Foley v Rosier

Judgment 1The plaintiff seeks the following orders: (a)An extension of time for service of the statement of claim filed on 7 April 2014; (b)Leave to amend the statement of claim to withdraw his claim for defamation and to amend the pleading to claim, on the basis of the same publication, a claim for injurious falsehood and misleading and deceptive conduct pursuant to Part 2-1 of the Australian Consumer Law (Cth); and (c)Transfer of these proceedings to the Local Court of NSW, on the basis that the damages claimed are "now wholly within the Small Debts jurisdiction of the Local Court" (affidavit of M Foley, Exhibit A). 2In the statement of claim filed on 7 April 2014, the plaintiff, a solicitor, sought damages for defamation for three publications by the defendant, his former client, to the Legal Services Commissioner dated 13 December 2012 and 30 January 2013. This pleading is deficient. Particulars "pursuant to DCR Part 49 r 11 (d)" of "malice and spite", injury to health and special damages are pleaded, but these District Court Rules were repealed when the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") were enacted in 2005. Contrary to the provisions of UCPR r 15.19, the matters complained of are not attached. The three matters complained of were published on dates more than twelve months before these proceedings were commenced, and therefore would require leave to proceed: s 14B Limitation Act 1969 (NSW). This statement of claim, in addition to these defects, was not served within the one-month service period: r 6.2(4)(b)(i) UCPR. In addition, as the plaintiff has now acknowledged, s 27 and Schedule 1 clause 18 Defamation Act 2005 (NSW) ("the Act") extend a defence of absolute privilege to the occasion of the making of a complaint to the Office of the Legal Services Commissioner: Lucire v Parmegiani [2012] NSWCA 86 at [38], distinguishing between clauses 15(1)(a) and 18 of the Act. 3The plaintiff's claim came before Bozic SC DCJ on 16 May 2014. It is clear from the notation on the file that the plaintiff made an application for an extension of time for service, and that Bozic SC DCJ was not prepared to hear this application in the absence of evidence: "Noted by HH that statement of claim was stale. Oral application made to extend the time for service. Application [sic] declined to deal with the application in the absence of evidence." 4The proceedings were stood over to 20 June 2014. The plaintiff, in support of his application for an extension of time, and in accordance with Bozic SC DCJ's orders, provided an affidavit he had sworn (Exhibit "A"). He sets out, in that affidavit, his explanation for not serving the statement of claim earlier. This explanation is that he had served a Concerns Notice bearing the same date as the statement of claim on the defendant, but had withheld serving the statement of claim, on the basis that he was waiting to see her reply, and because of correspondence he received from the Officer of the Legal Services Commissioner. 5The circumstances in which the plaintiff received a letter from the Legal Services Commissioner, according to the plaintiff's affidavit, were as follows. On receipt of the Concerns Notice dated 7 April 2014, the defendant had made a fresh complaint to the Office of the Legal Services Commissioner. The Office of the Legal Services Commissioner wrote to the plaintiff on 7 May 2014, drawing his attention, inter alia, to occasion of absolute privilege afforded to such publications under s 27(2) of the Act. 6This was the material before me on 20 June 2014, when the plaintiff renewed his oral application, originally made before Bozic SC DCJ, for an extension of time to serve the defendant. He sought two additional orders. These were for leave to withdraw the defamation claim and replace it with claims for the publications not based on defamation as a cause of action, and for a transfer to the Local Court. 7As the Office of the Legal Services Commissioner had already, in correspondence with the plaintiff, drawn his attention to the provisions of the Act concerning defamation proceedings, and the issue was one of potential importance to the legal profession, I stood the proceedings over to 11 July 2014, so that the Officer of the Legal Services Commissioner would have the opportunity, if so advised, to intervene in the same manner as the NSW Medical Board had done in Lucire v Parmegiani (2010) 10 DCLR (NSW) 364. The Legal Services Commissioner has advised the court that he does not wish to be joined as a party, but his letter of 9 July 2014 (Exhibit 1 in these proceedings) provides extensive and careful submissions to the court, which have been of great assistance in the determination of the applications made by the plaintiff. 8I shall first consider the plaintiff's application for extension of time, as this application turns on principles enunciated in Part 6 UCPR and ss 56 - 62, 64 and 65 Civil Procedure Act 2005 (NSW) and not upon the issues discussed by the Office of the Legal Services Commissioner in its letter of 9 July 2014.

Extension of time for service 9Rule 6.2(4)(b)(i) UCPR provides that a statement of claim remains valid for service for one month after the filing of the statement of claim. Rule 1.2 UCPR provides that the time for service of a statement of claim may be extended. The relevant principles are set out by the New South Wales Court of Appeal in Weston (in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq)) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 ("Weston") at [20] as follows: "[20] The principles governing the exercise of the power conferred by r 12.11(1)(e) of the UCPR can be summarised as follows: (1) The principles relevant to an application to extend time for service under r 1.12 also apply to a motion pursuant to r 12.11(1)(e) to discharge orders for extension: Kirk, at [58], per Tobias JA (with whom Macfarlan JA and Sackville AJA agreed). (2) In exercising the discretion conferred by r 12.11(1)(e), the court should consider: "the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally and the hardship or prejudice caused to the plaintiff by [discharging the orders] or to the defendant [by refusing to discharge the order]." Buzzle (at [43]) per Ipp JA (with whom Tobias and McColl JJA agreed) cited with approval in Kirk (at [94]): (3) The discretion is to be exercised in the context of, and by reference to, the statute by which it is conferred: Buzzle, at [28]. Consequently, in New South Wales, ss 56-59 of the Civil Procedure Act 2005 (the CP Act) require a judge exercising the discretion to have regard to whether the relevant party has: (a) diligently pursued the object of disposing of the proceedings in a timely way; (b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and (c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Buzzle, at [36]. (4) The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37]-[39]; cited with approval in Kirk, at [98]-[99]. (5) It is for the court and not one of the litigants to determine whether there should effectively be a stay of proceedings. Accordingly, it is generally: "inappropriate to allow an extension of time for the service of a ... statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court's duty to exercise, alone, the discretion conferred upon it." Buzzle, at [82] cited with approval in Kirk, at [101]. (6) Ordinarily, it is not a good reason for delay that a plaintiff wishes to hold up proceedings while some other case is tried: Buzzle, at [90]. However, this is not an inflexible rule: Kirk, at [102]. (7) If a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk, at [123]." 10I have carefully considered the relevant factors to take into account as set out in Weston, supra. The plaintiff does not satisfy most of them. He provides no evidence of any attempts that have been made at service. His explanations, namely that he did not know the length of time for service and that he was waiting to see how the defendant would respond to the Concerns Notice, are inconsistent. I am satisfied that the reasons for the delay are deliberate, rather than due to any uncertainty as to the defendant's whereabouts. No notice of this application was given to the defendant. While this is not uncommon, it means that there is no evidence before the court of any hardship for the defendant. 11While the period of delay is not long (two months), it is significant that the reasons for delay, in circumstances where the plaintiff served the Concerns Notice but not the statement of claim, are unacceptable. The letter the plaintiff received on 7 May 2014 from the Office of the Legal Services Commissioner cannot have been the cause, as the time for service of the statement of claim had already expired by that date. 12I also note that, when he appeared before Bozic SC DCJ on 16 May 2014, the plaintiff did not tell his Honour that the Office of the Legal Services Commissioner had advised him on 7 May 2014 that the cause of action upon which he was seeking an extension of time for service was without any legal basis, or refer to the expiry of the limitation period. Bozic SC DCJ's orders noted only that the statement of claim was stale, and the application would not be heard without evidence, not that there was any application to amend. 13It is also of relevance that the limitation period had expired when these proceedings were commenced. As Young CJ in Eq stated in Weston, supra, there are three different categories for applications for extensions of time where the limitation period and/or time for service has expired, of which the third category - the expiry of both periods - was the most serious. The plaintiff's statement of claim is in this third category, in that both the limitation period has expired and the initiating process is no longer valid for service: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337. No extension of time could be given for the statement of claim currently on the file, as the cause of action is acknowledged to be hopeless, and the statement of claim is both outside the limitation period and stale. 14Where the limitation period has expired, applications for leave to amend must have regard to ss 64 and 65 Civil Procedure Act. In addition to the powers of amendment conferred under ss 64 and 65, pursuant to UCPR r 19.1 a plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial. The 28-day period after the statement of claim was filed had already expired, and r 19.1 is of no assistance. No extension can be granted in relation to the statement of claim currently on the court file.

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)

Cited By (2)