Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke v Herrick [2020] NSWCA 71 Hearing dates: 17 April 2020 Decision date: 21 April 2020 Before: Meagher JA; Leeming JA Decision: (1) Extend the time for Ms Clarke to file the summons seeking leave to appeal to 11 November 2019. (2) Dismiss the summons seeking leave to appeal. (3) Dismiss the notice of motion of 10 January 2020. (4) Order the applicant pay the respondents' costs of that summons except for: the costs of Ms Clarke's notice of motion filed 10 January 2020; and the costs of oral argument on 17 April 2020. Catchwords: APPEAL – application for leave to appeal – appeal from summary dismissal of amended claim – where original claim alleging republications subject to defences of absolute privilege – where amended claim alleging only original publication time barred – whether summary dismissal on the basis of amended pleading involved error or was procedurally unfair – leave refused Legislation Cited: Defamation Act 2005, s 27 District Court Act 1973 (NSW), s 127(2)(a) Limitation Act 1969 (NSW), ss 14B, 56A Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 50.12 Cases Cited: Clarke v Fenn [2018] NSWDC 336 Clarke v Herrick [2019] NSWDC 533 Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532 Clarke v South East Sydney Local Health District [2018] NSWSC 66 Clarke v South East Sydney Local Health District (No 2) [2018] NSWCA 226 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Category: Principal judgment Parties: Sharmain Daisy Clarke (Applicant) Julie Herrick (First Respondent) South Eastern Sydney Local Health District (Second Respondent) Representation: Counsel: Applicant self-represented D Sibtain (Respondents) Solicitors: Applicant self-represented Hicksons Lawyers (Respondents) File Number(s): 2019/314474 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 533 Date of Decision: 12 September 2019 Before: Gibson DCJ File Number(s): 2019/134260 [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. THE COURT: By a summons filed 11 November 2019, the applicant, Ms Clarke, seeks leave to appeal from orders made by Gibson DCJ on 12 September 2019 striking out and dismissing her defamation claim on the basis that it was statute barred (Clarke v Herrick [2019] NSWDC 533). Ms Clarke requires leave to appeal from the order summarily dismissing her claim because that order was interlocutory (District Court Act 1973 (NSW), s 127(2)(a)). 2. That summons was filed more than 28 days after the orders appealed from were made, and is out of time (Uniform Civil Procedure Rules 2005 (NSW), r 50.12). Accordingly, in the summons seeking leave Ms Clarke applies for an extension of time in relation to its filing (see r 50.12(2)). That extension of time should be granted, so that Ms Clarke's application for leave may be dealt with according to its merits. There is no prejudice to the respondent in the Court proceeding on that basis. 3. By a notice of motion filed 10 January 2020, Ms Clarke also sought an order referring her to the registrar of the Court of Appeal for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance (r 7.36(1)). That application was returnable on 23 March 2020 and stood over to the hearing of the leave application. Ordinarily, such an application would be dealt with before the hearing in relation to which the assistance is sought, so as to avoid the need for an adjournment. However, the order standing the application over was made in circumstances where, due to the coronavirus, the Court was moving to conducting such applications using either audio or audio-visual equipment, and at the same time endeavouring to keep such hearings to a minimum. The Court heard that application at the commencement of the argument on 17 April 2020, refused it, and indicated that it would give its reasons for doing so when dealing with the application for leave. It is convenient to give those reasons first. The notice of motion for pro bono assistance 1. The Court has discretion to make an order under r 7.36(1), provided that it is "in the interests of the administration of justice" to do so. In deciding whether to exercise its discretion, the Court "may" have regard to a number of factors set out in r 7.36(2), including "the nature and complexity of the proceedings" and "any other matter that the court considers appropriate." Where the litigant "has obtained assistance" under a previous referral in the immediately preceding 3 years, the Court may not make an order unless satisfied there are "special reasons" for doing so (r 7.36(2A)). 2. Ms Clarke has previously been granted orders for pro bono assistance. Relevantly for present purposes, such an order was made under r 7.36 by Walton J in separate proceedings in the Supreme Court on 19 May 2017 (Clarke v South East Sydney Local Health District [2018] NSWSC 66 at [12]). That referral was for legal advice and, if the advice "was to the effect that there was a good cause of action, for the drafting of a pleading". Ms Clarke sought and obtained assistance, and then drafted each of the several pleadings filed in that proceeding herself. On appeal, on 12 October 2018, Leeming and Payne JJA again ordered that there be a grant of pro bono assistance, this time in relation to the drafting of a notice of appeal (Clarke v South East Sydney Local Health District (No 2) [2018] NSWCA 226). Subsequently, the orders appealed from were set aside by consent before the appeal was heard and, Ms Clarke suggested, before any assistance was obtained. 3. As Ms Clarke obtained legal assistance under the orders for referral made by Walton J within 3 years of 17 April 2020, the Court was not able to refer her for assistance unless satisfied that there were "special reasons that justify a referral" (r 7.36(2A)). The Court was not satisfied that it was in the interests of the administration of justice to make an order for referral, nor that any special reason was demonstrated for doing so. The issues raised by the application for leave were straightforward, and the Court was satisfied that those issues could be fully and fairly dealt with without Ms Clarke having the benefit of legal representation. Furthermore, Ms Clarke's description of the matters in relation to which she wished to obtain legal assistance ranged far beyond the narrow issues raised by her leave application, making it unlikely that the outcome of her application would result in the receipt of legal advice leading either to the resolution of the present application or her being legally represented at any adjourned hearing of it. For these reasons, that application was refused. 4. In her notice of motion, Ms Clarke also sought an order referring the dispute to mediation, as well as an order that the respondents "attempt to make" a settlement offer under r 20.26 of the UCPR. Given the nature of the present dispute, the circumstances are not "appropriate" for a referral to mediation. As to the second order sought, the Court does not have power to require the respondents to settle the proceedings. 5. Accordingly, Ms Clarke's notice of motion should be dismissed. 6. Before dealing with the merits of Ms Clarke's application for leave to appeal against the summary dismissal, it is necessary to explain the nature of her claim and the short history of the proceedings in the District Court. Ms Clarke's claim and the proceedings in the District Court 1. On 26 April 2019, Ms Clarke filed a statement of claim in the District Court which appeared to seek damages for the defamatory publication "to unknown persons" of three affidavits and their annexures, filed in earlier sets of proceedings between Ms Clarke and one or more of the respondents. That statement of claim was defective in numerous respects. Of present relevance is that in relation to the first in time of those affidavits, the plaintiff described a "Workers Compensation Injury Notification Form" signed by Ms Herrick and dated 5 September 2014 (the WCIN Form) as "the primary document the Plaintiff sues on". 2. After a written request by the respondents' solicitors for particulars on 11 June 2019, orders were made on 13 June 2019 by Mahony DCJ requiring Ms Clarke to provide a response to that letter on or before 19 July 2019. The matter was relisted for directions on 25 July 2019. 3. The plaintiff's response, provided to the respondents by email on 18 July 2019, did not provide particulars. It did, however, reattach the Workers Compensation Injury Notification Form mentioned in the statement of claim. By their letter dated 23 July 2019, the respondents' solicitors advised that if they did not receive a response to their earlier letter they proposed to "seek a timetable for the hearing of an application to have the proceedings dismissed summarily, or to have the statement of claim struck out". 4. On 25 July 2019, the Court fixed the respondents' summary dismissal/strike out application for hearing on 15 August 2019. The respondents' submissions in support of that application were served on the applicant on 5 August 2019. Those submissions made two relevant points. First, that if the plaintiff sued on the publication of affidavits in connection with court proceedings, the claim would be met by a defence of absolute privilege (at para 21). Secondly, that to the extent the plaintiff sued on "a document dated 2014", the claim was time barred in the absence of subsequent publication of the document other than in connection with court proceedings (at para 24): The second document is a document dated 2014, which is time barred. Unless the plaintiff is able to plead a subsequent publication within time of that document, any claim would be time barred. It would appear that the subsequent publication on which the plaintiff sues is the publication of that document as an exhibit to an affidavit deployed in court proceedings. Again, any such publication of that description would be met with a defence of absolute privilege. 1. At the hearing on 15 August 2019, orders were made extending until 29 August 2019 the time for Ms Clarke to file submissions in reply and to provide a draft proposed amended pleading: HER HONOUR: All right. In that case, what I'll do is I'll extend time to the plaintiff to file submissions in reply to – sorry, and provide the draft of any proposed amended pleading – so, you don't have leave to file it, but you can provide a draft of any proposed amended pleading – can we make it 29 August, Mr Sibtain? 1. Gibson DCJ also made an order listing the hearing of the application for summary dismissal for 12 September 2019. 2. Instead of providing submissions and a proposed amended pleading, on 28 August 2019 Ms Clarke filed an amended statement of claim. At para 9, it was pleaded that the defendants "published of and concerning the plaintiff words set out in Annexure A" to an affidavit sworn on 28 August 2019. Annexure A to that affidavit is the WCIN Form. The "Particulars of Publication" were described at para 10 as follows: Particulars of publication being sued upon is an electronic submission dated 5 September 2014, signed by the First Defendant and was disseminated to unknown sources by the Second Defendant, furthermore, inserted in a database carrying false and sensitive imputations made about the plaintiff which are inconsistent of facts. 1. On 12 September 2019, the application for summary dismissal was heard and determined notwithstanding the amendment to the pleading. At the same hearing, but prior to the disposition of the application for summary dismissal, Gibson DCJ dealt with two notices of motion filed by Ms Clarke on 9 September 2019. One had been filed in the underlying proceedings, and the other in proceedings brought by Ms Clarke against the Nursing and Midwifery Council of New South Wales. Both sought orders staying the proceedings and for Hicksons Lawyers to "recuse themselves" from the proceedings. Those arguments were heard together. Gibson DCJ dismissed each motion, delivering a short ex tempore judgment dealing with both of them (Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532). 2. In argument before this Court, Ms Clarke suggested that Gibson DCJ had dealt only with the notice of motion concerning the proceedings against the Council, and that her Honour had improperly proceeded to deal with the respondents' application for summary dismissal without first addressing Ms Clarke's notice of motion in the underlying proceedings. 3. As Gibson DCJ's reasons for dismissing both notices of motion make clear, that is not correct. Those reasons deal with "two notices of motion" filed on 9 September 2019, which "sought similar orders" but were not identical: at [1]-[5]. At [7], Gibson DCJ set out the various proceedings commenced by Ms Clarke which were then before the courts, including "the two proceedings in which this application is brought". Relevantly for present purposes, her Honour's order was that the "Plaintiff's notices of motion filed on 9 September 2019 [be] dismissed" (emphasis added). 4. Having so ordered, the primary judge then heard argument on the application for summary dismissal. Counsel for the respondents submitted that in the light of the amended pleading a question of absolute privilege no longer arose, and that the only question was the limitation problem relating to the "only one publication" of September 2014. As counsel explained in argument, s 14B of the Limitation Act 1969 (NSW) had the result that Ms Clarke's action was not maintainable unless it was brought within a 1 year period of the date of publication of the matter complained of, or within any permitted extension of that period. In this respect, the Court's power under s 56A of that Act was limited to extending that period "to a period of up to 3 years running from the date of the publication". That 3 year period expired on 5 September 2017. 5. In response, Ms Clarke stated that she "was not aware that... Hicksons were coming in for the time... limitation". The applicant continued: HER HONOUR: ... your entitlement to sue for defamation in relation to this document expired on 4 September 2017. I'm afraid Ms Clarke... that's it. PLAINTIFF: So in terms of the matter being – in terms of this particular document being republished on a continuous and repeated basis— HER HONOUR: No, there's no evidence – there's nothing about that in the statement of claim. This is your second attempt at the statement of claim. You're suing only for publication— PLAINTIFF: That's correct your Honour, I am suing only for the document— HER HONOUR: That's right. 1. It may be accepted that the primary judge's reference to the 3 year period expiring on 4 September 2017 was incorrect, and out by 1 day. However, that error was not material or in any way misleading as to the effect of what was being conveyed. Ms Clarke went on to say that for various reasons, including the conduct of the solicitors for the respondent, she had been unaware of the WCIN Form during the relevant 3 year period, and unable to bring proceedings in respect of it. She drew the attention of Gibson DCJ to para 8 of the amended statement of claim, which stated that "The Plaintiff became aware of the whereabouts for the very first time of the WCINF on or about 16-31 January 2018". Her Honour responded as follows: HER HONOUR: Look, it's Clarke v Fenn [2018] NSWDC 336, the same issue arose in relation to a limitation period. I might just print that off. I'll print that off for you but it's the same issue. 1. In Clarke v Fenn [2018] NSWDC 336, a similar issue had arisen in relation to a claim brought by Ms Clarke against a Ms Fenn, which was time barred by s 14B but within the 3 year period contemplated by s 56A(2). At [13] and [14] of that judgment, to which Gibson DCJ then specifically directed Ms Clarke's attention, ss 14B and 56A were set out in their present form. In that case, Ms Clarke's formal application for an extension of the 3 year period was dismissed. Having been directed to those paragraphs, Ms Clarke did not take up Gibson DCJ's invitation to say anything further (other than to note that she intended to bring an appeal from her Honour's decision in the instant case). The proceedings were then summarily dismissed. Disposition of Ms Clarke's application for leave to appeal 1. The summons seeking leave, and Ms Clarke's summary of argument, dated 29 October 2019, raise a number of points. Many have no obvious relevance to the merits of the application for summary dismissal, though they all appear to relate in some fashion to Ms Clarke's allegation that her "defamation claim was affected from fraudulent, deceptive and misleading conducts." Those assertions were repeated in Ms Clarke's oral argument. 2. Critically for the issue of leave, they do not raise any issue of principle or question of public importance (Ms Clarke's assertions to the contrary notwithstanding), and Ms Clarke has failed to show that the judgment appealed from involved even arguable error (cf. The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]). 3. Ms Clarke does not suggest that her amended statement of claim pleaded, or that she even raised the possibility, that there had been any republication of the WCIN Form which would not be inarguably time barred by ss 14B and 56A. Indeed, in argument before the primary judge on 12 September 2019 she appears to have confirmed that she did not rely on any republication. 4. Much of Ms Clarke's argument before this Court was directed to her claim that she was unaware of the existence of the WCIN Form until some point between 16 and 31 January 2018. As Gibson DCJ sought to explain at the hearing of 12 September 2019, that argument is misconceived. Sections 14B and 56A run from the time of publication, not from the time at which the party allegedly defamed (Ms Clarke) first became aware of the fact of publication. 5. Ms Clarke's claim, as formulated in her amended statement of claim and as based on the publication of the WCIN Form on 5 September 2014, is statute barred and cannot succeed. No republication of the WCIN Form was pleaded by Ms Clarke in her amended statement of claim or mentioned in argument before Gibson DCJ. It is true, as Ms Clarke urges, that the application for summary dismissal fixed for hearing before Gibson DCJ on 12 September 2019 had been made on the basis of her original statement of claim. However, she was squarely warned about the limitation problem in respect of the publication of 5 September 2014 by para 24 of the respondents' submissions, which were served on the applicant on 5 August 2019. 6. Ms Clarke has not been able to point to any procedural unfairness suffered as a result of Gibson DCJ dealing with the application on the basis of the amended statement of claim. Ms Clarke argues, correctly, that she did not have leave from Gibson DCJ to file the amended statement of claim. Nonetheless, she prepared and filed that amended statement of claim, evidently in response to the issues raised by the respondents in their submissions. It was not inappropriate for Gibson DCJ to treat the amended pleading as reflecting Ms Clarke's claim as at the time of the hearing on 12 September 2019. 7. Had Gibson DCJ proceeded to deal with the application on the basis of Ms Clarke's claim as originally formulated (or as it was sought to be reformulated in the argument before this Court, which proposed further amendments to join the deponents of the three affidavits, Ms Stojkova and Ms Pecker), the result would have been no different. The reasons that is so, in relation to that reformulated argument, are set out below. It follows that there was no procedural unfairness or prejudice to Ms Clarke in her Honour having determined the application for summary dismissal on the basis of the amended pleading. Republication of the WCIN Form 1. Ms Clarke's summons seeking leave refers to the "publication sued upon" having been "initially set out in the affidavit of the solicitor acting on behalf of the defendant on 16 January 2018", and then "repeated on 5 April 2018, 3 July 2018 and 11 June 2019." The references to 5 April 2018, 3 July 2018 and 16 January 2018 are to the WCIN Form being "brought before the court in affidavits" on the instructions of the respondents (Summary of Argument, para 34). That being the position, these further publications of that Form were on each such occasion subject to a defence of absolute privilege (Defamation Act 2005, s 27). 2. The publications of 5 April 2018, 3 July 2018 and 16 January 2018 appear to be the publications by filing of affidavits relied on in Ms Clarke's initial statement of claim at paras 8, 17 and 30. Those affidavits were not mentioned in the amended statement of claim filed after the respondents alerted Ms Clarke to their defence of absolute privilege by their submissions of 5 August 2019. 3. The reference to 11 June 2019 is to the letter from Hicksons on that date, which related to the initial form of the statement of claim filed in these proceedings and requested particulars (Summary of Argument, para 34). Relevantly, it asked Ms Clarke to confirm whether the documents referred to in her statement of claim were the affidavits attached to the letter, included in which was a copy of the WCIN Form. That letter, which was conveyed to Ms Clarke by email on the same date, was sent by a Legal Secretary employed by Hicksons to Ms Clarke and to Chloe Ellis, an Associate at Hicksons and one of the letter's authors. On any view, given the necessity for the conduct of the proceedings of confirming the precise allegations made in the plaintiff's statement of claim, it was protected by qualified privilege: see Szanto v Melville [2011] VSC 574 at [85]-[96]. There was, moreover, no suggestion in the proceedings below, in either the initial or amended statement of claim or the hearing of 12 September 2019, that the letter of 11 June 2019 was a republication in respect of which Ms Clarke brought a claim. 4. Whilst not all of the republications by affidavit and by the letter of 11 June 2019 would be subject to a limitation defence, all of those publications were made subject to a defence of either absolute or qualified privilege. Ms Clarke does not point to any republication of the WCIN Form which does not suffer from either of those defects. In any event, as has already been observed, no republication of the WCIN Form was relied on by Ms Clarke, either in the amended pleading or in argument before Gibson DCJ. Conclusion 1. It is ordinarily undesirable that a limitation defence be decided in interlocutory proceedings, unless the defence is extremely clear. In this case, it was. The primary judge did not err in summarily dismissing Ms Clarke's claim. Accordingly, leave to appeal is refused. 2. Ms Clarke should pay the respondents' costs of the summons seeking leave to appeal, subject to two exceptions. First, those costs should not include the costs of Ms Clarke's motion for pro bono assistance, in circumstances where the respondents did not appear on the first return of that motion or make any written or oral submissions in relation to it. Secondly, those costs should not include the costs of the oral argument on 17 April 2020. Ms Clarke's written summary of argument in support of her summons, dated 29 October 2019, commences with the following capitalised heading: Timeline of events and nature of the applicants case and the applicant consents this application can be heard in the absence of the public and without any attendance of any person. 1. A statement to the same effect is also made on the concluding page of that argument. In their statement in response, dated 9 December 2019, the respondents' position as advised was that they did not consent to the application for leave being dealt with in the absence of the public or without the attendance of any person. At the same time, it was submitted that the application should not be heard concurrently with the appeal. Had the respondents consented to the position as proposed by Ms Clarke, the application for leave could, and most likely would, have been dealt with on the papers. That is particularly so in the circumstances which currently prevail in relation to the conduct of court hearings. 2. Accordingly, the Court makes the following orders: 1. Extend the time for Ms Clarke to file the summons seeking leave to appeal to 11 November 2019. 2. Dismiss the summons seeking leave to appeal. 3. Dismiss the notice of motion of 10 January 2020. 4. Order the applicant pay the respondents' costs of that summons except for: the costs of Ms Clarke's notice of motion filed 10 January 2020; and the costs of oral argument on 17 April 2020. ********** 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: 21 April 2020