Gmitrovic v Department of Defence [2015] NSWSC 840

Supreme Court New South Wales

Medium Neutral Citation: Gmitrovic v Department of Defence [2015] NSWSC 840 Hearing dates: 19 June 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff granted leave to file fourth amended statement of claim. Catchwords: DEFAMATION – pleadings – fourth application to amend – self-represented litigant – whether further amendment should be refused on grounds of number of prior applications – whether imputations capable of being conveyed Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-59, 64 Uniform Civil Procedure Rules 2005 (NSW), r 14.30 Cases Cited: Alex v Gridneff [2013] NSWSC 2025 Christianson v Fairfax [2012] NSWSC 1258 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Category: Procedural and other rulings Parties: Darko Gmitrovic (Plaintiff) Department of Defence (First Defendant) Danielle Pokoney (Second Defendant) Representation: Counsel: Plaintiff in person M Richardson (Defendants)

Solicitors: Plaintiff self-represented Sparke Helmore Lawyers (Defendants) File Number(s): 14/325942 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Mr Darko Gmitrovic against his former employer, the Department of Defence and an employee of that department. By notice of motion, filed 11 June 2015, Mr Gmitrovic seeks leave to file a fourth amended statement of claim. This judgment determines that application. 2. The defendants oppose the application, first, on the simple basis that there have already been several attempts to bring the pleading in order and that the time has come to disallow any further amendment. 3. Authority for the proposition that the Court can and should at some point draw a line against any further amendment of the imputations in a defamation action may be found in the decisions of the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 and McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. 4. In Dennis, the plaintiff appealed against a decision of the defamation list judge refusing leave to file a fifth further amended statement of claim. The Court refused leave to appeal, holding (at [29] per Spigelman CJ; Basten and Campbell JJA agreeing at [34] and [35]) that the Court's mandatory obligation under s 56(2) of the Civil Procedure Act 2005 (NSW) to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings constitutes "a significant qualification" of the power to grant leave to amend a pleading under s 64 of the Act. 5. McMahon was also a plaintiff's appeal against the refusal by the defamation list judge to allow an amendment to the imputations. The plaintiff submitted that the complexities of pleading in the defamation list, coupled with the fact that no trial date had yet been set, demanded that the amendment be allowed. The Court of Appeal categorically rejected that proposition: at [33] per Allsop P, Young JA agreeing at [63]. The President's judgment and the separate judgment of Giles JA in that case further emphasise the Court's duty to determine an amendment application in accordance with the dictates of justice, including the mandatory considerations specified in ss 56 to 59 of the Act. 6. Plainly, those considerations are engaged in the present case. Mr Gmitrovic represents himself. He commenced the proceedings by statement of claim filed 5 November 2014. That was a difficult document, reflecting Mr Gmitrovic's lack of legal training. On 12 December 2014, in an ex tempore judgment, I struck that pleading out with leave to file an amended statement of claim on or before 2 February 2015. 7. An amended statement of claim was filed within the time allowed by that order. I heard the defendants' objections to the amended pleading on 27 February 2015. The first paragraph of the amended statement of claim was in the following terms: On 03 Jul 2013, the defendants published the "Intent to Sanction" minute with defamatory comments against the plaintiff, calling him dishonest, arrogant, condescending and claiming that he could have been exchanging the information over the internet with unknown and unspecified people, effectively accusing him of being a traitor and a spy. The document was written by the second defendant and then passed on to Ms Kerstin Mahoney, Conduct, Performance & Probation Officer, and to plaintiff's supervisor at the time Mr Keith Robertson. 1. That paragraph went some way towards identifying the defamatory meanings relied upon by the plaintiff, but did not do so with the specificity required under r 14.30 of the Uniform Civil Procedure Rules 2005 (NSW). I ordered that the words "calling him dishonest" down to the words "a traitor and a spy" be struck out, again with leave to re-plead within four weeks. 2. A second amended statement of claim was filed on 31 March 2015. Paragraph 1 of that pleading specified the following imputations (emphasis added): i. The minute called him dishonest; ii. The minute called him arrogant; iii. The minute called him condescending; iv. The minute called him deceptive; v. The minute alleged that the plaintiff was "sending and receiving information over the internet", alleging that the Plaintiff could have engaged in criminal activity of a most serious nature, including but not limited to spying and treason. 1. The defendants notified the plaintiff of objections to that form of pleading. The proceedings came back before me on 10 April 2015 when a ruling was sought as to the fate of imputation 1(v). 2. Mr Richardson objected to that imputation on the grounds that it suggested possible (rather than actual) conduct attributed to the plaintiff, contrary to the principles stated in Christianson v Fairfax [2012] NSWSC 1258 at [33] and Alex v Gridneff [2013] NSWSC 2025 at [21] to [24]. In a further ex tempore judgment, I accepted that submission. At paragraphs [8] to [10] of the judgment, I said: 8. During the course of argument, it emerged that Mr Gmitrovic's real complaint is that the report he sues on attributes to him the characterisation of being the kind of person that could have engaged in the identified activity. 9. On that understanding, and noting another concession made by Mr Gmitrovic during argument, the imputation would read: "That the plaintiff was the kind of person who could have engaged in criminal activity of a most serious nature including spying and treason." 10. Mr Richardson very fairly indicated that if the imputation were re-framed in those terms, the defendants would not object to it. He foreshadowed, however, the prospect of a truth defence to such an imputation. 1. I granted Mr Gmitrovic leave to re-plead in accordance with those remarks within seven days. On 15 April 2015, Mr Gmitrovic filed a third amended statement of claim. That pleading included a new paragraph 1(v) which did not reflect the remarks set out above. Presumably in response to an objection by the defendants, Mr Gmitrovic then propounded a further imputation 1(v) in a letter dated 11 May 2015. On 22 May 2015, in a further ex tempore judgment, I stated that both the imputation 1(v) propounded in the third amended statement of claim and the further iteration of that imputation in the letter dated 11 May 2015 were impermissible in form. At [4] of that judgment, I said: Mr Gmitrovic submitted in argument that his real intention in the imputation drafted in the letter dated 11 May 2015 is to plead an imputation that he used his IT knowledge and technical understanding to view inappropriate material in the course of his employment and that he was guilty of spying and treason. However, no pleading has been brought forward pleading meanings with that degree of specificity. 1. I stated that any application to bring forward a further amended statement of claim would have to be dealt with by way of separate application by reference to the terms of that judgment. It was in response to those remarks that Mr Gmitrovic filed his notice of motion seeking leave to amend again. 2. It is plain from that sequence of events that it would be open to regard this as a case in which, as it was put in McMahon, "enough is enough". I have concluded, however, that to take that approach would not be in accordance with the dictates of justice in this case. 3. The amendment sought in McMahon came two years after the commencement of the proceedings and after the defendants had filed a defence (and an amended defence). The pleadings had been the subject of advice from two different senior counsel. The President stated in his judgment that leave was granted in that case, in part, "because of the importance of the need for clarity in how the Civil Procedure Act, ss 56 to 60 operates in relation to the conduct of a busy list such as the defamation list". It is of course important to pay due regard to the principles stated by the Court of Appeal on that topic. I think, however, that this is a very different case from McMahon. 4. An important difference is that Mr Gmitrovic represents himself. A litigant who represents himself cannot, of course, expect the Court to fulfil the role of a legal representative. Ultimately, however, it must be recognised that the fact that a person is not legally represented informs the content of the duty of the judge at first instance (both at trial and at the pre-trial stage) to act in accordance with the dictates of justice. In a field of jurisprudence which has been developed over decades and accused of requiring "excessive particularity" (see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148 per Kirby P) in a pleading, it is unsurprising that a litigant in person who is not legally trained would experience difficulty meeting the exacting requirements of specifying an imputation in accordance with the rules. In such a case, the Court should not suffer the requirement of precision to become the instrument of injustice. 5. In the present case, it has been clear since the first proposed amendment that Mr Gmitrovic wished to propound an imputation that he was guilty of being a traitor and a spy. It is not a question of his having abandoned that intention and subsequently returned to it, to the detriment of the defendants. Rather, owing to his lack of legal training, he has wrestled with the various objections taken by the defendants, and my determination of those objections in the several judgments I have published, with a constant objective. 6. Finally, I would observe that Mr Gmitrovic has at all times complied with the directions of the Court fixing time for the filing of any amended pleading, with one small exception (on 27 February 2015 I granted leave to Mr Gmitrovic to file any further amended statement of claim within four weeks; the second amended statement of claim was filed on 31 March 2015, a few days late). 7. Further, although he has not always been successful in doing so, it is my impression that Mr Gmitrovic (who is not without intelligence) has at all times genuinely attempted to amend his pleading in a way that is properly reactive to the objections determined on the previous occasion. 8. In all the circumstances, I am not persuaded that I should reject the amendment application solely on the basis of the number of prior applications. 9. Accordingly, I have concluded that the amendment application should be determined on its merits. 10. The proposed amended imputations are: v. the minute claims that the Plaintiff had used actively his IT knowledge and technical understanding to take calculated steps to avoid being detected in activities of deception; vi. the minute claims that the Plaintiff had engaged in actions that allowed him to transmit and receive unsolicited data; vii. the minute claims that the Plaintiff was providing classified information through the chat, blogs, and social media sites; viii. The minute claims that the Plaintiff was viewing inappropriate material; ix. The minute claims that the Plaintiff was visiting websites that are potentially harmful to the Defence Network; x. The minute portrays the Plaintiff as a traitor and a spy. 1. There is no objection to imputation (v). 2. As to imputation (vi), the defendants accept that it is capable of arising but contend that it is not capable of being defamatory. In my view, understood in the context that the plaintiff was an employee of the Department of Defence, that imputation is capable of being defamatory of the plaintiff and should be allowed. 3. The principal objections were to imputations (vii) to (x). The objection was that the matter complained of is not capable of conveying imputations of guilt, as opposed to imputations of suspicion. The determination of that objection calls for a close reading of the whole of the matter complained of and that is the reason it was necessary to reserve my decision in this matter. 4. The matter complained of consists of a covering letter providing to Mr Gmitrovic the Department's determination that he had breached the Australian Public Service Code of Conduct. The determination was supported by detailed reasons for decision following an investigation undertaken by the Department into allegations that Mr Gmitrovic had inappropriately used the Defence Restricted Network. The specific focus of the investigation was the allegation that he had accessed anonymous search engines (anonymisers) to hide his search activities and had excessively used the internet. The covering letter gave notice to Mr Gmitrovic of the Department's intention to sanction him by terminating his employment. 5. The statement of reasons set out, in careful detail, the material relied upon by the decision maker; each allegation against Mr Gmitrovic; the decision maker's determination in respect of each allegation; the evidence relied upon; the reasons for the determination and "comments" in addition to the reasons. In respect of a number of the allegations, the decision-maker had regard to a two-page document provided to her as part of the referral of the investigation. That document summarised the threats posed by tools such as anonymisers or proxy services. 6. Imputations (vii), (viii) and (ix) are drawn in terms from the content of that document, which is extracted in the statement of reasons. 7. The burden of Mr Richardson's submissions on behalf of the defendants was that the decision maker did not make any determination that Mr Gmitrovic had in fact engaged in any of the conduct identified in the "threats posed" by the use of anonymisers. Mr Richardson relied upon a number of points in the statement of reasons where the decision-maker emphasised that her concern was due to what the user of anonymiser sites could do and not necessarily what the user did do. I accept that the decision-maker stopped short of accusing Mr Gmitrovic of having done those things. In my view, however, the statement of reasons is replete with emphasis of the gravity of the concerns held by the decision-maker after what was plainly a careful and thorough investigation. In my view, the report is capable of being understood to go further than merely asserting the existence of a reasonable suspicion, as in the case of a report of the fact that a person has been arrested and charged with a criminal offence. In my view, the question whether the imputations of guilt sought to be relied upon by Mr Gmitrovic are conveyed is one that should be determined by the jury. 8. For substantially the same reasons, in my view, the matter complained of is reasonably capable of conveying the imputation that the plaintiff is a traitor and a spy. 9. For those reasons, I grant leave to the plaintiff to file the fourth amended statement of claim served in draft in support of his notice of motion filed 11 June 2015. I order the plaintiff to pay the costs thrown away by reason of the amendment. 10. At the conclusion of argument in this matter, I indicated that I would give judgment on 23 June 2015 but did not in fact do so until today. If the plaintiff is unable, for that reason, to comply with the directions made at the conclusion of argument, the time for compliance will be extended accordingly. Subject to that qualification, I note that the directions made on 19 June 2015 were as follows: 1. that the fourth amended statement of claim be filed and served by 4pm 30 June 2015; 2. that the defendants file and serve their defence by 4pm on 14 July 2015; 3. that the plaintiff file and serve any reply by 4 pm 24 July 2015; 4. that the proceedings be listed for second listing in accordance with the Practice Note (SC CL 4) on 31 July 2015.