Webb v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 07 October 2021
• Neutral Citation: [2021] FCA 1215
• Court: Federal Court
• Date: 07 October 2021

Federal Court of Australia

Webb v Commonwealth of Australia [2021] FCA 1215

File number:	NSD 376 of 2021
Judgment of:	ABRAHAM J
Date of judgment:	7 October 2021
Catchwords:	PRACTICE AND PROCEDURE – application for pleadings to be struck out under r 16.21 of Federal Court Rules 2011 (Cth) – whether statement of claim likely to cause prejudice, embarrassment and delay – whether statement of claim fails to disclose reasonable cause of action – application for strike out granted – whether applicant should have leave to replead – leave to replead granted
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 16.02, 16.21 Defamation Act 2005 (NSW) Limitation Act 1969 (NSW) s 14B
Cases cited:	Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226 Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434 Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 Faruqi v Latham [2018] FCA 1328 Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276 Meckiff v Simpson [1968] VR 62 Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361 Plaintiff M83A-2019 v Morrison (No 2) [2020] FCA 1198 Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 Re Morton, Ex parte Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Takemoto v Moody’s Investor Service Pty Ltd [2014] FCA 1081 Taylor v Department of Health (Cth) [2020] FCA 1364 Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 71 ALJR 767 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 Wride v Schulze [2004] FCAFC 216
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	56
Date of hearing:	20 September 2021
Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr N Olson
Solicitor for the Respondent:	MinterEllison

ORDERS

		NSD 376 of 2021
BETWEEN:	GAYLE MAREE WEBB Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	7 October 2021

THE COURT ORDERS THAT:

1. The applicant’s statement of claim filed on 3 May 2021 be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2. The applicant be granted leave to replead the cause of action struck out in order 1 above, to be filed and served by 4pm on Thursday 4 November 2021.

3. The applicant is to pay the costs of the respondent to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. On 3 May 2021 the applicant filed an originating application and statement of claim (dated 29 April 2021) alleging that she had been defamed. The statement of claim alleges:

[10] In short, the respondent, the Commonwealth of Australia is vicariously liable for the actions of this departments/agencies including but not limiting to the policies, laws, bills, legislation, regulations and acts they use and rely upon and does not give the Commonwealth government departments such as the Departments of Human Services, the right to misuse these to defame the applicant. The defamatory Articles are referred to in this document under Schedule A below.

[11] The respondent has failed to resolve and remove all defamatory articles and information its departments hold about the applicant and instead has continued to share this information between other departments/agencies, their providers and other third parties.

[12] The applicant has tried multiple times to have the respondent investigate and rectify the issues of defamatory, wrong and misleading information being captured, stored on commonwealth systems and other systems where it is responsible for the data is stores, uses, distributes and shares, to no avail.

2. Schedule A to the statement of claim is a bundle of what the applicant describes as ten “articles”. Two “articles” are letters from Service Australia addressed to applicant, and the remaining documents appear to be printouts of internal documents obtained by freedom of information requests (which include, inter alia, Job Seeker incident reports and other documents, the nature of which is not apparent on their face although the applicant asserts their identity). These articles are described in more detail below.

3. The respondent seeks that the statement of claim filed on 3 May 2021 (dated 29 April 2021) be struck out, and submitted that leave to replead should be refused and the proceeding be dismissed.

4. For the reasons below, the applicant’s statement of claim filed on 3 May 2021 be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). However, I grant the applicant leave to replead the cause of action contained in the statement of claim.

Legal principles

5. A strike out application is directed to the sufficiency of the pleadings or equivalent documentation, as opposed to the underlying prospects of success of the proceedings: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [23], citing Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at 309.

6. Where the evidence shows that a person may have a reasonable cause of action or reasonable prospect of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21(1)(e) of the Rules. An application for the striking out of pleadings may also be made on a number of other grounds contained in r 16.21, which relevantly includes that the pleading: contains scandalous material: r 16.21(1)(a); contains frivolous or vexatious material: r 16.21(1)(b); is evasive or ambiguous: r 16.21(1)(c); is likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(1)(d); or is otherwise an abuse of the process of the Court: r 16.21(1)(f).

7. Rule 16.21 is critically concerned with the sufficiency of the pleadings. Rule 16.02 sets out the general rules concerning the content of pleadings. Failure to comply with any of the requirements in r 16.02 may found an application to...