Hamade v State of New South Wales [2011] NSWSC 459

Supreme Court New South Wales

Medium Neutral Citation: Hamade v State of New South Wales [2011] NSWSC 459 Hearing dates: 17 May 2011 Decision date: 25 May 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: 1. The amended statement of claim filed 24 February 2011 is dismissed. 2. The plaintiff is to pay the defendant's costs of the motion and of the proceedings as agreed or assessed. Catchwords: PROCEDURE - civil - strike out application - statement of claim alleged plaintiff was defamed by statements in police records - no cause of action articulated Legislation Cited: Uniform Civil Procedure Rules 2005 Limitations Act 1969 Cases Cited: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 Noor Abdiaziz Mohamed v State of Victoria [2007] VSC 538 Texts Cited: Australian Defamation Law and Practice LexisNexis Australia Category: Procedural and other rulings Parties: Daoud Hamade (Plaintiff) State of New South Wales (Defendant) Representation: Counsel In Person - Plaintiff G Giagios - Defendant Solicitors In Person - Plaintiff Crown Solicitors - Defendant File Number(s): 2010/224195

Judgment 1HER HONOUR: By notice of motion filed 2 March 2011, the defendant seeks, firstly, an order that the plaintiff's amended statement of claim filed on 24 February 2011 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") on grounds that the proceeds are frivolous or vexatious, disclose no cause of action and/or are an abuse of the process of the Court; and secondly, in the alternative, an order that the plaintiff's amended statement of claim filed on 24 February 2011 be struck out pursuant to UCPR 14.28 on grounds that it discloses no reasonable cause of action, has tendency to cause embarrassment, prejudice or delay in the proceedings and/or is an abuse of the process of the Court. 2The plaintiff is Daoud Hamade ("Mr Hamade"). The defendant is the State of New South Wales ("the State of NSW"). Mr Hamade was not legally represented at the hearing of this application. Mr Giagios of counsel appeared for the State of NSW.

Summary judgment 3UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court. 4UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 5UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1). 6Summary strike out applications have been discussed in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129 and restated in many decisions since then. In General Steel , Barwick CJ who sat as a single judge said that a litigant should not be denied access to the appropriate tribunal unless his lack of a cause of action is clearly demonstrated. His Honour stated at 219: "The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"."

History of proceedings 7On 5 July 2010, Mr Hamade filed a statement of claim naming the defendant as Zofia Weremczuk as defendant ("Ms Weremczuk"). Ms Weremczuk is a senior solicitor employed by the Crown Solicitor who wrote to Mr Hamade concerning his claims against the Police. 8By notice of motion filed 3 August 2010, Ms Weremczuk sought orders seeking to dismiss Mr Hamade's statement of claim. By defence filed 3 August 2010, Ms Weremczuk claimed that the statement of claim disclosed no cause of action and accordingly Mr Hamade was not entitled to the relief sought, or the damages claimed; Ms Weremczuk denied that she had defamed Mr Hamade and that no alleged defamatory imputation could be identified from what the statement of claim contained. 9On 2 September 2010, the motion was heard by Schmidt J. Mr Hamade appeared in person. At that hearing, Mr Hamade alleged that he had been defamed by statements recorded in police records, which he claimed have precluded him from obtaining employment as a security guard. 10On 2 September 2010, Schmidt J, in her extempore reasons for judgment, stated at [6] - [10]: "6 I have thus concluded that Mr Hamade, an unrepresented litigant, must be given an opportunity to replead the case which he actually wishes to advance. Those amended pleadings must conform to the requirements of the Uniform Civil Procedure Rules , particular Division 6 of Part 14, which governs pleadings concerning defamation. 7 Those Rules are intended to ensure that both the defendant and the Court are given a clear indication, from the outset, of the claims which Mr Hamade wishes to pursue under the Defamation Act 2005 and the imputations on which he relies. Mr Hamade's pleadings do not presently identify those matters. 8 The Rules impose these requirements because the parties' pleadings have important functions to perform in relation to the conduct and eventual hearing of the case which Mr Hamade wishes to pursue, particularly in relation to the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination. 9 It is apparent that Mr Hamade passionately believes in the strength of the case which he wishes to pursue in these proceedings. Nevertheless, like all other litigants before the Court, he too is required to abide by the Rules of this Court. I am satisfied that he must be given the opportunity which he seeks to rectify the current problems with his pleadings, but he should take note of what was observed by Bongiorno J in Gunns Limited v Marr [2005] VSC 251, which is pertinent to the difficulty with Mr Hamede's present pleadings: '57 It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form.' 10 Mr Hamade must ensure that his amended pleadings comply with the requirements of the Rules, if he is to avoid a further application such as this. He would be well served to seek advice about the repleading of his case." 11Schmidt J refused to dismiss the proceedings and granted Mr Hamade leave to amend his statement of claim. 12On 10 September 2010, Mr Hamade filed an amended statement of claim. On 28 October 2010, Registrar Bradford made an order a deleting Ms Weremczuk as defendant and substituting in lieu thereof the State of New South Wales. 13On 25 November 2010, Latham J made an order pursuant to UCPR 7.36, that the Registrar refer the plaintiff to a barrister or solicitor of the Pro Bono Panel for legal assistance.

The current amended statement of claim 14On 24 February 2011, Mr Hamade filed a further amended statement of claim. Mr Hamade claims that, "The State of NSW who is the Defendant Pay defamation Damages Under the Defamation Act 2005 Common law." Mr Hamade pleads that: "The plaintiff Can't get a job and is Defamed. The plaintiff has no tax returns from 2004 to 2010 Regarding employment not exceeding more than one months work. The plaintiff was in early negotiations with NSW legal services on 18 may 2010 advises that police record published from 18 Dec 2002 which is (E15864075) (E26615663) (E408086389) would be removed and a response would be forwarded shortly this response was Declined By the Crown solicitors office and NSW Police on the 28 th June 2010 and forwards 12 Documents to support this 1 to 12 Numbered". 15Documents 1 to 12 were attached to the statement of claim. While I do not have complete copies of the documents, the gravamen of Mr Hamade's concern, as I understand it, is that three events (the numbers have been provided) concerning him have been recorded on the Police database known as COPS and these entries have defamed him. 16The annexures to the amended statement of claim show that Mr Hamade has written to the NSW Ombudsman requesting he conduct an internal review as to why these three entries had not been deleted from the Police database after he had requested it to do so. He has also written to the Police Force and the Cabinet Office of NSW Parliament with similar complaints. Some of these documents, annexed to the amended statement of claim, are incomplete. Mr Hamade had made similar complaints to Mr Matt Brown MP, Parliamentary Secretary for Police, Police Integrity Commission, ICAC, the (then) Deputy Premier, Carmel Tebbutt MP and to the "NSW federal District Court". 17Another concern of Mr Hamade, in both his written and oral submissions to this court, is that he was an officer of authority, namely, a security guard and that he "... reported [to authorities] 20 years of smuggling and nine years theft of police property and refused to be bribed to cover up a master key that concerns the security of ten thousand people as other levels were robbed concerning the town and so needs to clear hes [sic] name to have stockland liable concerning 56 floors and 400 doors and must succeed to have tnt liable for the security of international freight arrived opened and tampered stolden [sic] freight before customs arrive in the state of Nsw ..." 18It is important to appreciate that the purpose of pleadings is inform each party of the case they have to meet. 19Defamation is, generally, the publication of material about a person that could lower that person's reputation in the eyes of others. Defamation law concerns the protection of reputation and provides a remedy for injury to reputation caused by a defamatory publication . In relation to defamation law, a publication is considered to be the act of communicating a defamatory meaning to a person other than the plaintiff. This meaning may be communicated by any means such as spoken words, signs or gestures, in writing or with images, in person or by broadcast ( Australian Defamation Law and Practice (ADLP) LexisNexis Australia at [1010]). 20In Noor Abdiaziz Mohamed v State of Victoria [ 2007] VSC 538, Harper J described the publication of police database records as follows: "[15] An allegation of publication on a National Police Database is an allegation of unilateral publication as that expression is used by the High Court in the case of Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575. In that case the Chief Justice and Justices McHugh, Gummow and Hayne said: 'The tort of defamation at least as understood in Australia focuses upon publications causing damage to reputation. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener or the observer. Until then, no harm is done by it. This being so, it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.' [16] It follows that if the cause of action on which the plaintiff seeks to rely is to be pleaded properly, it must contain an allegation of bilateral publication." 21At law, the issue, for Mr Hamade appears to be not whether the Police records were defamatory of him, but whether the defamatory publication was unlawful. This concept is clearly explained at [1070] of ADLP : "In all cases of defamation, the essential question to ask is not whether the publication is defamatory of the plaintiff. Obviously many communications made to the public may contain seriously defamatory statements: the evidence of witnesses in court, the speeches of politicians in parliament, the reports of royal commissioners to government. But these publications are lawful, being protected usually by absolute privilege and affording the defendant, if sued, the opportunity to have the proceedings determined in his favour summarily ( Rajski v Carson (1986) 4 NSWLR 735 at 743-4) . The essential question is really whether the publication constitutes an actionable defamation, that is, a defamatory publication which is not lawful. After all, while the law of defamation can act as a powerful brake on the freedom of expression, it is not designed to deprive the public of information on matters of public importance. It is usually the media which supplies information to the public about the proceedings in courts, in parliament, or in commissions of enquiry, to name but three. In such cases, provided the reporting is fair or accurate, the media has the protection of the law. Many an innocent person has been damaged by such reporting. But in deciding whether that person has a remedy the essential question is usually not whether the plaintiff has been defamed, but whether the defendant can avail itself of a defence whereby the publication was lawful." 22While it is possible that the Police records contained statements that were defamatory to Mr Hamade, it is also possible that their publication, if they were in fact published, was reasonable in the circumstances or that they were subject to some sort of privilege. It is not clear from the pleadings what exactly was unlawful about the COPS records. 23It is worth considering and comparing the facts in Mohamed v State of Victoria as described by Harper J at [1] - [4] and [11]: " [1] The plaintiff, Noor Mohamed, has endured an experience no one would want. He is a person of good character. He had never been convicted of anything. Yet for a period ending on 2 May 2005 he was recorded "on data bases maintained by police jurisdictions at the Federal, State and Territory level" as having a series of convictions for offences involving violence.... [2] A charge of theft and one of rape was also shown on the database as being investigated. Otherwise, all the convictions were imposed by courts in Victoria. In placing the relevant details on the database, the Victoria Police had made, "an error involving two different persons with identical 'alias' names and birthdates". [3] In 2004 the plaintiff applied for a taxi licence in Western Australia. He was, however, informed by letter dated 20 December 2004 from the relevant authority that he had "recently been convicted of criminal offences" and therefore might not be able to satisfy the requirement that he be a suitable person to hold such a licence. [4] Not surprisingly, the plaintiff was very upset. On 12 May 2006 he filed a writ and Statement of Claim in this court. He claimed damages in defamation and negligence. On 13 June 2006 the defendant sought Further and Better Particulars. It also asked that the Statement of Claim, "plead a cause of action known to the law against the State of Victoria, clarify the extent to which it is alleged the incorrect statement was published, and remove the cause of action for negligence. ... [11] The Amended Statement of Claim pleads by paras 1 and 2 that the plaintiff was at all material times employed as a taxi driver and that the defendant is vicariously liable for the conduct of its servants or agents pursuant to s 23(1B) of the Crown Proceedings Act 1958. Then, in para 3, it is alleged that the defendant between 2003 and 17 May 2005 published in each Australian jurisdiction a National Police Certificate. The Certificate, a copy of which is annexed to the Amended Statement of Claim served on the defendant, contained information to the effect that the plaintiff had been found guilty of numerous crimes, that he was being investigated in relation to theft and rape, and that he used aliases to avoid detection. In the particulars under para 3 of the Amended Statement of Claim, it is said, "The Certificate was published in each State and Territory of Australia on the National Police Records database ... during the period and was available to any person making an application for access to the plaintiff's alleged criminal history maintained on the database...." 24In that case, the proceeding then came before the courts, was adjourned with directions that an amended statement of claim be filed. The statement of claim was not amended in the time allowed and the plaintiff was provided with a further opportunity to amend, failing which the proceeding would be dismissed with costs. An amended statement of claim was served three weeks later, however the plaintiff took a year to respond to the defendant's request for further and better particulars. In the meantime the defendant issued the summons that sought inter alia an order for the proceedings to be stayed on the grounds they did not disclose a reasonable cause of action, were scandalous, frivolous or vexatious or an abuse of process. The defendant was successful before the Master of the Court and Harper J heard the appeal by way of de novo hearing. 25The necessary elements to a cause of action in defamation in Mr Hamade's claim are not made out in the pleadings. Harper J in Mohamed v State of Victoria struck out a plaintiff's statement of claim on similar grounds. His Honour stated at [22]: " [22] The position then, it seems to me, is that the cause of action in defamation as presently pleaded is one which suffers from a terminal problem. A material element of the cause of action is not pleaded, and on the materials provided by the plaintiff himself cannot be pleaded at present, because the plaintiff does not have the relevant information. Until that information is obtained the plaintiff will not be in a position to assert that he has a complete cause of action in defamation and will therefore not be able to plead all the elements which make up such a cause of action. In those circumstances the cause of action in defamation should, as the defendant submits, be struck out." 26Further, Mr Hamade has not addressed the issue of section 14B of the Limitations Act 1969, which states: "14B Defamation An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of. " The Police records that are the subject of Mr Hamade's complaints appear to have been published between 2002 and 2006. 27The State of NSW also submitted that Mr Hamade's pleadings do not comply with the directions given by Schmidt J on 2 September 2010 and that the cause of action pleaded in these proceedings is defamation so the pleadings do not comply with UCPR 14.30. 28Specifically, UCPR 14.30 concerns a pleading of defamation. It reads: " 14.30 Allegations in statements of claim generally (cf SCR Part 67, rule 11; DCR Part 49, rule 10) (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful. (2) Any such statement of claim must: (a) subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance." 29The State of NSW has also submitted that Mr Hamade has not used the opportunity given to him by Schmidt J to properly replead his case. The State of NSW submitted that Mr Hamade does not set out the contents of those records nor does he name the police officers who allegedly defamed him. According to the State of NSW the further amended statement of claim does not specify each imputation on which Mr Hamade relies nor does it allege that the imputation was defamatory of him. To an extent Mr Hamade does give details of the three COPS entries. In these circumstances the State of NSW submitted that the Court should dismiss these proceedings pursuant to UCPR 14.30. 30The amended statement of claim as currently pleaded is hopeless. Mr Hamade's claim has not been articulated in accordance with the Uniform Civil Procedure Rules. The State of NSW would be unable to understand the case it has to meet. Mr Hamade has already been given an opportunity to replead his statement of claim and has been referred for pro bono legal assistance. It appears that Mr Hamade is unable or unwilling to properly plead his claim. He could have availed himself of the assistance of a pro bono lawyer to draft the amended statement of claim. He did not do so. It is my view that to allow Mr Hamade another opportunity to replead his case properly is futile and will result in unnecessary expense being incurred. Hence, I dismiss the amended statement of claim. 31The plaintiff objects to paying any costs. 32Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs of the motion and of the proceedings as agreed or assessed.

The Court orders: 1. The amended statement of claim filed 24 February 2011 is dismissed. 2. The plaintiff is to pay the defendant's costs of the motion and of the proceedings as agreed or assessed.

********** 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: 25 May 2011