Boros v Swann

Judgment 1The plaintiff is the managing director of the Page Group of companies, which includes Pages Hire Centre (NSW) Pty Ltd and the director and secretary of Sydney Harbour Expo@ Glebe Island Pty Ltd. The defendant is the chief executive of Infrastructure NSW. 2The plaintiff was the head of a consortium tendering for the development of a temporary convention centre on Glebe Island and in that capacity attended a meeting in May 2013 (the date of which is disputed) in the course of which someone (the statement of claim, in paragraph 7, does not identify whom) "published in the nature of oral statements words to the effect and which were directed to the plaintiff: "You have no funds". Paragraph 8 recites that this statement was "false and was made maliciously" as a basis for not contracting with the plaintiff and/or Sydney Harbour Expo@ Glebe Island Pty Ltd, with "the intent to damage the reputation of the plaintiff" and with the knowledge that it was false. 3The statement of claim goes on to plead that the statement was false and malicious and that it had been "published further" (paragraph 15), although no dates or details of these further publications are given. The evidence for this is that another company made an unsolicited offer of assistance with funding, which the plaintiff says occurred "as a result of the defamatory statement". 4In paragraph 16 the plaintiff says he has suffered "loss and damage to his financial, credit and business reputation and has been criticised for not having the money to complete the Glebe Island contract when he had already been selected as the preferred supplier". The relief claimed was: (a)A declaration that the statement made by the defendant was defamatory; (b)An order that the defendant pays to the plaintiff damages arising from the publication of the statement; (c)Costs (d)Such further or other order as this Honourable Court seems [sic] fit. 5The plaintiff, who acts for himself, filed these proceedings in the District Court registry at Parramatta. On the first return date the defendant's legal representatives complained that, whether the claim was for defamation, or for injurious falsehood, or some other cause of action, it was not properly pleaded. According to Mr Richardson, those complaints were that, if it was a defamation claim, no imputations were pleaded and there was a defence under s 14B Limitation Act 1969 (NSW); if it was a claim for injurious falsehood, no special damage was pleaded; and if it was some other cause of action it was unclear what it was. 6On 16 June 2014, the defendant's legal representatives sought a transfer to the Defamation List in the Sydney Registry so that their objections to the form of the pleading could be heard in that list. The plaintiff opposed the transfer and submitted that the defendant should be ordered to file a defence immediately. He was successful in this regard, as the judge before whom the parties appeared made an order for the defence to be filed by 24 June 2014 and for the parties to attend a directions hearing before the Registrar on 7 August 2014. 7The defendant filed a "holding defence" which set out his arguments under the Limitation Act 1969 (NSW), denial of publication and objections to the statement of claim. When the matter came before the Registrar on 7 August 2014, the Registrar referred the matter back before the judge, noting the defendant's opposed application to transfer the proceedings to the Sydney Registry defamation list. 8On 22 August 2014 the proceedings came before another judge in the Parramatta District Court and were transferred to the Sydney Registry. They came before the List Judge on 3 October 2014, who transferred these proceedings to the defamation list on 10 October 2014, for the hearing of the defendant's Notice of Motion for summary dismissal of the proceedings. 9When the proceedings came before me on 10 October 2014 for the hearing of this motion, the plaintiff told me, as is set out in his email below, that he had "a raft" of cases in order to contradict the asserted claims of errors in his pleadings. He did not tell me whether this was a claim for defamation or injurious falsehood (or perhaps both), whether the statement was made about him personally or the consortium that he was heading (which had been the tenderer for the project) or whether the subsequent publications were fresh claims or republications and went to liability or damages only. I suggested that, rather than go ahead with the argument, I should adjourn the proceedings for two weeks so that he could seek legal advice. 10On 21 October 2014, the plaintiff wrote to the court advising that he had decided to discontinue the case. Part of that email contains material that may be protected by legal professional privilege that the plaintiff may not have intended to waive, so I shall not set that out. The relevant portion is as follows: "Faced with the challenges I find myself in a position where I am not capable of preparing for and arguing against the strike out motion in the Sydney Courts. I do understand that the consequences of this will result in my claim being dismissed and me being out of time on any further defamation action against Mr Swann. The demands of my business do not allow me any real time away from the business at the moment - for example the Company CEO is away to support her ailing parent and the company COO has been booked emergency surgery mid next week. I feel if directions and arguments were to be in Parramatta I may have been able appear but the business time lost in dealing with the matter - as complex as it now appears to be based on the advice of the barrister - makes proceeding with the claim in CBD Sydney impossible. I appreciate the court's indulgence and support thus far. The path that I took at Parramatta was to ensure I disrupted my business as little as possible. I now understand that that is not achievable." 11The defendant indicated that, if the proceedings were to be discontinued, he would seek costs. The plaintiff sent the following response prior to the hearing at 2:00pm on 23 October 2014: "I refer to your letter yesterday stating that the hearing today could involve the issue of legal costs. I advise that I will be unable to attend the Court today as I will be at a work site dealing with an urgent business matter. I apologise to the Court and to the defendant for this for that but due to staffing issues there is no one else to deal with the issue. I would seek that the Court order or the solicitors for the defendant agree to each party bearing their own costs. In support of my position I set out below the facts as I recall them:- 1. At the first directions hearing the Court denied the oral application by the defendant to relocate the proceeding to Sydney. This decision was made after I argued and the Judge acknowledged and agreed that my right to bring this action would be placed into a difficult if not impossible position if it was relocated. My understanding of what was said was that His Honour at the first directions hearing placed my right as the plaintiff before the convenience of the defendants solicitors and the defamation court . I felt that he did so as my commercial position as an employer had to be given consideration. 2. At the next direction hearing in front of the Registrar at Parramatta the issue of relocation was raised again. Initially the Registrar said "argument for the motion was compelling" in favour of the defendant but he then allowed me to argue my position and agreed that I had cause and pushed it back to the Judge to determine the defendant's application. 3. At the third directions hearing I was not given an opportunity to argue my position. I was simply told how complex Defamation is. The mater was to be transferred. No other motion was brought forward. I felt my treatment was very harsh and showed a total disregard by not allowing me the opportunity to argue my position. 4. At the fourth directions hearing when the matter was first heard in Sydney at the specialist Court, your honour was very adamant that I not argue alone and that I retain counsel. Whilst I did protest I felt I did not overstep the mark where I may have become offensive but I was prepared and I did have prepared notes to run through and a raft of cases to rely on. No matter what I said it was dismissed even confirming I would reset my own shoulder. 5. I say that I have followed the rule book. I was successful at the very first directions hearing for the absolutely correct reasons I say that everything beyond that was done with a disregard to the initial judgement/decision and that the defendants repeated their argument until they appeared before a Judge who agreed with them. I say that costs should not be awarded beyond the first directions hearing. In fact I was successful on that occasion. The subsequent minor attendances were before the Registrar who simply handed the matter to another Judge and then the matter as transferred to another Judge- all inconsistent with the initial orders. What has happened has not, in my opinion been caused by anything more than me seeking to proceed not unreasonably I think as per the orders on the first occasion. I do not feel I have done anything outside the Rules and that the transfer to the Sydney Court is for convenience more than anything else." 12The plaintiff appeared by telephone link up and repeated these submissions.