Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Hearing dates: 13 September 2017 Date of orders: 13 September 2017 Decision date: 28 September 2017 Before: Basten JA at [1] Sackville AJA at [6] McCallum J at [12] Decision: 1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW), grant the respondent leave to appear and be represented in this proceeding. 2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017. 3. Order that the applicant pay the respondent's costs in this Court. Catchwords: PRISONERS – civil proceedings – application by prisoner for leave to institute proceedings for defamation in the District Court – appeal against judge's refusal of leave – statement of claim including true imputations and imputations relating to findings and evidence at proceedings on sentence – whether proceedings are an abuse of process DEFAMATION – imputations – whether the pleading of incontrovertibly true imputations by a plaintiff amounts to an abuse of process Legislation Cited: Criminal Code Act 1995 (Cth), s 307.2 Defamation Act 2005 (NSW), s 42 Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 6(2), 7 Cases Cited: Application of Potier [2012] NSWCA 222 Bleyer v Google (2014) 88 NSWLR 670; [2014] NSWSC 897 Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 Plato Films Ltd v Speidel [1961] AC 1090 Category: Principal judgment Parties: Simone Farrow (applicant) Nationwide News Pty Ltd (respondent) Representation: Counsel: C Evatt, R Rasmussen (applicant) ATS Dawson SC, C Amato (respondent) Solicitors: Sanford Legal (applicant) News Limited (respondent) File Number(s): 2017/79891 Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Civil Date of Decision: 27 February 2017 Before: Gibson DCJ [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: I agree with the reasons given by McCallum J for refusing the applicant leave to appeal against the judgment of the District Court, which in turn refused her leave to commence proceedings against the respondent. 2. As it is not necessary to go further, the following observations are intended to emphasise the limited basis upon which the matter has been determined. 3. First, in my view the requirement for an applicant under the Felons (Civil Proceedings) Act 1981 (NSW) to establish a "prima facie case" means, in a proceeding seeking damages for defamation, a prima facie case of entitlement to non-trivial damages. 4. Secondly, on an application for leave to commence proceedings, the Court should have regard to the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW), and the overriding purpose of the Act and rules in their application to civil proceedings. The grant of leave is an exercise in "the practice and procedure of the court", for the purposes of s 60. The requirement that "the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute" is a matter to which the Court is entitled (and indeed obliged) to have regard, where relevant (as here). 5. That is not to say that one has regard only to a comparison of the likely financial benefit to the applicant and the likely costs to the parties on both sides. In a defamation case, as in other proceedings designed to assert or defend the human rights of individuals, the element of vindication of reputation which may be achieved by a favourable judgment is not to be disregarded. However, where the applicant cannot demonstrate a prima facie case of an entitlement to significant damages, that may be because any damage to reputation which may be made good is itself trivial. Accordingly, in my view the primary judge was correct to adopt an approach which was consistent with the principles stated in Bleyer v Google Inc. [1] There would have been no error in expressly applying the principles stated in that case. 6. SACKVILLE AJA: I am grateful to McCallum J for setting out the background to this application for leave to appeal. I agree generally with her Honour's reasons for the orders pronounced by the Court. I add the following observations. 7. Mr Evatt, who appeared for the applicant, seemed to argue the case for a grant of leave to appeal from the decision of the District Court on the basis that the primary Judge struck out the applicant's statement of claim on pleading grounds. Accordingly, Mr Evatt's submissions concentrated on whether the statement of claim, or at least portions of it, could be supported on the principles governing the pleading of a cause of action in defamation. 8. The issue before the primary Judge, as her Honour appreciated, was whether the applicant satisfied her that "the proceedings are not an abuse of process and that there is prima facie ground for the proceedings". [2] The primary Judge concluded that: * the applicant's case as pleaded constituted an abuse of process; [3] and * in any event, the applicant did not enjoy reasonable prospects of success in her claim for damages. [4] 1. In my view, the applicant did not establish arguable grounds for challenging the primary Judge's holding that the applicant's pleaded case constituted an abuse of process. As McCallum J has explained, the statement of claim included a number of imputations that, having regard to the applicant's conviction and sentence, were an abuse of process. The primary Judge correctly concluded that it was not open to the applicant to attempt to sever imputations that involved an abuse of process from those that, at least arguably, did not. 2. Nor did the applicant establish any basis for challenging the primary Judge's finding that the applicant had not demonstrated that she had prima facie grounds for the proceedings she proposed to institute. The statement of claim sought aggravated damages on the grounds that the applicant's "hurt and upset [had] been increased by her knowledge that the imputations [were] false … [and] that the publication complained of still [remained] on the internet". There was no error in the primary Judge concluding that the applicant had not demonstrated that she had reasonable prospects of succeeding in her claim for aggravated damages. In the absence of such prospects, the applicant could not satisfy the primary Judge that she had reasonable prospects of obtaining judgment for anything other than nominal or minimal damages. This was not the claim for which she sought leave pursuant to s 5 of the FCP Act. 3. These are my additional reasons for joining in the orders of the Court. 4. McCALLUM J: Simone Farrow sought leave in the District Court to institute proceedings for defamation in that Court. Leave was required because Ms Farrow is in custody serving a sentence of imprisonment as a result of having been convicted of a serious indictable offence. In those circumstances, she is prohibited by s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) from instituting any civil proceedings in any court except by the leave of that court. 5. Ms Farrow instituted the proceedings without leave by statement of claim filed 8 November 2016. She later sought retroactive leave to commence and continue those proceedings. The application came before the Defamation List judge in the District Court, Gibson DCJ. Her Honour refused leave and dismissed the claim. 6. Ms Farrow sought leave to appeal to this Court from that order. The requirement for leave is imposed by s 6(2) of the Felons (Civil Proceedings) Act. The prospective respondent to the proposed defamation action, Nationwide News Pty Ltd, was granted leave pursuant to s 7 of the Act to be represented at the hearing of the application. 7. On 13 September 2017, the Court unanimously refused Ms Farrow leave to appeal, reserving reasons. These are my reasons for joining in the orders made that date. 8. The article sought to be sued on is plainly defamatory but at least partly true. The article was published in The Sunday Telegraph on 18 September 2016, two days after Ms Farrow had been sentenced to a lengthy term of imprisonment for a serious drug offence. 9. The headline of the article was: DRUGS, SEX AND AN OFFICER PRISON GUARD FELL FOR A PET 1. The first two columns of the article were mostly devoted to the story announced in the headline, alleging that Ms Farrow had sex with a prison guard in exchange for favourable treatment while she was in gaol (specifically, being allowed to make telephone calls from gaol without their being monitored). 2. The balance of the article addressed matters that arose during the criminal proceedings against Ms Farrow, focussing mainly on the course of the proceedings on sentence. Three topics were addressed. First, under the subheading "running a drug ring", the article stated that the "sex revelations" followed Ms Farrow being found to be "the head of an international drug ring that smuggled crystal methamphetamine through the post from Hollywood to Australia". The article proceeded to describe the extraordinary course of the sentencing proceedings, which were reported to have sat for 36 hearing days on a contested facts hearing after the plea of guilty was entered. 3. Secondly, under the subheading "mum turned me into prostitute", the article reported Ms Farrow's own evidence given at the proceedings on sentence as to her troubled upbringing. The article stated: Farrow told the court she became involved in prostitution because "my mother couldn't pay for my boarding school fees". 1. It further reported "Farrow said her mother locked her in a room while she worked as a prostitute". 2. Finally, under the subheading "the barrister she calls 'dad'", the article reported that Ms Farrow's "most unusual relationship" was perhaps that which she shared with a Sydney barrister by whom she was financially supported. The article said: In 2012, [the barrister] famously almost lost $50,000 he put up to have Farrow released on bail when she fled to the Gold Coast and failed to turn up to court. 1. The statement of claim specified 10 imputations alleged to be conveyed by the article, as follows: 1. the plaintiff knowingly assisted a NSW prison officer to engage in corrupt conduct by seducing him; 2. the plaintiff formed a secret sexual relationship with a prison officer in return for being allowed to make telephone calls from jail without them being recorded; 3. the plaintiff tried to hide evidence from the police by ensuring that her jail telephone calls were not recorded; 4. the plaintiff assisted a prison officer in misconduct by having sex with him; 5. the plaintiff ran a drug ring; 6. the plaintiff is a prostitute; 7. the plaintiff was sentenced to a term in prison after she was convicted of criminal offences; 8. the plaintiff is in jail and will remain there until at least 2018; 9. the plaintiff skipped bail; 10. the plaintiff allowed a prison officer to have sex with her in exchange for favourable treatment while she was in jail. 1. The same imputations were pleaded with a slight variation to the wording of imputation (j) in respect of an internet version of the article also sought to be sued on. Nothing turns on the different wording. The application in this Court was argued by reference to the first proposed matter complained of (the printed article) and the imputations specified as arising from that article. Abuse of process 1. Section 5 of the Felons (Civil Proceedings) Act provides: A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. 1. The judge referred to the discussion of the test for establishing "prima facie ground" in Application of Potier. [5] The applicant accepted that her Honour correctly identified those principles but submitted that she failed to apply them. 2. I do not think the test in Potier was the issue. Although her Honour considered those principles, she determined the application on the basis that at least a portion of the claim was an abuse of process and that the proceedings were indivisible. 3. The imputations relating to the applicant's alleged sexual encounter with the prison guard, which the applicant asserts are false, did not give rise to any concern (imputations (a), (b), (c), (d) and (j)). However, the judge was persuaded that any cause of action pleading the remaining imputations would amount to an abuse, since those imputations "challenge" the fact of the applicant's conviction, the length of her term of imprisonment, her absconding on bail and the evidence she gave at the proceedings on sentence: at [38]-[41]. 4. The applicant accepts that imputations (g), (h) and (i) are true. Indeed, as evidently accepted by Mr Evatt, imputation (g): "the plaintiff was sentenced to a term in prison after she was convicted of criminal offences" is incontrovertible, by force of s 42 of the Defamation Act 2005 (NSW). The applicant pleaded guilty to a charge of importing the marketable quantity of a border controlled drug (crystal methamphetamine) contrary to s 307.2 of the Criminal Code Act 1995 (Cth) and was sentenced for that offence to a term of imprisonment of 11 years with a non-parole period of 6 years and 6 months commencing on 4 August 2012. 5. Imputation (h): "the plaintiff is in jail and will remain there until at least 2018" and imputation (i): "the plaintiff skipped bail" are also matters of record which cannot properly be controverted by the applicant. 6. An amended statement of claim sought to be filed in the proceedings below would have deleted imputations (g) and (h) but it was appropriate for the primary judge to consider the proceedings sought to be instituted as pleaded. 7. Mr Evatt submitted that it is "proper practice" for a plaintiff to plead all available imputations even if some are substantially true. Authority for that proposition was said to be found in the following remarks of Viscount Simonds in Plato Films Ltd v Speidel [6] : It surprises me that it should be considered a proper matter for pleading that a plaintiff has not sought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion wholly improper. 1. As submitted by the respondent, the import of those remarks has been mischaracterised in the applicant's submissions. It is plain from the whole of the relevant passage (only part of which was set out by the applicant) that his Lordship was not criticising the plaintiff's pleading. He was commenting on the publisher's plea in mitigation, which fastened on other conduct of the plaintiff "the truth of which the plaintiff…does not deny". It was that plea in mitigation which his Lordship considered to be improper. 2. In any event, I would respectfully agree with the conclusion of the primary judge that the institution of proceedings pleading those true imputations would amount to an abuse of process in the circumstances of the present case. Mr Evatt, who appears with Mr Rasmussen for the applicant, submitted that an imputation relied upon by a plaintiff does not "challenge" anything. He submitted that, in holding otherwise, her Honour "may have mistakenly concluded the applicant was averring the imputations to be false." In fact, the applicant did aver the imputations to be false, at least to the extent of pleading her knowledge of their falsity as a matter relied upon to support a claim for aggravated damages. However, it is not necessary to determine the matter on that basis (there is a dispute, which need not be resolved, as to whether the applicant abandoned that plea). 3. The submission that a plaintiff's imputation does not "challenge" anything is technically correct in that falsity of an imputation is not an element of the cause of action. All a plaintiff is required to establish is that the matter complained of was published and that it conveyed a defamatory imputation; truth is a defence. It does not follow that a plaintiff can properly institute an action seeking damages for a defamatory imputation he or she knows to be true. In my respectful opinion, it is manifestly an abuse to invoke the court's process to obtain a remedy to which the applicant is indisputably not entitled or else put a defendant to proof of that which cannot be denied. 4. Imputations (e) and (f) are in a slightly different category but their inclusion in any proceedings would also amount to an abuse in my view. Imputation (e): "the plaintiff ran a drug ring" was said to be false, notwithstanding the accepted fact that the applicant was sentenced as one of the principals in the smuggling operation, because the applicant contends that she was not the only principal and therefore not the one and only person who "ran" the drug ring. The proposition that a convicted offender should be entitled to invoke the process of the court to vindicate such a nuanced analysis of the findings of the court in criminal proceedings may be dismissed out of hand. 5. As to imputation (f) "the plaintiff is a prostitute", the applicant contends that imputation is false because although she was or used to be a prostitute, she is no longer. The abuse in the prosecution of an action on that basis rests in the cynical formulation of the imputation. The part of the article from which it is alleged to arise reports the applicant's own evidence given in mitigation at the proceedings on sentence. According to the article, she was speaking about her past. Obviously, an imputation expressed in the past tense could be defended by reference to the very evidence the applicant gave. It would be absurd to allow the applicant to seek a remedy for damage to her reputation caused by the publication of her own evidence. That obvious proposition cannot be overcome by condoning the device of pleading an imputation in the present tense (which is not the burden of the reported evidence). 6. For those reasons, I considered that the conclusion of the primary judge was plainly right and that leave to appeal should be refused. Contrary to the submissions of the applicant, the refusal of leave to institute the proceedings in the present case does not hold that a prisoner may be defamed with impunity. The abuse of process lies in having instituted proceedings which, for whatever tactical reason commended itself to the pleader, sought a remedy for the applicant on the strength of imputations the truth of which cannot properly be controverted by her. Proportionality 1. The primary judge said, in case of error in her conclusion as to the test under the Felons (Civil Proceedings) Act, that she would have refused leave on the alternative basis that the proceedings were an abuse of process because the costs of the trial would be disproportionate to the importance and complexity of the subject matter in dispute. The applicant contends that, in so finding, her Honour purported to follow my decision in Bleyer v Google. Her Honour did not expressly refer to that decision in the judgment. In any event, the applicant submits (in the alternative to her primary argument) that the primary judge was wrong to conclude that the proceedings should be dismissed on that alternative basis and that this Court should disapprove the principle stated in Bleyer. 2. In light of my conclusion as to the applicant's primary argument, any temptation to reconsider Bleyer in my temporary guise as an additional judge of appeal for the purpose of these proceedings can and should be resisted. Conclusion 1. Those are my reasons for joining in the following orders of the Court made on 13 September 2017: 1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW) grant the respondent leave to appear and be represented in this proceeding. 2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017 3. Order that the applicant pay the respondent's costs in this Court. ********** Endnotes 1. (2014) 88 NSWLR 670; [2014] NSWSC 897 (McCallum J). 2. Felon (Civil Proceedings) Act 1981 (NSW) (FCP Act), s 5. 3. Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 (Primary Judgment) at [41], [52]-[53]. 4. Primary Judgment at [58]. 5. [2012] NSWCA 222 at [16]-[17]. 6. [1961] AC 1090 at 1125. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2017