Limitation Act 1935 (WA), s 38

Lashansky v Coombs [2008] WASC 207

Lashansky v Coombs [No 2] [2009] WASC 87

1 On 7 April 2009 Newnes J ordered that 'unless on or before 12 May 2009 the plaintiff do file and serve a minute of amended statement of claim, together with an application for leave to amend the statement of claim in terms of that minute, the action be dismissed and there be judgment for the defendants with costs' (the springing order). The plaintiff failed to file or serve a minute of amended statement of claim, or an application for leave to amend the statement of claim, on or before 12 May 2009. On 15 May 2009, pursuant to the order of Newnes J, it was ordered that the action be dismissed and the plaintiff pay the defendants' costs of the action. The plaintiff now applies for an order that the time allowed by the springing order be extended.

2 At the hearing of his application on 23 July 2009, as at the hearings on 9 and 18 June 2009, the plaintiff represented himself. The plaintiff has some familiarity with the processes of this court. He was a legal practitioner until suspended from practice by order of the Legal Practice Board on 27 November 2000. He was subsequently struck off the Roll of Practitioners pursuant to the order of the Full Court on 5 September 2007.

3 The plaintiff commenced this action by writ of summons issued on 24 April 2008. The writ was indorsed with a claim for damages for defamation of the plaintiff on 26 April 2002 in the foyer of the Supreme Court of Western Australia when the first defendant referred to the plaintiff in the presence of several bystanders, including former clients of the plaintiff's practice, as being nothing more than a liar and a cheat. The plaintiff also seeks an injunction to restrain the defendants from further publishing the words complained of or any similar words and an injunction requiring the defendants to publish a formal apology to the plaintiff.

4 On 24 April 2008 the plaintiff filed a statement of claim. The defendants applied to strike out the statement of claim on the ground that the plaintiff's claim was statute barred. Newnes J 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: Lashansky v Coombs [2008] WASC 207 (Lashansky v Coombs [No 1]). His Honour said that the plaintiff's claim as then formulated appeared to be founded upon an alleged slander that disparaged the plaintiff in his calling, business or profession. 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. The action was not commenced until 24 April 2008, almost four years out of time. His Honour further held that if the plaintiff sought to advance a claim for slander based on proof of special damage, then the statement of claim as it was currently pleaded was defective and should be struck out. The prayer for relief claimed damages including special damages but the plaintiff had not pleaded that he had suffered special damage by reason of the alleged defamation nor were there any facts pleaded which were capable of making out such a case.

5 The plaintiff did not file or serve an amended statement of claim by 20 October 2008. On 23 October 2008 the plaintiff applied for an order that the time limited by Newnes J for the plaintiff to file an amended statement of claim be extended 'until 30 days after the plaintiff returns from travelling to the Republic of South Africa to obtain evidence and documents to support the plaintiff's claim that the plaintiff has suffered special damage'. On 13 November 2008 the plaintiff's application was adjourned sine die.

6 On 24 October 2008 the defendant applied for summary judgment on the ground that the plaintiff's action is out of time under s 38(1)(a)(ii) of the Limitation Act 1935 (WA), being a claim for slander actionable per se for which the limitation period is two years. The defendants' application was heard on 9 March 2009 and Newnes J delivered judgment on 7 April 2009: Lashansky v Coombs [No 2] [2009] WASC 87 (Lashansky v Coombs [No 2]). In his reasons for judgment Newnes J set out the following relevant events. In November 2008, the plaintiff served what is described as a 'draft minute of an amended statement of claim' (the minute). On the hearing of the defendants' summary judgment application there was then no application before the court to amend the statement of claim in accordance with the minute. However, the defendants' counsel took the approach that the minute put the plaintiff's case on special damages and the defendants would seek to persuade the court that the minute failed to plead any arguable case for special damage. The hearing of the defendants' application proceeded on the basis that the minute was put up by the plaintiff as the proposed amended statement of claim. Newnes J held that the minute is embarrassing in material respects and he would not allow the statement of claim to be amended in that form. The essence of his Honour's reasoning is to be found in the following extract from his Honour's reasons for judgment:

In par 14 of the minute, the plaintiff alleges that by reason of the publication of the words complained of he has suffered special damage, full particulars of which will be provided prior to trial. It is not clear whether that is intended to be a claim for special damage in respect of the plea in par 13 (a slander actionable per se), or a claim for special damage which is relied upon to make the alleged slander actionable. If it is the latter, it is defective. Where a plaintiff alleges a slander that is actionable only on proof of special damage, it is necessary to plead facts which show a sufficient nexus between the alleged slander and the damage, otherwise the plea will disclose no cause of action: Milmo et al, Gatley on Libel and Slander (10th ed, 2003) [26.26].

In par 15, the plaintiff pleads that 'as a result of the republication' of the words complained of by the first defendant he has lost two lucrative business ventures. The alleged loss of business ventures is then pleaded in pars 16 - 18 of the minute, and I have described the substance of those pleas above.

The plea of the republication in par 15 is embarrassing. In the first place it is not clear whether it is alleged that the 'republication' was by the first defendant, or whether the plaintiff intends to allege a republication by someone else. In either case, there is no plea of when, where or to whom the republication is alleged to have taken place. If the second of the above meanings is intended, there is no plea as to who republished the words or any plea of facts which are capable of making the defendants liable for the alleged republication. A person is not liable simply because defamatory words which they published are subsequently republished by someone else. Prima facie a person is not liable for a republication by another person. Where a plaintiff seeks to make a defendant liable for republication by a third party, the plaintiff must plead the facts which he or she says make the defendant liable for the republication. See Gatley [6.36, 26.8] [38] - [40].

7 The plaintiff did not file or serve a minute of amended statement of claim by 12 May 2009. On 12 May 2009 the plaintiff filed a chamber summons seeking, amongst other things, an order that the time allowed by Newnes J to file and serve a minute of amended statement of claim be extended until Friday, 26 June 2009. On 15 May 2009 the defendant entered judgment pursuant to the order made by Newnes J on 7 April 2009.

8 The plaintiff's application to extend time came on for hearing before me on 9 June 2009. On that occasion the plaintiff sought an adjournment on the ground that he had fallen violently ill the previous night and was not able to argue the matter. I granted the adjournment and adjourned the matter for hearing on 18 June 2009.

9 The plaintiff's application again came on for hearing on 18 June 2009. The plaintiff applied for a further adjournment on the ground that he was not ready to proceed because he wished to prepare affidavit evidence and had not been able to do so. The plaintiff said that the evidence that he wished to produce consisted of evidence contained in affidavits which had been sworn and filed in other proceedings in this court. The plaintiff informed the court that those affidavits are voluminous and until then he had been seeking to produce a new affidavit which would annex or in some way incorporate the previous affidavits on which he seeks to rely. The plaintiff also wished to obtain information from Mr Gentilli, a legal practitioner, on whether or not Mr Gentilli was ready, willing and able to assist the plaintiff in the preparation of a further minute of amended statement of claim and if so when he would be able to do that. I granted the adjournment and adjourned the hearing of the plaintiff's application to 23 July 2009.

10 The plaintiff's application came on for hearing on 23 July 2009. The plaintiff relied upon an affidavit sworn by him on 12 May 2009 and an affidavit sworn by him on 22 September 2008 in support of an application that 'his Honour Justice Newnes should recuse himself from any further participation in any matter to which I am a party' [4]. In the course of the hearing the plaintiff took the witness stand and verified his unsworn affidavit of 23 July 2009 which became exhibit 1. The plaintiff also tendered as exhibits an article from the Scientific American Journal, a bundle of emails, a copy of a letter of 31 January 2005 from the plaintiff to the Premier of Western Australia and others, an article from the June - July 2009 edition of the Ecos magazine, a power point presentation entitled 'Corrado Power Point Presentation, The Australian Biodiesel Investment Opportunity Arising From The Collapse Of Australian Renewable Fuels', a printout of an item entitled 'Supermarkets to Squeeze Farmers as Margins Fall' from a Ninemns Money internet site and a printout from an item entitled 'Call to Sacrifice Parts of Murray-Darling' from the ABC News internet site. Counsel for the defendants objected that most, if not all, of the material in the exhibits is irrelevant. I accepted the material into evidence subject to relevance.

11 In the course of the hearing the plaintiff referred to various matters, made various factual allegations and referred to a number of judgments in other proceedings and facts recited or found in those proceedings. The facts or allegations made by the plaintiff include the following. On 29 November 2000 this court made orders empowering the Legal Practice Board to appoint a supervising solicitor to the plaintiff's practice. On the same day, the Board exercised that power and appointed Peter Joseph Bogue to be the supervising solicitor. On 13 December 2000 Mr Bogue and Ms Diane Howell, the law complaints officer employed by the Board, affected a forcible entry into the plaintiff's premises in his absence. They removed a number of his files and other property. The files and materials removed from his premises included material relating to matters other than legal work. The Board says that all of the plaintiff's personal property was subsequently returned to him. The plaintiff says that all of his personal property has not been returned to him. He says that the property that was not returned to him includes property relating to greenhouse gas emissions, soil carbon sequestration and salinity that has an enormous commercial value.

12 The plaintiff filed an outline of submissions dated 18 June 2009. In those submissions the plaintiff makes a number of allegations against the Board and some of its employees. The plaintiff alleges that he has suffered great financial loss by reason of the Board or its officers removing his property and interfering with equitable liens he held over legal costs paid to a former client, or clients, in respect of a matter in which he acted before his suspension.

13 The legal principles relevant to the determination of this application are not in dispute. They are conveniently set out at [3.5.6] of the Civil Procedure Western Australia:

This rule [ie O 3 r 5] provides authority to extend the time for compliance with a springing order, even after judgment has been entered by its automatic operation: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 286; [1988] HCA 13; 77 ALR 411.

The authority of the court will, however, be undermined if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place: MTQ Holdings Pty Ltd [2007] WASC 49; BC200701820 at 51.

There are four matters to which the court will normally have regard in deciding whether to extend the time for compliance with a springing order. They are:

• the circumstances in which the springing order came to be made;
• the reason for non-compliance with the springing order;
• the prejudice to the defaulting party if the time were not extended; and,
• the prejudice to the other party if the time were extended.

It will also be appropriate to consider the merits of the action, albeit briefly, there being no point in resuscitating a case that is devoid of merit: Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86; BC200803413 at [24]; Brocx v Hughes [2008] WASC 34; BC200801622 at [32].

Circumstances in which springing order was made

14 The alleged defamation of which the plaintiff complains occurred on 26 April 2002. The plaintiff commenced his action on 24 April 2008, that is, two days short of six years after the words complained of were allegedly spoken. In Lashansky v Coombs [No 1] Newnes J said:

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 [21].

15 On 22 September 2008 the statement of claim was struck out on the ground that it failed to plead that the plaintiff had suffered special damage by reason of the alleged defamation nor were there any facts pleaded which are capable of making out such a case. The plaintiff was given leave to serve any amended statement of claim on or before 20 October 2008. The plaintiff failed to do so but in November 2008 produced the draft amended statement of claim which I have referred to as the minute.

16 On 7 April 2009 Newnes J held that the minute failed to plead facts capable of making out a case that he suffered special damage by reason of the alleged defamation. In the minute the plaintiff pleaded that as a result of the republication of the words complained of by the first defendant he has lost two lucrative business ventures. The business ventures are a venture in 2002 with the Wormall Group of Companies which was aimed at exploiting the market for waste water and environmental technology in China and a venture in 2003 aimed at exploiting the digital meter reading market in the Republic of South Africa. The minute failed to plead when, where or to whom the republication was alleged to have taken place. There was no plea as to who republished the words or any plea of facts capable of making the defendants liable for the alleged republication. The springing order was made on the defendants' application for summary judgment. Newnes J declined to order that judgment be entered for the defendants. His Honour said at [43] of Lashansky v Coombs [No 2] that the plaintiff should be given a further opportunity to put the statement of claim into an acceptable form. The plaintiff has not done that. The plaintiff has made no attempt to do it. The plaintiff has not produced an amended statement of claim or a draft of a proposed amended statement of claim. The plaintiff has not particularised the republication(s) on which he relies. In short, the circumstances in which the springing order came to be made do not provide any basis on which the court should exercise its discretion to extend the time.

Reason for non-compliance with springing order

17 The principal reason advanced by the plaintiff for having failed to comply with the springing order is that he is unable to afford legal representation and is not competent to draft the amended statement of claim himself. I am not satisfied that that is a sufficient explanation for the plaintiff's ongoing failure to produce a statement of claim that can withstand a strike out application.

18 As I have said, the plaintiff is a former legal practitioner and has some familiarity with the processes of the court. It is sometimes said that defamation law is an arcane and complex field having its own peculiar rules of pleading and practice. However, the difficulty confronting the plaintiff is not a difficulty in identifying the elements of a cause of action or how to formulate them. The difficulty confronting the plaintiff is in identifying the facts that make the defendants liable for republication by a third party of the words allegedly spoken by the first defendant. In Lashansky v Coombs [No 2] Newnes J succinctly identified the defect in the pleading of republication in the minute to be that there is no plea of when, where or to whom the republication is alleged to have taken place [40]. His Honour said that there is no plea as to who republished the words or any plea of facts which are capable of making the defendants liable for the alleged republication. The difficulty faced by the plaintiff is not that he does not know how to put the relevant facts into proper form. The plaintiff's difficulty is that he has been unable to state the relevant facts, he does not know, or is unable to say, who, if anybody, repeated the words allegedly spoken by the first defendant, or words to the same effect, and to whom they were repeated. This is not a case where the particulars of republication are within the knowledge of the defendant.

19 In considering the exercise of the discretion to extend time it is relevant to consider the plaintiff's ability and willingness to proceed with the action without further undue delay. The plaintiff says that he is not competent to proceed with the action in the absence of legal representation. The plaintiff does not presently have the means to pay for legal representation.

20 In his unsworn affidavit Mr Lashansky makes statements about his attempts to obtain assistance from three legal practitioners. The plaintiff has been unable to obtain assistance from any of those practitioners and there is nothing in the materials before the court that give rise to any likelihood that they will assist him in the foreseeable future.

21 The plaintiff submitted that until now he has not had the means to pay for legal representation but he expects to come into possession of a large amount of money as a result of a consortium of which he is a member being awarded a contract by Chevron Australia Pty Ltd to support its oil and gas production facilities at Barrow Island. The putative contract (or contracts) is for the supply of armour rock, sand and a revolutionary concrete product. The plaintiff alleges that he, or his consortium, would have been awarded the contract or contracts already if the Legal Practice Board had not forcibly entered his premises and removed his documents in December 2000.

It now appears that there is a strong likelihood that I will be in receipt of a considerable sum of money that will enable me to fund legal representation as a result of work done by me in relation to the Barrow Island gas processing facility that is to be constructed by Chevron.

I verily believe that I am in possession of such powerful environmental technology relating to the reduction of the environmental footprint of the Chevron project that the project will either have to be abandoned in its proposed form unless Chevron incorporates the technology of the consortium of which I am a member [5] - [6].

Elsewhere in his unsworn affidavit the plaintiff makes other statements about the Chevron Barrow Island project and the plaintiff's opinion that Chevron will be obliged to utilise the services of his consortium. The statements made by the plaintiff are assertions, non-expert opinion and conclusions unsupported by material facts. There is no basis in the unsworn affidavit or the other documents tendered by the plaintiff for the conclusions and opinions he expresses. Furthermore, there is no indication, even by way of assertion or opinion, as to when the plaintiff's consortium is likely to be awarded the contract, or contracts, and when funds may become available to the plaintiff to retain legal representation.

23 In the course of the hearing the plaintiff informed the court that if he cannot get legal representation he will not pursue the action because it is beyond his competence. There is no evidence before the court from which it may be concluded or inferred that the plaintiff will be able to obtain legal representation in the foreseeable future.

Prejudice to plaintiff if time is not extended

24 If the time specified in the springing order is not extended, the plaintiff will not be able to pursue his claim for defamation against the defendants. In considering the extent of that prejudice the court must have regard to the difficulties confronting the plaintiff in pursuing his action. He cannot succeed unless he can establish that the words allegedly spoken by the first defendant were republished and the plaintiff has suffered special damage by reason of the republications. The plaintiff is unable to particularise the republications. That is, he is unable to say who republished the statements to whom. The plaintiff must further prove facts that make the defendants legally liable for the republications. He has been unable to state such facts to date. Furthermore, the plaintiff will have to prove facts that establish, or from which it may be inferred, that if it had not been for the republications he, or some person or persons associated with him, would have received benefits in connection with the South Africa and China ventures. On the evidence presently before the court, the plaintiff faces very significant difficulties in pursuing his claim.

25 The evidence before the court leads to the conclusion that the plaintiff will not be able to afford legal representation, and hence file or draft an amended statement of claim, in the near future. Any extension of time to be effective would have to be for some months, at least. There is no certainty that the plaintiff would then be able to pursue the action. To the contrary, the probability is that he would not. In the meantime, the defendants would remain subject to legal proceedings against them for damages for defamation.

26 If the plaintiff was eventually able to pursue this action the defendants would find themselves having to meet a case based on words allegedly spoken more than seven years ago. Furthermore, the defendants would have to meet a case based upon alleged republications which remain unspecified more than seven years after the original alleged slander. The passage of time and the fading of memories, as well as the potential loss of documents, is a real prejudice.

27 Having regard to the circumstances in which the springing order was made, the reason for the plaintiff's non-compliance with the springing order, the prejudice to the plaintiff if the time is not extended, the prejudice to the defendants if the time is extended and the likelihood of the plaintiff prosecuting the action with reasonable expedition if the time is extended I decline to exercise my discretion to extend the time specified in the springing order. The plaintiff says that he will be unable to prosecute the action unless and until he comes into funds that enable him to afford legal representation. There is no evidence that that is likely to happen in the foreseeable future. In all the circumstances the plaintiff's application should be dismissed.