HER HONOUR: Jody Lee Marson seeks to prosecute a claim for defamation arising out of a segment of the news first published on Channel Ten on 24 June 2015. Proceedings for defamation in this State have imposed upon them a short limitation period: s 14B of the Limitation Act 1969 (NSW) provides that a claim for defamation is not maintainable if brought after the end of a period of 1 year running from the date of publication of the matter complained of. It follows that Ms Marson's claim could not be maintained in respect of that initial broadcast if brought after 23 June 2016.
The solicitor on the record for Ms Marson attempted to file a statement of claim within that period (sending it by post). The statement of claim was received by the Court on 23 June 2016 but was rejected by the registry for an alleged failure to comply with the rules. Upon learning of that fact, the solicitor sent the document again. It was ultimately sealed within the registry on 4 July 2016, therefore, according to the date of the seal, being an action commenced out of time. The plaintiff now applies for orders to rectify that problem. This judgment determines that application.
Marson v Network Ten Pty Ltd [2016] NSWSC 1245 | Case summary | Zoe
The orders are sought by notice of motion filed 21 July 2016. The relief sought in the motion is as follows:
A declaration that the proceedings bearing case number 2016/202043 was commenced for the purposes of Part 6.2(1) of the Uniform Civil Procedure Rules 2005 (UCPR) and section 19(1) of the Civil Procedure Act 2005 (CP Act) by filing of the Statement of Claim on 23 June 2016.
A declaration that any subsequent refusal to lodge the Statement of Claim after filing on 23 June 2016 was not authorised by Part 4.10(5) of the UCPR and hence of no effect.
A declaration that the proceedings having commenced on 23 June 2016 the action is maintainable and not prevented by section 14B of the Limitation Act 1969.
A direction under section 63(2) or 16 of the CP Act that the Statement of Claim sought to be filed on 23 June 2016 - if non-compliant with 4.3(2)(b) of the UCPR, which is not admitted - was a failure that should be treated as an irregularity and not as affecting the filing of the proceedings on 23 June 2016.
In the alternative, an order to extend the limitation period under section 56A(2) of the Limitation Act 1969 to a date to be fixed by the Court on the basis that it was not reasonable for the Plaintiff to commence her action within one year due to the following circumstances:
A Statement of Claim that was not irregular and contained no invalidating feature was properly prepared and filed within the limitation period on 23 June 2016 but subsequently refused to be accepted due to alleged non-compliance with Part 4.3(2) of the UCPR;
A Statement of Claim that was not irregular was attempted to be uploaded to the Court's ECM system on 22 June 2016 within the period but was too large a file to be transmitted to that system.
The plaintiff asked the Court first to determine the prayers for relief set out in paras 1 to 4 before turning to consider the question of extension of the limitation period (sought in para 5).
The defendant opposes the relief sought. As to prayers 1 to 3, the defendant's submissions were directed primarily to the appropriateness of seeking declaratory relief against the registry. As correctly observed in the defendant's written outline of submissions, the declaratory relief sought does not relate to any dispute with the defendant, the subject matter of the relief sought being the actions of an officer of the Court.
The defendant's submissions assumed that a person working in the registry (and indeed any officer of the Court) is to be regarded as a third party amenable to judicial review, as opposed to being part of the Court. In my view, the correctness of that assumption may be doubted. In any event, it is not necessary to determine the complex issues raised by the defendant in respect of the declaratory relief sought by the plaintiff. I have concluded that it is appropriate to address the matter raised by the plaintiff's application under s 63 of the Civil Procedure Act 2005 (NSW), as invoked in para 4 in the notice of motion. Section 63 of the Civil Procedure Act provides:
(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.
(2) Such a failure:
(a) is to be treated as an irregularity, and
(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.
(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):
(a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,
(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.
(4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.
The defendant submitted that no relief should be granted pursuant to that section. A central premise of the defendant's submissions in opposition to the relief sought was the contention that the plaintiff does not acknowledge or admit any irregularity on her part (including on the part of her solicitor). It is not clear to me why that should be an impediment to the relief sought, nor indeed whether it is even correct as an analysis of the relief sought by the plaintiff. I rather understood order 4 sought in the notice of motion to be a claim in the alternative, acknowledging the possibility of, if not admitting, non-compliance with the rules on the part of the solicitor.
In the circumstances outlined in the evidence, it is difficult to decide whether there was an irregularity within the registry or on the part of the solicitor. The circumstances giving rise to the problem raised by the application are explained with charming frankness in the affidavit of the solicitor, Mr Adam Slattery, sworn 21 July 2016.
Mr Slattery explains that, on 22 June 2016 (within the limitation period), he signed the statement of claim and sent it by express post to the registry's business address. Mr Slattery is a solicitor practising in Old Bar near Taree, some four hours' drive from the registry. The signed statement of claim was accompanied by a covering letter, a cheque in the name of the law firm's account for the filing fee and two copies of the statement of claim. The original statement of claim and each of the two copies were fastened not with a staple but with a "Tudor owl clip", being of a "number 2, 20 millimetre, small" size. All of the documents were collected together with a bulldog clip. To illustrate what he sent, Mr Slattery exhibited to his affidavit a mock-up of the material sent in precisely the form in which he sent it.
As already noted, the letter is stamped as having been received in the registry on 23 June 2016, within the limitation period. The reason the registry rejected the statement of claim for sealing was that rule 4.3 of the Uniform Civil Procedure Rules provides that the sheets of a document must be "securely fastened". This complex application accordingly turns, on one view, on the question whether documents secured by a Tudor owl clip as opposed to a staple are "securely fastened" within the meaning of the rules. The registry determined that they are not and rejected the filing on that basis. By the time the documents were returned to Mr Slattery and came to his attention, the limitation period had expired.
It should be recorded that Mr Slattery had made several other attempts to ensure that the statement of claim was filed within the one-year limitation period. He began by attempting to file the statement of claim using the online registry. He completed all of the field requirements on the relevant computer screen and progressed through to a point where the system required the uploading of a PDF version of the statement of claim. That document was too large. The maximum file size accepted by the Court's system is 5 MB. Mr Slattery observed, when he attempted to file the document electronically, that his document was 7.5 MB. He took advantage of a link on the online registry website that may be used for compressing files but was able to compress it only to a size of 6.5 MB. His affidavit is frank enough to acknowledge that he gave consideration to resolving the problem by removing unnecessary pages of the statement of claim, which undoubtedly were taking it over the relevant limit. He decided that would not be in good faith.
It may be observed that, had Mr Slattery done what some practitioners in this list do, which is to fail altogether to annex a copy of the matter complained of to the statement of claim, the document would have been accepted and the only consequence would have been that I would have roused on his barrister when the matter came before the court for its first listing of the Defamation List. The annexure of the matter complained of to the statement of claim is also a requirement of the rules, frequently honoured in this list in the breach.
In any event, his attempts to file the document electronically having failed, and without awaiting a response to an email he sent to the online helpdesk, Mr Slattery made haste for the post office, with the consequences I have outlined.
In the circumstances, I do not think it is necessary to determine the difficult question whether a statement of claim fastened with a Tudor owl clip is "securely fastened" within the meaning of the rules. Certainly, although the owl clip seems more secure than the more common oval clip, one can understand the view that proper fastening requires a good staple.
The plaintiff submitted in her written submissions that the registry had no authority to reject the statement of claim, even if it did not comply with the rules in the manner specified. The submission was based on the contention was that the circumstances in which the registry may refuse to accept a document are confined to those set out in rule 4.10(5), which provides:
An officer of the court may refuse to accept a document for filing in the following circumstances:
(a) In the case of originating process:
(i) if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or
(ii) if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,
(b) in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.
However, as submitted by Ms Eastman, who appears for the defendant, the rule has been construed not to constrain the authority of an officer of the Court to refuse to accept a document that does not comply with the rules in other ways: see In the matter of Kisimul Holdings Pty Ltd [2014] NSWSC 525 at [3] per Brereton J. Ms Eastman also referred to the decision of Johnson J in Bendigo and Adelaide Bank v Chowdhury [2012] NSWSC 592 at [10], where his Honour expressed the view that the rule was not intended to restrict or remove the power of the registry to reject documents lodged for filing because of "fundamental defects", such as, in that case, the failure to include in the document any pleaded or particularised defence. If I remember the circumstances of that case correctly, it was a claim for possession where the defendant evidently sought to obviate the risk of default judgment by filing a blank form which in fact pleaded no defence.
In my view, however, there is authority in s 63 to address the problem that has arisen for this plaintiff. Section 63(2) itself expressly contemplates the curing of an irregularity in the existence of the proceedings as well as in steps taken in the proceedings once in existence ("a failure to comply with any requirement of … rules of court … is to be treated as an irregularity and … does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings" - emphasis added).
After hearing argument this morning, I called upon the parties to address me further as to the proper construction of that section. Mr Chrysanthou, who appears for the plaintiff, had drawn my attention to the decision of the Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139. In that case McColl JA said at [108] to [109]:
[108] Section 63 gives a court power to deal with irregularities. It requires a court to treat a failure to comply with any requirement of the CPA or of rules of court, whether in respect of time, place, manner, form or content or in any other respect as an irregularity which, subject to s 63(3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.
[109] Provisions such as s 63 do away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. Thus, in Australian Coastal Shipping Commission, the Court applied s 81 of the Supreme Court Act 1970 (NSW) (the legislative ancestor of s 63) to permit proceedings to continue although the statement of claim was neither filed nor served within the limitation period.
The issue on which I asked the parties to address me further was whether the authorities referred to at [109] (including the footnotes) shed any further light on the question. Having heard from the parties further this afternoon, I am confident in the view I had tentatively reached before lunch that the section is broad enough to apply to a circumstance where there is an irregularity in the commencement of proceedings as well as the situation where there is an irregularity in a step taken in existing proceedings. That impression is confirmed by a consideration of the authorities referred to by McColl JA in Bobolas, also cited by the Court of Appeal in Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6.
Both decisions cited Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 in which the equivalent English rule was invoked by Lord Denning to rectify an irregularity arising from an order purporting to extend a limitation period where the registrar did not have power to do so. Harkness was applied in Australian Coastal Shipping, where Priestley JA said:
"The incorporation of the new English rule into the Supreme Court Act 1970 as s 81 should be taken, in my opinion, to have been done with the intention that it should be construed by New South Wales judges in the wide and generous way laid down in Harkness in 1966."
Those remarks were cited with approval in both Windsurf Holdings at [22] and Bobolas at [109] (fn 90). My consideration of those authorities has persuaded me that s 63 of the Civil Procedure Act does enable the Court to rectify an irregularity in the commencement of proceedings as well as an irregularity in any step taken in the proceedings. Contrary to the submissions put on behalf of the defendant by Ms Eastman, I do not think that amounts to a circumvention of the limitation period. On the contrary, in my respectful opinion, that submission begs the question. The very issue to be determined in the present application is whether, notwithstanding the irregularity, the proceedings are to be taken to have been commenced within the limitation period. The steps taken by Mr Slattery were all taken within that period and an otherwise compliant statement of claim reached the registry within that time. Either because Mr Slattery was responsible for an irregularity in failing to fasten the document securely, or because the registry was responsible for an irregularity in wrongly concluding that he failed to fasten the document securely, the statement of claim was not sealed on that date but otherwise the proceedings were all but commenced. A copy of the unsealed statement of claim was served on that date, within the limitation period. As held by Lord Denning in Harkness, an honest litigant in Her Majesty's Supreme Court should not be defeated by such a technicality.
The discretionary factors all point in favour of exercising the authority under s 63 to cure the irregularity. In my respectful opinion, to determine otherwise would be frankly ridiculous and would tend to bring this Court into disrepute. The plaintiff plainly has a viable cause of action for defamation, subject to any defences that may be relied upon by the defendant. To keep her on the wrong side of the Court's door because of the use of an owl clip in place of a staple would not, in my view, be a sensible exercise of the Court's authority.
For those reasons, the appropriate course in my view is to treat the fact that the statement of claim was not sealed in the registry on 23 June 2016 as an irregularity and, on that basis, to order that the statement of claim be treated as having been filed on that date. I think that is within the scope of the language of s 63(3)(b).
ORDER: that the statement of claim in these proceedings be treated as having been duly filed on 23 June 2016.
[2]
Amendments
07 September 2016 - Counsel's name spelt incorrectly on coversheet
14 September 2016 - Solicitors' details inserted to cover sheet
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Decision last updated: 14 September 2016