Sherman v Lamb[2021] QDC 192

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant in these proceedings to strike out the amended statement of claim and for judgment, or alternatively, for the striking out of specific paragraphs of the statement of claim. 
2. [2]
   The plaintiff is suing the defendant for damages for defamation.  The defendant is not the plaintiff’s wife or ex-wife, rather she is a woman with whom, to some degree, he had a relationship of some kind, around the time that the plaintiff was involved in family law proceedings (the Family Court proceeding) with his then wife, Mrs Sherman.
3. [3]
   The plaintiff’s case is that, at the time of the end of his relationship with the defendant (which is in about March 2020), at a time when the Family Proceeding was extant, she firstly made a complaint to a police officer in New South Wales of behaviour which might be characterised as stalking behaviour.  The plaintiff says that that complaint identified him and communicated that the plaintiff was a petty and/or vengeful and/or dishonest person, and the kind of person who engages in domestic violence.  Those imputations are said to be defamatory.  I pause here to observe that it is astounding to someone, not initiated into the secrets of the law of defamation and its defences, that it is possible to bring defamation proceedings in respect of things said to a police officer in the course of reporting what the complainant says is an offence.  But I am told that is not the case, although various defences of various kinds arise.  The plaintiff’s point is that the defendant effectively made a complaint defamatory of him to the police in New South Wales of a stalking kind. 
4. [4]
   The second publication that troubled the defendant arises out of the fact that, at about the same time, he alleges the defendant spoke by telephone with a solicitor for his wife in the Family Proceeding, called Ms Rayward.  And in that conversation, the plaintiff alleges Ms Lamb told Ms Rayward that her relationship with the plaintiff had come to an end because he had been stalking her, that he acted in a controlling manner, that she was concerned about his children in the marriage that was then the subject of the Family Court proceedings, and that she had made a domestic violence complaint in New South Wales about the plaintiff’s conduct in that relationship.  The plaintiff alleges that is the second publication defamatory of him.
5. [5]
   The plaintiff pleads the basis for him to assert that conversation happened, in circumstances where he obviously was not a party to it.  I am not sure that the rules of pleading required that to be done.  But it has been done, perhaps for good forensic reasons.  In any event, the defendant pleads the basis from which it can be inferred that those words were spoken.  And the basis identified is a letter written by Ms Rayward to the Honourable Michelle May, acting as a mediator in the Family Court proceedings brought by the wife, which in effect reported the conversation in substantially the terms that are pleaded.  Again, it is alleged the second publication identified the plaintiff and communicated a series of defamatory imputations. 
6. [6]
   The next part of the pleading which is relevant is paragraph 23, in which the plaintiff, in effect, pleads the consequences in the Family Proceeding of the second defamatory matter.  It alleges that on 23 April 2020, Ms Rayward wrote to an independent consultant, engaged to complete a family report pursuant to an order made in the Family Proceeding between the plaintiff and Mrs Sherman, in which the wife asserted that during her relationship with the plaintiff, the plaintiff was coercive and controlling, that the children may be exposed to domestic violence, and that the plaintiff had been the subject of a police complaint in relation to his conduct towards Ms Lamb, the defendant in these proceedings.
7. [7]
   A further consequence was that, by that letter, the plaintiff’s wife had changed her position as to the risk of domestic violence.  That change of position is articulated by reference to the position the wife initially took at the beginning of the Family Court proceedings in 2019, in which the Initiating Application (Family Law) Cover Sheet^[1] stated that there was no risk of abuse, neglect or family violence. 
8. [8]
   The wife’s change of position, on the pleading at least, seems to be inferred, understandably frankly, from the letter alleged to have been sent in April 2020.  It is alleged that that was a consequence of the defendant communicating to Ms Rayward what I have said to be the defamatory material from that second publication.  The balance of the pleading need not trouble us in this judgment. 
9. [9]
   The defendant pleads a non-admission to the first alleged publication, that is, the complaint made to the police in New South Wales, although she admits making a complaint to the police.  The difference seems to relate only to the precise terms alleged.  One might have thought a properly responsive pleading would have pleaded to each of the substantive statements contained in paragraph 9(b).  No one has raised that though.
10. [10]
    As to the second publication, that is, the telephone call with Ms Rayward by Ms Lamb, the plaintiff admits there was such a call, but does not admit that she said the things alleged.  Again, a responsive pleading might have identified what, if anything, of the alleged statements had been said, but, again, the plaintiff does not take that point.
11. [11]
    The matter was set down for trial before Judge McGinness and was adjourned by Judge Rosengren of this Court about a week before the trial, because Ms Lamb and her representatives were caught up in the COVID-19 maelstrom.  Nobody suggested to Judge Rosengren that an application of the complexity now before me was contemplated. 
12. [12]
    As the matter has been set down for trial, leave is required to bring this application.  I had considered whether to grant leave at all.  It is true that case management is not an end in itself, but this is not a case management issue, really.  The issue is that the defendant agreed that the matter could be set down.  The matter was then adjourned because of nothing to do with the present application and set down again, and this is an application which, notwithstanding Mr Nelson’s submissions, I think could easily have been brought, and should have been brought, long before now.
13. [13]
    I also note that the foundation for the application was twofold.  The first was that the pleading of key allegations in the statement of claim comprised a breach of the implied undertaking to the Federal Circuit Court in the Family Court proceedings, because use was made of documents and information that were covered by that implied undertaking as explained in Hearne v Street (2008) 235 CLR 125.  The second and, to be fair to Mr Nelson, secondary basis, was a submission that, on the material, it could be argued that the statement of claim is wrong and (it was submitted that I could infer) deliberately deceptive by the plaintiff. 
14. [14]
    This second point is not a matter for any kind of application, except in the most extreme cases.  It certainly would not justify the grant of leave, because it is just a credit point which would arise on cross-examination on the plaintiff’s pleading. 
15. [15]
    However, it seemed to me that the first ground is something I should determine because of the nature of the relief sought.  The defendant seeks either the striking out of the pleading and judgment or striking out of such allegations as would all but gut the proceedings.  If I were to make those orders, then it would save five days in the trial division.  I therefore granted leave for the defendant to bring the application.
16. [16]
    The gravamen, as I have said, of the defendant’s application is that each of:

    1. (a)
       The allegation that the wife commenced the Family Court proceeding not alleging violence (paragraph 3 of the statement of claim);
    2. (b)
       The allegation that the fact and content of the second publication could be inferred from a letter written to Ms May (paragraph 16A of the statement of claim);
    3. (c)
       The allegation that, as a consequence of that second alleged defamation, the wife’s solicitor communicated concerns about domestic violence to the Family Report Writer (paragraph 23.1 of the statement of claim); and
    4. (d)
       The allegation that the wife thereby changed her position from that in the originating application which did not allege violence concerns to one that did allege violence concerns (paragraph 23.2(a) of the statement of claim);

were all allegations of facts which involved breaches of the implied undertaking to the Federal Circuit Court in the proceedings in that Court.  It was then contended that these breaches made the proceedings in this Court an abuse of process such that the proceedings should be dismissed, or those allegations struck out.

17. [17]
    There are really two issues that arise:  one is whether the defendant can persuade me that there was a breach of the implied undertaking in respect of one or more of those four allegations; and second, to the extent that the defendant can persuade me of that, what is the consequence for this proceeding?
18. [18]
    The scope of the implied undertaking is identified by the plenary statement of it in Hearne v Street (2008) 235 CLR 125 at paragraph [96]. 

[96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.

(footnotes omitted)

19. [19]
    That statement, while clearly authoritative, does not address all of the complicated factual situations where the implied undertaking falls to be identified and applied.  That is particularly so in cases, increasingly common, where the Court plays an active management role.  One might think the implied undertaking, as a common law principle, is vaguely defined at the boundaries and ill-equipped to deal with the complexities in modern managed proceedings.  Be that as it may, it is clearly part of the common law of Australia and has to be considered in the circumstances where parties allege it applies.
20. [20]
    It seems to me that, outside the well-known categories of compulsory production of documents and information pursuant to Court processes, such as interrogatories, subpoenas and so on, identified by the High Court in Hearne v Street (2008) 235 CLR 125, the resolution of whether the implied undertaking applies to a particular document or particular piece of information has to be determined on a case-by-case basis by reference to the specific orders and statutory provisions that might impact on the circumstances in which the document or information came into the possession of the party that seeks to make use of it. It is only by a detailed and specific investigation, in what might be thought to be the non-bespoke examples, that the application of the implied undertaking can be determined. 
21. [21]
    I start by looking at paragraph 3 of the amended statement of claim.  The information contained in that statement, that the wife commenced the proceedings in the Federal Circuit Court on the basis that there was no risk of abuse, neglect or family violence, is information that the plaintiff has because he was a respondent to the proceeding.  He also, undoubtedly, has a record of it in the form of the Initiating Application and its Cover Sheet. 
22. [22]
    The question is whether there is an implied undertaking not to use that information for any purpose other than the purpose of the Family Court proceedings, because of the circumstances in which the information was provided to him in those proceedings.  Those circumstances are these.
23. [23]
    The wife filed an initiating application.  There is no suggestion that originating processes are caught by the implied undertaking.  No one is compelled by Court rules or orders to commence proceedings.  The Federal Circuit Court Rules 2001 (Cth) also require, however, by Rule 22A.02, that: 

1. (1)
   A person who:

1. (a)
   makes an application to the Court for a parenting order; or
2. (b)
   files a response to such an application;

must file a Notice of Child Abuse, Family Violence or Risk with the application or response. 

24. [24]
    That risk document must be in accordance with the form specified by the Court.  Rule 22A.02(2) provides that if there is an allegation of risk, an affidavit must be filed with the application or response stating the evidence upon which it is based. (I did not note this in my oral reasons, but it was conceded by Mr Ferrett for the plaintiff that the information in paragraph 3 was contained in the risk notice, as is demonstrated by the exhibit).
25. [25]
    Mr Nelson submits that the effect of Rule 22A.02 is to compel the provision of information in the risk notice, and therefore, the implied undertaking applies to it.  The boundaries of the doctrine, as I said, are elusive at the edges.  It seems to me, though, that commencing proceedings is a choice a party makes.  To then identify any requirement in doing so, as giving rise to an implied undertaking, seems to extend that undertaking, philosophically at least, to a place where it has no cause to be. 
26. [26]
    Courts have always had requirements of form and substance for the commencement of proceedings.  You cannot start proceedings in this Court unless you file a claim and a statement of claim.  You cannot commence an application in this Court without filing an originating application and an affidavit.  It does not seem to me that it is the rules that are compelling the applicant filing an initiating application.  It is the decision to invoke the jurisdiction of the Court. 
27. [27]
    There may be a point at which such onerous conditions are imposed on commencing proceedings that it is possible to identify the implied undertaking being invoked. I note, for example, that if one discloses that there is a problem with domestic violence, the rules require the delivery of an affidavit which states the evidence.  There might be an argument that the implied undertaking applies to that.  However, as I have said, in the absence of some authority compelling the conclusion that conditions on commencing proceedings give rise to implied undertakings, it seems to me outside the scope of the doctrine.  Therefore, the first paragraph under attack does not give rise, on the evidence before me, to a breach of implied undertaking. 
28. [28]
    The second paragraph under attack is paragraph 16A.  It is said that the letter written to Ms May was subject to the implied undertaking.  I was referred to no Court order, nor statutory provision, which would sustain that conclusion in respect of her involvement in this specific case on the specific day that the letter was sent.  Mr Nelson inventively submitted that the letter to the mediator would have come to the plaintiff in this case, because of an ethical obligation on the solicitor for Ms Sherman to copy communications with the mediator to the plaintiff’s solicitors.  It is far from clear to me what the source of such obligation would be other than professional courtesy.  It might be something Ms May would just have expected.  It might be an ordinary practice. 
29. [29]
    It seems to me doubtful that copying someone in on correspondence is compelled by ethical rules in the context of this letter to Ms May (presumably Rule 22.5 of the Australian Solicitors Conduct Rules 2012 would be relied upon), but even if so, that obligation arises from a statutory ethical obligation dehors the proceedings and it does not, in my view, amount to compulsion by a rule of Court or a specific order of the Court.  The allegation that paragraph 16A involves a breach of the implied undertaking, by misuse of information obtained in the course of the Family Court proceedings of the kind protected by the implied undertaking, is rejected. 
30. [30]
    There is then the letter from the wife’s solicitors to the consultant engaged to complete the report the subject of the family report order referred to in paragraph 23.1. Now, if there was a Court order which gave rise to the implied undertaking over that letter, that order was the one made by Judge Howard on the 3rd of March 2020 and it relevantly provides: 

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER: 

1. That pursuant to s. 62G of the Family Law Act 1975 the parents and the children attend upon Sean Moriarty for the purposes of preparing a family report with such report to deal with the following matters:
   1. any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
   2. the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975;  and
   3. any other matters that the family report writer considers important to the welfare or best interests of the children. 

2. That the Family Report Writer be appointed as a Court Expert pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001. 
3. That the Mother and Father attend interviews with the Family Report Writer on 28 April 2020 and attend any further appointments arranged by the Family Report Writer and cooperate with the Report Writer’s process. 

31. [31]
    It does not seem to be disputed that a letter was sent from Ms Rayward to Mr Moriarty, the Family Report Writer, which alleged, in effect, domestic violence by the plaintiff against her and against Ms Lamb.  It is said, though, that that communication was compelled by reason of a Court order which required the disclosure of that information.  The defence submission did not identify exactly how such a letter was compelled by Judge Howard’s order.  It was certainly sent as part of the process created by that order.  It might be covered by s. 62G or the other sections referred to in that order. 
32. [32]
    Section 60CC sets out how a Court determines what is in the child’s best interests and identifies criteria. Section 61DA is the presumption of equal shared parental responsibility.  I note, in respect of s. 61DA(2), that the presumption does not apply if there are reasonable grounds to believe a parent of the child has engaged in abuse of the child or family violence.  Section 65DAA requires the Court to consider the child spending equal time, relevantly, with each parent, which either expressly, or by implication, must be affected by questions of violence. 
33. [33]
    It can be accepted then that the order of the Court required the parents to attend upon Mr Moriarty for the purposes of preparing the report, and, presumably, to give him information about, relevantly, alleged domestic violence.  The order also required the mother, relevantly, to attend an interview with Mr Moriarty and cooperate with the process. 
34. [34]
    The difficulty I have, though, with concluding that the letter is protected by the implied undertaking is that unless Mr Moriarty directed the wife to provide a letter setting out her concerns, the fact is that the compulsory obligation underpinning the implied undertaking rule is not engaged. 
35. [35]
    She was not forced to provide the letter.  There was no evidence that she was, nor that Mr Moriarty required her to write explaining any concerns about domestic violence.  That might have happened, but there is no evidence it did.  But ultimately, the implied undertaking is not about privacy.  It is not about confidentiality.  It is about protecting those who are forced to make disclosures by rules of Court or a specific order of the Court.  And somewhat to my surprise, having worked through the evidence, I am not satisfied the defendant has made good their onus that that letter is covered by the implied undertaking.
36. [36]
    The other challenge then is to paragraph 23.2(a) of the pleading, which is an inference drawn from the content of the letter to the Family Report Writer.  It stands and falls as an allegation made in breach of the implied undertaking on the conclusion on the character of the letter in paragraph 23.1.  Accordingly, it is also not in breach of the implied undertaking.   
37. [37]
    For those reasons and, I should say, somewhat to my surprise in respect of paragraph 23, I am not satisfied on the evidence before me, at least as it was characterised by counsel, that any of the specific paragraphs identified are caught by the implied undertaking. 
38. [38]
    The second issue that I had mentioned is whether, even if some or all of those allegations were caught, the proper remedy would be judgment (which was the preferred option, I suppose, of the defendant), or failing that, the striking out of the relevant paragraphs.  This issue is obiter, really.  However, I should say this – in Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376, the High Court was dealing with the circumstances where a party had sought to dismiss proceedings as an abuse of process where, in broad terms, they were brought for an improper purpose.  In so doing, the majority, with whom Justice Edelman agreed, relevantly said (footnotes omitted):

The courts and abuse of process

[18]  The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.

[19]  In Strickland (a pseudonym) v Director of Public Prosecutions (Cth), Gageler J explained that the concern which engages a court’s power to order a stay of proceedings is the need to protect the integrity of its own processes. His Honour said:

“The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is in that limited respect and to that limited extent a power to ‘safeguard the administration of justice’.”

[20] In cases where proceedings are brought for an improper purpose, “no remedy is likely to be appropriate other than a stay of the proceedings” because, in such cases, the abuse of the court’s processes cannot be remedied in any other way. But where a court is able, by means less draconian than summary termination, to cure any apprehended prejudice to a fair trial so as to ensure that justice is done, the court’s responsibility to the parties, and to the community, requires that those other means be deployed so that the matter before the court is heard and determined in accordance with the justice of the case. So, for example, where a party has engaged in sharp practice apt to delay the fair trial of a matter, an order for costs may be sufficient to cure the prejudice to the other party. Where a party’s misconduct amounts to a contempt of court, such as the destruction of material evidence, the vindication of the court’s authority may require the punishment of the miscreant. The remedy of a stay of proceedings, however, is concerned not with the punishment of the miscreant but with the protection of the integrity of the court’s ability fairly and justly to determine the matter in dispute.

[21] In Strickland, Kiefel CJ, Bell and Nettle JJ held that a stay of proceedings was warranted in the circumstances of that case because the abuse of process on the part of the prosecution so affected the prospects of a fair hearing that “the prejudice to a fair trial is at least to a significant extent incurable”. Edelman J, who concurred with the plurality, explained that an order for a permanent stay is “a measure of last resort” which will be ordered “where there is no other way to protect the integrity of the system of justice administered by the court”. His Honour went on to say:

“Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused by a trial of the accused. This must be considered because the court’s ability to protect its integrity is not confined to orders that grant a permanent stay of proceedings.”

[22] Gageler J, who dissented as to the result of the case, was also of the opinion that a permanent stay of proceedings cannot properly be ordered where the substantial unfairness in the conduct of proceedings is capable “of being averted through the adoption… of measures less drastic than ordering a permanent stay”. And Gordon J, who also dissented as to the result of the case, agreed that there is no occasion to order a permanent stay of proceedings where the prejudice resulting from an abuse of process is curable by less drastic means. Her Honour said:

“[I]f a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute if the prosecutions were permitted to proceed?”

39. [39]
    Their Honours, I say respectfully, in that part of their judgment, state the well-established principle that where one seeks a remedy for an abuse of process, the concern of the Court is whether the abuse of process is such as to prejudice a fair trial, and the remedy of entering judgment is only justified where there is no other way to protect the integrity of the system of justice administered by the Court. 
40. [40]
    If, for example, just paragraph 23.1 had been struck out, there would have been no reason why the balance of the proceeding could not have continued.  Mr Nelson submitted to me that the proceedings should be struck out if I had found that they were brought, based on substantial allegations that involved misuse of the information or documents covered by the implied undertaking, because to do otherwise would be to permit the Court to be a party to the breach of the undertaking by the plaintiff that was alleged.  The difficulty, it seems to me, with that proposition, as a matter of principle, is that while it might be an abuse of process to misuse documents in breach of the implied undertaking, it is not this Court’s job to punish for that. 
41. [41]
    And in the decision of Logicrose Ltd v Southend United Football Company Ltd (unreported, Ch Div, 5 February 1988) by Justice Millet, as his Honour then was, adopted in British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCABE (deceased)) [2002] VSCA 197, his Honour points out that it is not the Court’s job, when dealing with an abuse of process, to respond in a way that indicates its indignance or offence at the conduct, but rather, focus on what is necessary, to the minimum degree, to address the abuse and permit a fair trial. 
42. [42]
    There may well be cases where the misuse of information or documents covered by the implied undertaking is so extensive that no fair trial is possible that does not involve permitting that abuse to proceed unchecked.  But once it is possible to have a fair trial, it seems to me that it is not this Court’s business to punish people for their breach.  It is a matter for the Court in question. 
43. [43]
    There were many other complicated issues swirling around this application.  One of them that troubled me arises from the limits asserted by the plaintiff on its duty to disclose under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), arising from the existence of its implied undertaking.  The plaintiff wrote last month setting out documents it had, which it frankly conceded were directly relevant to issues in dispute on the proceedings, but which it considered it was bound not to disclose because of the implied undertaking.  Some reliance was placed in that letter on s. 121 of the Family Law Act 1975 (Cth), but on reflection, Mr Ferrett considered that that did not apply, and I agree.  That letter also asserted that the initiating application was covered, and on reflection, Mr Ferrett considered it was not.  And the effect of this judgment is that I agree.  But it is plain that there are documents (whether there are many, I do not know) which would otherwise have to be disclosed. 
44. [44]
    The rules do not permit parties to civil litigation in this State to decide that they do not have to disclose documents which fall within the scope of the rules.  The only documents which the rules specifically exclude from disclosure are documents in relation to which there is a valid claim to privilege from disclosure, documents relating only to credit and copied documents.  It may be that there is some kind of privilege that can be articulated.  I am not sure.  But beyond that, I am not sure of the correctness of the proposition that the fact that documents are in the possession of a party, and subject to the implied undertaking in respect of another Court, without more, permit them not to comply with the rules.
45. [45]
    It might be a simple application to get relief from the duty, because, of course, the Court has ample power to do that.  Other issues might arise in respect of the effect of the inability, if that be the case, to disclose the documents.  But that, itself, is a complicated area and was not the basis upon which the application was brought.  And I think, to his credit, Mr Nelson did not try to shift ground to there.  He did assert that the position of the defendant, that it could not disclose documents that were relevant to allegations, which he said arose from a breach of implied undertaking, was a fact that it would go to whether I should strike the proceedings out, and there might have been something in that if I have been persuaded of his main points.  But in the circumstances, as I have determined the case now, the disclosure point does not arise. 
46. [46]
    I should add that Miller v Scorey [1996] 1 WLR 1122 was cited to me.  I accept that, in a case where it is evident that the implied undertaking has been breached in the making of the key allegations in another proceeding, that can amount to an abuse of process of this Court, and it could lead to the making of orders, even quite serious orders.  It would be pretty unlikely, however, that a Court would do that without giving the defaulting party an opportunity to get relief from the implied undertaking from the Court where it arose. 
47. [47]
    I accept Mr Nelson’s submission that such a proceeding can be an abuse of the Court, and in an appropriate case, might lead to a striking out of paragraphs of a pleading, or even in a serious case, of the proceeding.  But for the reasons that I have given, this is not such a case, at least the way the case was argued before me today. 
48. [48]
    Therefore, interesting though it might have been, I dismiss the application.