Coren v Master Builders Association of New South Wales Pty Ltd

Judgment 1BASTEN JA: The applicant, Nicholas Coren, seeks leave to appeal from an order dismissing proceedings in defamation commenced by him in the District Court on 12 March 2012. There were two alleged defamations, one involving a letter circulated to persons identified as members of the respondent Master Builders Association dated 10 March 2011 and another constituted by statements allegedly made at a meeting in May 2011 with a partner in the solicitors' firm of which the applicant was a member. 2Following the commencement of proceedings in the District Court, there was what was described by Elkaim DCJ as interlocutory skirmishing over a significant period. 3On 8 February 2013 a co-plaintiff discontinued proceedings against the defendants, leaving the applicant as the sole plaintiff. At the same time the applicant was ordered to file a second further amended statement of claim in the District Court within 21 days, that is by 1 March 2013. 4On 25 March 2013, some 24 days late, he did file a further amended statement of claim. In response, on 3 May 2013, the defendants wrote a letter seeking, either by way of objection or further particulars, to raise a number of issues extending over some four pages in relation to the new document. The failure of the applicant to respond to that letter led, in September 2013, to a strikeout motion being filed by the defendants. There was a dispute as to when that was initially served. 5In the meantime, the applicant had been the subject of disciplinary proceedings undertaken by the Law Society, as a result of which his practising certificate was suspended. Nevertheless, throughout the relevant period, his address for service remained that which had been included on the further amended statement of claim, which was the address (including the email address) of the law practice in which he had previously been engaged. 6It was eventually agreed that the notice of motion had been served on 10 September 2013. It was, it appears, served both personally and by despatch to the email address which appeared on the statement of claim. 7The applicant did not attend the hearing on 13 September 2013, at which time the judge made the orders sought by the defendants striking out the proceedings. 8There had been, thereafter, a dispute as to why the applicant did not appear on that date. In part, his explanation was that he had not initially received the documents which had been sent to him (by way of email at least on 10 September) and personally served, possibly the following day. He said that when he did see the notice of motion, it bore the date 13 September in handwriting which he misread as 18 September. 9On 16 September 2013 the applicant became aware that an order had been made in his absence striking out the proceedings three days earlier. On 25 September he filed and served a notice of motion seeking to set aside the strikeout order. 10He relied upon an affidavit dated 24 September 2013 in support of that motion. In a passage in that affidavit, to which attention was drawn in this Court, he made brief reference to a perceived inconsistency in the objections taken in the letter of 3 May 2013, in that the defendants appeared both to seek detail as to the person who had spoken with his partner in May 2011, allegedly in a defamatory manner, and to assert that the representative was not an officer of the Master Builders Association of New South Wales but rather of the Newcastle Master Builders Association. It was apparent at that stage, the applicant submitted, that they were aware of who the person was of whom they sought particulars. That was the only issue as to the substantive content of the letter of 3 May which was raised in his affidavit of 24 September. 11Accordingly, on 16 December 2013, Elkaim DCJ was required to consider why it was that the applicant had not appeared at the hearing on 13 September and what answer he had to the matters which might have been put at that time had he appeared. In the application to set aside the default judgment, he did not refer to the email of 10 September 2013 or the documents attached to that email, sent to the applicant's nominated address for service. 12There were two subsidiary issues which were raised in the course of the proceedings in December 2013, neither of which went to the substance of the matters to be determined by the District Court, nor to the substance of the matter to be determined by this Court. However, adversely to the applicant, Elkaim DCJ did not accept the applicant's evidence about misreading the date on the notice of motion. At par 10 of his judgment of 17 December 2013, the judge set out a number of reasons why he did not accept that evidence. 13It is clear that in part the present proceedings are intended to provide an opportunity for the applicant to respond to, and if possible overturn, the finding as to his credit. That in itself would not be a reason to give leave to appeal. The fact is that the applicant had an address for service which he had maintained throughout September 2013 and at a time when a manager appointed by the Law Society, Mr Savage, was in control of the practice. It is clear that the manager acted promptly on 10 September to forward to the applicant a letter attaching the notice of motion which had been received at the practice address, no doubt by email. 14The applicant at some stage read the email of 10 September, although it may not have been on that day. He claimed he did not, however, read the attached letter until after 13 September. Had he done so, he would have seen in clear print the date for the hearing, being a date at which Mr Savage attended even though the applicant did not. 15The notice of motion also indicated the date on which the motion was to be heard. The question about why he did not read the email is, in substance, beside the point. A solicitor who gives as an address for service an address from which he does not trouble to obtain information in a timely manner, cannot be heard to disclaim knowledge of that which he would have known had he attended to the material supplied to that address. 16In any event, there are a number of further difficulties which arise from the manner in which the proceedings have been dealt with thus far. It is understandable that, not having been in attendance on 13 September, the applicant would seek to have the orders made on that occasion set aside. However, at least upon failing to have those orders set aside, if not before that, it would have been appropriate for the applicant, had he wished to come to this Court, at least to have filed a notice of intention to appeal to this Court in a timely way. That was not done. Instead the applicant took the further step of returning to the District Court and, on 14 February 2014, seeking that Elkaim DCJ re-open the judgment of 17 December, on the basis that there were matters which gave rise to concern as to the correctness of that decision. Because the application was made outside the period provided by the Uniform Civil Procedure Rules 2005 (NSW), r 36.16 for re-opening judgments which have been entered, it was necessary for the applicant to establish that the orders had been made irregularly, illegally or against good faith, pursuant to r 36.15. For that purpose he sought to demonstrate that there had been some impropriety in the manner in which the solicitors for the defendants had conducted the proceedings. He failed in that regard. 17The applicant filed a notice of intention to appeal in this Court on 10 March 2014, and, subsequently filed and served a summons seeking leave to appeal with respect to an interlocutory decision in the District Court. (Leave was also required because there was no evidence that the monetary floor specified in s 127 of the District Court Act 1973 (NSW) was met.) The summons further required an extension of time. The extension of time may not be great, but it is a matter of concern that in proceedings in defamation where there are relatively short limitation periods, 12 months being the primary period, matters should be dealt with expeditiously once the proceedings have been commenced. 18The applicant has not put on any affidavit before this Court on which he might be cross-examined. He has provided a number of documents. However, he is faced with circumstances in which a judge of the District Court, who did hear the applicant give evidence, did not accept his evidence. There is no reason for this Court to suppose that, in the circumstances, the credibility findings would be open to serious challenge: no proposed challenge has been explained in sufficient detail to allow the Court to take a different view of that matter. Secondly, it is by no means clear what it was that would have happened on 13 September 2013 had the applicant appeared and sought to defend his conduct up to that time. 19When faced with a document setting out in some detail the objections taken by the defendants to the amended claim, and not having responded to that for some months, it was imperative for the applicant at that time to have filed an affidavit explaining in detail, and in a full and satisfactory manner, why there had been delay and, further, indicating the response which would be given, not necessarily by way of an amended pleading, but at least by way of a draft response to each of the particulars and objections raised in the letter of 3 May 2013. Neither of those things was done. 20In these circumstances, the Court cannot be satisfied that there has been injustice done to the applicant which would warrant a grant of leave to appeal. 21Accordingly, the purpose for extending time within which to commence proceedings is not demonstrated to be other than an exercise without merit. I would refuse an extension of time. It would follow that the summons should be dismissed as incompetent. The applicant should pay the respondents' costs in this Court. 22GLEESON JA: I agree with Basten JA.