Practice and procedure - Defamation - Application to set aside writ and service of writ - Alternatively to strike out indorsement of writ and dismiss action - Rules of the Supreme Court 1971 (WA) O 20 r 19(1) - Turns on own facts

Fair Trading Act 1987 (WA), s 10

Limitation Act 2005 (WA), s 3(1), s 15, s 40, s 44

Rules of the Supreme Court 1971 (WA), O 6 r 1(1), O 20 r 19(1)

Smith v McCusker QC [2000] WASCA 320

1 Some time ago the plaintiff commenced a de facto relationship with his former partner. There is a child of their relationship. There have been numerous applications and hearings in the Family Court relating to the parenting of their child. The plaintiff was self represented. His former partner was represented by the defendant, a solicitor. On or about 21 November 2006 a trial relating to parenting matters between the plaintiff and his former partner was heard before a judge of the Family Court of Western Australia. The plaintiff was self represented. His former partner was represented by the defendant. During the course of the trial the plaintiff announced that he was not prepared to continue to attend the trial and left the court. The trial proceeded in his absence. After the plaintiff had left the court the defendant made a statement to the judge which the plaintiff says defamed him.

2 The plaintiff alleges an email dated 6 May 2008 was sent by the defendant to the associate to the Family Court judge. The plaintiff says that he found a copy of the email on the court file. The plaintiff says that the email defamed him.

3 On 29 May 2009 the plaintiff caused to be issued a writ of summons against the defendant. The indorsement of claim commences:

1. On Tuesday the 21/11/2006, the defendant defamed the plaintiff following him leaving a Family Court hearing in front of the trial judge.
2. In an email sent by the defendant to the associate of the abovementioned judge dated the 6/05/2008, the defendant defamed the plaintiff again in his personality.
3. The defendant uses deceptive and misleading tactics in her presentation in order to gain unwarranted triumph in her court appearances.

4 On 19 June 2009 the defendant filed a chamber summons applying for orders that the writ and service of the writ on the defendant be set aside or alternatively the indorsement of the writ be struck out and the action be dismissed. The written submissions of the defendant in support of her application submitted that each of the alleged defamatory matters referred to in the plaintiff's indorsement were published more than one year prior to the commencement of this action. Section 15 of the Limitation Act 2005 (WA) (the Act) provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

5 On 31 July 2009 the plaintiff filed a chamber summons applying, amongst other things, for an order extending the time for commencing the action in respect of the causes of action in defamation.

6 Section 40 of the Act provides that a plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication. The court, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the publication, must extend the time in which the action can be commenced, but an action cannot be commenced if three years have elapsed since the publication.

7 On the face of it, the effect of s 40 is that if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, the court must extend the time in which the action can be commenced. That is, if the court is satisfied of the required condition then the court does not have a discretion not to extend the time.

8 However, s 44 provides that when deciding, on an extension application, whether to extend the time for the commencement of an action, the court is to have regard to:

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

'Extension application' is defined by s 3(1) of the Act to mean an application under, amongst other sections, s 40. All definitions of the meaning of words or phrases used in legislation are to be read either expressly or impliedly as subject to the qualification 'unless the contrary intention appears': Pearce D C and Geddes R S, Statutory Interpretation in Australia (2006, 6th ed) [6.62]. It may be that upon its proper construction s 44 does not apply to an application under s 40 for an extension of time to commence a defamation action. However, it is not necessary to resolve that issue in this application. That is because I am not satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year of the publication. That is, the condition for the exercise of the power to extend time under s 40 is not satisfied.

The plaintiff's case for an extension of time

9 The plaintiff's application is not supported by any affidavit notwithstanding that the matter was adjourned on 3 August 2009 and again on 24 August 2009 to enable the plaintiff to put on an affidavit in support of his application. In the absence of any evidence establishing the reasons why, or circumstances in which, the plaintiff did not commence his action within one year from the publications complained of his application cannot succeed.

10 The plaintiff made written and oral submissions in support of his application. I will consider those submissions notwithstanding that the plaintiff has not put on any evidence in support of his application. In his written submissions the plaintiff said that there are five reasons for his inability to commence an action within the limitation period:

1. the ongoing issue in the Family Court which consumed the plaintiff's time and energy;
2. what took place from January until May 2009 and the morning contact issue;
3. the deceptive conduct of the defendant in using the above to get the year to run out;
4. the plaintiff's health; and
5. the refusal by the court staff to provide example summon form and subsequently the inability of the plaintiff as a litigant to get the form right.

11 The first matter referred to by the plaintiff is the ongoing issue in the Family Court which consumed his time and energy. I accept that the plaintiff has been involved in protracted proceedings in the Family Court in which he has represented himself. I accept that has consumed much of the plaintiff's time and energy. However, I do not accept that that prevented him from commencing defamation proceedings against the defendant. The plaintiff informed the court that he had commenced about ten appeals to this court. That appears to be an exaggeration. However, it is clear that the plaintiff commenced a number of appeals to this court from decisions of the Family Court between 2007 and 2009. That demonstrates that the plaintiff was able to initiate proceedings in this court. Furthermore, the fact that a large amount of the plaintiff's time and energy was devoted to proceedings in the Family Court does not satisfy me that it was not reasonable in the circumstances for the plaintiff to have commenced an action in respect of the defamation matters within one year.

12 The plaintiff's second and third grounds are related and should be considered together. The plaintiff says that the defendant started earlier this year, that is 2009, deceiving the plaintiff by pretending to be nice to him. The plaintiff says that he needed to keep a good relationship with the defendant in order to negotiate some matters instead of going to the Family Court over every issue which is impossible. The plaintiff says that if he had commenced the defamation action during this time the defendant would have pulled out of the mediation. The plaintiff says that the defendant knew this and used it to get the one year limitation to run out by using the agreement over the morning contact and delay signing for a few months which caused the one year limitation period to run out. In his oral submissions the plaintiff said that the real reason he had not commenced the defamation action earlier was because the defendant was the go-between between himself and his former partner in resolving the matters in issue in the Family Court.

13 There is no evidence to support any of these allegations. There is no evidence that the defendant deceived the plaintiff by being nice to him or at all.

14 Of course, the limitation period in respect of the first alleged defamation expired in November 2007 and the plaintiff's claims in relation to these matters are irrelevant to the expiration of that limitation period.

15 The plaintiff has not made his case on this ground in relation to the second alleged defamation of 6 May 2008. The plaintiff commenced this action on 29 May 2009. At that time the defendant continued to represent the plaintiff's former partner in the Family Court proceedings. In support of his application the plaintiff produced a letter of 11 August 2009 from Bannerman solicitors to the plaintiff. In that letter Mr Bannerman informed the plaintiff that because of the defamation proceedings commenced against the defendant the defendant was unable to respond to the plaintiff's communications relating to the Family Court matters and that Mr Bannerman had taken over the conduct of those matters and requested that future correspondence be directed to him. Some inferences may be drawn from that letter. First, the plaintiff commenced the defamation proceedings against the defendant notwithstanding that at that time she continued to represent the plaintiff's former partner in the Family Court matters. Second, it was only after the relevant limitation periods had expired that Mr Bannerman, or anyone else, informed the plaintiff that the defendant was unable to communicate with him in relation to Family Court matters because he had commenced the defamation actions. The second and third grounds of the plaintiff's argument are not made out.

16 The fourth matter advanced by the plaintiff in support of his application is his health. There is no evidence to support a submission that the plaintiff was unable to commence the defamation action because of his health. The plaintiff's ability to commence appeals to this court from decisions of the Family Court show that the plaintiff's health did not prevent him initiating court proceedings. In any event, in the course of oral argument the plaintiff submitted that his health was not the real reason why he had not commenced the proceedings.

17 The final matter raised by the plaintiff is the refusal by court staff to provide an example summons form and subsequently the plaintiff's inability to get the form right. The plaintiff explained that his enquiries of the court staff in relation to forms of summons related to different proceedings. He did not make any enquiry of the court registry staff in relation to commencing the defamation actions. The plaintiff has not led any evidence in relation to his enquiries of court staff to provide example forms of summons in relation to the other matter. In any event, I am not satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the defamation matters within one year from their publications by reason of the failure of court staff to provide example forms of summons.

18 For the reasons stated, I am not satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to each of the alleged defamations within one year from their publication. The plaintiff's application for an extension of time to commence an action relating to those publications will be dismissed.

19 The plaintiff's action in relation to each of the alleged defamations was not commenced within one year as required by s 15 of the Act. The plaintiff's action in respect of the alleged defamations cannot succeed.

20 Paragraph 3 of the plaintiff's indorsement says:

The defendant uses deceptive and misleading tactics in her presentation in order to gain unwarranted triumph in her court appearances.

That paragraph does not appear to raise a cause of action separate from those in respect of the alleged defamations referred to. The indorsement consists of eight paragraphs. I have set out earlier the first three paragraphs. Paragraphs 4 to 6 refer to matters allegedly caused by the alleged defamation. Paragraph 7 and 8 refer to the plaintiff's loss, pain and suffering. On the face of it [3] is a complaint about the quality of the defendant's behaviour in the course of representing the plaintiff's former partner and does not raise a separate cause of action. In the course of argument the plaintiff was unsure whether he intended [3] to raise a separate cause of action. However, after some consideration the plaintiff said that [3] was intended to allege misleading or deceptive conduct by the defendant.

21 Order 6 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides:

Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.

22 Section 10 of the Fair Trading Act 1987 (WA) provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Paragraph 3 of the plaintiff's indorsement is inadequate to identify a cause of action for misleading or deceptive conduct contrary to s 10 of the Fair Trading Act. The indorsement does not identify the conduct complained of, in what way it was misleading or deceptive, whether it misled or deceived the plaintiff, and if so how it misled or deceived the plaintiff, and what if any links there are between the defendant's alleged misleading or deceptive conduct and any loss or damage suffered by the plaintiff.

23 The indorsement, to the extent that it is intended to raise a cause of action for damages for misleading and deceptive conduct contrary to s 10 of the Fair Trading Act, discloses no reasonable cause of action.

24 The defendant argued that in any event, the claim in [3] of the indorsement appears to relate to the defendant's conduct as an advocate in the Family Court and perhaps the Court of Appeal. As such, counsel for the defendant submitted, the defendant's conduct, even if proved to have been misleading and deceptive, does not possess the trading or commercial character necessary to found a claim under the Fair Trading Act. There is force in the defendant's submission. However, it is unnecessary to determine it.

25 The court will approach matters involving litigants in person with a degree of flexibility, bearing in mind that the rules of pleading are a means to an end - not an end in themselves. Litigants in person do not have the resources or expertise possessed by legal practitioners and their cases should be managed in a way which accommodates the reasonable requirements of the self represented litigant provided no injustice is thereby visited on other parties: Smith v McCusker QC [2000] WASCA 320 [212].

26 In this case the plaintiff commenced the action intending to prosecute two causes of action for defamation. The causes of actions are time barred and the actions cannot succeed. The indorsement arguably attempts to raise a cause of action for damages for misleading and deceptive conduct. It is not clear whether the conduct complained of is separate from the publication of the alleged defamations, is the conduct of the defendant as counsel in appearing before the Family Court or some other conduct. The plaintiff has not identified the conduct he wishes to complain of. The indorsement is wholly defective.

27 The plaintiff has been granted the indulgence of previous adjournments to enable him to give attention to the present applications and put evidence before the court in relation to the plaintiff's applications for an extension of time. The plaintiff did not do so. The defendant has been put to the trouble and expense of dealing with these applications and successive appearances before the court. The appropriate course is to order that the indorsement of the writ be struck out and the action be dismissed under O 20 r 19(1) of the Rules of the Supreme Court.