Flanagan v Urban Publishing Group Pty Ltd

Judgment 1HER HONOUR: The plaintiff, by statement of claim filed on 30 August 2012, brings proceedings for defamation in relation to a publication by the defendant in a local metropolitan weekly newspaper known as "The Inner City Weekender", and entitled "Fighter Charged. Local Cage Fighter Charged Over Assault at Ivy Nightclub", which appeared both in the hard copy of the metropolitan weekly newspaper and on websites in the States and Territories of Australia. 2The matter complained of recites how a Marrickville cage fighter, identified as "Emmanouil Ntaras", had been charged over the bashing of a patron at the Ivy Nightclub the previous week, and his subsequent appearance at Court. The article is illustrated by a photograph captioned "Marrickville Jiu Jitsu Fighter, Emmanouil Ntaras". The photograph illustrating the matter complained of is, however, according to counsel for the plaintiff, not Mr Ntaras, but his client, Marcus Flanagan. 3Particulars of publication are provided in paragraph 3 of the Statement of Claim, and there is a more helpful reference to the photograph at paragraph 6.2. By putting these particulars together, it can be established, although with some difficulty, that this is an example of what is sometimes called a "wrong photo" publication, namely that the photograph the defendant has published is not that of the person who was charged with criminal offences, but of another person entirely, namely the plaintiff. 4These proceedings, when commenced, were first in the Defamation List on 21 September 2012. There was no appearance. The Defamation List Judge stood the matter over for directions to 5 October 2012 and directed the Registrar to write to the plaintiff's solicitor informing him of the adjourned date, which was done. The statement of claim had in fact been served on 10 September 2012 (see exhibit A), but the defendant was not notified of the 5 October return date. 5Counsel for the plaintiff appeared on 5 October 2012, the next Defamation List date. There was no appearance by the defendant. Counsel told the judge conducting the Defamation List, when there was no appearance by the defendant, that "the plaintiff does not expect the defendant to defend the matter", according to the note made by the Defamation List Judge, who then gave a hearing date of 15 November 2012, with an estimate of a half to one day, for the entire defamation claim. 6On 9 October 2012, I was appointed the trial judge for this hearing. The file having been sent to me for the purpose of conducting the hearing, my associate sent the following letter to the plaintiff and to the registered address for the defendant: "Dear Sir/Madam, Flanagan v Urban Publishing Group Pty Ltd (2012/270858) This matter has been allocated to Judge Gibson for hearing on 15 November 2012. No defence has been filed in this matter and no directions for filing a defence appear to have been made. Default judgment is not available for defamation actions (Altarama Ltd v Forsyth [1981] 1 NSWLR 188). If the matter is to proceed by way of assessment of damages, judgment must be entered by peremptory order. Judge Gibson has relisted these proceedings for orders for entry of judgment by peremptory order on Friday 19 October 2012 at 10:00am, on the basis that no defence has been filed. The defendant is warned that if no defence has been filed prior to Friday 19 October 2012, judgment will be entered on that day by peremptory order, and the hearing on 15 November 2012 will be by way of assessment of damages only. The purpose of this letter is to ensure the defendant is aware of the consequences of failure to file a defence. If judgment is entered on Friday 19 October 2012, the defendant is still entitled to attend the assessment hearing and to lead evidence or make submissions concerning damages." 7On 11 October 2012 my associate received an email in reply from Sally Saad, an associate at Hall Chadwick which stated: "Noted. And we will pass this on to the client. I confirm our office is the registered office." 8No information was given about lawyers being retained, and I note that there is no notice of appearance filed at any stage by Bamford Lawyers. 9In the interim, on 5 October 2012, Schofield King had written to the defendant as follows: "We refer to the above matter, and advise we attended the Directions Listing in this matter at the District Court before Judge Truss on today's date. We note that there was no appearance on your behalf." 10The email and letter went on to recite the orders made in the Defamation List and enclosed a further copy of the statement of claim, noting that a sealed copy of this document had been served on 10 September 2012. 11On 5 October 2012, Bamford Lawyers replied by email to Schofield King Lawyers, raising a number of issues in relation to the form of the pleading, including the need to distinguish between the publication in the newspaper and the publication on the website, identification, a proposed defence of s 33 (triviality), comments about the range of damages and the need for an amended pleading. This letter was responded to on 9 October 2012 by a letter dealing with each of these letters (see exhibits D and E). 12When the matter came before me this morning at 9.30am, the defendant was called three times outside the court, and called outside the court a second time at 9.50am. There was no appearance. 13My concern is that the extremely quick way in which this matter went from a first mention date straight to a hearing in the defamation list may mean that the defendant does not appreciate the nature of the application before me. It is not uncommon for defendants who have consulted legal practitioners to assume that all is well and that they need not be troubled by further correspondence, as Lee v Kim [2011] NZCA 256 recently, and starkly, illustrates. The increasingly high proportion of defendants who are litigants in person in defamation actions is a trend which has been noted with concern since the Uniform Defamation Act 2005 came into force: see Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis) at [60,590]. 14In addition, it is not entirely clear to me that Bamford Lawyers appreciate that, while their correspondence has been replied to, the plaintiff is still pressing for a hearing date. 15The proper procedure where a defendant has failed to file a defence, set out in Altarama Ltd v Forsyth [1981] 1 NSWLR 188, is one of long standing. As Hunt J explains (at 191), the default procedure is inappropriate in specialist lists which provide immediate access to the court at every stage of the proceedings, such as defamation. 16His Honour went on to note: "Particularly in defamation litigation, a plaintiff can rarely if ever hold a judgment by default where the issue of defamation itself remains for the jury to determine. This is because it is a rare case in which the matter complained of is of such a nature that a jury's finding that it is not defamatory could be set aside as perverse: Australian Newspaper Co Ltd v Bennett [1894] AC 284, at pp 287, 288; Lockhart v Harrison (1928) 139 LT 521, at p 523; and see Capital and Countries Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, at p 771; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, at p 6; Roberts v John Fairfax & Sons Ltd (Supreme Court of Victoria, Murray J, 26th November, 1975). Far more satisfactory for all concerned is a peremptory order which, if not complied with, puts an end to the whole matter. In my opinion, it is quite inappropriate to have resort to the right to enter judgment by default once directions have been given in the matter; if judgment by default is warranted in any particular case, application should be made for such judgment to be directed in accordance with Pt 17, r 9." 17The course that I propose to adopt is to give the defendant a further seven days in which to file a defence, and to stand the matter over for seven days to enable the defendant to have a last chance to file a pleading or challenge the plaintiff's pleadings. In doing so, I note the issues raised by Bamford Lawyers in their letter of 5 October 2012 but, having regard to the obvious nature of the identification of the plaintiff and the comparatively trivial nature of objections to the pleading of a newspaper and website publication, I can see no reason why the defendant cannot file a defence, even if the statement of claim was as defective as is suggested in Bamford Lawyers correspondence. 18If a defence is filed then, of course, the hearing date will have to be vacated, but that will be an issue for another day. 19As a general rule, defamation matters need careful case management in the defamation list, rather than an immediate hearing date. Even if the defendant in these proceedings does file a defence, I propose to return the matter to the defamation list for case management, to ensure that the usual pleadings and other interlocutory steps are taken. Those steps may include challenges to the form of the pleading of the statement of claim, issues relevant to discovery and interrogatories, applications for a jury trial or such other matters as the parties deem appropriate. My role is limited to being that of the judge who has been allocated this matter for hearing. It was re-listed today by me in an effort to ensure that all necessary directions have been given in these proceedings, and that there has been "no rush to judgment" (B. Gardiner, "No Rush To Judgment" (2010) 84(5) LIJ 56). 20I also propose to make orders for the Court to notify Bamford Lawyers to ensure that if there is to be any defence filed by the due date, or any application for some form of interlocutory argument, Bamford Lawyers are aware that their client has seven days in which to raise these matters, otherwise judgment will be entered by a peremptory order. 21Accordingly, the orders and notations I make are as follows: