Limitation Act 1935 (WA), s 38(1)(a)(ii), s 38(1)(c)(vi)

Statement of claim struck out with leave to replead

First Defendant : Mr D R Williams QC & Mr M D Cuerden

Second Defendant : Mr D R Williams QC & Mr M D Cuerden

1 NEWNES J: On 22 September 2008, I heard an application by the defendants that the plaintiff's claim be struck out and judgment be entered for the defendants on the ground that the action was frivolous or vexatious or an abuse of process or the defendants had a complete defence to the claim, the action having been brought outside the relevant limitation period.

2 On 22 September 2008, for reasons which I briefly outlined then, I struck out the statement of claim and ordered that the plaintiff file and serve any amended statement of claim on or before 20 October 2008. I said I would provide more detailed reasons for my decision later. These are those reasons.

3 The plaintiff was formerly a legal practitioner. On 27 November 2000, the plaintiff was suspended from practice and he remained suspended until he was struck off the roll of practitioners on 5 September 2007.

4 On 24 April 2008, the plaintiff commenced proceedings for defamation against the first and second defendants.

5 A statement of claim was filed at the same time as the writ of summons. In the statement of claim, the plaintiff alleges that the words complained of were spoken by the first defendant in the foyer of this court on the morning of 26 April 2002. It is alleged that the words complained of were thereby published to four individuals, whom the plaintiff names, and 'other bystanders in the vicinity whose identities are unknown to the plaintiff'.

6 The plaintiff alleges that the words complained of conveyed various imputations reflecting on his honesty and integrity. He alleges that by reason of the publication of the words, he has been injured in his credit and reputation and brought into scandal, odium and contempt.

7 In the prayer for relief, the plaintiff claims damages, including special damages and exemplary damages, and an injunction restraining the defendants from publishing any words imputing to him dishonesty or lack of integrity. There is, however, no plea in the statement of claim that the alleged slander caused the plaintiff to suffer special damage, nor does the plaintiff plead any facts which are capable of giving rise to a claim of special damage.

8 I should mention in passing that as the alleged defamation occurred in 2002, the Defamation Act 2005 (WA), and in particular s 7, which abolishes the distinction between libel and slander and makes the publication of defamatory matter of any kind actionable without proof of special damage, does not apply.

9 On 21 May 2008, the defendants made the present application to strike out the plaintiff's claim. At the same time, an affidavit was filed on behalf of the defendants stating that they intended to plead that the plaintiff's claim was barred under the Limitation Act 1935 (WA).

10 That application came on for directions before me on 4 June 2008. At that hearing the plaintiff sought to have the management of the action transferred to Templeman J who was dealing with another matter involving proceedings between the plaintiff and the second defendant. It was not suggested, however, that the matter before Templeman J has any connection with this action beyond the fact that it involves the plaintiff and the second defendant. Alternatively, the plaintiff sought to have the action case managed by Martin CJ.

11 In seeking to have the management of the action transferred to Templeman J or Martin CJ, the plaintiff sought to rely upon an affidavit which he had sworn the previous day, 3 June 2008. Most of the affidavit appeared to me to be irrelevant to the defendants' application and, indeed, to the present action.

12 There are, however, two paragraphs of that affidavit to which I should refer as they are relevant to the hearing on 22 September 2008. In the first of those paragraphs, the plaintiff complained that on a previous occasion I did not appear to have understood his 'enforced impecuniosity' when I enforced a means enquiry application by the State Solicitor's Office in respect of some application in other proceedings. It was not clear what that meant. In the second paragraph, the plaintiff stated that he was 'not impressed' with the manner in which I had permitted another solicitor, as the plaintiff put it, 'to abuse the processes of the court in a totally vexatious defamation proceeding that commenced in 2001'. Precisely what it was that caused the plaintiff to form such a low opinion of the way in which I dealt with those proceedings, or how it bore in any way upon the plaintiff, was not explained. I should say, however, that it was not suggested that the plaintiff had any role in the proceedings in question either as a legal practitioner or in any other capacity.

13 I declined to accede to the plaintiff's application to transfer management of the action to either Templeman J or Martin CJ, as I was not satisfied that there were any grounds to do so.

14 On 4 June 2008, I ordered that the plaintiff file and serve any affidavit in opposition to the application on or before 18 June 2008. I further ordered that the defendants file and serve any affidavit in reply and an outline of submissions in support of the application on or before 25 June 2008, and the plaintiff file and serve any written outline of submissions in opposition to the application on or before 9 July 2008. The matter was to be listed for a special appointment on a date to be fixed.

15 On 17 June 2008, the parties were notified by a letter from the court that the defendants' application had been listed for a special appointment on 22 September 2008. I do not know what led to such a long delay in the hearing of the application, but the fact is that the parties had some three months notice of the hearing date.

16 The defendants filed and served an outline of submissions and list of authorities on 25 June 2008. The plaintiff did not file any affidavit beyond the affidavit of 4 June 2008 and did not file an outline of submissions.

17 At the outset of the hearing on 22 September 2008, the plaintiff handed up a motion by which he sought to have me disqualify myself on the ground that I was biased against him. The plaintiff had only the original motion with him. He said he had been unable to make any copies of it because of some problems with his photocopier that morning. The plaintiff also sought to rely upon an affidavit which he had sworn that morning and, again, of which he had only the original with him. Obviously, neither the motion nor the affidavit had been filed. There was no satisfactory explanation for the failure to file and serve the documents at an earlier time.

18 I could find nothing in the affidavit which could possibly found a complaint of bias. I told the plaintiff that as neither the motion nor the affidavit had been filed or served, I would treat his application as an oral application and I invited him to put forward his arguments in support of it. Those arguments appeared to rely in substance on what was said in his affidavit of 4 June 2008, together with a complaint that I had previously ordered that a writ of summons he had filed in another action be struck out on the ground that, contrary to O 6 r 3(b), it was indorsed with a statement of claim. The plaintiff acknowledged that he had not sought to institute an appeal in respect of either the means enquiry application or the striking out of the writ.

19 I declined the plaintiff's application that I disqualify myself.

20 The plaintiff also appeared to make an oral application for an adjournment (of an unspecified period) of the hearing of the defendants' strike out application in order to permit the completion of other proceedings, to which the second defendant was a party, involving fees the plaintiff claimed were owing to him in connection with his previous legal practice. The plaintiff was confident that he would recover a large sum of money (an amount of some $400,000 was mentioned) in those proceedings and he said that he intended then to engage legal representatives, including senior counsel. The plaintiff complained that he was disadvantaged on the present application by being opposed by senior counsel briefed to appear on behalf of the defendants.

21 I say that the plaintiff 'appeared' to seek an adjournment because it was not entirely clear what he was in fact seeking. In any event, I considered that the hearing of the defendants' application should proceed. There had been no prior notice that the plaintiff sought to postpone the hearing of this application until the other proceedings had been completed. In addition, the length of the proposed adjournment (if that is what was sought) was open-ended, in circumstances where these proceedings had been commenced only a few days short of six years after the words complained of were allegedly spoken. Assuming for the moment that, as the plaintiff contends, the relevant limitation period is six years, the plaintiff waited until the death knock before commencing this action. It is well-established that where a party waits until the last minute to commence an action it is particularly incumbent upon them thereafter to pursue the action diligently. That is even more important where, as here, what is complained of are words that the plaintiff alleges were spoken. In such circumstances, further delay will not readily be countenanced.

22 Moreover, the point in issue was a short one and one which the plaintiff had not previously indicated was or might be beyond his capacity adequately to argue. The plaintiff's principal complaint appeared to be that, hitherto unbeknown to him, senior counsel had been briefed to appear for the defendants.

23 It is necessary, then, to turn to the defendants' application to strike out the action.

24 The defendants contended that the plaintiff's claim was clearly statute-barred. Section 38(1)(a)(ii) of the Limitation Act provides that an action for slander, where the words are actionable per se, shall be commenced within a period of two years from the cause of action accruing. The relevant limitation period for a cause of action for slander actionable upon proof of special damage is six years: s 38(1)(c)(vi).

25 It was submitted on behalf of the defendants that the statement of claim does not allege that the plaintiff suffered special damage, nor does it plead any facts which are capable of making out such a claim. It therefore appears that the plaintiff alleges the words complained of constituted a slander which was actionable per se. Within the recognised categories of such actions, in the present case the plaintiff could only be relying on an allegation that the words complained of disparaged him in his trade, calling, business or profession. However, if that is relied on, it is not apparent what that trade, calling, business or profession is said to be. In the statement of claim, the plaintiff simply says he is a former legal practitioner who was struck off the roll of practitioners on 11 September 2007.

26 In fact, as appears from the affidavit filed on behalf of the defendants, the plaintiff was suspended from legal practice on 27 November 2000 and was struck off the roll of practitioners on 5 September 2007. In other words, at the time of the alleged defamation the plaintiff had already been suspended from legal practice and he has not since been entitled to practice.

27 It was submitted that, in any event, if - as it appears to be - the cause of action is intended to be for slander actionable per se, then it is plainly out of time, the relevant limitation period having expired in April 2004.

28 It was further submitted, in the alternative, that if the plaintiff intended to allege special damage, the statement of claim was defective in that there was no plea of special damage. As special damage is the gist of an action for slander which is not actionable per se, a plaintiff must plead and particularise the special damage alleged.

29 It was submitted that in the present case, where the action was plainly statute-barred and where the evidence was that the defendants intended to rely on the statute of limitations, the action should be struck out.

30 As I have said, the plaintiff did not file an outline of submissions, notwithstanding the direction given on 4 June 2008. The plaintiff's oral submissions were, with respect, very difficult and at times impossible to follow. The plaintiff consistently sought to refer to matters and material which, on any view, could have no possible bearing on the defendants' application.

31 Although the submission was not clearly articulated, the plaintiff did appear to contend that the defendants were estopped from relying upon the expiry of the limitation period, on the basis of the principles referred to in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394. There was, however, no evidence of any facts which were capable of giving rise to such an estoppel, nor was it clear from the plaintiff's submissions on what facts he sought to rely to establish such an estoppel.

32 The plaintiff also contended that he had suffered special damage as a result of the alleged defamation and said that he intended to amend the statement of claim to plead that. The plaintiff said that the nature of the special damage was his inability to proceed with certain (unspecified) investments, although it was not apparent how his inability to do so was caused by the alleged defamation.

33 As it is currently formulated, however, it appears that the plaintiff's claim is founded upon an alleged slander that disparaged the plaintiff in his calling, business or profession, although it is not (as such a claim should be) expressly pleaded as such. That is to say, it is apparently pleaded as an alleged slander that is actionable per se. If that is what is intended, then the claim is clearly statute-barred and should be dismissed. The cause of action arose when the words were allegedly spoken on 26 April 2002. The relevant limitation period for such a claim was two years. This action was not commenced until 24 April 2008, almost four years out of time.

34 If, on the other hand, the plaintiff seeks to advance a claim for slander based on proof of special damage, then the statement of claim as it is currently pleaded is defective and should be struck out.

35 It is well-established that where the cause of action is a slander actionable on proof of special damage, the plaintiff must plead the special damage allegedly suffered and show a causal nexus to the slander. The damage suffered must be the natural and probable result of the defendant's words: Chamberlain v Boyd [1883] 11 QBD 407. And the damage suffered must be a form of pecuniary loss or loss capable of assessment in money terms: Chamberlain v Boyd (412), Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 [98].

36 What is required by way of a plea of special damage will depend upon the circumstances of the case. In Ratcliffe v Evans [1892] 2 QB 524, Bowen LJ said:

In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted upon both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry (532).

37 While that case concerned an action for malicious falsehood, in my view the principle stated applies equally to a claim for slander where special damage is an essential element of the cause of action.

38 In the current statement of claim, the prayer for relief claims damages 'including special damages and exemplary damages'. But the plaintiff does not plead that he has suffered special damage by reason of the alleged defamation, nor are there any facts pleaded which are capable of making out such a case.

39 It follows, in my view, that if the plaintiff intends to advance an action for slander actionable upon proof of special damage, the current statement of claim does not plead such a case. In light of the plaintiff's contention that he did seek to plead such a case, on 22 September 2008 I ordered that the statement of claim be struck out and the plaintiff file and serve any amended statement of claim on or before 20 October 2008.