Case management issues in complex defamation proceedings
8These are complex proceedings, brought by a litigant in person against eight defendants for publications over a four-year period, where many pleading problems are immediately evident. The five issues to which I have given consideration in endeavouring to respond to the parties' competing claims are as follows.
9The first is the need for courts to exercise the utmost care when striking out part or the whole of any proceedings. This is particularly the case in defamation, as I have already noted in my previous judgment in relation to Dr Ghosh's claim ([2013] NSWDC 63), and I will not repeat those principles here.
10The second is the need for careful attention to pleadings from the outset in all defamation proceedings. The defendants' complaints concerning the form of the pleading has been answered by the plaintiff as follows:
"(1) Claim too long and too many amended statements - a one page claim would not have done justice to the three times daily defamation on Channel 9, echoed by the Gold Coast Bulletin Newspaper, for four long years. Even 53 items is a very small fraction of the hundreds of publications defaming my house since Dec 2009, with no attempt to contact me except the ridiculous stalking incident by Katie Gregory aired on 5 June 2013 as "Party House Court." It has taken longer to finalize the claim because of your repeated refusal to provide discovery of publications. As a busy doctor, I have had to take time off work to retrieve the hundreds of publications about my house that were on the Internet for years, but were rampantly deleted after I launched legal action in March 2013."
11The fact that there are many publications does not excuse the plaintiff from pleading her case with care. In Douglas v McLernon [2013] WASC 126, Le Miere J explains the need for precision in pleadings where there are multiple causes of action, as otherwise the litigation would become unmanageable. Mr Douglas had brought proceedings for 28 publications, which he had pleaded gave rise to 68 imputations. Le Miere J said at [51]:
"[51] I will refuse leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed on 1 February 2013. There are substantial deficiencies in the proposed statement of claim which I have identified in these reasons. In particular, there are deficiencies in the pleading of the imputations said to arise from the Matters Complained Of. The statement of claim pleads 28 separate publications which are said to give rise to 68 imputations. The trial of the action will be completely unmanageable unless the imputations are precise and distinct, although more than one publication might give rise to the same imputation. Each imputation must stand alone. In a statement of claim that pleads 28 publications and 68 imputations it is particularly important that the defendant and the court know precisely what the alleged imputation is and which published words are said to give rise to the imputation. The proposed statement of claim fails to achieve those objectives."
12The plaintiff is not to be criticised simply for bringing a claim for many publications. Claims for multiple causes of action in defamation are becoming increasingly common: see Billis v McLernon [2013] WASC 128 (22 publications); Matich v McLernon [2013] WASC 127 (9 publications); Findlay v Grimmer [2013] WASC 247 (13 publications), Douglas v Purpose Marketing Group Pty Ltd [2013] WASC 125 (which pleaded "a number of matters" (at [5], [10]); Wishhart v Murray [2013] NZHC 540 (numerous Twitter, Facebook, website and radio publications for which $NZ8M was claimed). The large number and complexity of these claims are often the result of electronic publications, repeated in many jurisdictions (or worldwide) on websites, in social media or by email.
13The increasing complexities of electronic defamation remain unregulated by the courts. The warnings of Le Miere J in Douglas v McLernon, supra, about the problems such actions may cause are timely. These issues are of particular concern in Australia, as the conduct of such cases challenges the adequacy of use of ss 56 - 62 Civil Procedure Act and rules, particularly the requirement for proportionality of costs (s 60 Civil Procedure Act 2005 (NSW)). There has been no appellate (Habib v Radio 2UE Pty Ltd [2009] NSWCA 231; Bristow v Adams [2012] NSWCA 166 at [35] - [41]) or Supreme Court (Barach v University of New South Wales [2011] NSWSC 431) endorsement of the summary judgment procedure available in the United Kingdom to strike out proceedings on case management-related principles, first enunciated in Schellenberg v British Broadcasting Commission [2000] EMLR 296 ("Schellenberg") and Dow Jones & Co Inc v Jameel [2005] QB 946.
14Publication by electronic means, whether by internet, email and/or social media, will inevitably lead to the bringing of claims for defamation against multiple defendants, in jurisdictions all over the world, where the audience for some of those publications may be no more than a handful of persons. The question is the degree to which the court allows parties to add further complexity to what is already a difficult area of the law or rely upon case management principles such as the "just, cheap and quick" directive in s 56 Civil Procedure Act 2005 (NSW). In Dank v Whittaker (No 1) [2013] NSWSC 1062 at [34] McCallum J, faced with proceedings her Honour described as a "juggernaut", commented:
"A number of observations can be made about these proceedings and I would expect them to be reported to the plaintiff personally. It is, of course, a matter for him how he wishes to conduct his defamation actions (hopefully on the strength of sensible and complete legal advice). It may be observed, however, that the full collection of proceedings commenced by Dr Dank has launched something of a juggernaut. There are multiple proceedings, multiple defendants, multiple legal teams and a vast number of imputations relied upon in all. The objections that are now taken by the defendants in the present application and other applications I have heard this week will afford the plaintiff an opportunity not only to recast his claims in response to my rulings but also to reassess the ambit of the fight he wishes to take on. I would urge the plaintiff and those representing him to give careful consideration to the way in which the claims are framed with a view to bringing before the court a manageable dispute calculated to raise the real issues required to be determined for the purpose of vindicating Dr Dank's reputation."
15The third issue is the degree of assistance with which a litigant in person should be assisted by the court in the complexities of defamation proceedings. Again, this is an issue about which the procedural rules and appellate courts have not provided clear directions, although one in four defamation proceedings in Australia are brought by litigants in person. There have been differing opinions in the NSW Supreme Court (Jenolan Caves Resort Pty Ltd v Field; St George Bank Ltd v Field [2007] NSWSC 1117) and Court of Appeal (McGuirk v University of New South Wales [2010] NSWCA 104 at [9] - [37] and [151] - [187]) as to the court's power to case-manage the degree to which courts should assist or supervise the conduct of litigation by litigants in person. The prevailing view is summarised by Young AJA in McGuirk v University of New South Wales, supra, at [43]), where his Honour rejected complaints by lawyers that the conduct of a litigant in person who was sending them hundreds of letters, many abusive, was causing them stress, adding that "lawyers who cannot cope with the stresses of litigation must find some other area of law in which to practise".
16The plaintiff states in her submissions:
"(2) Not legally represented. In Australia one has the right to represent oneself in Court, and as an educated person I choose to exercise this right. Common Law is for common people and is there to protect common people (like me). Even when I was represented by lawyers in a 1 page submission in Qld, your lawyers gave all the same formulaic arguments and criticisms. My lawyer and friend is Gunnar Mollenbeck, and he will help me as required."
17McGuirk v University of New South Wales, supra, sets out the nature and extent of the judge's power to make case-management orders, but does not tell the judge the degree to which help should be provided. Judges in other jurisdictions have formulated principles concerning the degree to which the court has obligations to litigants in person, particularly in relation to defamation claims where the complexity of pleadings causes so many problems, which are of assistance. One such example is Slipetz v Trudeau [2012] MBQB 111, where Martin J set out a series of helpful principles for dealing with a litigant in person in defamation proceedings in Canada:
"[8] Courts have dealt with the issues surrounding unrepresented litigants many times. A number of themes emerge:
(a) Self-represented litigants do not have some kind of special status.
· As noted in Sydorenko v. Manitoba, 2012 MBQB 42 (CanLII), 2012 MBQB 42, M.J. NO. 70 (QL):
29 ... this factor should not dissuade the court from applying the usual rules including when it comes to considering an award of costs.
· As noted in Ridout v. Ridout, 2006 MBCA 59 (CanLII), 2006 MBCA 59, 205 Man.R. (2d) 146), M.J. No. 243 (QL):
12 ... more and more litigants ... are self-represented. This often creates difficulties not only for them but for court staff and judges. Notwithstanding, it is not accurate to say ... that self-represented litigants (SRLs) have some kind of special status. ... while the court should provide assistance to SRLs, this must be done in such a way as to maintain judicial impartiality. ...
(b) Judges do not advocate on behalf of a self-represented litigant, do not provide legal or tactical advice and have no duty to help a litigant do a better job in developing their case. Judges do, however, ensure that a party's lack of legal training does not unduly prejudice them, nor affect their ability to participate meaningfully in the proceeding. (Ridout v. Ridout, supra.)
(c) Self represented litigants must be dealt with fairly and with appreciation of their potential legal handicap, but they are not entitled to undue favour nor should the rights of a defendant be overridden.
· As noted in Otte v Manitoba (Sheriff's Department), 2008 MBCA 63 (CanLII), 2008 MBCA 63, 166 A.C.W.S. (3d) 1032, M.J. No. 163 (QL):
12 ... The court must strike a delicate balance between ensuring that the self-represented litigant is dealt with fairly and yet not allowing the litigant undue favour precisely because he is self-represented.
· As noted in Coleman v. Pateman Farms Ltd., 2001 MBCA 75 (CanLII), 2001 MBCA 75, 156 Man.R. (2d) 144, M.J. No. 228 (QL):
15 In my view, a pro se litigant should not be denied the opportunity of presenting his or her case to the court by a strict application of the Rules. The touchstone is fairness and that involves the balancing of the pro se litigant's imperfect knowledge of rules and procedures with the right of the other party to know the legal and factual issues that he or she must meet.
· As noted in Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156 (Gen. Div.), O.J. No. 2374 (QL):
18 ... notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.
(d) Fairness simply means that a self-represented litigant should have a fair opportunity to present their case to the best of their ability. As noted in Davids v. Davids 1999 CanLII 9289 (ON CA), (1999), 125 O.A.C. 375 (Ont. C.A.), O.J. No. 3930 (QL):
36 ... Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.
(e) Some leeway may be given to self-represented litigants, but they are nonetheless expected to operate within the rules of the court and its procedures. While some leeway may give way to generous construction of the rules, it does not mean ignoring the rules altogether.
· As noted in Nowoselsky v. Canada (Treasury Board), 2004 FCA 418 (CanLII), 2004 FCA 418, 329 N.R. 238, F.C.J. No. 2077 (QL):
8 ... The imperatives of the Rules may be mitigated somewhat by the grace of counsel facing an unrepresented litigant, or by the Court's judicious exercise of the discretion to excuse compliance, but these are remedial measures and not a licence for non-compliance. ...
· As noted in Manitoba Agricultural Services Corp. v. Domenco, 2007 MBCA 125 (CanLII), 2007 MBCA 125, 220 Man.R. (2d) 214, M.J. No. 355, (QL):
6 With respect to the other grounds of appeal, the motions judge had a discretion as to whether to grant an adjournment or to consider additional materials filed out of time. Contrary to the defendant's assertion in his factum, the transcript reveals that the motions judge did attempt to assist the self-represented litigant to the extent that his judicial role would allow. However, as this court has observed on other occasions, a self-represented litigant is not entitled to ignore the rules of court. The rules which govern the conduct of civil proceedings are designed to ensure procedural fairness for all parties. See Basaraba v. Manitoba Court of Queen's Bench, 2006 MBCA 27 (CanLII), 2006 MBCA 27, 201 Man.R. (2d) 302.
(f) Finally, as Mainella J. observed in Bazan v. The Assiniboine South School Division et al., 2013 MBQB 68 (CanLII), 2013 MBQB 68, M.J. No. 80 (QL), common sense dictates that:
71 ... Like lawyers, no two self-represented litigants are alike in terms of skill and knowledge. Some are so totally inexperienced and ignorant of the customs and procedures of the court that they become "completely at sea" during the litigation process. ... Others, however, are frequent denizens of the courthouse. In the accommodation of the principles of fairness and balance, a court should be mindful of the knowledge and experience of the self-represented litigant before it."
18The next issue is the number of times that a party should be permitted to amend defamation pleadings. In Dennis v Australian Broadcasting Corp [2008] NSWCA 37 at [24], [34] and [35], the New South Wales Court of Appeal warned that there was a limit, a view which was repeated in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. Counsel for the defendants submits that the time has arrived, in this litigation, for such orders to be made here. The plaintiff considers that she should be entitled to amend her pleading as often as necessary and blames the defendants for any difficulties in obtaining the matters complained of, and for their conduct of the case generally.
19Associated with this issue is the degree to which parties should be entitled to depart from standard forms of pleadings, and in particular to make claims about disputed issues of fact in uncompromising language. The plaintiff's submissions on this issue are as follows:
(3) Not liking my language. My language is very mild compared to "SLUMLORDS RUINING THE NEIGHBOURHOOD," "SLUMLORDS FROM HELL," "LANDLORD FROM HELL," "PARTY HOUSE FROM HELL" and "BIZARRE RANT," which are just some of the insults I have endured repeatedly for four years on national TV, the world wide web, and in newspapers. My statement is factual, and your clients should be embarrassed by their excessively trashy reporting for four years.
20The fifth issue is the desirability of finality in litigation. In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (at [34]), Gleeson CJ, Gummow, Hayne and Heydon JJ stated:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances".
21While interlocutory applications should not be treated with the same firmness as may be called for by a court finally determining the proceedings, the same basic principle of finality applies. This is particularly the case in defamation actions, where the statutory proceedings concerning the limitation period should be given proper weight.
22Having noted these four general principles, I now turn to the facts in the present case.