. An examination of the transcript amply justifies his Honour's' finding. Moreover, Levine J had the benefit of seeing Mr Mann give his evidence. The judge dealt extensively with the evidence, including that which led him to conclude that the proceedings should be struck out as an abuse of process. His Honour concluded that the claimant's real reason for initiating the proceeding was 'to target Mr Rubinstein personally' (p29). The question is not whether I would come to the same conclusion as his Honour (and I specifically decline to indicate an opinion). Rather the issue is whether the evidence entitled his Honour to so conclude. In my view, them was ample evidence available to the judge to justify his conclusion. Accordingly, leave should not be granted on this basis. It is unfortunate that the claimant was unable to retain counsel or obtain legal aid for the proceedings and the summons for leave to appeal. If he had been able to do so, it is possible that many of the issues canvassed would not have arisen. Be that as it may, the court can only deal with the matters as brought before it The result of the application must be that the summons for leave to appeal be dismissed with costs. Summons for leave to appeal dismissed with costs. The claimant appeared in person Counsel for opponents two to six: A Leopold Solicitors for opponents two to six: Allen Allen & Hemsley