Plaintiff to file and serve amended minute of statement of claim

Lashansky v Coombs [2008] WASC 207

1 NEWNES J: The defendants have applied for summary judgment under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) 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.

2 The current application follows an earlier application by the defendants, filed on 21 May 2008, to strike out the statement of claim and for judgment to be entered for the defendants. That application came on for hearing on 22 September 2008 and the statement of claim was struck out: Lashansky v Coombs [2008] WASC 207. On that occasion, the plaintiff was given leave to file and serve any amended statement of claim by 20 October 2008. The plaintiff did not do so and, on 24 October 2008, the defendants made the current application for judgment.

3 In November 2008, the plaintiff served what is as described as a 'draft minute of an amended statement of claim' (the minute). When the defendants' application for judgment came on for directions on 13 November 2008, counsel for the defendants briefly outlined the objections the defendants took to the minute. The plaintiff said that if he was provided with the grounds of objection in writing he would consider them and, if appropriate, file and serve a further minute of proposed amended statement of claim.

4 The defendants' solicitors wrote to the plaintiff by letter dated 14 November 2008 setting out a number of objections to the minute. It appears the plaintiff did not respond to that letter, nor did he file and serve any amended minute of the statement of claim.

5 On 13 November 2008, an order had been made that if the objections to the minute were not resolved by conferral, the defendants were to file and serve an outline of submissions in relation to the adequacy of the minute on or before 5 December 2008, and the plaintiff was to file an outline of submissions in reply on or before 19 December 2008. The defendants' submissions were filed on 5 December 2008. The plaintiff did not file an outline of submissions.

6 When the defendants' application for judgment came on for the hearing on 9 March 2009, the plaintiff immediately sought to have the hearing vacated and, in the event that I refused to make an order that the action go to trial before a jury without pleadings, that the plaintiff be 'given leave to approach the High Court of Australia in its original jurisdiction pursuant to the provisions of s 40 of the Judiciary Act 1903 (Cth)'.

7 There was, however, no application listed before me for an order that the action go to trial before a jury, with or without pleadings. The plaintiff had previously applied, by chamber summons of 12 November 2008, for summary judgment or alternatively (among other things) for an order that the action be tried before a jury under the Supreme Court Act 1935 (WA). However, that application had been adjourned sine die on 13 November 2008 and no notice had been given that the plaintiff would move on 9 March 2009 for the orders he in fact sought.

8 I declined to vacate the hearing or to consider the question of whether the action should proceed to trial before a jury without pleadings. If the plaintiff wished to press for such orders, it was up to him to ensure that a suitably framed application was listed for hearing on proper notice. In the absence of such an application, I considered that the hearing of the defendants' application for summary judgment should proceed.

9 Although there is currently no application before the court directed to permitting the operative provisions of the minute to be pleaded in an amended statement of claim, the defendants' counsel took the practical approach that as the minute was the only document that had been put forward by the plaintiff, and as it put the plaintiff's case on special damage, the defendants would seek to persuade the court that the minute failed to plead any arguable case for special damage. That was done, as I understand it, on the basis that if the matters relied on failed to demonstrate an arguable case for special damage, the plaintiff's claim was limited to a slander actionable per se and any such action was plainly statute-barred. The defendants were therefore entitled to judgment.

10 In the circumstances, the hearing of the defendants' application proceeded effectively on the basis that the minute was put up by the plaintiff as the proposed amended statement of claim. The plaintiff did not suggest that that was not his position.

11 It is unnecessary to set out in full the relevant provisions of the minute and I will refer only to the salient parts of it.

12 The words complained of are pleaded in par 5 of the minute. It is alleged that they were spoken in the foyer of this court by the first defendant and thereby published to several former clients of the plaintiff's practice, another legal practitioner, and bystanders in the vicinity whose identities are not known to the plaintiff.

13 In par 12 of the minute it is alleged that the second defendant 'appears' to have embarked on a campaign of denigration of the plaintiff through the media.

14 The plaintiff pleads in par 13 of the statement of claim that the words complained of were calculated and intended to disparage him in his 'office, profession, calling, trade or business'. I note that the plaintiff does not plead the 'office, profession, calling, trade or business' concerned.

15 The plaintiff pleads in par 14 of the minute that by reason of the publication of the words complained of by the first defendant 'the plaintiff has suffered special damage, full particulars of which will be provided to the first defendant and the second defendant prior to trial herein'.

The plaintiff avers that as a result of the republication of the words by the first defendant as set out in paragraph 5 above to various parties who had previously been interested in becoming involved in potentially lucrative business ventures with the plaintiff, elected not to proceed with the proposed business ventures. (emphasis added)

17 I should say that there is no specific plea in the minute of any republication of the words complained of.

18 The plaintiff then sets out, in pars 16 - 18 of the minute (which extend to a little over nine pages), two business ventures in which he says he was involved which were affected in that way; namely a business venture in 2002 with the Wormall Group of Companies (Wormall Group) which was 'aimed at exploiting the market for wastewater and environmental technology in the People's Republic of China', and 'in 2003 a further business venture aimed at exploiting the digital meter reading market in the Republic of South Africa'. The plaintiff pleads that as a result of the republication of the words complained of by the first defendant, both ventures collapsed. It is necessary to turn to those pleas in some detail.

19 In par 17 of the minute, the plaintiff pleads that 'as a consequence of the republication of the words complained of by the first defendant to a former client of the plaintiff's practice, the former client refused to proceed with a business venture aimed at exploiting the market for wastewater and environmental technology in the People's Republic of China being undertaken by the plaintiff in 2002'. There are then set out extensive particulars of the alleged failed business venture.

20 The plaintiff describes in those particulars the general nature of the work which he says was undertaken by an alleged joint venture between the plaintiff, the Wormall Group and a former client of the plaintiff's legal practice. The plaintiff says he approached the former client of his practice to become part of the joint venture on the basis that the former client had influential contacts in the People's Republic of China. The plaintiff alleges that, together with his former client, he attended 'a series of meetings with highly-placed officials from the People's Republic of China which were conducted in the East Perth consulate' and that he was assured by these officials that favourable consideration would be given to any proposal emanating from the plaintiff. He says that he was given indications that the authorities responsible for the construction of the facilities for the 2008 Beijing Olympic Games would be approached with a view to possible incorporation of the technology in the infrastructure being constructed for the Olympic Games.

21 The plaintiff then pleads in par 17(U) of the minute:

Shortly after the republication of the first defendant's defamatory remarks, the plaintiff became aware of a noticeable cooling in the relationship between the plaintiff and the directors of the Wormall Group and his former client.

In the end the proposed joint venture did not proceed at all.

23 The plaintiff says that he is currently unable to provide further particulars of his loss because most of his documents were removed from his premises by the second defendant in November 2002 and he is awaiting the outcome of litigation with the second defendant concerning the lawfulness of their removal. I will come back to that in due course.

24 In par 18 of the minute, the plaintiff pleads that, as a consequence of the republication of the words complained of by the first defendant to a potential business partner of the plaintiff in South Africa, a business venture in which the plaintiff was involved to exploit advanced digital meter reading technology in South Africa was aborted.

25 In particulars of that plea, the plaintiff alleges that in 2002 while he was in South Africa he was approached to take a minority interest with two others in a proposed joint venture involving such technology. At the time the plaintiff was friendly with one Mr Saul, who in turn was friendly with a director of a major property conglomerate, the Liberty Group. The plaintiff alleges that through Mr Saul's connection a meeting was arranged with a director of the Liberty Group. He pleads that the meeting was so successful that it was considered a mere formality for the joint venture to be awarded the contract for the reading of meters in various shopping centres owned by the Liberty Group when the existing meter reading contracts fell due for renewal.

26 The plaintiff pleads that at the outset he had explained to Mr Saul the reasons for his suspension from legal practice but had told Mr Saul of the express finding of the Legal Practitioners Disciplinary Tribunal that he had not misappropriated any money. The plaintiff says that shortly after the meeting with the director of the Liberty Group, Mr Saul told the plaintiff that he had been informed by a contact in Perth that 'far from there being a lack of dishonesty on the part of the plaintiff, the plaintiff was in fact "nothing but a liar and a cheat"'. The plaintiff alleges that Mr Saul said it would not be appropriate for the plaintiff to remain involved in negotiations with the Liberty Group. Shortly afterwards the plaintiff was informed that the Liberty Group was not interested in pursuing further negotiations with the joint venture.

27 The plaintiff says he is unable to provide further particulars until he has travelled to South Africa to obtain the relevant documentation and corroboratory evidence.

28 In argument, however, the plaintiff was unable to identify, or identify with any degree of particularity, what further information could be obtained only on a visit to South Africa. Similarly, in relation to the earlier claim he was unable to identify with any degree of particularity what information he needed from the files in the possession of the second defendant in order to particularise the losses he has allegedly suffered.

29 It was submitted on behalf of the defendants that the minute was generally defective. In particular, counsel for the defendants submitted that par 14 of the minute was embarrassing because it was not apparent how, if at all, it related to the pleas in pars 15 - 18 which purport to plead special damages a result of alleged republications.

30 In relation to pars 15 - 18, it was submitted that there was no adequate plea as to the alleged republications and, in particular, there was no plea as to by whom, to whom or when the alleged republications were said to have occurred, or the basis upon which it was alleged that the defendants were liable for the alleged republications. There was no plea of any material facts which were capable of rendering the defendants liable for the alleged republication. The circumstances of the alleged republications are, on their face, unusual and quite removed and remote from the circumstances of the alleged original publication.

31 Counsel for the defendants submitted that the minute therefore failed to disclose a cause of action for a slander which was actionable on proof of special damage. It must, therefore, be treated as a claim in respect of a slander actionable per se, for which the limitation period, pursuant to s 38(1)(a)(ii) of the Limitation Act, was two years. The action had been commenced just short of six years after the alleged slander. It was doomed to failure, the defendants having said on oath that they would plead a limitation defence.

32 It was submitted that the plaintiff should not be given further liberty to file any amended statement of claim and that the defendants were therefore entitled to judgment on the ground that the plaintiff's claim was clearly statute-barred.

33 I should mention that while the plaintiff made a number of submissions, in large part those submissions were not addressed to the complaints made by the defendants about the form or adequacy of the minute.

34 In my view, the minute is plainly deficient in the respects referred to by the defendants.

35 One matter can be dealt with very shortly. The plea in par 12 of the minute, that the second defendant 'appears' to have embarked on a campaign of denigration of the plaintiff through the media, has no apparent relevance to the cause of action alleged and is plainly embarrassing.

36 In par 13 of the minute, the plaintiff alleges that the words complained of disparaged him in his 'office, profession, calling, trade or business'. I earlier noted that the plaintiff does not identify what his occupation was at the time the words were allegedly spoken. In par 1, the plaintiff pleads that he is a former legal practitioner who was struck off the roll on 11 September 2007. As appears in the particulars to par 17 of the minute, the plaintiff was suspended from practice on 27 November 2000. It is not pleaded that at the time the words complained of were spoken the plaintiff was practising as a lawyer. In the same particulars, it is alleged in par 17(D) that in 2001 the plaintiff was engaged by the Wormall Group as 'an environmental consultant and intellectual property management consultant'.

37 In my view, the plea in par 13 is defective. Where a plaintiff alleges that words were calculated to disparage him in his office, profession, calling, trade or business, the plaintiff must identify the office, profession, calling, trade or business alleged and plead that he held that office or carried on that profession, calling, trade or business at the time the words were published. That is an element of the cause of action and should be the subject of a substantive plea. It is not to be left to be winkled out of particulars of damage, if in fact the plaintiff seeks to rely on what is alleged in par 17(D) in that respect.

38 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].

39 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.

40 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].

41 I am therefore satisfied that the minute is embarrassing in material respects. I would not allow the statement of claim to be amended in that form.

42 The time within which the plaintiff was required to file and serve any amended statement of claim has long since expired and no application has been made for an extension of time. There is currently no statement of claim on foot. That has been the position since 22 September 2008 and it is obviously a highly unsatisfactory state of affairs, particularly as the action itself was not commenced until almost six years after the alleged slander. It is now almost seven years since the slander is alleged to have been published.

43 I would not, however, accede to the defendants' application for judgment at this stage. The plaintiff's case is not necessarily beyond repair. I consider that the plaintiff should be given a further opportunity to put the statement of claim into an acceptable form.

44 However, in the light of the plaintiff's disregard of the time limit in the order of 22 September 2008 and his approach to this application, it is necessary to point out that there is a limit to the indulgences which he will be granted by the court. While the plaintiff is acting in person, as a former legal practitioner he is familiar with the requirements of the rules of the court and with the obligation of litigants to comply with them and with the orders of the court.

45 The plaintiff's attitude to this litigation has tended to give the impression (incorrectly, I hope) that he considers the rules and orders of the court do not apply, or do not apply with equal force, to him. Any such belief would, of course, be seriously mistaken. The plaintiff has an obligation to ensure that the steps required to be taken on his part in the action are taken in a proper and timely way. If he fails to do so he runs a serious risk that the action will be dismissed at an interlocutory stage.

46 In the circumstances, I propose to make an order that unless, within a time to be specified, the plaintiff file and serve a further 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. I will hear the parties on the time within which the further minute and application are to be filed.