HER HONOUR: The plaintiff, by Amended Summons filed on 9 December 2016 (the original summons having been filed on 20 October 2016), seeks preliminary discovery in proceedings where the relief claimed is described as a "Declaration of Right". The Amended Summons names a Mr Galletta as the first defendant, a Ms Terri Birger as the second defendant and a Ms Jennifer Dempsey as the third defendant.
I note, before going forward, that contrary to r 4.5 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") the address for service which is given by the plaintiff is a post office box, which is unacceptable, but nothing turns on this.
The Summons, in its original form, sought seven orders and an alternative order. Only order (1) was for preliminary discovery. The remaining orders may be taken, I assume, to have been abandoned. Not only have I not been addressed on them but the Amended Summons appears to replace the original Summons.
The cause of action is one of defamation. This appears to me to be the case not only because orders (3) to (7) of the Summons indicate this, but also because the plaintiff has indicated that he has attempted to file a Statement of Claim in lieu of a Summons seeking to set out this cause of action and appropriate relief. The Statement of Claim, which I have seen and forms part of the affidavit, which is Exhibit D, is asserted by the defendant to have some limitation issues but, as I am dealing only with the Amended Summons at this issue, I do not need to deal with those matters further.
The nature of the application before the Court is the first issue for determination. There can be no doubt that one application today before me is an application by the plaintiff pursuant to the Amended Summons for preliminary discovery. Yesterday, it would appear, he filed a notice of motion and an affidavit in support in relation to an application for summary judgment, as well as leave to file a statement of claim. However, as these filings occurred in insufficient time to comply with the requirements of UCPR r 18.4 in relation to service, I have told him that I propose to deal with the summons application and he may address me at a later stage in relation to what, if anything, can be done about his other applications.
The evidence in support of the application is as follows:
1. The amended summons, which is Exhibit A.
2. The affidavit of Mr Hewit of 20 October 2016, which is Exhibit B.
3. The affidavit of Mr Hewit of 31 October, which is Exhibit C.
4. The affidavit of Alan Hewit of 4 May 2017 (which is the affidavit I referred to above as being filed yesterday).
5. Mr Hewit's letter to the registrar of 9 February 2017 setting out a list of documents that the plaintiff seeks.
The list of documents sought on the application is as follows:
1. A copy of all emails, communications or the like that contain the name and/or refer to Mr Hewit (Plaintiff) and/or Mr Hewit that:
1. Mr Tony J Galletta (first defendant) sent to Ms Jennifer Dempsey (third defendant);
2. Ms Terri Birger (second defendant) sent to Ms Jennifer Dempsey (third defendant);
3. Ms Jennifer Dempsey (third defendant) sent to Mr Tony J Galletta (first defendant);
4. Ms Jennifer Dempsey (third defendant) sent to Ms Terri Birger (second defendant).
1. A copy of the emails, communications or the like that Ms Jennifer Dempsey (third defendant) sent to Ms Jennifer Stewart‑Smith in or around May 2016, and/or to anyone else at any other times to which there was attached or contained the written contents of:
1. The letter, 11 May 2015 that Ms Jennifer Dempsey (third defendant) sent to Mr Alan Hewit (plaintiff).
2. The email by Mr Tony J Galletta (first defendant) dated 20 October 2015 being annexure 1 to the affidavit of Alan Hewit made 20 October 2016.
3. The statements made in or around April 2015 by staff at Moran Sylvania in respect to the plaintiff.
1. A copy of the document package dated 24 May 2016 that was provided to the New South Wales Civil and Administrative Tribunal (Guardianship Division) on behalf of Moran Residential Aged Care by Ms Jennifer Stewart‑Smith.
This list was provided in response to order 2 made by the Judicial Registrar on 7 February 2017, which required the plaintiff to serve a schedule of documents for which production was sought.
I have looked through the affidavits provided to the Court by Mr Hewit and, while they certainly provide information explaining why Mr Hewit wishes to commence these proceedings, I think it would be fair to say that he does not provide any evidence to explain why the defendant should be required to produce the documents set out in the plaintiff's list.
I drew Mr Hewit's attention to a statement to this effect in paragraph 6 of the defendant's submissions. Mr Hewit agreed that his affidavit of 20 October 2016, which contains information about what he seeks, does not set out why it is that he still needs this information, particularly since it would appear that he now agrees that he has received most, if not all, of this information; in fact this is the information which is set out in his affidavit of 4 May 2017. I gather is to be used, at least in part, in relation to the statement of claim he wishes to file to commence proceedings for defamation.
The relevant rule is UCPR r 5.3. Since Mr Hewit has told the Court he has not had an opportunity to look at the rules I will set out in full:
"5.3 Discovery of documents from prospective defendant
(1) If it appears to the court that:
(a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant") but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.
(3) Unless the court orders otherwise, an application for an order under this rule:
(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and
(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings."
The provisions of UCPR r 5.3 go on to refer to the need for there to be an affidavit and sufficient evidence, and the notes go on to refer to the need for specific evidence.
Essentially what is necessary is for it to be demonstrated to the Court, the onus lying on the applicant, that the applicant is entitled to make a claim for relief, has made reasonable inquiries, notwithstanding those reasonable enquiries has been unable to obtain sufficient information that the prospective defendant or defendants may have a document or thing that would assist the applicant in making a claim for relief and that inspection of that document would assist the applicant.
Even if those criteria are satisfied there is still a residual discretion for exercise by the Court as to whether an order should be made; see Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506. The point in that case was that there was no preliminary discovery necessary to consider prospects of success in attaining an interim injunction to restrain a defamatory broadcast. There has to be some underlying cause of action as part of the claim. This is part of the difficulty that I have with the plaintiff's failure to formulate any claim beyond "Declaration of Right", because the rule potentially applies only if the Court is satisfied that the applicant "may be entitled to make a claim".
While the degree of satisfaction the Court needs in this regard is a matter of flexibility, there has to be more than the mere possibility of such a cause of action, as is noted in Hatfield. Similarly, in relation to reasonable enquiry, there has to be some evidence of enquiry. That evidence must go beyond more than a mere enquiry which is not answered; it has to be what is called "reasonable enquiry" which suggests more than one enquiry and enquiries of a reasonable nature. There must also be evidence that the information that the applicant has is insufficient and there must be some description of precision as to what information is lacking.
Another problem is preliminary discovery is generally not granted where a plaintiff either has already decided to commence proceedings or has been able to produce a statement of claim, as is the case here, which the plaintiff in fact seeks leave to file, which identifies the publication in question. In other words, the plaintiff, it is submitted, already has sufficient information in order to make a decision as to whether or not to commence proceedings. I note that this point is made in paragraph 11 and I have raised this and all the other matters that were set out in the defendant's position with Mr Hewit.
As to the cause of action, as I noted before, there is the question of the limitation period. Mr Hewit submits that he does have an underlying cause of action, in that he filed the original summons on 20 October 2015,which is one year precisely after the matter complained of was published. I am not entirely sure that this is correct as to which (see Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953) but as I have not had a chance to show this decision to Mr Hewit, I do not propose to take it into account. I should note, however, that the difficulties of commencing proceedings out of time where a statement of claim has not actually been filed are discussed by the Queensland Court of Appeal in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. Again, this is not a decision which I had available to show to Mr Hewit, so I have not taken this into account. I have simply proceeded on the pleadings as set out before me in order to work out if he does have some underlying cause of action.
The real problem is that the underlying cause of action appears to be, according to the amended summons, what is called a "Declaration of Right". This Court does not have equitable jurisdiction such as to enable the Court to deal with such a cause of action and I note that in some circumstances s 144(2) Civil Procedure Act 2005 (NSW) may require the transfer of the proceedings. The principal difficulty I have, however, is that "Declaration of Right" by itself is not capable of being a cause of action. I have real difficulties in relation to the preliminary issue about which I must be satisfied before granting any such order.
The remaining question is what should happen if I am satisfied - as it must be clear from my reasons that I am - that the orders sought in the amended summons should not be made. Mr Robertson submits that, since this is the sole relief sought in the amended summons, the amended summons in its totality must be struck out with costs. I have taken the opportunity prior to delivering these reasons of raising this with Mr Hewit and have invited him to address me on this subject but it does appear to me that, since that is effectively what the summons seeks, that is the order that I should make.
In relation to any future claim for defamation, such claims must be commenced in the defamation list in accordance with District Court Civil Practice Note 6 which requires that all proceedings should be commenced in the defamation list. These proceedings were commenced in the general list. I am of the view that the best step is for Mr Hewit, if he is so minded, to commence proceedings in the defamation list, rather than taking the course of granting him leave to file in these proceedings and transferring it to the defamation list. I am conscious in this regard that this may create limitation problems and I am conscious also of what the Court of Appeal said in Mahommed v Unicomb [2017] NSWCA 65 but in my view, both for case management reasons and conformably with my obligations under ss 56 - 62 Civil Procedure Act 2005 (NSW), courts must take into account the interests of both parties as well as the interests of the Court in terms of the just, cheap and quick administration of justice.
As I have indicated, I am not satisfied that the plaintiff has made out any of the bases for an order under UCPR r 5.3 for the reasons set out above. For the benefit of the plaintiff I will repeat those findings. I am satisfied that he has not made reasonable enquiries; that whether or not any prospective defendant has or has had possession of a document, those documents are already in the plaintiff's possession; that there is no need for there to be an inspection of any such document to assist him in his claim for damages in defamation; and that he proposes to already commence proceedings. More substantively, I am not satisfied that he may in fact be entitled to make a claim because the claim in the summons is incomprehensible but also the claim for the defamation appears to me to be problematic.
In dismissing the summons I would note that this is no prejudice to Mr Hewit commencing proceedings in the defamation list and that he may do so. I would encourage him to seek legal advice because the current form of this statement of claim is contrary to UCPR r 14.30 as to the salient details of the contents of the matter complained of, the circumstances of its publication and to whom the imputations pleaded, and in addition he has impermissibly included a plea of malice.
Accordingly, I propose to dismiss the amended summons and the plaintiff to pay the defendant's costs.
[2]
Orders
1. Amended Summons dismissed.
2. Plaintiff to pay the defendant's costs.
3. Notice of motion is dismissed with costs, noting that the Amended Summons has been struck out and any application for summary judgment in those circumstances is a futility.
[3]
Amendments
30 May 2017 - Typographical error at [15] and [20] corrected.
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Decision last updated: 30 May 2017