Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation

District Court of NSW|2016-08-25

Solicitors: Plaintiff: No appearance Defendants in 2014/47901; 2014/47902; 2014/73486; 2015/245052; 2015/245071: Banki Haddock Fiora Defendant in 2015/283676: Australian Broadcasting Corporation File Number(s): Alex v Fairfax Media Publications Pty Ltd (2014/47901)Alex v Whittaker (2014/47902)Alex v Goodsir (2014/73486)Alex v Fairfax Media Publications Pty Ltd (2015/245052)Alex v The Age Company Ltd (2015/245071)Alex v Australian Broadcasting Corporation (2015/283676) Publication restriction: None

The application before the court

These are my reasons for granting an application made in court today by the defendants, seeking a dismissal of six defamation proceedings commenced by the plaintiff, pursuant to ss 56-62 Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4 Uniform Civil Procedure Rules 2005 (NSW).

The six defamation proceedings brought by the plaintiff

The plaintiff commenced a series of defamation proceedings in 2014 and 2015 against the defendants. These were originally set down for hearing in December 2015 in two tranches, in November 2016 and March 2017, and as six-week jury trials, because of the volume of material and evidence involved. At the time the matters were set down for hearing some issues of discovery and interrogatories remained to be completed but the expectation was that these steps could be quickly accomplished.
After the trials were set down for hearing, the plaintiff stopped complying with directions. By reason of the plaintiff's failure to comply with directions for completion of steps necessary for the hearing to commence, I vacated the November 2016 hearing date over the opposition of the plaintiff: Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96. At the time, I noted the plaintiff's history of dilatory conduct in litigation, including his own bankruptcy (see Deputy Commissioner of Taxation v Alex [2011] FMCA 290).
These are complex jury trials. Mr Dawson described the level of preparation as "bigger than Ben Hur". The defendants complain, however, that the plaintiff shrinks from the arena of battle, and is a "reluctant gladiator" (Bi v Mourad [2010] NSWCA 17 at [31] per Young JA, a term first used by his Honour in Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263 at [63], and which has come to be applied to litigants unable or unwilling to enter the trial arena).
The evidence put before the court paints a compelling picture of delay by the plaintiff, a bankrupt who would be unable to satisfy any costs alternative to the orders the defendants seek. Two initial problems arise. The first is whether this application should proceed without the plaintiff (who is currently without representation) being present, and the second is whether proceedings which have been completed to this level should be dismissed without giving the plaintiff at least some opportunity to rectify his many defaults.

Can the application proceed in the absence of the plaintiff?

The first issue is whether I should proceed in the absence of the plaintiff.
There is no set rule as to what should happen if the plaintiff fails to appear on an interlocutory application. When a trial is called on, r 29.7 Uniform Civil Procedure Rules 2005 (NSW) applies. In those circumstances the court may proceed with the hearing generally, so far as concerns any claim for relief in the proceedings, or may adjourn the trial. By contrast, if it is the defendant who fails to appear, then the plaintiff may prove its claim so far as the burden of proof lies upon it and if it proves its claim is entitled to the relief claimed and such other relief as is consistent with what is sought (see Ritchie's Uniform Civil Procedure (NSW), referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141).
A plaintiff who knows of an application before the court for hearing who fails to attend puts the court in a difficult position, particularly where, as is the case in these proceedings, he has been on notice of the application for some weeks. A further problem is that the plaintiff is now acting for himself and the court accords greater indulgences to such persons. In addition, he has endured a series of illnesses over the years which I understand to be serious. However, that does not mean that a plaintiff facing an application for summary dismissal of his claim can defeat justice by remaining away without any explanation.
What duty do the defendants owe the court in the presentation of material where the plaintiff is absent? In Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Barrett J has helpfully reviewed and explained the duties owed to the court by the party who is present, as well as the approach the judge should take in such circumstances. In accordance with those principles, I have put questions to Mr Dawson and Ms Norman about the issues such as the degree of delay involved and the plaintiff's knowledge of the applications before the court.
Ultimately, however, as Barrett J notes at [64], in an adversarial system, the responsibility for conduct of a case rests with the party concerned. While allowances may be, and are, made for persons under a disability, self-represented parties, litigants with health problems or parties obliged to travel long distances, the plaintiff, who is written about regularly in the newspapers in relation to other litigation in which he is involved, does not appear to labour under any significant disadvantage in relation to his other activities.

The late stage of preparation for the trial

The next issue is whether, given trial preparation has been commenced, it is desirable to dismiss the proceedings. This requires an analysis of the degree of delay of which the plaintiff has been guilty.
Three of the trials were so unready that they had to be deferred until March 2017, over the opposition of the plaintiff. The plaintiff was on notice that he needed to comply with timetable orders and that failure to do so could have consequences. Unfortunately, as the events subsequent to my judgment show, the plaintiff simply did nothing.

Events subsequent to my 2 June 2016 judgment and prior to the application today

Following the handing down of my judgment in Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 on 2 June 2016, the Australian Broadcasting Corporation wrote to Nazarian Lawyers on 8 June 2016 as follows: "Dear Mr Nazarian ABC ats George Alex; District Court case no. 2015/283676 We refer to your letter of 23 May 2016 concerning court orders 1 and 2 of 24 March 2016. By that letter you requested another 14 days for your client to complete compliance with the orders. Noting that the 14 days have passed (on 6 June 2016), we ask that you advise when we can expect to receive your client's discovery and interrogatory answers. If the circumstances are that your client is not able to give discovery due to ill health or for some other reason, yet he is able to advise us now of the categories of documents he believes he can discover, and those he believes he will not, we ask that he so advises. Doing so will enable us to determine where any subpoenas can be directed for the documents your client will not discover and hence limit the prejudice to the ABC caused by your client's non-compliance with the court orders. Yours sincerely Kathryn Wilson Lawyer ABC Legal & Business Affairs"
Orders 1 and 2 of 24 March 2016 to which this letter refers are as follows: 1. The plaintiff is to serve answers verified by affidavit to the interrogatories served by the defendant on 9 February 2016 by 5 May 2016. 2. The plaintiff is to give discovery verified by affidavit of the categories of documents served by the defendant on 9 February 2016 by 5 May 2016.
On 4 July 2016, the Australian Broadcasting Corporation caused another letter to be sent to Nazarian Lawyers in the following terms: "Dear Mr Nazarian ABC ats George Alex; District Court case no. 2015/283676 We refer to your letter of 23 May 2016 concerning court orders 1 and 2 of 24 March 2016. By that letter you requested another 14 days for your client to complete compliance with the orders. Forty-two days have passed and your client continues to fail to comply with the orders. The prolonged delay has not been explained. This is the second letter we have sent to you since 23 May, the first being dated 8 June 2016. It is the fifth letter we have sent to you about non-compliance with the 24 March orders. In our letter dated 8 June we invited your client to at least advise us of the categories in which he anticipates providing discovery so that we can prepare subpoenas for production in the other categories (where possible). Your client has not responded to this request, or to the letter at all. Please advise as to when your client expects to comply with the 24 March orders. We are concerned by the lack of prosecution of this case by your client. Yours sincerely Kathryn Wilson Lawyer ABC Legal & Business Affairs"
A further letter was sent by the Australian Broadcasting Corporation to Nazarian Lawyers on 18 July 2016: "Dear Mr Nazarian ABC ats George Alex; District Court case no. 2015/283676 We refer to our letters of 13 May, 20 May, 23 May, 8 June and 4 July 2016. Each of the letters concerned your client's non-compliance with Court orders 1 and 2 of 24 March 2016. In an effort to progress the case in the absence of your client's discovery, we have repeatedly asked your client to advise us of the categories in which he anticipates providing discovery. This will enable us to prepare subpoenas for production to appropriate third parties. Your client has not responded to any of our requests. Please advise as to when your client expects to comply with the 24 March orders. We are concerned by the lack of prosecution of this case by your client and will bring this to the attention of the Court if necessary. Yours sincerely Kathryn Wilson Lawyer ABC Legal & Business Affairs"
On 20 July 2016, Nazarian Lawyers filed a Notice of Ceasing to Act. The last known residential or business address indicated on page 2 of this notice is an address in Earlwood ("Earlwood address").
On 22 July 2016, the Australian Broadcasting Corporation wrote to the plaintiff, by registered and express post, at his Earlwood address as follows: "Dear Mr Alex ABC ats George Alex; District Court case no. 2015/283676 We were recently served with a notice from Steven Nazarian notifying us that he had ceased to be your solicitor in the above case. We have enclosed a copy of our recent correspondence with Mr Nazarian so that you are aware of a significant issue in your case. That issue is that you have not complied with orders made on 24 March 2016. Those orders were: 1. The plaintiff is to serve answers verified by affidavit to the interrogatories served by the defendant on 9 February 2016 by 5 May 2016; and 2. The plaintiff is to give discovery verified by affidavit of the categories of documents served by the defendant on 9 February 2016 by 5 May 2016. As you have not taken steps in respect of the two orders above, the ABC is considering making an application to have your case dismissed for want of prosecution. It will not make that application before 1 August 2016. If we do not hear from you, or we are not satisfied with the response we receive, we may proceed to make the application. Please note that on 2 June 2016, the following orders were made in respect of your proceedings against the ABC and your cases against other news media publishers: 1. Pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW), each of the proceedings set out below be tried at the same time in a jury trial commencing on 6 March 2017 (estimate 6-8 weeks): a. Alex v Fairfax Media Publications Pty Ltd (2014/47901); b. Alex v Whittaker (2014/47902); c. Alex v Goodsir (2014/73486); d. Alex v Fairfax Media Publications Pty Ltd (2015/245052); e. Alex v The Age Company Ltd (2015/245071); f. Alex v Australian Broadcasting Corporation (2015/283676). 2. Vacate the hearing date of 19 September 2016 for the following matters: a. Alex v Fairfax Media Publications Pty Ltd (2014/47901); b. Alex v Whittaker (2014/47902); c. Alex v Goodsir (2014/73486). 3. Costs to be costs in the cause. 4. Matters stood over for further directions on Thursday 25 August 2016 at 9:00am with liberty to vacate of change this date, if so required. As per order 4 above, the next hearing date is 25 August 2016. Yours sincerely Kathryn Wilson Senior Lawyer ABC Legal & Business Affairs"
A copy of this letter was also sent to the plaintiff's counsel, Mr Rollinson, on 22 July 2016. Attached to Mr Grant McAvaney's affidavit (Exhibit A) and marked Annexure E is a copy of the Australia Post search results indicating the above letter, sent by express post, had been delivered on 25 July 2016 at 1:04pm, while the letter sent by registered post was not collected by the plaintiff.
On 1 August 2016 Ms Norman, on behalf of the Fairfax defendants, wrote to the plaintiff at his Earlwood address as follows (Exhibit 1): "Dear Sir ALEX v FAIRFAX MEDIA PUBLICATIONS PTY LTD (2014/47901) ALEX v WHITTAKER & BENNS (2014/47902) ALEX v GOODSIR (2014/73486) (the 2014 Proceedings) ALEX v FAIRFAX MEDIA PUBLICATIONS PTY LTD (2015/245052) ALEX v THE AGE COMPANY PTY [sic] LTD (2015/245071) (the 2015 Proceedings) On 20 July 2016 we received notices of ceasing to act in the above proceedings from Steven Nazarian of Nazarian Lawyers. In the circumstances, we write to inform you of the current timetables in the proceedings. Joint Hearing The trial of all of the proceedings referred to above has been scheduled to start on 6 March 2017 with an estimate of six weeks. The proceedings will be heard together with your claim against the ABC (claim no. 2015/283676). The 2014 Proceedings In the 2014 Proceedings referred to above, the parties were ordered to provide answers to interrogatories by 16 June 2016. We served Mr Nazarian with the defendants' interrogatories on or about 25 May 2016. Please advise when we might expect to receive your answers. We will provide you with the defendants' answers to the interrogatories you have administered shortly. The 2015 Proceedings In the 2015 Proceedings referred to above, the parties were ordered to serve categories for discovery by 19 May 2016 and provide discovery by 16 June 2016. We enclose copies of the defendants' categories for discovery in these proceedings. We have not received any categories for discovery on your behalf. Please advise whether you will be seeking any discovery from our clients. Directions Hearing There is a directions hearing in the District Court of New South Wales on 25 August 2016, at which the Court will make further directions for the management of the above proceedings. Yours faithfully Leanne Norman Partner Banki Haddock Fiora"
This history of delay on delay has now reached tipping point. The plaintiff clearly does not intend to comply with any of his timetable obligations.

Applications for summary disposal of proceedings

These are proceedings at an advanced stage of the litigation, namely six months away from trial. Any application to strike out proceedings listed for trial must be viewed with great care.
There are two types of behaviour that may result in the dismissal of a claim. The first is the kind of overactivity demonstrated in Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 and the second is complete torpor of the kind complained of in Hoser v Hartcher [1999] NSWSC 1060.
The defendants submit that this case falls within the second category, in that, throughout this litigation, the plaintiff has displayed "a wholesale failure to engage with the processes of the court which reveals an arrant disregard for the importance of doing so" (Templar v Britton (No 2) [2014] NSWSC 587 at [37] per McCallum J). This has become critical because, at the moment, the plaintiff in these proceedings is simply doing nothing, including failing to respond to correspondence or come to court.
In Bi v Mourad at [33], Young JA invited primary judges to be bold in such circumstances: "[33] Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs". This is not the clear policy of the legislator in the Civil Procedure Act."
At [47] Allsopp P added the following warnings about the perils of delay by parties in the modern case management system: "[47] Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice."
Mr Dawson reminds me that Mr Alex has already suffered the loss of another action of his against the Australian Broadcasting Corporation when I struck out his claim against the 7.30 Report: Alex v Australian Broadcasting Corporation [2015] NSWDC 78. In particular, he drew to my attention that Mr Alex, rather than his solicitor, had been responsible for the delay in service which played such an important role in the striking out of the case.
Mr Dawson also asked me to consider the demands cases of this kind place on the court system. In particular, he drew to my attention Mr Alex's failure to attend a mediation arranged before one of the registrars in this court, with the result that not only did the defendants lose the opportunity of participating in a mediation they had spent some time preparing for, but the court staff and registrars had wasted their time as well.
The free mediation service offered by the registrars in this court is one of its great successes. Matters involving large sums, complex issues, and sometimes also the rich and famous, are able to be brought before the court's skilled mediators, with the result of immense savings for the court system as well as for the parties. While I understand that Mr Alex gave a late explanation of a health problem, this was not a satisfactory one, and it is one of many times when Mr Alex has shown disregard for the degree of strain cases such as his place on the resources of this court.
Although the summary dismissal of proceedings is an exceptional step, I am satisfied that these are exceptional circumstances. I am satisfied that the same entitlement should be extended to all defendants. The proceedings should be dismissed with costs.
I am aware, however, that there may be explanations Mr Alex may offer which may be of relevance in relation to costs. Accordingly I have granted liberty to apply in the event that he wishes to be heard on costs issues. The same is the case for the defendants.

Orders 1. Plaintiff called outside Court 13D three times at 9:52am - No appearance. 2. Plaintiff called a second time outside Court 13D three times at 10:40am - No appearance. 3. Proceedings dismissed with costs. 4. Liberty to apply in relation to costs. 5. Vacate the hearing date of 6 March 2017.

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 August 2016

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