Rix v Hoenig [2015] NSWSC 755

Supreme Court New South Wales

Medium Neutral Citation: Rix v Hoenig [2015] NSWSC 755 Hearing dates: 5 June 2015 Date of orders: 12 June 2015 Decision date: 12 June 2015 Jurisdiction: Common Law Before: McCallum J Decision: Statement of claim struck out. Leave to file amended statement of claim refused. Statement of claim to be placed into a sealed envelope on the court file. Proceedings dismissed. Plaintiff to pay first defendant's costs. Catchwords: DEFAMATION – procedure – summary disposal Legislation Cited: Crimes Act 1900 (NSW), s 556A Law Reform (Vicariously Liability) Act 1983 (NSW), s 8 Uniform Civil Procedure Rules 2005 (NSW), rr 4.15, 13.4, 14.28 Category: Consequential orders (other than Costs) Parties: Frederick George Rix (Plaintiff) Ron Hoenig (First Defendant) Lisa Maree Fairburn (Second Defendant) Representation: Counsel: Plaintiff in person T S Hale SC (First Defendant) No appearance by the Second Defendant

Solicitors: Plaintiff self-represented Houston Dearn O'Connor (First Defendant) No appearance by the Second Defendant File Number(s): 2015/86903 Publication restriction: None

Judgment 1. HER HONOUR: I note that Mr Rix was here earlier this morning but has left. 2. These are proceedings for defamation commenced by Frederick George Rix by statement of claim filed 23 March 2015. Mr Rix represents himself in the proceedings and it is apparent that he has drafted the statement of claim himself, without the benefit of legal advice. There are manifest difficulties with that pleading, which have prompted the first defendant to move the Court for the following orders: An order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be dismissed. Alternatively, an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the statement of claim be struck out. An order pursuant to r 4.15 of the Uniform Civil Procedure Rules 2005 (NSW) that the statement of claim be placed into a sealed envelope on the court file or alternatively, paras 8 and following be struck out of the document. Costs. 1. The application was accompanied by written submissions which carefully articulate in the clearest terms the vices of the pleading. 2. The day before the hearing of the application, Mr Rix served an amended statement of claim. I had not seen that document before the commencement of the hearing of the first defendant's application. The first defendant submitted that the Court should proceed to determine his notice of motion and then to consider the amended statement of claim, submitting that the Court should refuse leave to file that document. 3. Upon consideration of the amended statement of claim, it is apparent that it is in identical terms in the body of the pleading to the original statement of claim. The only difference in the amended pleading is that it annexes a series of documents, the connection of which with the cause of action pleaded is unclear. 4. The pleading itself is an inscrutable document. The written submissions of Mr Hale SC, who appears for the first defendant, have attempted to distil from it the causes of action sought to be pleaded. 5. The background in which the proceedings are brought is summarised in Mr Hale's written submissions in the following terms: The First Defendant, Mr Hoenig, was a public defender pursuant to the Public Defenders Act 1995 (NSW) from 1987 to 2012. He resigned that office when elected to the NSW Legislative Assembly as the Member for Heffron on 25 August 2012. He was re-elected in [the] March 2015 general election. The First Defendant was counsel assisting the Coroner in the Coronial Inquiry in the death of Aaron Light. The inquest opened on 1 May 2006 and was adjourned on 1 June 2007. The background matters asserted in the statement of claim which appear to be of most relevance to understanding what the Plaintiff is alleging are the following: (a) In either 1984-85 or 1995, the Plaintiff was charged with aggravated sexual assault against one James Provost. Pursuant to s 556A of the Crimes Act 1900 (NSW) (as it then was) no conviction was recorded; (b) In 1996, the Plaintiff was charged with what he described as "a multitude of sexual offences against Aaron Light". In February 1997, he was committed for trial. The trial dates of 14 August 1997 and 17 September 1997 were adjourned due to the failure of Aaron Light to appear. At one point, the Plaintiff said that "the charges were dismissed by Judge Mitchelmore of the District Court in March 1998". Elsewhere, he says they were dismissed by Judge Storey in April 1998. It appears it is alleged that these chargers were based upon false statements made by Aaron Light which certain detectives knew were false; (c) The body of Aaron Light was found on 8 March 2002, in circumstances which suggested he was murdered; (d) In May 2007, the Plaintiff was charged with two counts of sexual assault against Ian Roberts and was committed for trial in the District Court. It seems the allegation was that 26 years earlier (1981) the Plaintiff sexually assaulted Mr Roberts, then aged 15, when he was attending the plaintiff's chiropractic clinic. The Plaintiff's trial was set down for 1 March 2008 but was adjourned to enable the Plaintiff to obtain legal aid. On 27 October, the trial resumed before Judge Storey. After a voir dire which led to the rejection of certain evidence, the charges were dropped by the DPP; (e) The Coroner's Inquest into the death of Aaron Light commenced 1 May 2006. Due to the May 2007 charges against the Plaintiff, the Coroner adjourned the inquiry on 1 June 2007. 1. The first cause of action attempted to be pleaded by Mr Rix is a cause of action in defamation. The precise terms of the pleading make it difficult to identify the matter complained of. It appears Mr Rix wishes to sue on the assumption that Mr Hoenig said something to the second defendant, Lisa Maree Fairburn, and that she then republished those words in a chalking pleaded in para 5 of the statement of claim as follows: Unit #121. Bastard, Fred Rix, paedophile, Google, you are convicted felon boy lover, rapist. A unit next door neighbour. 1. The matter complained of does not particularise where those words were chalked. 2. Mr Hale SC appears only for Mr Hoenig. Mr Rix alleges that he served Lisa Maree Fairburn with the statement of claim and the amended statement of claim directly but has filed no evidence of having done so. She has not appeared at any point in the proceedings. 3. There are many difficulties with the pleading of the purported defamation action, the first among which is that, as already noted, it does not plead any publication by Mr Hoenig to Ms Fairburn. It appears that the plaintiff contends that Mr Hoenig is vicariously liable for the conduct of Ms Fairburn but the basis for that contention is not disclosed. 4. Mr Hoenig relied on evidence given by affidavit on information and belief to the effect that he has not at any point spoken to Ms Fairburn but I do not think it is appropriate to take that evidence into account on the present application. The pleading of any cause of action against Mr Hoenig is plainly embarrassing and, in my view, is liable to be struck out. 5. An additional basis for striking out the defamation action is that it is statute-barred. The alleged defamation appears to have been published on about 15 or 17 March 2014. The proceedings were not commenced until 23 March 2015. 6. Further, as noted by Mr Hale SC in his submissions, it is plain that the pleading does not comply with the requirements of Division 6 of Part 14 of the Uniform Civil Procedure Rules 2005 (NSW). 7. The second cause of action apparently sought to be prosecuted is for malicious prosecution. The claim on that basis is misconceived. It appears that Mr Rix attempts to hold Mr Hoenig liable as the Crown, in accordance with s 8 of the Law Reform (Vicariously Liability) Act 1983 (NSW), for the conduct of two detectives, Monk and Dunn. That is plainly a legal misconception and the complaint on that basis is in my view liable to be struck out. 8. Separately, as noted by Mr Hale, that cause of action would also appear to be statute-barred. The cause of action based on the 1976 charges in respect of Aaron Light, according to the matters stated in the pleading, would first have accrued in 1998 when those charges were dismissed. The cause of action based upon the 2007 charges would appear to have accrued sometime in 2008. For that additional reason the claim appears to be bad and should be struck out. 9. The third cause of action apparently pleaded by Mr Rix is conspiracy, evidently as an economic tort. Again, Mr Rix appears to seek to hold Mr Hoenig vicariously liable for the allegedly tortious conduct of Detectives Monk and Dunn. It appears, as submitted by Mr Hale, that the plaintiff assumes they were in the service of Mr Hoenig at a time when he was a public defender, or possibly in respect of his involvement as counsel assisting the coroner into the investigation of the death of Aaron Light. On any analysis, the cause of action is misconceived. There is nothing pleaded in the statement of claim which would warrant holding Mr Hoenig liable for the many allegations made against many people in the pleading. 10. For those reasons, I am persuaded that the statement of claim should be struck out; that leave to file the amended statement of claim should be refused and that the proceedings should be dismissed. 11. The third prayer for relief in the notice of motion is based on the contention that, with the possible exception of the first six paragraphs, many of the contentions made in the statement of claim are scandalous and should be taken off the court file pursuant to the power under r 4.15 of the Uniform Civil Procedure Rules. There is plainly force in that contention. Accordingly, I make order 3 in the notice of motion. 12. The position of the second defendant remains to be considered. As I have noted, she has never appeared. Although she has not made an application to have the proceedings as against her dismissed, the same difficulties to which I have adverted in considering the defamation action against the first defendant would preclude the prosecution of any action against her. Accordingly, I am persuaded that the proceedings as against the second defendant should also be dismissed. 13. The first defendant's application to have the proceedings dismissed has been successful, and it would ordinarily follow that the plaintiff should pay the first defendant's costs. 14. At the outset of the Defamation List this morning I observed Mr Rix at the back of the Court. However, at the time his matter was called for publication of my oral judgment he was no longer in Court. I was informed by a court officer that there had been some suggestion he had to leave for a medical appointment. 15. The order I propose in respect of costs is that Mr Rix pay the first defendant's costs of the application. If Mr Rix wishes to be heard as to that order, I grant a period of seven days within which he may put on a written submission contending for any different order, failing which the order will be as foreshadowed.