First and Second Defendants: Mr M Maconachie
Third to Seventh Defendants: Ms C Carnell
[2]
Solicitors:
Plaintiff: In person
First and Second Defendants: Higgins & Dix
Third to Seventh Defendants: Shore Stack Lawyers
File Number(s): 2013/238215
Publication restriction: None
[3]
Judgment
These are reasons for the orders I made on 14 May 2015.
These defamation proceedings have had an unfortunate history from the beginning. First, the plaintiff commenced them in the wrong jurisdiction, namely the Local Court (which cannot hear defamation proceedings: s 33(1)(b) Local Court Act 1982 (NSW)) and then sought to continue them in the wrong registry (Newcastle) of the correct court. Second, delays occurred while the plaintiff's claim against the first defendant, Google Australia Pty Ltd, was struck out and dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"): Ghosh v Google Australia Pty Ltd [2013] NSWDC 146. The remaining defendants were then not served in accordance with the Rules: Ghosh v Miller & Ors (No. 2) [2013] NSWDC 194. Orders for the filing of defences by the defendants after they were served were finally able to be made in the Newcastle District Court on 1 December 2014. However, the defences of the third, fourth, sixth and seventh defendants disclosed no defences known to law and were struck out, with leave to replead, on 20 February 2015. The fifth defendant filed no defence and on 23 April 2015, I made a self-executing order, which expired today, for the fifth defendant to be represented in court, or to file a defence.
This recital of events is necessary to understand why I refused to make the timetable orders sought by the third to seventh defendants which are as follows:
1. The third, fourth, fifth, sixth and seventh defendants are to serve on the plaintiff a copy of what they understand to be the current Second Further Amended Statement of Claim no later than 7 days from today (on or before 21 May 2015);
2. The plaintiff is to advise the third, fourth, fifth, sixth and seventh defendants by no later than 14 days from today (on or before 28 May 2015) that this is a true copy of the statement of claim on which she relies, and if this is not the case, the plaintiff is to serve on the third, fourth, fifth, sixth and seventh defendants by no later than 14 days from today (on or before 28 May 2015) a complete copy of the statement of claim on which she relies;
3. The third, fourth, fifth, sixth and seventh defendants are to make any request for or regarding particulars of the statement of claim relied upon by the plaintiff no later than 21 days from today (on or before 4 June 2015);
4. The plaintiff is to respond to the third, fourth, fifth, sixth and seventh defendants' request for particulars on or before 18 June 2015;
5. The third, fourth, fifth, sixth and seventh defendants are to notify the court of the interlocutory applications they propose to make in the proceedings on or before 9 July 2015;
6. Each party has liberty to restore the matter to the list on 3 days' notice;
7. The matter is listed for directions on 16 July 2015.
Orders 1 and 2 are unnecessary as this document has been identified in court today. Orders 3 and 4 are unnecessary as the defendants have filed defences. Order 5 is otiose as the applications foreshadowed by the defendants (namely security for costs and dismissal of the claim on the basis of alleged misstatement of her address) are no longer to be brought. Finally, and most importantly, the length of the adjournment which would result from these unnecessary steps is contrary to the efficient conduct of litigation, as well as suspends the existing timetable, which was put in place when the proceedings were last before the court.
The plaintiff opposed the making of these orders, but herself sought orders of an unsatisfactory kind, namely summary judgment and an apprehended violence order. This puts the court in a difficult position, in that neither party to the litigation is proposing a sensible timetable capable of disposing of the issues in dispute.
Sections 56-62 Civil Procedure Act 2005 (NSW) contain a series of powers for courts to exercise case management principles. These include the making of such orders as are necessary for the efficient disposal of business of the court (s 56(1)(b)) in relation to procedural orders (s 58(1)(a)(iii)) for the purpose of elimination of delay (s 59).
In particular, s 61(2) provides:
"(2) In particular, the court may, by order, do any one or more of the following:
(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,
(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,
(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate."
These provisions permit the court to substitute its own timetable where parties cannot agree upon, or propose, a timetable which will lead to the readying of the proceedings for hearing.
In Ivory v Telstra Corp Ltd [2002] QCA 457 at [85], Wilson JA stated:
"[85] I respectfully agree with the observation of Mahoney JA in Ley v R De W Kennedy (Finance) Pty Ltd as cited in the later decision of Raybos Australia Pty Ltd & Anor v Scitec that the right of a litigant to present his case -
"must not be seen as giving ..... an absolute right to conduct a case, or to conduct a case in the manner and for the time that such a person chooses, whatever that choice may be. That right must be balanced against the rights of other parties who are involved in the litigation, including the right...... not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court's time wasted.
...
What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that a case; but it should be clear that it is proper that steps be taken to that end."
The timetable proposed by the third to seventh defendants fails to take into account the necessary steps for the future conduct of the proceedings in the form of the filing of a Reply by the plaintiff, discovery and interrogatories. The orders that they seek will only lead to further delay and intemperate correspondence of the kind that has been put before the court on this application.
However, the plaintiff's complaint, namely that the defendants are harassing her, and that this court should issue an apprehended violence order to restrain such conduct, is similarly without merit. The plaintiff asks me to make an apprehended violence order against the defendants, whom she accuses of the following misconduct in the affidavit she tendered to the court:
"I seek Apprehended Violence Orders against all defendants for constant stalking on the internet, in the media, by nuisance emails and phone calls, and for impersonating me in offensive internet blogs as "Golly Ghosh" or "Anonymous." The merged Case 2013/238215 and 2013/76771 file contains copious evidence of Police witnessed death threats, vile phone messages, repeated aggravated break and enters into my property at 15 Bundall Rd Surfers Paradise with eye witness accounts, and repeated slander and threats to each and every tenant who stays there, including Federal and State Police Officers. My current long term tenants (since December 2013) were made to chop down trees on my property without my permission on order from the third to seventh defendants, who continue to slander me to them continuously and urge them not to pay rent, as they did with all the holiday rental tenants."
The plaintiff acknowledged that the District Court does not have power to make apprehended violence orders: see s 91 Crimes (Domestic and Personal Violence) Act 2007 (NSW). Such orders can only be made by the Local Court or the Children's Court, and the only jurisdictional basis upon which such an order could be made in this court would be by way of appeal from the court below.
The plaintiff submitted that her case was "too difficult" for the Local Court to determine, and argued that she should not have to bring her application in the Local Court at all, but go straight to the "appellate" court (namely this court) for her application to be determined. This would save time and money, which is a relevant factor under ss 56 - 62, she submitted.
This is a novel argument. I note the Court of Appeal in Board of Inland Revenue v Haddock (Sir Alan Herbert, "Uncommon Law" (Methuen, 1930)) received a similar application by the celebrated litigant in person, Mr Haddock, for his case to bypass the Court of Appeal and go straight to the House of Lords, on the basis that one intermediate court was a reasonable precaution "but two suggest panic" (p. 257). However, Mr Haddock's "frolics in jurisprudence", to use the description given by Lord Atkin in the Introduction, are, unfortunately, entirely fictitious.
Any claim by Dr Ghosh for an apprehended violence order should be made in the proper way to a local court. This court has no jurisdiction to make orders of such a nature and the plaintiff's application must be refused.
There is, however, a limited power, under s 61 Civil Procedure Act, to make orders other than of a timetable nature where problems of this kind occur, such as appropriate directions for the forwarding of correspondence (Jenolan Caves Resort Pty Ltd v Field [2007] NSWSC 1117), or for the parties to refrain from serving or sending particular documents. Such orders must only be made in exceptional circumstances: McGuirk v University of New South Wales [2010] NSWCA 104 at [159]. In McGuirk, the Court considered that the provisions of s 61 may, in appropriate circumstances, be given a "liberal interpretation" in light of ss 56(2), 57(2) and 58 (McGuirk v University of New South Wales at [10], [11] and [142]). In the interests of encouraging efficient communication between the parties, I have accordingly provided separate directions for future service on the plaintiff to be by facsimile, at a number noted on the court file.
The orders for the fifth defendant to file his defence by 21 May will permit the existing timetable to continue without further interruption. The parties to this litigation should endeavour to comply with the present timetable. With each default or delay, the willingness of the court to entertain failure to comply will rapidly diminish. While leeway has been given in the past while proceedings were conducted in Newcastle by parties who were largely self-represented, no further accommodations of this nature will be made.
[4]
Orders
1. Note that the Second Further Amended Statement of Claim (MFI 2) is provided to Mr Maconachie to check if it matches what the defendants have.
2. Refuse to make the orders for fresh service of the Second Further Amended Statement of Claim or for particulars as set out in the Short Minutes of Order (MFI 3).
3. Note that the plaintiff no longer brings an application for summary judgment against the fifth defendant on the basis that she accepts that the requirement for the fifth defendant to "attend" today has been discharged by the presence of a legal representative and an undertaking to file a Notice of Appearance in 7 days.
4. The fifth defendant to file a Notice of Appearance in 7 days.
5. Note the third, fourth, sixth and seventh defendants withdraw their complaints concerning the plaintiff's address for service and accept that the plaintiff practises from the premises at Shop 5, 138 Pacific Highway, Charlestown NSW 2290.
6. The plaintiff's application for apprehended violence orders against all defendants sought on the basis set out in paragraph 5 of her affidavit sworn on 14 May 2015 is dismissed.
7. Note MFI 2 has been uplifted for photocopying.
8. Matter stood over for further directions to Thursday 4 June 2015 at 2:00pm.
9. The fifth defendant to use his best endeavours to file and serve his defence by 21 May 2015.
[5]
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Decision last updated: 27 July 2015