Facer v Wolfe

The plaintiff seeks to go ahead with the hearing 17The plaintiff opposed the adjournment of the hearing on three bases: (a)The plaintiff was not ordered to notify the defendant of the hearing date, and has given sufficient notice of it by sending a letter and email on 19 November 2013; (b)These proceedings have already taken two and a half years to come to court, in circumstances where the defendant has stood idly by while judgment was entered against her; and (c)The plaintiff is ready to proceed today and should be permitted to do so. 18Mr Weaver submitted his client was ready to proceed and had come to court with his witnesses and written submissions. His client had not been ordered to advise the defendant of the hearing date, and the defendant's response that she was overseas until 30 December 2013 amounted to "cocking a snook" at the plaintiff's action. I shall consider each of the matters he raised in turn.

The obligation to notify the defendant of the hearing date 19If Levy SC DCJ had ordered the plaintiff to notify the defendant and this had not been done, it would have been inappropriate for the hearing to take place. 20His Honour was entitled to take for granted that the defendant would be notified within a reasonable time. The hearing was three months away and there would be plenty of time for the defendant to advise if there were problems with the date selected. 21In the absence of a judgment on the issue, I do not consider that his Honour dispensed with service on the defendant of the orders or of notification of the defendant. Complaints that an order should have been made are a counsel of perfection. 22The defendant should have been notified promptly of the orders of 23 August 2013. A letter and email sent the week before the hearing would be insufficient, whether or not the solicitor for the plaintiff knew of the defendant's likely absence overseas.

The defendant's inactivity and failure to appear when her defence was struck out 23This was the principal basis upon which Mr Weaver submitted that the hearing should proceed as otherwise his client would suffer the prejudice of further delay. 24Mr Weaver pointed out that these proceedings had taken two and a half years to get to court. He identified delays by the defendant in retaining a solicitor (a delay of about three weeks) and in relation to the mediation, but acknowledged that these delays occurred in the context of the defendant being treated for cancer. 25The defendant did not indulge in delay in the form of failure to comply with court orders. There was an imputation argument where a costs order was made, but that is a standard part of defamation proceedings. The only other costs orders I can find in relation to the mediation are costs orders made (and then vacated) by Gibb DCJ on 8 and 15 June in favour of the defendant, not the plaintiff. The first mediation was unsuccessful, and one of the complaints of the defendant was that the plaintiff did not appear in person but by telephone. A further mediation order was made, but this mediation was also unsuccessful. 26Mr Weaver complained that the solicitors for the defendant sought adjournments while they investigated whether the defendant's email was written on an occasion falling within the body corporate insurance. This included vacating a mediation date (8 October 2012) so that the question of indemnity from the body corporate could be pursued. The "duty to defend" principles of indemnity under an insurance contract for homeowners sued for defamation have been the subject of discussion in caselaw both in Australia (Knapp v Hinchcliffe [2004] QSC 326) and overseas (Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.)), and the existence of such insurance may be relevant not only to the defence, but to the plaintiff's claims (Knapp at [5] - [7]; Hickie v Perkins (Supreme Court of NSW, Levine J, 15 November 1996)). I regard this as a legitimate inquiry and not as time-wasting. 27Mr Weaver relied in particular upon the failure to answer a request for particulars which led to the striking out of the defendant's defence, with a costs order against her, as well as her failure to attend court on 9 and 23 August. I have taken this into account. The striking out of the defendant's defence occurred, however, after she was given only one opportunity to provide particulars, in circumstances where the plaintiff had allowed the time for seeking particulars to elapse (but cf Ford v Nagle [2004] NSWCA 33, Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 and Hallam v Ross [2011] QCA 274) and these orders have been given full weight by me in coming to my determination. 28I cannot identify substantial, or indeed minor, inactivity or failure to appear by the defendant, other than the failure to answer the particulars of 12 June 2013 and her subsequent non-appearance on the applications to strike out and for summary judgment on 9 and 23 August 2013. The plaintiff's delay in seeking particulars between 26 April (the final date given by the court) and 12 June (the date these particulars were sought) is unexplained. 29The plaintiff's delay and failure to comply with orders is thus limited to her failure to attend court or to comply with the request for particulars made on 12 June 2013, namely between 28 June 2013 (when the application was made to the court for the defence to be struck out on this basis) and 23 August 2013 (when Levy SC DCJ entered summary judgment and listed the matter for hearing on 28 November 2013). This does not necessarily mean that she does not wish to be heard on the subject of quantum, particularly in circumstances where, as she recites in her defences, she has published an apology. Nor would her failure to attend on these occasions mean she had lost the right to be told about the hearing date with due notice, particularly in circumstances where it would appear that she had previously advised the solicitor for the plaintiff, in about June 2013, that she would be absent from Australia until December 2013. 30While two and a half years to get to hearing is a considerable period of time, the delays in this case should not be laid at the foot of the defendant. A further delay of several months in order to enable the defendant to prepare her case on quantum, or to take such other steps as she may be advised, is delay sounding essentially in costs, and I have made an order reserving the costs of today to preserve the entitlement of both parties on this issue.

The hearing is ready to proceed 31The next basis upon which Mr Weaver submitted that the matter should proceed was that the plaintiff was ready for hearing, in that he had assembled his witnesses and written submissions had been provided to the court. 32These written submissions do not refer to the uniform legislation in place since the Defamation Act 2005 (NSW) or to any damages awards made in accordance with the provisions of that legislation, which is akin to making submissions in a negligence action without referring to the Civil Liability Act 2002 (NSW). To the contrary of those statutory provisions, these written submissions state (at paragraph 13) that defamation damages are "at large", which is a misstatement of the law even under the repealed legislation. Section 35 Defamation Act 2005 (NSW) imposes a cap on damages and this section, the relevant gazetted figure and the provisions relevant to the claim for aggravated compensatory damages (s 35(2)) and mitigation (s 38(1)(a)) should be set out. References in the submissions under the heading "Awards in other cases" to comparable damages awards consist of jury verdicts and judgments handed down under the now repealed Defamation Act 1974 (NSW), where the legislation was entirely different. In addition, the comparable judgments referred to in the plaintiff's written submissions are all mass media defamation actions (some of them jury verdicts), and not private publications such as emails of the kind sent to a handful of people. In particular, the submissions do not refer to any matters in mitigation, such as the apology the defendant has attached to her defences. These submissions were not served on the defendant and it would be left to the trial judge to pick up these issues. Mr Weaver's statement that oral submissions could cure all these defects or omissions is unpersuasive. 33In determining what course to take, I have been guided by the principles set out in the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). I set out the relevant provisions and rules as well as the discussion and analysis of the principles involved in practice decisions in the New South Wales Supreme Court.

The legislative framework 34Pt 29 r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that if an action is set down for hearing and one of the parties fails to appear, the court may proceed with the trial, so far as concerns any claim for relief in the proceedings, or adjourn the trial. 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 a plaintiff can establish that he or she is entitled to the relief claimed, and such other relief as is consistent with what is sought, the court may proceed to make final orders (see Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]. In an adversarial system, the responsibility for conduct of a case rests with the party concerned and failure to appear in court is not a matter into which courts should inquire. 35However, for a party to be relevantly absent, they must have had "adequate" notice of the hearing date (Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], citing Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]). 36"Adequate" notice was identified as being "reasonable" by Hallen J in French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584 at [14]: "The clear purpose of UCPR rule 29.7 is the efficient dispatch of Court business. However, in despatching Court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case that has been no valid trial at all." 37Mr Weaver did not take me to any cases where one week's notice of a hearing was considered reasonable. I have been unable to find any appellate consideration of such a proposition. It is a practice that should be avoided. 38Section 66 Civil Procedure Act 2005 (NSW) provides that the court may adjourn a trial, a power generally exercised in accordance with the principles set out in ss 56 - 62. Examples include late service of documents on an unrepresented litigant (Scott v Handley [1999] FCA 404). Ritchie's Uniform Civil Procedure (NSW) notes at [s.66.5] that, "where proceedings have been regularly fixed for hearing, with due notice to the affected parties", applications for adjournments are unlikely to succeed. 39The question is what amounts to due notice. If Levy SC DCJ had made an order for service on the defendant and it had not been complied with, it is unlikely that this hearing could go ahead. If the defendant had had legal representatives who had not been notified, Mr Weaver agreed it would have been difficult for the case to proceed. The question is therefore whether Levy SC DCJ's asserted failure to order service of the orders was a considered decision (an unlikely result, as there were no reasons for judgment) or whether his Honour simply took for granted, as a busy judge with a heavy workload might easily do, that the orders would be served on the defendant in the usual way without the necessity for him to order the plaintiff to do so. 40Notification of procedural steps to an opponent is such a fundamental step in litigation that judges ought to be able to take this for granted. While it may have been preferable for a specific order to have been made, the plaintiff should not have needed an order from Levy SC DCJ to tell the defendant the date of hearing. Common sense, fairness and the provisions of ss 56 - 62 Civil Procedure Act 2005 should have been enough motivation for the plaintiff to take this essential step, and to do so well prior to 19 November 2013, especially if (as appears to be the case) his solicitor had some prior knowledge, however vague or scanty, that the defendant was, or could be, absent overseas. 41Nor do I consider that litigants in person should be treated with less consideration than litigants who are legally represented. There have been many defamation actions where a defendant is self-represented; courts generally give a greater degree of leeway to such litigants: see Hallam v Ross [2011] QCA 274. As is noted in Tobin & Sexton, Australian Defamation Law and Practice at [60,590], defendants represent themselves in about 20% of all defamation actions resulting in a jury trial or hearing, and around 10% of all defamation trials are undefended. Litigants in person are common in defamation actions. Both the courts and their opponents need to have the flexibility to cope with this. 42Nor does the defendant's apparent concessions as to liability deny her the right to be heard on quantum. Issues of liability and quantum are perhaps more often dealt with separately in defamation than other causes of action, and concessions as to liability do not mean that the defendant will have nothing to say about quantum. The first two hearings under the Defamation Act 2005 (NSW) were for assessment of damages only and in both cases quantum was a hotly contested issue (Martin v Bruce (2007) 6 DCLR 15; Attrill v Christie [2007] NSWSC 1386). A party who may not oppose the striking out of a defence may still wish to be heard on damages in defamation, in much the same way that damages in relation to a motor vehicle accident or a claim for breach of contract may be divided. Nor is it uncommon for a party to file a defence on all issues to determine, at a later date, to contest quantum only. 43The circumstances in which a court would refuse the request of a party to conduct a hearing in the absence of the opponent would need to be compelling in the extreme. Having regard to the "just, quick and cheap" requirement in s 56, failure to advise of the hearing date until a week before the hearing is, however, one of the few grounds upon which a court would be reluctant to proceed. As Hallen J explained in French Consulting Pty Ltd v Lawson Stuart Donald, supra, at [14], failure to observe the right of a defendant to be informed means that there has been "no valid trial at all". However weak the defendant's arguments on quantum may be, or even if she does not wish to attend at all, she is entitled to be given adequate and reasonable notice of the hearing date. That has not occurred in these proceedings and I accordingly propose to vacate the hearing date and return these proceedings to the Defamation List for further management, including the allocation of a hearing date if considered appropriate by the judges conducting that list. 44The orders I have made provide for the court to make a copy of this judgment and today's orders available to the defendant, and my associate will accordingly forward (by both post and email) copies of these documents to her, as well as to the plaintiff, as soon as practicable, and no later than 29 November 2013.

Orders (1)The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance. (2)By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons). (3)These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained. (4)Note Gibson DCJ is not part heard. (5)Costs of today reserved.

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: 29 November 2013