Hanshaw v Seven Network

Judgment 1HER HONOUR: These are proceedings for defamation commenced on 15 October 2012. Before the Court is an application by the defendant to have the proceedings dismissed either under r 13.4 of the Uniform Civil Procedure Rules 2005 on the basis that no reasonable cause of action is disclosed or, alternatively, pursuant to r 12.7 of the Rules on the basis that the plaintiff has not prosecuted her claim with due despatch. 2It is convenient to consider the application under r 12.7 first. In order to assess that application, it is necessary to consider the history of the proceedings in some detail. 3Prior to the filing of the statement of claim, it appears from the court file that the plaintiff made an ex parte application for an injunction restraining the publication of allegedly defamatory matter. That application was refused by Sackar J on 12 October 2012. There is no transcript of reasons on the court file but, as explained below, it appears the application may have been brought in respect of a time-barred claim and there would accordingly have been no warrant for entertaining it urgently in the absence of the defendant. 4On 15 October 2012 the plaintiff filed her statement of claim. The pleading was plainly deficient but, so far as can be gleaned from its contents, the principal complaint arose from the broadcast of a television program on Channel 7's Today Tonight program on 18 May 2009. The statement of claim sought damages in the sum of $10 million. The claim, if it was confined to that broadcast, was accordingly statute-barred at the time of its commencement, the limitation period for a cause of action in defamation being one year. 5The proceedings were first returnable on 30 January 2013 when the plaintiff was directed to file and serve an amended statement of claim by 6 March 2013. The proceedings were listed for further directions on 13 March 2013. No amended statement of claim was served. The plaintiff did not appear on the adjourned date. 6Following the plaintiff's non-appearance on that date, the registrar sent a letter to her under r 13.6. The letter noted that she had not appeared as required, informed her that the proceedings were re-listed for directions on 4 April 2013 and warned her that if there was no attendance on that date, the Court might dismiss the proceedings in her absence. 7The plaintiff did appear on 4 April 2013. The proceedings were then stood over to 8 July 2013 for status review. 8On 8 July 2013 the plaintiff filed an amended statement of claim in court. The defendant foreshadowed objections to that pleading. The Court directed the defendant to notify the plaintiff of its objections by 5 August 2013 and stood the proceedings over to 22 August 2013. One of the obvious problems with the pleading was that it named the plaintiff's daughter, a minor, as second plaintiff without identifying a tutor. The substantive claims as pleaded by the plaintiff also contained obvious deficiencies. 9The defendant complied with the direction requiring it to notify Ms Hanshaw of its objections to the amended pleading in a letter dated 5 August 2013. The defendant sent a further letter on 19 August 2013 chasing up a response to the 5 August letter, which had requested a response within seven days. No response was received to either piece of correspondence. As already noted, the proceedings were at that stage due back in court on 22 August 2013. 10On 20 August 2013 the plaintiff sent an email to the registrar stating that, due to ongoing chronic pain and illness over the past several weeks, she had been unable to fulfil the Court's directions and was unable to travel to Court to appear in the proceedings. The email stated: My disabilities are unstable at the moment due to ongoing homelessness, and because of the damage done to my reputation by the defendants, it is unlikely this situation will improve in the immediate future. 11The letter foreshadowed an intention to seek legal assistance through the Law Society's pro bono scheme. The registrar indicated by way of return email that he was not prepared to stand the proceedings over as requested. He noted the absence of any medical certificate to support the contentions as to the plaintiff's medical condition and the absence of any detail of the application to the Law Society. He also noted that there did not appear to be any reason why the plaintiff could not appear by telephone to deal with the claim. 12The plaintiff does not appear to have pursued the suggestion to appear by telephone. When the matter was called on 22 August 2013 she did not appear. A deputy registrar of the Court ordered the defendant to file and serve any notice of motion to strike out the amended statement of claim by 12 September 2013 and listed the proceedings for directions on 19 September 2013. The defendant's solicitor, Mr Keegan, notified the plaintiff of those orders by letter sent that date. 13The defendant filed a notice of motion in accordance with the deputy registrar's direction on 12 September 2013. The notice of motion was supported by an affidavit sworn by Mr Keegan. The orders sought in the motion were to have the claim at the suit of the second plaintiff, the minor, dismissed and to have the plaintiff's amended statement of claim struck out on the basis that it disclosed no reasonable cause of action. 14The motion was returnable in the defamation list on 19 September 2013, after which it was stood over by consent to 2 December 2013. The plaintiff appeared on 2 December 2013. For reasons that are not recorded on the court file, the motion was stood over to be heard later in the list that week, on 6 December 2013. I do not have a transcript of the proceedings of 2 December 2013 and cannot now recall whether that was due to the volume of work in the defamation list that week, which I recall was heavy, or whether it was due to the plaintiff's indicating that she was not ready to proceed on the Monday. In any event, there is no doubt that the plaintiff was present when the proceeding was stood over to the Friday, 6 December 2013. 15The plaintiff was that week also due to appear on 3 December 2013, the Tuesday, in the District Court in Newcastle. She did not appear in those proceedings, which have since been dismissed. 16On 5 December 2013 the plaintiff wrote to the defendants stating that her back was still sore as a result of having driven to Sydney for the Monday appearance before me. The email included a medical certificate in respect of 3 December 2013 which stated that she was unfit to attend Court. The letter expressed concern that the defendant's legal representatives, knowing the plaintiff's spinal disablements, were "using the Court diaries to wear me down, knowing I am not able to physically attend to three hearings in one week". The letter also set out details of further court dates which required the plaintiff to attend various courts in February and asked the Court to "consider putting some distance in the dates" so as to afford her a fair and reasonable chance of taking part in the proceedings and not being forced out of them because of her physical disabilities. 17In those circumstances, I suggested (in correspondence through my Associate) that the proceedings be stood over to 3 March 2014. That date accommodated all of the concerns identified in the plaintiff's email. The defendants, I might note very fairly in the circumstances, consented to that proposal and the proceedings were listed in the defamation list for 3 March 2014. 18On that date, without explanation, the plaintiff did not appear. During the morning of 3 March 2014, Mr Keegan twice called the plaintiff by telephone, leaving messages to inform her that her matter was listed in the Supreme Court and requesting her to return his calls. He called again at 11.58, leaving a message to inform Ms Hanshaw that her matter had been listed at 2pm and asking her to call. He received no response to that contact. 19Beech-Jones J accordingly determined the defendant's notice of motion filed 12 September 2013 in Ms Hanshaw's absence. His Honour observed that the amended statement of claim filed in court in July "completely and utterly fails to comply with the relevant provisions of the Uniform Civil Procedure Rules". His Honour concluded that the pleading had to be struck out: see Hanshaw v Channel 7 Network Australia [2014] NSWSC 178 (I note that "Channel 7 Network Australia" is the way in which the defendant is named in the statement of claim but the correct name of the relevant entity is Seven Network (Operations) Ltd). His Honour made the following orders: (1) The Amended Statement of Claim be struck out. (2) Any further Amended Statement of Claim be filed and served by 4 April 2014. (3) The proceedings be stood over to the defamation list on 5 May 2014. (4) Any notice of motion by the defendant seeking to dismiss the proceedings be filed and served by 25 April 2014 and returnable on 5 May 2014. (5) The defendant's solicitors to advise the plaintiff at the email address shown on the Amended Statement of Claim of the orders made today. (5) The first plaintiff pay the defendant's cost of the proceedings to date. 20Mr Keegan informed the plaintiff of those orders by email sent 4 March 2014. On 28 April 2014 the defendant filed a notice of motion as foreshadowed by the orders of Beech-Jones J and that was served on Ms Hanshaw. 21Mr Keegan swore a further affidavit in support of that application on 1 May 2014 setting out the steps taken by him to bring those matters to the plaintiff's attention. At the time of swearing that affidavit, Mr Keegan had not received any contact from the plaintiff responding to his correspondence. 22The motion was returnable before me on 5 May 2014. On that occasion the plaintiff appeared. She provided a copy of a medical certificate in respect of her failure to appear before Beech-Jones J on 3 March 2014. Ms Hanshaw's submissions in response to the motion included the contention that some of Mr Keegan's emails had not been received by her, as they had been sent to the wrong email address. In that respect, she relied upon paragraph 4 of Mr Keegan's affidavit sworn 3 March 2014. It is true that in that paragraph of the affidavit the email address nominated by Ms Hanshaw is spelled incorrectly. However, a consideration of the annexures to the email reveals that Mr Keegan has consistently sent correspondence to Ms Hanshaw at each of two email addresses provided by her to the defendant. Importantly, Mr Keegan's affidavit sworn 1 May 2014 discloses that both the orders of Beech-Jones J made 3 March 2014 and the notice of motion returnable 5 May 2014 were sent to Ms Hanshaw at both email addresses correctly stated. Ms Hanshaw in effect accepted as much during argument before me but explained on oath that she had not had an opportunity to consider those emails due in part to the recent death of a friend. 23The nature of the Court's power to dismiss proceedings for want of prosecution with due despatch was considered by the Court of Appeal in Bi v Mourad [2010] NSWCA 17. In that case the Court in substance affirmed the correctness of the principles stated by Simpson J in Hoser v Hartcher [1999] NSWSC 527. However, Sackville AJA observed that in light of the amendments to the Uniform Civil Procedure Act since the date of that decision, on one view those statements may be "somewhat too generous" to the claimants (in that case the party dismissed for want of due despatch). The President made observations to like effect, saying that while he would in no way criticise the terms of Simpson J's judgment in Hoser v Hartcher as laid down at the time that decision was made, the surest guide to be employed in any exercise of a discretion of the present kind is careful attention to the terms of the Civil Procedure Act 2005 particularly ss 56 to 60. 24The first task is to determine whether it can be concluded that the plaintiff has not prosecuted the proceedings with "due" despatch. There can be no doubt that, had the plaintiff been legally represented, it would readily be concluded that she has not. However, close attention must be paid to the individual circumstances of the case. In the present case, the plaintiff's circumstances raise the difficult issue of how much accommodation or indulgence should properly be given to an unrepresented litigant labouring under physical disability. Mr Keegan's affidavit sworn 3 March 2014 annexes the most complete statement of Ms Hanshaw's medical condition. It is a medical certificate from Dr Susan Clarke of Westlakes Medical Centre dated 14 October 2013. The certificate states that Ms Hanshaw suffers from the following medical conditions: (1) Degeneration Cervical Spine, particularly at C2/3, C5/6 and C6/7 with prolapsed discs at C4/5 and C6/7 level. (2) Degeneration Thoracic Spine, most marked at T4-7 (3) Degeneration Lumbar Spine, marked protrustion L5/S1 (4) Left Shoulder - degeneration ACJ with impingement rotator cuff with tendon tear. (5) Bilateral Osteoarthritis knees with recent acute injury to right with ongoing swelling and pain (6) Impaired Glucose Tolerance (7) Depression (8) Post Traumatic Stress Disorder 25Plainly, that certificate supports the general contention that has been made from time to time by Ms Hanshaw as to the difficulty she encounters in having to attend proceedings in Sydney in circumstances where that involves a six-hour round car trip for her. 26There must be some accommodation to a disability of that kind, in my view. Similar considerations might arise, for example, in the case of a plaintiff who is a prisoner and who is impeded on that account in the ordinary administration of attending to the prosecution of a civil claim. In my view, however, the history I have recited, whilst supporting the proposition that it is difficult for Ms Hanshaw physically to appear when her proceedings are before the Court, offers no acceptable explanation for her wholesale failure to engage with the processes of the Court in the periods between adjourned dates. The simple fact is that since the proceedings were commenced in October 2012 Ms Hanshaw has been unable to formulate her claim in any acceptable way. The history I have recorded, I think, reveals, contrary to Ms Hanshaw's contention, that the defendants have been patient and have consented to a considerable number of adjournments and indulgences. I do not think their conduct has been in any way unreasonable as asserted by her. 27Considering all of the circumstances I have recited, it is my view that the dictates of justice demand that the proceedings now be brought to an end. I have, in reaching that conclusion, taken into account the fact that the claim, so far as it can be gleaned from the present pleadings, was statute-barred so far as the television broadcast is concerned at the time it was commenced. Ms Hanshaw said in argument that the matter was still available on the Internet. That would, if it were true, mean that there might be a pleadable claim in respect of any downloading of material originally published by the defendant within the limitation period (that is, within the 12-month period prior to the commencement of any further proceedings). But that of course would mean that the claim related to a defamatory publication of significantly smaller circulation than the original broadcast in 2009. 28In making those observations, I would add that nothing in the pleadings which have been filed, the most recent of which has been struck out in any event, enables any clear identification of any particular publication on which Ms Hanshaw would seek to sue. 29For those reasons, I consider that the proceedings must be dismissed under r 12.7 for want of due despatch. It is not necessary, in light of that conclusion, to consider the alternative basis put forward in the notice of motion. (i)I order that the proceedings be dismissed. (ii) I order that the plaintiff pay the defendant's costs as agreed or assessed on the ordinary basis.