Harvey v Henzell & Ors [2015] QDC 132 (15 May 2015)

Last Updated: 27 May 2015

DISTRICT COURT OF QUEENSLAND

CITATION:	Harvey v Henzell & Ors [2015] QDC 132
PARTIES:	BARRY HARVEY (respondent/plaintiff) v SANDRA HENZELL (first applicant/defendant) AND TANYA HENZELL (second applicant/defendant) AND WILLIAM HENZELL (third applicant/defendant)
FILE NO/S:	1237/15
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 May 2015 ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2015
JUDGE:	Samios DCJ
ORDER:	The claim and statement of claim be struck out. The plaintiff pay the defendants’ costs of and incidental to the notice of intention to defend, the defence and this application fixed in the sum $2,000.
CATCHWORDS:	DEFAMATION – ABSOLUTE PRIVILEGE – DAMAGES DEFAMATORY STATEMENTS – where the respondent/plaintiff alleges the first, second and third applicant/defendant made defamatory statements about the respondent/plaintiff to a family report writer during proceedings in the Family Court – where the respondent/plaintiff alleges that recipients of the report formed a negative view of the respondent/plaintiff – whether the first, second and third applicant/defendant’s statements to the family report writer were substantially true and/or were made under absolute privilege PRACTICE – ABUSE OF PROCESS – STATEMENT OF CLAIM – STRIKING OUT – whether the respondent/plaintiff’s pleadings disclose a reasonable cause of action – whether the respondent/plaintiff has any real prospects of success – whether the first, second and third applicant/defendant’s application to strike out the respondent/plaintiff’s claim and statement of claim for abuse of process should be allowed – whether the first, second and third defendant are entitled summary judgment against the plaintiff Legislation Defamation Act 2005 (Qld) s 27, sch 5 Uniform Civil Procedure Rules 1999 (Qld) rr 171, 293
COUNSEL:	Mr B Harvey (self-represented) for the respondent/plaintiff Ms P Sweetapple for the first, second and third applicant/defendant
SOLICITORS:	The respondent/plaintiff was not represented by solicitors The first, second and third respondent/defendant were not represented by solicitors

[1] HIS HONOUR: Mr Harvey has sued William Henzell, Sandra Henzell and Tanya Henzell for compensation for defamatory comments made to a family report writer in a family report which he alleges has also been shown and sent to others including, but probably not limited to, Judy Stewart, Asha Egan, Judge Lapthorn and others from the Federal Circuit Court of Australia, Dr Ben McDarmont and the Family Court.

[2] His statement of claim alleges the defendants made defamatory statements about him in a formal family report about his personality, financial skills, relationships’ control and domestic violence, amongst other false and defamatory statements. His statement of claim, in addition, alleges these were forwarded to various bodies and individuals including, but probably not limited to, the Federal Circuit Court of Australia and Family Court, Judith Stewart and Asha Egan.

[3] Finally, he alleged the sending of these caused the recipients to form negative opinions about him that have had a negative impact on his legal standing in the courts and compromised the safety and best interest of his son CH as they led to dismissal and disregard of the firearms danger he has been proven to be in and had an impact on his contact and care with him.

[4] The defendants have filed a notice of intention to defend and defence. In paragraph 4 of the defence the defendants say:

The defendants made statements to the writer of a family report about the plaintiff in the context of a Federal Circuit of Australia proceeding.

[5] Further, in paragraph 5 of the defence the defendants say:

The statements made by the defendants to the family report writer were:

(a) substantially true; and

(b) published on an occasion of absolute privilege in the course of a proceeding in an Australian court.

[6] The application before me today is by the defendants seeking orders that the claim and statement of claim be struck out as an abuse of process. In the alternative, they seek an order of summary judgment against the plaintiff pursuant to section 293 of the UCPR. They also claim costs.

[7] Rule 171 of the UCPR provides, relevantly, for striking out pleadings, subrule (1):

This rule applies if a pleading or part of a pleading— [...]

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or [...]

(e) is otherwise an abuse of the process of the court.

[8] I should have also quoted subparagraph (a) which provides:

• (a) discloses no reasonable cause of action or defence

[9] Rule 293 of the UCPR provides in subrule (1):

A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

[10] Subrule (2) provides:

If the court is satisfied—

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

[11] Three affidavits have been filed in support of the application brought by the defendants. Effectively, they are the affidavits of the plaintiff’s former partner and her parents. There is no doubt that the defendants spoke to this reporter, Mr Rzoska. There is no doubt Judge Lapthorn, on 19 August 2014, in the Circuit Court of Australia made the order directing the interview of Mr Harvey and his partner. The order was:

That each party attend as directed by the independent children’s lawyer, all interviews for the purpose of any family report or psychiatric report commissioned by the independent children’s lawyer.

[12] Tanya Henzell’s parent’s attended, at the request of Ms Rzoska, to be interviewed. There is no doubt that each person who spoke to Mr Rzoska, on the evidence I have before me, was told that what they were going to say was of a reportable nature and everyone was happy to proceed on that basis. They responded to the questions as asked by Ms Rzoska. As the evidence indicates, the report was forwarded as required.

[13] I have no doubt that the circumstances of the statements made by the defendants to Ms Rzoska come within section 27, subsection (2)(b) of the Defamation Act 2005. Section 27 provides, relevantly, defence of absolute privilege, subsection (1):

It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

[14] Subsection (2):

Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii) the publication of matter while giving evidence before the court or tribunal; and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal

[15] “Australian court” is defined in schedule 5 of the Act to mean:

any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).

[16] I am satisfied on the evidence before me that the statements made by the defendants to Ms Rzoska are protected by the defence of absolute privilege. The words “in the course of the proceedings of an Australian court” that appear in subparagraph (b) of subsection (2) of section 27 can be given a broad meaning. These statements made to Ms Rzoska I find were made in the course of the proceedings. In addition, they could also be protected as being in the document that was created by Ms Rzoska under section 27, subsection (2), paragraph (b)(i) of the Act.

[17] There are additional matters that arise. However, at this point I should pause to say that I am satisfied the plaintiff has no real prospect of succeeding on the plaintiff’s claim in these proceedings and there is no need for a trial of his claim. I will therefore give judgment for the defendants against the plaintiff in these proceedings.

[18] However, rule 171 does provide that the pleadings can be struck out. Here the pleading discloses no reasonable cause of action. Further, it has a tendency to prejudice or delay the fair trial of the proceeding because there is no particularisation of the defamatory statements being relied upon. It is otherwise an abuse of process of the court.

[19] Therefore, the order that I make is as sought in the application, and that is that the claim and statement of claim be struck out. I will make an order also with respect to costs after I’ve heard the parties as to costs.

[20] HIS HONOUR: I am satisfied that the amount sought for costs is entirely reasonable in the circumstances.

[21] HIS HONOUR: The order that I make is the plaintiff pay the defendants’ costs of and incidental to the notice of intention to defend, the defence and this application fixed in the sum of $2000.