GOULD v DAY [1999] NSWCA 137

New South Wales Court of Appeal CITATION : GOULD v DAY [1999] NSWCA 137 FILE NUMBER(S) : CA 40758/98 HEARING DATE(S) : 11 May 1999 JUDGMENT DATE : 11 May 1999

PARTIES : Stephen George Gould - A Julian Reginald Day - R JUDGMENT OF : Sheller JA at 1; Beazley JA at 12; Fitzgerald JA at 13

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 20077/98 LOWER COURT JUDICIAL OFFICER : Levine J

COUNSEL : In person - A D Ward (sol) - R SOLICITORS : N/A - A Bush Burke & Company - R CATCHWORDS : DEFAMATION MATTER REMITTED TO DISTRICT COURT; NO REASONS GIVEN; DECISION WAS WITHIN POWER ACTS CITED : District Court Act 1973 s143 (1) CASES CITED: House v The King (1936) 55 CLR 499 DECISION : Application for leave to appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40758/98 CL 20077/98 SHELLER JA BEAZLEY JA FITZGERALD JA

Tuesday, 11 May 1999

GOULD v DAY JUDGMENT

1 SHELLER JA: This is an application for leave to appeal from a decision of Levine J which was given on 4 September 1998. His Honour on that day remitted the proceedings, number 20077 of 1998, to the District Court. The applicant for leave is the plaintiff, Stephen George Gould. The opponent, Julian Reginald Day, who is the first defendant in the proceedings, has attended today by his solicitor, Mr Ward, who indicated at the beginning of the hearing of the appeal that his client submitted to the orders of the Court other than any order for costs. The parties were agreed that if the Court saw fit to grant leave to appeal, the hearing of the appeal should proceed forthwith. Mr Gould has filed a notice of appeal. 2 The proceedings were begun by a statement of claim filed on 20 March 1998 in which Mr Gould alleged that the first defendant, Mr Day, published by email material which is set out in schedule A to the statement of claim. It is alleged in para 2 of the statement of claim that the matter complained of was published in New South Wales to the following persons described as follows. "Marie Allom, Australian Operations Manager, Australian Federation Travel Agents; Ken Bromfield, Director BEKD Pty Limited; Michael Foot, Sales Manager Xpedite International; Mark Ellise-Flint, Management Consultant; James Wilson, Marketing Manager Optus Communications; Jamie Norris, Managing Director World Travel Net; Greg Bell, Managing Director Advansys Pty Limited; Helen Ryan, Managing Director The Word Group; Don McKenzie, CEO Gadens Ridgeway; Alexsandra Davis, Asia/pac Marketing Director, Fingerscan." 3 The statement of claim went on to allege that the matter complained of in the natural and ordinary meaning of the words conveyed defamatory imputations, which were then listed. The second defendant was an association, the Australian Information Technology Society, formerly incorporated, on whose behalf it was alleged the first defendant published the matter complained. The statement of claim went on to allege that the names and addresses of the members of that association were unknown to the plaintiff, and that as a result of the publication of the matter complained of, the plaintiff had been greatly injured in his credit, profession and reputation and had been brought into public scandal, odium and contempt. 4 On 4 September 1998 the matter came before Levine J. Mr Gould appeared in person. According to the transcript there was no appearance for the defendant. The following interchange then took place: "HIS HONOUR: This matter is developing the habit of getting into the fortnightly defamation list. Why should not this be remitted today to the District Court? GOULD: Because it is a defamation and the other side do not provide the documents. HIS HONOUR: I will make an order remitting that case to the District Court. GOULD: This is a defamation case. HIS HONOUR: That is what the District Court is for." 5 Section 143(1) of the District Court Act 1973 provides as follows: "Where the Supreme Court is of opinion that any proceedings that are pending in the Supreme Court could properly have been commenced as an action in the Court, the Supreme Court may, if it thinks fit, on the application of any party or of its own motion, order that those proceedings be transferred to the Court sitting at such proclaimed place as the Supreme Court thinks fit". 6 This subsection enabled Levine J to make the order that he did if his Honour thought fit to do so. Amongst the complaints Mr Gould makes about what his Honour did, the principal one is the failure to give any reasons for the order that he made. In addition to that, Mr Gould has put before us material designed to demonstrate that the defamation complained of was part of a series of events which involved a television programme transmitted by the television station Channel 9 and some material gathered by two journalists. We have been told that proceedings had been commenced in the Supreme Court by Mr Gould against the proprietors of Channel 9 and also against the two journalists, inter alia, for defamation based upon material related to the material about which 7 Mr Gould complains in these proceedings that the alleged defamation is apparent if one goes to the material contained in schedule A which includes the following: "Please be advised that Channel 9's Monday 15 programme exposed Stephen Gould of the OIC as amongst other things a fraud." 8 Mr Gould has also stressed that publication of defamatory material by email may raise novel and difficult questions of law. He has further indicated to us that he claims that the damages that could be recovered in these proceedings would exceed the District Court limitation of jurisdiction of $750,000. 9 I have paid careful attention to the matters relied upon by Mr Gould and we have read the material that he has tendered. However, so far as this Court is concerned, the application for leave to appeal has to be viewed in the context of the statement of claim which I have quoted. In particular, it has to be viewed in the context of the allegation of publication limited to the persons set out in the passage which I quoted from the statement of claim. That was also the context in which Levine J was called upon to view the matter. 10 In a case of this sort where a litigant appears in person, it is sometimes unfortunate that greater care is not taken in making orders to explain the reasons for which those orders have been made. However, in the present case, in my opinion, what his Honour did was something well within the power conferred upon him by the subsection of the District Court Act which I have quoted. On the basis of the allegations made in the statement of claim it was entirely open for his Honour to form the opinion that the proceedings could properly have been commenced as an action in the District Court. The publication as pleaded was limited, the nature of the defamation alleged was serious but not one which was likely, within that limited publication, to lead to an award of damages which went beyond the District Court's jurisdiction. The matters of law to which Mr Gould referred to are matters of law of the sort that the District Court is required to consider from time to time. Indeed, quite obviously the width of the jurisdiction conferred on the District Court by the legislature indicates that the legislature intends that that Court should consider such matters of law. 11 In a case such as the present, this Court will not intervene unless satisfied that there is some plain unjustness or unreasonableness about the orders that have been made. In that regard I refer to a well known decision of the High Court in House v the King (1936) 55 CLR 499 at 505. I am not persuaded that the orders Levine J made on 4 September 1998 were unreasonable or unjust or in any way indicated an error of his Honour's exercise of his discretion. In my opinion, this is not a case in which leave to appeal should be granted and, accordingly, I would propose that the application for leave to appeal be dismissed with costs. 12 BEAZLEY JA: I agree. 13 FITZGERALD JA: I agree and would add that nothing put to this Court persuaded me that there are any unusual or difficult questions of law raised by Mr Gould's claim as presently pleaded. 14 SHELLER JA: Is there something you wish to say about this Mr Gould? GOULD: If I may your Honour. SHELLER JA: You may speak to us about costs Mr Gould but otherwise the decision stands. GOULD: If I can speak about costs. I don't think it's unreasonable for me to write to Levine J, which I did, saying can you give me the reason why it's been referred to the District Court. I think it's perfectly reasonable for me to expect Levine J to write back to say please refer to District Court Laws 143 section 1 which states I may transfer this without any reasons to the District Court. If I had received a letter back stating that, then I would have said fine, I now understand the rules. When I actually consulted the rules in the Supreme Court there was nothing there that said in a defamation issue that it could be transferred to a District Court and I now find it's the District Court rules that say it can be transferred. I don't think it's unreasonable for me to have requested that response in the letter to Levine J when I wrote to him. So in terms of costs I believe I was following a reasonable course of action and requested the reason why it had been transferred. That was not given to me and so I think again, it was not unreasonable for me to appeal against that or to seek leave to appeal, it is only today that I found out about s143 of the District Court Act. Levine J could have quite easily put that in his letter back to me, please refer to that. SHELLER JA: Mr Gould, I think part of the material that I referred to as being in the white book was a letter of 14 September 1998 in which a reply was received. It was a letter from the Chief Executive Officer replying to your letter of 9 September 1998. Do you have that in front of you? GOULD: I don't have that with me. [Copy letter handed down] SHELLER JA: You received that letter I take it? GOULD: I did, I filed it. Obviously I haven't referred to it since then. I stand corrected. SHELLER JA: Is there anything else you want to say about costs? GOULD: No your Honour. 15 SHELLER JA: On the question of costs Mr Gould advanced a submission that costs should not be awarded against him. However, it was brought to his attention that a letter had been sent on 14 September 1998 by the Chief Executive Officer and Principal Registrar of the Court to him in which reference was made to s143 of the District Court Act. 16 Mr Gould appropriately accepted that he had received that letter. In my opinion, the application for leave to appeal should be dismissed with costs. *****