Tuesday, August 28, 2012

A response from Screen Australia's lawyers

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(cyw) 4603412_3.DOC
29 August 2012
Mr James Ricketson
316 Whale Beach Road
PALM BEACH NSW 2108
BY EMAIL ONLY:
jamesricketson@gmail.com
ABN 76 486 092 631
Contact
Ian Denham
Partner
idenham@moray.com.au
Partner
Ian Denham
Our reference
IDD:325627
Dear Mr Ricketson
Harley and Cameron ats Ricketson
1. We refer to:
1.1 the statement of claim filed 16 July 2012;
1.2 your letter of 16 August 2012 addressed to Dr Ruth Harley, but sent in an email to our
Mr Denham, and copied to our clients Ms Cameron, Dr Harley (the defendants), as
well as three other officers of Screen Australia and the Hon. Simon Crean MP
(Minister for the Arts); and
1.3 your letter of 20 August 2012 addressed to Nick Coyne of Screen Australia, but copied
via email to our Mr Denham, as well as our clients Dr Harley and Ms Cameron.
2. We consider:
2.1 the proceedings you have commenced against Dr Harley and Ms Cameron, constitute
an abuse of process; and
2.2 the pleaded cause of action is unintelligible, fails to comply with the Court rules, and at
least in part is statute barred, such that it is likely to be struck-out by the court.
3. This letter:
3.1 sets out the basis for the conclusions we express above;
3.2 invites you to abandon the case; and
3.3 invites you, if you do not abandon the case, to re-plead the allegations made in the
statement of claim.
4. Depending upon your response, we will file a notice of motion to have the proceedings
dismissed and/or to have the statement of claim struck-out. We will seek costs of the motion
if we are successful.
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(cyw) 4603412_3.DOC
Proceedings are Vexatious
5. The court has power to dismiss a case entirely if it appears to the court that:
5.1 the proceedings are frivolous or vexatious; or
5.2 no reasonable cause of action is disclosed, or
5.3 the proceedings are an abuse of process of the court.
6. This power is set out in Rule 13.4 of the
Uniform Civil Procedure Rules 2005 (‘UCPR’). We
consider the court would comfortably be satisfied of those matters in this case.
7. We expect the court to be satisfied that you are not genuinely concerned with obtaining the
relief claimed in the statement of claim, but rather, you wish to use the proceedings for a
collateral purpose. That purpose is to:
7.1 have the Supreme Court of NSW determine the existence or non-existence of certain
documents;
7.2 if the documents exist, to obtain copies of them in the course of the proceedings
(presumably through discovery); and
7.3 if documents are obtained, to publish copies of them on the internet.
8. The court would be persuaded of your collateral purpose having regard to the fact that you
are claiming only $1.00 in damages, and having regard to the matters set out in your letter of
16 August 2012 to Dr Harley (’
16 August letter’).
9. In the 16 August letter you expressly state:
As I have made clear on numerous occasions, I have little interest in the outcome of
my defamation proceedings … other than in securing from you both copies of
correspondence that you claim I have written and which I claim I have not
’.
10. You further state in your 16 August letter that:
I imagine … Screen Australia might win the case. If so, that’s fine - as long as, in the
process, I acquire copies of [certain correspondence]
’.
11. You then go on to state that having obtained those documents,
I will then publish [the documents] on the internet and my small band of interested
blog followers can make up their own mind
’.
12. We point out at this juncture, that any documents you obtain through discovery or any other
coercive process in the proceeding, will be subject to restrictions on their use. You would not
be permitted to publish documents obtained that that way on the internet without breaching
your legal obligations.
13. In your 16 August letter you conclude:
That it should be necessary to prove the existence or non-existence of the
contentious correspondence in the Supreme Court strikes me as absurd
’.
14. We agree with the sentiments you express in that remark. We suspect that any judicial
officer of the Supreme Court will agree also.
15. These matters were reiterated in your 20 August 2012 letter addressed to Mr Coyne. In that
letter you reiterate that:
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(cyw) 4603412_3.DOC
‘My only purpose in making a Statement of Claim in the Supreme Court is to acquire
copies of correspondence that I have not been able to acquire through FOI or through
utilizing the services of the Commonwealth Ombudsman.’
16. It is on the basis of the above that we invite you to withdraw the proceeding before the first
mention.
Pleading Deficiency
17. The Court has particular requirements as to matters which need to be pleaded in a
statement of claim, and how those matters are pleaded. These requirements include those
set out at Rule 14.30 of UCPR, and at Rule 14.28 of UCPR.
18. Generally speaking, a pleading in a statement of claim must permit the defendants to have
proper notice of the real substance of the claim against them.
19. In its present form, the statement of claim consists entirely of matters which, in our
submission, are unintelligible, ambiguous and so imprecise in their identification of material
factual allegations as to deprive our clients of the ability to properly understand, meet and
defend the allegations.
20. It is not our role to provide guidance to you as to how a pleading ought to be set out. But as
a first matter, the allegations made in paragraph 1 of the statement of claim are unclear as to
key aspects. These include confusing references to various items of correspondence, some
of which you contend exist and some of which you contend do not exist.
21. Similarly, in the second paragraph of the statement of claim, you make reference to
documents and correspondence, but it is not clear which of them is alleged to have
contained defamatory material.
22. The third paragraph of your statement of claim does not make allegations of relevance to
your cause of action.
23. On a more substantive note, it would appear that any cause of action purported to be made
in paragraph 1 of the statement of claim is statute barred. We invite you to withdraw any
cause of action based on the matters which are alleged to have occurred in 2010.
24. Finally, we presume the reference to ‘10
th May 2010’ in the second paragraph of the
statement of claim is in error and should be a reference to a date in 2012. Any amendment
of the statement of claim should address this.
25. On the basis of the above, we invite you, if you do not withdraw the proceeding entirely, to
re-plead the whole of the allegations made in the statement of claim, to put them in a form
which complies with the court rules and, allow our clients to know the case which is sought to
be brought against them.
Reservation of Rights
26. You are self-represented in the case. We have written this letter with an effort to set out as
clearly as possible, to a non-legally educated person, our concerns in the case.
27. This letter ought not to be seen as waiving any rights which our clients have in relation to the
proceeding. Our clients have and will retain rights to file any notice of motion they consider
fit, seeking whichever relief they consider appropriate, and to rely upon any grounds,
including grounds beyond those explored in this correspondence.
28. Similarly, in relation to their defence of the proceedings generally, our clients have and retain
rights available to them at law. They expressly reserve all their rights.
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(cyw) 4603412_3.DOC
Your Response
29. To enable us to advise our clients and to prepare for the first directions hearing on
5 September 2012, we require your response to the above no later than
4:00pm on Friday
31 August 2012
.
30. We would ask you to provide your response to our Mr Denham, and not to provide copies to
our clients directly, any other officers of Screen Australia, nor the Minister.
Yours faithfully
MORAY & AGNEW

2 comments:

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    ReplyDelete
    Replies
    1. Daniel, as I am sure you will appreciate, this wastes a good deal of my time and energy and is more than a little iresome to me. However, I have been left with no choice but to fight to the death (metaphorically speaking) or to simply accept that Screen Australia can ban a filmmaker on trumped up charges with no evidence at all. Or at least no evidence that it wishes to make public. My reading of this Moray & Agnew leter is that Screen Australia's lawyers will attempt, in the Supreme Court,to guarantee that the evidence in support of my banning remains secret. We shall see.

      Delete