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District Court 17 December 2019

Young v RSPCA NSW (No. 2)

[2019] NSWDC 754

Other
TORT WHEN THE CAUSE OF ACTION ACCRUED PARTY

Citation: Young v RSPCA NSW (No. 2) [2019] NSWDC 754
Court: District Court of NSW
Date: 17 December 2019
Judge: Gibson DCJ

Background

The plaintiff, who appeared for himself, was convicted in December 2012 of offences under the Prevention of Cruelty to Animals Act 1979 (NSW) following a prosecution conducted in Goulburn Local Court. On appeal, the conviction was set aside in 2016 pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a provision that allows a court to dismiss charges and discharge a defendant into mental health care rather than record a conviction.

The plaintiff subsequently commenced proceedings in the District Court against five defendants: the RSPCA, the inspector who prosecuted the charges, the solicitor involved in the prosecution, the ABC, and Google LLC. His claims spanned malicious prosecution, abuse of process, and defamation arising from media coverage of the original conviction.

All five defendants applied for summary dismissal or strike-out of the claims against them. The plaintiff opposed those applications.

  • Whether the setting aside of convictions under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) constitutes a "termination in the plaintiff's favour" sufficient to ground a malicious prosecution claim
  • Whether the malicious prosecution claim was so hopelessly pleaded that it should be struck out at the earliest opportunity
  • Whether the abuse of process pleading was sufficiently articulated to survive summary dismissal, including questions about when the cause of action accrued and whether it could be brought against a non-party to the original proceedings
  • Whether the plaintiff could establish publication of the allegedly defamatory material by any defendant within the relevant limitation period
  • Whether the ABC's fair report defence under section 29 of the Defamation Act 2005 (NSW) was capable of summary determination
  • Whether the defamation claims against the ABC and Google LLC should be struck out on proportionality grounds, following the approach in Bleyer v Google Inc (2014) 88 NSWLR 670

Decision

Malicious prosecution: The court held that the setting aside of the plaintiff's convictions under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) did not amount to a termination of proceedings in his favour. This conclusion followed earlier authority, particularly Quirk v The State of New South Wales [2011] NSWSC 341 and [2012] NSWCA 216, which Gibson DCJ declined to distinguish or treat as plainly wrong. Without a favourable termination, one of the essential elements of malicious prosecution could not be established, and the claim was struck out and dismissed.

Abuse of process: The court found the abuse of process claim was so poorly pleaded that it could not stand in its current form. However, the court acknowledged that the cause of action itself is not inherently unavailable, and so rather than dismissing it outright, the court struck it out but granted leave to replead. The judgment noted that abuse of process is a rarely successful and difficult cause of action to plead, and foreshadowed that a further summary dismissal application by the first to third defendants was likely.

Defamation against the ABC: The court found the ABC's report of the December 2012 conviction was capable of attracting a fair report defence under section 29 of the Defamation Act 2005 (NSW). Additionally, given the very limited evidence of any download of the material within the limitation period, the proportionality principles from Bleyer v Google Inc supported strike-out. The defamation claim against the ABC was struck out and dismissed.

Defamation against Google LLC: The court applied the Bleyer proportionality framework, which recognises that defamation proceedings may be struck out where the cost and burden of litigation is grossly disproportionate to any legitimate forensic purpose, having regard to the limited evidence of actionable publication within the limitation period. The defamation claim against Google was also struck out and dismissed.

Orders Made

  • The malicious prosecution claim (First Cause of Action) against the first to third defendants, and the defamation claim (Third Cause of Action) as against the first defendant, were struck out and dismissed.
  • The abuse of process claim (Second Cause of Action) against the first to third defendants was struck out, with leave granted to replead by 3 February 2020.
  • Costs of the plaintiff's claims against the first to third defendants were reserved, with liberty to apply.
  • The defamation claim (Third Cause of Action) against the ABC (fourth defendant) was struck out and dismissed.
  • The defamation claim (Fourth Cause of Action) against Google LLC (fifth defendant) was struck out and dismissed.
  • The plaintiff was ordered to pay the fourth and fifth defendants' costs of the application and the proceedings, with liberty to apply.
  • The remaining abuse of process proceedings were stood over to the Defamation List on 6 February 2020 for further directions.

Key Takeaways

  • A conviction set aside under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) does not constitute a termination of criminal proceedings "in the plaintiff's favour" for the purposes of a malicious prosecution claim, consistent with the findings in Quirk v State of New South Wales.

  • Where a defamation claim involves very limited evidence of publication or download within the limitation period, the proportionality principles established in Bleyer v Google Inc (2014) 88 NSWLR 670 can support summary dismissal, even before a full hearing on the merits.

  • The District Court confirmed that the increasing emphasis on overriding purposes in civil procedure legislation, including section 56 of the Civil Procedure Act 2005 (NSW), is gradually reshaping the traditionally cautious approach to summary dismissal applications.

  • Leave to replead may still be granted for a cause of action such as abuse of process even where the existing pleading is found to be hopelessly deficient, provided the claim is not inherently untenable, but the court signalled clearly that further scrutiny was anticipated.

  • Defamation proceedings against broadcasters and online intermediaries may be amenable to summary resolution where a fair report defence appears well-founded and where evidence of actionable publication within the limitation period is thin.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), s 56
- Defamation Act 2005 (NSW), ss 29 and 42
- Limitation Act 1969 (NSW), ss 14B and 56A
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Prevention of Cruelty to Animals Act 1979 (NSW), ss 5 and 6
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28, 14.30, 15.19 and 29.9

Key Cases:
- A v State of New South Wales & Anor (2007) 230 CLR 500
- Bleyer v Google Inc (2014) 88 NSWLR 670
- Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682
- Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Quirk v The State of New South Wales [2011] NSWSC 341; [2012] NSWCA 216
- Young v RSPCA NSW [2019] NSWDC 613