Mehajer v Seven West Media

District Court of NSW|2021-08-05|Before: Levine J

Defendant: Seven West Media Representation: Counsel: Defendant: Ms M Cowden

Solicitors: Defendant: Addisons Lawyers File Number(s): 2020/132630

The plaintiff's statement of claim

The plaintiff, acting for himself, filed his statement of claim on 29 April 2020 in the District Court at Parramatta, seeking damages for publication of the following material by the defendant: 1. A broadcast on 26 April 2020, which was made available on Facebook on 27 April 2020 and continuing, at the site nominated by the plaintiff. 2. A broadcast on or around 23 July 2019, which was published online thereafter at the site nominated by the plaintiff. 3. A broadcast on or about 28 October 2017, which was published online thereafter at the site nominated by the plaintiff.
The statement of claim failed to comply with the requirements for pleading as set out in Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.30 and 15.1. I particularly note: 1. No transcript of any of the matters complained of was attached. 2. The wrong defendant was named. Although ordered to correct the name in an amended pleading, the plaintiff did not do so; he merely wrote the correct name on a copy of the statement of claim and served that document on the defendant. 3. Contrary to UCPR r 14.30, no imputations were pleaded for the second and third publications, and the "imputations" for the first publication are not imputations but statements of fact (e.g. that the plaintiff was given an infringement notice). 4. No particulars of downloading within the 12-month period prior to commencing proceedings were provided in relation to the asserted online publications: Jenman v McIntyre [2013] NSWSC 1100 at [3] per McCallum J, citing Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [25] to [28] and [44]. 5. The third matter complained of (a publication dated 28 October 2017) is prima facie out of time. 6. The particulars of "damages" are defective, in that they elide a claim for injury to health, special damages and aggravated damages (paragraphs 11 - 20, 27 - 29 and 36 - 38). 7. There is a considerable amount of discursive material about the plaintiff's entitlement to sue despite being bankrupt (paragraphs 2 - 4). The plaintiff became bankrupt on 20 March 2018 and remains bankrupt to this day (Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of Salim Mehajer [2020] FCA 924), but it is not necessary to refer to this, as the entitlement of a bankrupt to bring defamation proceedings by reason of s 60(4) of the Bankruptcy Act 1966 (Cth) has long been recognised (Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 at [109]; Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 at [5]; Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476; Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994). 8. Other irrelevant material includes complaints about the lack of "attempts to contact the plaintiff" (paragraphs 9, 10, 25, 26, 34 and 35). This is not a basis for any cause of action or a head of damages which can be claimed in defamation proceedings. 9. Claims for negligence and nervous shock are set out in paragraphs 39 - 42. The bringing of such claims against a media organisation publishing news is impermissible: Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32.
These defects have been explained to the plaintiff on each occasion that the matter has been before the court, as well as in correspondence and written submissions provided by the defendant. As the procedural history of the claim shows, there have been many opportunities for the plaintiff to attend to these significant errors and omissions in his pleadings.

The procedural history of the claim

The plaintiff's claim was listed in the Parramatta Court for directions on 11 June 2020. The defendant outlined a number of pleading problems and drew attention to the failure of the plaintiff to start his claim in the Defamation List. The plaintiff was ordered to serve an amended statement of claim by 10 July 2020. The presiding judge at Parramatta Court also directed that the proceedings be transferred to the Defamation List in the Sydney Registry of the District Court.
The plaintiff did not comply with the order to file an amended statement of claim, nor did he correct the errors in the pleadings to which his attention had been drawn by the defendant. He simply handwrote the name of the correct defendant on a copy of the existing statement of claim. He did not correct any of the other pleading errors identified by the defendant in correspondence.
For reasons which are unexplained, it was not until 16 December 2020, the last day of term, that these proceedings were transferred from Parramatta to the Sydney Registry of the District Court. Case management orders requiring the plaintiff to file an amended statement of claim were made at the first opportunity in the Defamation List in the Sydney Registry on 18 February, and again on 1 April, 20 May 2021 and 24 June 2021.
The plaintiff did not comply with any of these orders. He has sought, and been granted, an extension of time on each of these occasions and has indicated that he would seek to obtain legal advice. He has not provided any evidence as to what steps he has taken to obtain this, or given other reasons why he has not complied with the court orders, or indicated whether he will be in a position to do so at any stage in the future.
On each occasion when the matter has been before the court, Ms Cowden, counsel for the defendant, has foreshadowed an application for summary dismissal for want of prosecution. On 21 June 2021, she provided the defendant with an outline of submissions in support of the defendant's application to strike the proceedings out summarily pursuant to UCPR r 12.7(1). Those written submissions outline problems which have not been resolved in the latest version of the statement of claim.
On 24 June 2021, I gave the plaintiff a final opportunity to comply with his obligations by making a self-executing order in the following terms: "Orders: (1) Extend time for the filing of Amended Statement of Claim from 17 Jun 2021 to 1 July 2021, such order to be self-executing in nature. (2) Matter stood over to the Defamation List on 5 August 2021 at 9am for argument (Summary dismissal application)."
The importance of requiring that this document be filed should be noted. Courts in New South Wales operate from an electronically-based registry, the accuracy of which is paramount to the administration of justice (see UCPR Pt 3; Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245). The importance of the court file, in terms of being the record of what was before the court, has recently been affirmed in Porter v Australian Broadcasting Corporation [2021] FCA 863. These principles are particularly relevant in proceedings such as the present, where the plaintiff has not only failed to comply with orders to file documents on multiple occasions, but has previously sought to serve an unfiled pleading containing a handwritten amendment (correcting the defendant's name) in response to the orders of 10 July 2020.
The plaintiff failed to file the amended statement of claim by 1 July 2021. He sent emails to the defendant's solicitors saying that he would send them the unfiled pleading and asking them to file it on his behalf. On or about 5 July 2021, he sent the unfiled pleading (which I note contains a date, 2 July 2021, on p. 10) to the solicitors for the defendant by express post. According to the affidavit of Mr Keegan, it was received by his office on 12 July 2021. Even if the defendant had been prepared to help the plaintiff by filing this document, it would have been too late to do so, as the registry would not have accepted the document after the expiry of the self-executing order on 1 July 2021.

The plaintiff's prior explanations for his delays

The explanations proffered by the plaintiff over the previous directions hearings, and again today, were as follows: 1. He is currently in prison, where he will remain until 18 January 2023 (although he has an all-grounds appeal pending), and has had difficulty locating a legal representative while he remains behind bars. The efficacy of this excuse falls away when it is noted that he remained out of gaol until 27 November 2020, and able to obtain legal advice about other matters, both before and after the date he went into custody, and he has now managed to consult the lawyer who drafted the current pleadings. 2. He states that, as he did not have legal representation and did not understand how to amend his pleadings, he depended upon the lawyer he retained in June 2021 to amend the pleadings conformably with the relevant pleading rules. However, both the plaintiff and the legal representative he retained have had the advantage of correspondence and submissions from the defendant, setting out the errors in his pleadings in some detail. Mr Mehajer has not even attempted to amend the pleadings to satisfy quite simple requirements, such as attaching a transcript of the matter complained of and distilling the imputations pleaded. 3. He refers to the difficulties and disruptions caused by lockdowns in Sydney during 2020 and 2021 relating to the Covid-19 outbreak. Case management and hearings of defamation proceedings appear to have been particularly affected in some courts; for example, one part-heard trial in the Federal Court has, according to news reports, been adjourned until 1 November 2021, despite the parties having considerably more resources than Mr Mehajer. I acknowledge that this is a factor, but Mr Mehajer's inaction predates the lockdown. I also acknowledge that there are difficulties for prisoners in terms of email, telephone and post communications, but these problems are regularly resolved for prisoners where the subject of the communication is court proceedings.

The plaintiff's application to rely upon his current unfiled pleading

On any reading of the orders made on 24 June 2021, the plaintiff has failed to comply. The amended statement of claim should have been filed by 1 July 2021. An unfiled copy was served on the defendant's solicitors on 12 July 2021 but this amended pleading cannot now be filed unless the orders made on 24 June 2021 are varied or set aside.
There is a wide power to vary or set aside interlocutory orders under UCPR r 1.12. That power extends to orders made after the time to make them has expired.
However, there is an additional feature of the orders made on 24 June, namely that the order for filing by 1 July 2021 was self-executing in nature. The question then becomes whether the effect is to dismiss the action unless the relevant condition (filing the amended pleading) was complied with.
Early decisions such as Bailey v Marinoff (1971) 125 CLR 529 held that there was no power to set aside or vary a self-executing order. Successful applications generally pointed to the interlocutory nature of the application (Douglas v John Fairfax & Sons Pty Ltd (1983) 3 NSWLR 126: failure to provide particulars) and/or the argument that the orders in question had not been entered (an argument no longer possible by reason of computerised record-keeping: see UCPR r 36.11(2)). However, the better view is that the court is not functus officio, if only because non-compliance must be established: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
Where a party has been "contumacious" or "persistently dilatory" (to use the descriptions given in Jones v Dalungbara & Ngulungbara People of Kgari v Queensland and the Commonwealth [1998] QSC 108), an interlocutory order of a peremptory or "self-executing" nature may be made. In Barakat v Goritsas [2002] NSWCA 8 at [30], Basten JA explained the nature of the power as follows: "Circumstances will arise in which a judge in a trial division may make a "self-executing" order, which has the potential to bind a judge at a future stage of the proceedings; in other circumstances, a judge may seek to vary orders made at an earlier interlocutory stage, although not self-executing. The power to take such steps was given careful consideration by Hunt J in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126. His Honour had no doubt that such power existed: at 134-135. It is also clear that a judge of the Court has power to order a stay of proceedings where the justice of the case demands it, pursuant to the power contained in s 67 of the Civil Procedure Act 2005 (NSW). No doubt, as a matter of practice, that power will not be exercised to vacate or override an earlier order given by another judge absent a change in circumstances."
Although Barwick CJ expressed reservations about the practice of summary dismissal on following self-executing order in Turner v Bulletin Newspaper Co Pty Ltd (1974) 31 CLR 69 at [1] - [8], there can be no doubt that it is an effective order where all else has failed. The proof of its effectiveness in the present case is that the order has finally resulted in action by Mr Mehajer after his earlier failures to comply.
Self-executing orders should only be made in the clearest of circumstances, and where failure to comply with the orders (in the present case, by filing an amended statement of claim) is both essential to the litigation and a clearly defined act (unlike Douglas v John Fairfax & Sons Pty Ltd, where the complaint was of insufficient particularisation of a pleading).
Whether the plaintiff was the subject of a self-executing order or not, his failure to comply requires a variation or setting aside of the orders made on 24 June 2021.
The difficulty for the plaintiff in seeking such an indulgence is that the amended pleading is just as deficient as the pleading it replaces. Following the same numbering (see paragraph 4 above), I note in particular: 1. Once again, no transcript for any of the matters complained of is attached. 2. Although the defendant has now been correctly named, the defendant does not accept that it has been duly served, as the document is "unsigned and unsealed" (submissions, paragraph 3). I also note, from the front page, that the plaintiff still appears to be attempting to list these proceedings in the General List at the Parramatta District Court. 3. Although what purport to be imputations are set out for the second and third publications, these are not imputations at all. The imputations pleaded for the second matter complained of appear to be that the plaintiff's motor vehicle was involved in a collision where he was the driver. The imputations pleaded for the third matter complained of appear to be that he made an unsuccessful development application to Council. What is the defamatory sting of an imputation that "the property was owned by the plaintiff"? In addition, like the first matter complained of (which complains about the plaintiff being issued with an infringement notice resulting in the loss of his driver's licence), there is no reference to the portion of the matter(s) complained of from which each imputation (if these are in fact imputations) is asserted to arise. The failure to attach the transcript of the matters complained of compounds this problem. 4. Once again, no particulars of downloading within the 12-month period prior to commencing proceedings have been provided in relation to the asserted online publications. 5. Once again, the third matter complained of (a publication dated 28 October 2017) is prima facie out of time. 6. The particulars of "damages" remain defective in that they elide a claim for injury to health, special damages and aggravated damages. 7. Most of the discursive material about the plaintiff's bankruptcy has been removed but the remaining reference to it is unnecessary. 8. The plaintiff has amended his claim about the defendant's failure to contact him but now puts this forward as a basis for claiming aggravated damages. This is impermissible: Harrigan v Jones [2000] NSWSC 814 at [59]. 9. The plaintiff still appears to be claiming personal injury damages for "nervous shock", which is impermissible.
A party should not be granted leave to file an obviously defective pleading. In its present form, whether the subject of a self-executing order or not, the defects in the statement of claim go well beyond the kind of sterile pleading arguments for which defamation claims are famous, and go to the essence of the pleading.
Mr Mehajer has had ample opportunity over the past year to revise his pleadings. He has had the benefit of Ms Cowden's written submissions and of discussions during the Directions Hearings in the List of the problems she raises. His current pleading is hopeless. The only question remaining is whether the self-executing order should be set aside to give him one last opportunity. As the subject matter for this application overlaps with the defendant's application, I have considered these applications together.

The defendant's application for summary dismissal

The statutory provisions underpinning the court's power to dismiss proceedings summarily were most recently discussed in Massarani v Kriz [2020] NSWCA 252 and I adopt and apply the explanation set out by McCallum JA therein.
The circumstances in which courts will strike out a claim for want of prosecution require a very high degree of certainty of the proceedings being hopeless. In addition, great caution must be exercised when the party whose proceedings are to be struck out is a litigant in person: Ogbonna v CTI Logistics Ltd [2021] WASCA 25. The result is that summary dismissal of proceedings is an order rarely made, particularly in defamation proceedings, although the potential for abuse or misuse of defamation claims has long been recognised (Law Reform Commission on Defamation Report 11 (1971) at paragraphs 51 - 55; see also the debate about whether a "single publication" rule would prevent abuse of process (Hansard, 27 February 1974, pp 848 - 850); Dennis v Australian Broadcasting Corporation [2008] NSWCA 37).
The decision of Hoser v Hartcher [1999] NSWSC 527 at [19] - [30], upon which Ms Cowden relies, is a good example of this curial reluctance. Mr Hoser brought defamation proceedings against a Member of Parliament, for publication of a press release critical of the plaintiff. The plaintiff took no further steps in the litigation for three years, spending part of that time in gaol on unrelated perjury charges. During those three years, the government of which the defendant was a member went out of office, the Department of which he had been minister was reorganised and witnesses had become difficult to locate. When the plaintiff sought to reactivate the claim, the defendant brought an application for summary dismissal, noting, in addition to these delays, the plaintiff's limited likelihood of receiving any damages of substance, given his conviction for perjury.
Simpson J held that the failure of the defendant to take active steps to pursue the proceedings, and to collect and retain evidence for the hearing despite the three-year delay, was fatal and outweighed all other considerations, including the prejudice caused by the delay, the small amount of damages likely to be awarded and the plaintiff's own delay for the three years in question.
This decision is at the high-water-mark of generosity towards plaintiffs who delay. On its facts, it is similar in many respects to the situation in which Mr Mehajer finds himself.
However, the principles applied in Hoser v Hartcher predate the changes in approach to case management reflected in ss 56 - 62 of the Civil Procedure Act 2005 (NSW). While Hoser v Hartcher continues to be cited with approval in the courts in New South Wales (see for example Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]), approval of the principles enunciated by Simpson J is not unanimous. In the leading case on what constitutes a "reluctant gladiator" (Bi v Mourad [2010] NSWSC 817, Sackville AJA stated at [39] - [41]: "41 The Judicial Registrar stated the principles governing the application in terms which recognise that the ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. On one view, the statement of principle derived from the judgment of Simpson J in Hoser v Hartcher [1999] NSWSC 527 may be somewhat too generous to the claimants: cf Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230; Aon Risk Services Pty Limited v Australia National University [2009] HCA 27, 239 CLR 175; Civil Procedure Act, ss 56-60. In any event, her Honour's statement of the relevant principles reveals no error."
Allsop P (as His Honour then was) concurred with Sackville AJA and went on to add: "49 In particular, I would like to add that careful attention to the Civil Procedure Act and ss 56-60 is what is required in each case. While I in no way criticise the terms of Hoser v Hartcher as laid down at the time that decision was made and without wishing to be critical in any way of it, I would say that the surest guide to be employed in any exercise of the discretion of this kind is a careful attention to the terms of the Civil Procedure Act, in particular ss 56-60."
The approach taken by the majority in Bi v Mourad has been applied in other defamation judgments: Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623. This more objective analysis of the activity (as opposed to focussing upon periods of time and prejudice, the two pillars of Hoser v Hartcher) was also taken by Levine J in Gill v Eatts [1999] NSWSC 1056, (1999) Aust Torts Rep 81-529 at [70] - [71]: "70 The purported excuses in the plaintiff's affidavit and oral evidence cannot be seen to be excuses or explanations at all relevantly acceptable when they are characterised as deliberate choices on his part to secure tactical advantages as a litigant in other causes - criminal, disciplinary, Royal Commission and civil actions. 71 As was submitted by Mr Sexton the plaintiff deliberately chose to avoid a forensic risk by prosecuting these proceedings vis-a-vis the other proceedings in which he was involved. The delay involved a choice by the plaintiff as to the way in which he might be disadvantaged in one set of proceedings notwithstanding the disadvantage caused to the defendants in other proceedings."
Dr Gill had commenced two separate proceedings against media defendants and a nurse for publications concerning his conduct in administering deep sleep therapy at Chelmsford Private Hospital. When neither matter had progressed to trial for a decade, the court took the step of relisting the proceedings as "dormant" (at [1]) and the defendants in both actions sought dismissal for want of prosecution. Levine J referred to Hoser v Hartcher (at [60]) as containing a "useful" summary of the relevant principles but stressed the relevance of Dr Gill's "deliberate choice" (at [54] and [70]) as opposed to factors such as prejudice (about which there was little evidence: [40] and [74]) and the degree of diligence (or lack thereof) of the defendants.
This concept of "deliberate choice" should be, accordingly, an important part of the answer to the claim of prejudice to the plaintiff of losing his whole claim. His delays involved a choice and were deliberate; he is a "reluctant gladiator" who has deliberately remained away from the arena.
There are, in addition, other discretionary factors that the defendant asks me to take into account. First, where proceedings are commenced towards the end of the limitation period and are subsequently conducted in a dilatory fashion, the court will be more willing to make orders dismissing proceedings than it would otherwise have been (Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998, unreported); similar sentiments are echoed in Hoser v Hartcher (at [25])). That is in part because a plaintiff who does not take action promptly is one whose damages may be heavily discounted because of the delay: McCarey v Associated Newspapers Ltd (1965) 2 QB 86.
Another relevant factor is that the plaintiff's prospects of success in terms of recovering a significant amount of damages, given the circumstances of his incarceration, appear to be small. Mr Mehajer's criminal record, which may be tendered in proceedings for defamation (s 42 of the Defamation Act 2005 (NSW)), contains a number of entries. Most recently, he was convicted on 23 April 2021 of the offences of swearing and use of a false affidavit, making a false statement on oath and providing false information as to his employment; he is eligible to be released to parole on 18 January 2023. While I note that similar offences did not trouble Simpson J in Hoser v Hartcher, the mitigation of damages arising from such evidence of convictions, which would appear to be in the same sector of reputation as the matters complained of, would be substantial.
Even on the Hoser v Hartcher test, the plaintiff's late commencement and dilatory conduct of these proceedings have reached the point where the claim should not be permitted to remain. Applying the more holistic approach of the Court of Appeal in Bi v Mourad and Gill v Eatts, and viewing the manner of the plaintiff's delay in context, it can be seen that the delays in question are in fact an abuse of process because these are steps over which the plaintiff clearly has control, and which deprive the defendant of the opportunity of preparing its defence. I am satisfied that the plaintiff's continued and deliberate failure to plead his claim properly is an exercise in deliberate delay for this purpose.
Taking all of the above into account, I am satisfied that the prejudice afforded to the plaintiff by reason of loss of his right to bring these proceedings should not outweigh the entitlement of the defendant to summary dismissal.

Conclusions concerning the parties' applications

The plaintiff has not persuaded me that he should be permitted to file and rely upon the defective draft pleading he has served on the defendant. I am satisfied that further drafts are likely to be similarly defective, that the future conduct of this litigation would impose a burden on court resources and that the prospect of a fair trial after such a poor start would become increasingly unlikely as the litigation continued.
I do not consider that I should set aside or vary my orders of 24 June 2021 to permit the plaintiff yet another opportunity to provide proper pleadings. To the contrary, I am satisfied that the plaintiff's conduct of these proceedings has been so dilatory that the proceedings should be dismissed for want of prosecution.
I am satisfied that by exercising my discretion to dismiss these proceedings for want of prosecution, I am not punishing a tardy plaintiff unfairly, but exercising my discretion in light of the considerations set out in section 56 of the Civil Procedure Act. In circumstances where the plaintiff has taken no steps to comply with orders in these proceedings for fifteen months, where there is no satisfactory evidence to explain his delay or suggest that future extensions would result in a different course of action, I am satisfied that the plaintiff is a "reluctant gladiator" (Bi v Mourad at [31]) and that these proceedings should be summarily dismissed.

Order: 1. Plaintiff's application for leave to file an amended statement of claim refused. 2. Pursuant to UCPR r 12.7(1), these proceedings are struck out and dismissed. 3. Plaintiff is to pay the defendant's costs of the proceedings.

Amendments 06 August 2021 - Typographic errors 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: 06 August 2021

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (4)

Cases Cited (26)

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