These are my reasons for granting the defendant's application pursuant to rr 13.4(1)(b), 14.28(1)(a) and 14.28(1)(b) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and s 60 Civil Procedure Act 2005 (NSW) for dismissal of these proceedings.
The plaintiff, at that time self-represented, commenced proceedings on 13 November 2015 against the defendant, a Uniting Church Minister, for an unspecified number of publications he is said to have made to members of the congregation "in June 2013 or thereabouts", "around that period of time" and "at a later period, including… 2015". The plaintiff did not attach the contents of any of these publications, even though two were asserted to be in writing. Contrary to r 14.30 UCPR, only one set of rolled-up imputations for all these publications is pleaded (in paragraph 7 of the statement of claim). There is a reference to an asserted failure to apologise despite "the request made by the plaintiff's solicitor by letters [sic]" but the plaintiff had no solicitor, and no particulars of these claimed requests are provided.
It is hard to imagine a more defective pleading. Not only were most of the publications the subject of the claim for defamation statute-barred, but their contents were a mystery.
Prior to the first return date of these proceedings, Mr Tassell, who appears for the defendant, wrote to the plaintiff carefully pointing out all of the pleading and particularisation errors (including the limitation issues), suggesting he obtain legal advice, and adding that this legal advice should include the redrafting of the statement of claim. He also stated that, if no amended pleading was provided on 17 December 2015, he would ask the court to dismiss the plaintiff's claim summarily.
The plaintiff took some of Mr Tassell's advice, in that consulted a solicitor, and Ms Lin of Counsel appeared on the plaintiff's behalf on the first return date, 17 December 2015. However, despite Mr Tassell's careful explanation of the many problems in the statement of claim, no amended pleading was provided either to him or to the court. Instead, an adjournment was sought.
Mr Tassell's unsuccessfully asked the court to hear his application for summary dismissal of the proceedings in accordance with the notice of motion he had served on the plaintiff. His client's application was, however, not heard by the judge conducting the Defamation List on 17 December 2015. Instead, the following orders were made:
"(1) Grant leave to Plaintiff to file Notice of Appearance within 7 days.
(2) Plaintiff is to serve draft ASOC on defendant, together with a NOM to extend time, on or before 11/2/16.
(3) SOFD in Defamation List on 25/2/16 at 9.30am.
(4) Reserve costs of today."
The making of these orders was a considerable indulgence to the plaintiff, given the grossness of the pleading errors, and they were orders that the plaintiff and his legal advisers failed to comply with at their peril.
There was no compliance with any of these orders, as the affidavit of Mr Tassell sworn 24 February 2016 (Exhibit 2) makes clear.
On 15 February 2016, there being no Appearance filed (either by the solicitors instructing Ms Lin on 17 December 2015 or anyone else), Mr Tassell sent the following letter to the plaintiff at his home address:
"Dear Mr Lee
SAM CHO ATS HYUNG SUP LEE
DISTRICT COURT OF NSW PROCEEDINGS NO. 2015/334575
Our ref RT:JE:150991
We note that we act for the defendant, the Reverend Cho.
These proceedings were listed in the Defamation List in the District Court of New South Wales on 12 [sic] December 2015. On that date a barrister, Ms Lin, appeared for you and advised me and then the Court that you had instructed a solicitor who would be filing an Appearance on your behalf and that you would be making applications to amend your Statement of Claim and for an extension of time to bring the proceedings out of time.
The presiding Judge made the following orders:
1. Grant leave to the plaintiff (that is you) to file an Appearance within seven days.
2. The plaintiff is to serve a draft Amended Statement of Claim on the defendant together with a Notice of Motion to extend time on or before 11 February 2016.
3. The proceedings were stood over for further directions in the Defamation List at 9.30am on 25 February 2016.
4. The costs of the appearance on 17 December 2015 were reserved.
According to the Court's record no Appearance has been filed. We have not been served with any Appearance.
Further, we have not been served with any draft Amended Statement of Claim or Notice of Motion to extend time.
In the circumstances we advise that we will seek to have your proceedings dismissed with costs when the matter comes before the Court on 25 February 2016. In that regard, we advise that on 25 February we will ask the Court to hear the Notice of Motion that we served on you by our letter of 2 December 2015, a further copy of which is enclosed."
There can be no doubt that the plaintiff understood this letter, because Mr Tassell had the forethought and consideration to include a translation of this letter into the Korean language (Exhibit 2, Annexure A, page 2).
Mr Tassell asked the court to deal today with the Notice of Motion which had not been determined on the previous occasion. He submitted that, in addition to the plaintiff's total failure to plead any cause of action in accordance with r 14.30 UCPR, the plaintiff's failure to comply with the orders made on 17 December 2015 was, in the circumstances of the majority of the claim already being statute-barred, a step too far.
Ms Lin, who appeared for the plaintiff on both occasions, relied upon the material set out in the affidavit of Daniel Koh, the solicitor for the plaintiff, sworn on 24 February 2016. She asked the court to grant a further adjournment of three weeks so that an amended statement of claim and an application to commence proceedings outside the limitation period can be drafted, and so that better medical evidence of the plaintiff's mental and physical health problems can be obtained than is currently available.
Mr Koh's affidavit is before the court. It is, however, of limited assistance. Mr Koh deposes to having "only recently commenced to act for the Plaintiff" without indicating the date. However, his activities to assist the plaintiff have not included compliance with the remaining orders. While Ms Lin submitted that the court could take some comfort from the filing of a Notice of Appearance "yesterday" (i.e. 24 February 2016), it is clear from Mr Koh's affidavit that the extent of his activities on behalf of the plaintiff has consisted of consulting the plaintiff's treating physician, Dr Bhar, and psychiatrist, Dr Moorthy and, on an unknown date, briefing a barrister other than Ms Lin to draft an application for leave to commence proceedings out of time.
Judging by the medical evidence Mr Koh has been able to obtain, that application is unlikely to be successful. Both those medical practitioners provided Mr Koh with short reports on 16 February 2016. Mr Koh acknowledges frankly that neither of these reports addresses the relationship between the plaintiff's health problems and the reasons which would have prevented him from initiating proceedings earlier.
I have no information as to whether Mr Koh has been able to obtain the texts of any of the matters complained of. I understand that counsel has been asked to draft an amended statement of claim but that will not be possible until the texts of the matters complained of have been obtained.
The precise period of the adjournment sought is uncertain. Ms Lin seeks the court's indulgence for a further adjournment of at least three weeks. Mr Koh states in his affidavit (without explaining why) that he hopes to obtain further medical reports in two weeks. However, in paragraph 12 of his affidavit, Mr Koh asks for "further time" to file a notice of motion and evidence in support in relation to the application to extend time pursuant to s 14B Limitation Act 1969 (NSW) without specifying how long that would be. It is unclear whether this is in addition to, or overlapping with, the application for further time to obtain further medical reports, the texts of the matters complained of, and the amended statement of claim.
Even if the plaintiff's amended pleadings and notice of motion were served promptly, the practical reality is that these could not be heard for several months, in circumstances where the defendant still does not know the contents of any of these publications he is asserted to have made.
Having noted the relevant factual background and the orders the parties seek, I set out the parties' submissions and the relevant principles.
[2]
Strike out applications and curable defects
Ms Lin first submitted, and I agree, that the general rule is that, where a pleading defect can be cured by an amendment, the court should grant leave to amend rather than take the drastic step of striking out the whole proceedings, particularly where the errors in pleading have been committed by a litigant in person: Mann v Carnell (1999) 149 FLR 298.
Ms Lin next submitted that, whether the plaintiff is a litigant in person or not, where the pleading defects are considerable, leave to amend could be granted on terms. The orders of 17 December 2015 did not impose any such terms and gave the plaintiff generous and unconstrained leave.
Ms Lin also submitted that it would be a futility to strike out the proceedings, in that some of the "2015" publications would still be within time. Considerations of efficiency under ss 57(1)(c) and 60 Civil Procedure Act 2005 (NSW) should be taken into account.
Finally, Ms Lin submitted that I could take comfort from the fact that her instructing solicitors were now on the record and that the likelihood was that future orders would be complied with. The plaintiff should not be penalised for one failure to comply.
Mr Tassell, relying upon Bi v Mourad [2010] NSWCA 17, Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244, Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 and Kang v Australian Broadcasting Corporation [2015] NSWCA 375, first submitted that delay in commencing and prosecuting defamation proceedings falls into a different category from other litigation. Where a plaintiff has been a "reluctant gladiator" (Bi v Mourad at [31]) both in the commencement and prosecution of proceedings, the court should not grant further indulgences. Where the circumstances were extreme, it should not be necessary for an opposing party to be obliged to collect a series of failures to comply before being able to ask the court to strike out proceedings. There had only been one failure to comply in Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 and in Coren v Master Builders Association of New South Wales Pty Ltd the plaintiff had simply failed to answer a request for particulars, yet in both cases the court had been prepared to strike out the relevant claim.
Mr Tassell also pointed to the plaintiff's failure to offer any personal explanation for the delay in amendment of the claim (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [99] - [102]; Vilo v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Sperling J, 17 November 1995)). His solicitor's affidavit offered no additional information beyond claims that the plaintiff and his wife suffered from depression and ailments of the kind commonly found in persons of advancing years.
As the nature of the publications (save for the contents of the rolled-up set of imputations) and dates were unknown, the issue of prejudice was uncertain, but it would appear that at least some of these publications were slanders. In those circumstances, the prejudice caused to the defendant by the plaintiff's failure, despite Mr Tassell's prompt and helpful correspondence on this subject, to identify the matters complained of was both significant and ongoing.
[3]
Conclusions
Defamation actions are easy to bring, and both difficult and expensive to defend. The considerations set out in ss 56-60 Civil Procedure Act 2005 (NSW) of fundamental importance when determining an application for summary dismissal (Ghosh v Ninemsn Pty Ltd at [42] - [43]), as are the reasonableness or otherwise of the explanation (at [40]) and issues of prejudice (at [40]).
While the remedy of summary dismissal is an extreme one, I am satisfied, on the facts of this case, that it is the appropriate order to make. Mr Tassell's careful and prompt correspondence meant that the plaintiff was on notice from the first that if he did not amend his completely hopeless and largely time-barred pleadings, the defendant would bring an application to strike them out. The plaintiff added insult to injury by failing to comply with any of the generous orders made by this court on 17 December 2015. The plaintiff does not even come before the court today with a proposed amended pleading, or the texts of the matters complained of, and it has been necessary for me to determine this application knowing little more than that the plaintiff says he was defamed on an unknown number of occasions by the defendant over the past three years. That is an unacceptable way to conduct litigation, for the court as well as for the opposing party.
The plaintiff should not be entitled to any further indulgences from this court, including a further adjournment of a claim which he has already shown reluctance to prosecute. Accordingly the proceedings are dismissed with costs of the proceedings payable by the plaintiff on the ordinary basis.
[4]
Orders
1. Proceedings be dismissed pursuant to rr 13.4(1)(b), 14.28(1)(a) and 14.28(1)(b) Uniform Civil Procedure Rules 2005 (NSW) and s 60 Civil Procedure Act 2005 (NSW).
2. Plaintiff pay defendant's costs of the proceedings
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 April 2016