Graham v Powell [2013] NSWSC 1266

Supreme Court New South Wales

Medium Neutral Citation: Graham v Powell [2013] NSWSC 1266 Hearing dates: 2 September 2013 Decision date: 02 September 2013 Before: McCallum J Decision: Defendant's application to have proceedings dismissed, struck out or stayed dismissed; defence struck out with leave to replead. Catchwords: DEFAMATION - whether proceedings an abuse of process - where plaintiff the subject of referral to ICAC in respect of the same matter - defences - absolute privilege - whether defence so plainly available as to warrant summary dismissal of plaintiff's claim - whether defence adequately pleaded Legislation Cited: Defamation Act 2005, ss 25, 27(2)(d) Independent Commission Against Corruption Act 1988 Category: Interlocutory applications Parties: Richard David Graham (plaintiff) Allan William Powell (defendant) Representation: Counsel: M Richardson (plaintiff) Defendant self-represented Solicitors: Thomsons Lawyers (plaintiff) File Number(s): 2013/182130 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation arising out of the posting of a series of items on web sites allegedly owned or maintained by the defendant, Mr Allan Powell. The plaintiff is Mr Richard Graham, a councillor of Palerang Council. 2There are two applications before the Court. The first in time is the defendant's application brought by notice of motion filed 1 August 2013 seeking a series of orders. It is convenient to determine that application first. 3Orders 1 and 2 sought by the defendant are: 1 That the Court strike out the plaintiff's action as an abuse of process given the matters disclosed by the defendant's affidavit dated the 11th day of July 2013 relating to the plaintiff's deceptive failure to disclose to the court in its statement of claim the report of its conduct in the City to Soil project to the Independent Commission Against Corruption for acts referred to in its statement of claim. 2 That the court stay the plaintiff's action until such time as the Independent Commission Against Corruption makes a determination on those matters concerning the plaintiff as a Palerang Shire Council Councillor as reported to ICAC by the general managers of Goulburn Mulwaree Council and Queanbeyan Council and as referred to in the defendant's affidavit. 4The basis on which the defendant contends that the plaintiff's action is an abuse of process is that much of the material published in the matters complained of is very similar to material contained in four reports referred to the Independent Commission Against Corruption by the two councils. I know of no authority to say that a plaintiff cannot maintain an action for defamation arising out of allegations that may at the same time be subject of an inquiry by that Commission. Indeed, perhaps unsurprisingly, it is not an uncommon incident of proceedings in this list. I am not persuaded that the stay sought by the defendant should be granted or that the proceedings are liable to be struck out on that basis. 5Separately, the defendant made submissions this afternoon evidently addressed to persuading the Court that the proceedings should be dismissed on the grounds that, by reason of the plain strength of the proposed defences to the action, it may be seen that the claim is manifestly hopeless and liable to be dismissed on that basis. 6Two arguments were put in support of that contention. The first relied on the defence of absolute privilege under s 27(2)(d) of the Defamation Act 2005. The argument on that basis was developed in submissions by Mr Powell is as follows. 7Section 27 provides that it is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. In accordance with s 27(2)(d), matter is published on an occasion of absolute privilege if it is published by a person or body in any circumstances specified in schedule 1 to the Act. 8Item 19 of the schedule relates to matters arising under the Independent Commission Against Corruption Act 1988. That clause extends absolute privilege to "matter" published in circumstances defined in the following terms: (1) Without limiting section 27(2)(a)-(c), matter that is published: (a) to or by the Independent Commission Against Corruption, or (b) to or by the Commissioner for the Commission as Commissioner, or (c) to or by the Inspector of the Independent Commission Against Corruption as Inspector, or (d) to any officer of the Commission or officer of the Inspector (within the meaning of the Independent Commission Against Corruption Act 1988) as such an officer. (2) This clause applies in relation to any compulsory examination or public inquiry before the Independent Commission Against Corruption or inquiry before the Inspector of the Independent Commission Against Corruption or any other matter relating to the powers, authorities, duties or functions of the Commission or Inspector. 9Mr Powell submitted that the terms of clause 19 are sufficiently broad to afford the protection of the privilege not only to the Commission or the Commissioner for the Commission but also to any person who is in the position of the "whistleblower" in respect of a referred complaint, which Mr Powell says is his own position. That may well be the case. 10The difficulty is, however, that the matters complained of in these proceedings consist, as I have said, of materials posted on web sites maintained by Mr Powell. His submission, which he put with some ingenuity, was that the overlap between the "matter" published by him on the web sites and the "matter" the subject of the complaints that have been referred to ICAC is, if not identical, at least substantially the same. 11In my view, there are two difficulties with that proposition. The first is that, if the matter is not identical (but only similar), an issue must arise as to whether it is the same "matter" within the meaning of the section. That is an issue properly determined on a final basis after full argument rather than on a strike-out basis. Secondly (and more importantly), the defence of absolute privilege is directed in terms to the act of publication rather than to the content of the relevant "matter". Under s 8 of the Defamation Act, a cause of action for defamation arises in relation to the publication of defamatory matter. The publication of defamatory matter to ICAC or to a Commissioner for ICAC would be a different publication from a publication to the world at large by posting the matter on the Internet, even if the "matter" in question were identical. Certainly, the issue is not so plainly beyond argument in Mr Powell's favour as to warrant striking out the plaintiff's claim at this stage. 12The second defence evidently sought to be pleaded by Mr Powell is the defence of truth under s 25 of the Act. The pleading of that defence to date is in the following terms. First, Mr Powell alleges that "the statement is true and justified"; secondly, he states: "In the alternative, if the statement is not true the defendant has reasonable excuse for making the statement". What follows is a series of contentions directed to establish the probable truth of "the statement". 13I have during the course of argument explained to Mr Powell that the defence of truth under s 25 must be directed not to the matter complained of but to each of the defamatory imputations relied upon by the plaintiff. As presently pleaded, it is not clear whether Mr Powell intended the defence to be directed to the matter or, alternatively, to the imputations, but Mr Powell now understands that he must make that clear. I have further explained to him the need to specify in the defence the facts, matters and circumstances relied upon in support of the contention that each imputation is substantially true. 14What follows from all of that is that Mr Powell's contention that the proceedings should be dismissed summarily on the grounds of the manifest truth of the imputations relied upon by the plaintiff cannot possibly be determined at this stage of the proceedings. The first and essential step is for the defence to be properly pleaded, which presently it is not. 15Order 3 sought by Mr Powell in his motion is to have the plaintiff "examined in chambers" on certain matters. Plainly, that is not an appropriate course, being inconsistent with the procedures for adversarial litigation established in centuries of jurisprudence. 16The fourth order sought by Mr Powell is that the plaintiff attend mediation before continuing his case. Mr Richardson, who appears for the plaintiff, submitted in response to that application that this is one of those rare cases in which mediation would be hopeless. It seems to me from what I have heard from the defendant this afternoon that there may be some force in that contention, although I am often more optimistic about the prospect of parties resolving their disputes by mediation than the parties themselves. It does, however, seem to me that a mediation may be premature at this point since the pleadings are not yet closed. I would simply indicate that I would be open to consider that issue at a later point, but I am not prepared to make an order at this stage. 17Paragraphs 5 and 6 seek orders that two different Councils deliver certain documents to the defendant. The circumstances I have recited reveal that it would be premature to make any such order. However, I have indicated to the defendant, who labours under the burden of being unable to issue a subpoena without the leave of the Court (since he is unrepresented), that any subpoena he wishes to have issued by the Court seeking financial records from either Council will be considered by me in chambers. I note in that context that previous applications by the defendant to have subpoenas issued have been rejected by Registrars of the Court partly on the basis that the matter was coming before me for argument today. I am satisfied that is the appropriate remedy to address the difficulties faced by the defendant in obtaining documents. 18Order 7 in the motion seeks an order that the plaintiff deliver certain financial records to the defendant. For the reasons I have recited, I consider that application also to be premature. The first step is for the defendant to file a proper defence, so as to delineate the issues in the proceedings. 19Those reasons dispose of the defendant's motion. 20The second application before the Court is the plaintiff's application by notice of motion filed 26 August 2013. The first order sought by the plaintiff is that the defence filed 15 August 2013 be struck out. For the reasons I have explained, I am satisfied that the defence as presently pleaded is liable to be struck out. Plainly, so far as the truth defence is concerned, there should be leave to replead, the difficulty arising solely from the defendant's ignorance (and I say that without any disrespect to him but simply due to the fact of his being unrepresented) as to the proper way to plead the defence. As I have already indicated, I have endeavoured to explain to the defendant the requirements of the pleading of that defence. 21Mr Richardson submitted that any leave to replead should not extend to the absolute privilege defence. I think it would be premature for me pre-emptively to reject that defence without allowing a further opportunity to Mr Powell, who may find some other way to defend part or all of the material published by him on that basis. It is an issue which may turn in part on the overlap of what was published and the timing of any publication. I must also accept the possibility that my preliminary view of that issue is wrong, since it is the kind of issue that would ordinarily be determined on a final basis. I would simply indicate that I do not propose to impose any restriction on the leave to replead. 22Paragraphs 2 and 3 of the plaintiff's motion seek to have a notice to admit facts and a notice to produce for inspection struck out. If those documents were defective or not properly issued, the proper remedy would be to set them aside (the terminology of "striking out" being referable rather to documents on the court file). However, a brief perusal of the documents suggests that they may well be acutely directed to issues that will, in due course, be issues in the proceedings if the defendant repleads his truth defence. It is premature to require the plaintiff to comply with them at this stage. Although there is power under the rules to allow such procedures to be availed of at an early point in proceedings contrary to the usual procedure, I do not think this is such a case. 23However, I would anticipate that at least parts of the documents might properly be answerable in due course. Accordingly, rather than setting them aside, I would propose to defer compliance with those notices. The appropriate order is for the defendant to have leave to request the Court to fix a postponed date for compliance with those notices after he has filed his defence, that is to say, after the defence has been filed the defendant should have leave at the next mention of the proceedings to seek a date for compliance with those two notices. 24Orders: (1)That the defendant's application to have the proceedings dismissed, struck out or stayed be dismissed. (2)That the defence be struck out with leave to replead. (3)That the defendant file and serve any amended defence within 28 days. (4)That the defendant pay the plaintiff's costs of today. (5)That any further application by the defendant for leave to issue a subpoena be referred to McCallum J. (6)That the matter be stood over to 8 October 2013 at 9.30 am for directions.