HER HONOUR: These are proceedings for defamation commenced by Mr Derek Minus, a barrister and arbitrator, against the proprietor of Radio 2UE and Mr Alan Jones, a presenter on that radio station.
Last Friday I conducted a show cause hearing against the plaintiff. I determined that it would be premature to dismiss his action, reserving my reasons. Today I have heard argument as to one imputation which remains the subject of objection by the defendants. These are my reasons for my rulings in respect of each of those hearings.
[2]
Show cause hearing
As to the show cause hearing, the relevant history, some of which has already been recited in my earlier judgment in Minus v Harbour Radio Pty Ltd (No 2) [2017] NSWSC 585, may be repeated and supplemented as follows. The proceedings were commenced by statement of claim filed 8 June 2016 with a first listing fixed for 22 July 2016. By that date the pleading had not been served on the second defendant and the listing was stood over to 9 September 2016.
In the meantime on 15 August 2016 the first solicitor on the record for the plaintiff ceased to act. The listing on 9 September 2016 was vacated at the plaintiff's request and the proceedings were listed for 18 November 2016. That listing was again vacated on the plaintiff's request and the proceedings were stood over to 17 February 2017. In the meantime, a second solicitor came onto the record for the plaintiff. The plaintiff relied on that fact as one of a number of reasons for vacating the 17 February 2017 listing and the proceedings were stood over to 3 March 2017.
On 3 March 2017 I heard argument as to the form of the pleading, publishing my reasons by email on 9 March 2017: see Minus v Harbour Radio Pty Ltd [2017] NSWSC 191. In doing so, I omitted to give the proceedings a future listing. Ultimately the proceedings were relisted on 12 May 2017. On that date, the plaintiff was directed to file an amended statement of claim by 26 May 2017 and the proceedings were stood over for a second listing on 4 August 2017.
In the meantime, the new solicitor ceased to act on 18 May 2017. The amended statement of claim was not filed in accordance with the directions made on 12 May 2017 and was not served until 12 July 2017.
At the second listing on 4 August 2017 the third solicitor to act for the plaintiff, who I do not think filed a notice of change of solicitor, appeared as a courtesy to indicate that he had served a notice of intention to cease to act. The plaintiff did not appear on that occasion. The proceedings were then stood over to 11 August 2017 for the plaintiff to show cause why the proceedings should not be dismissed, as contemplated by the Defamation List Practice Note SC CL 4.
In the meantime, the solicitor who had appeared as a courtesy on 4 August 2017 formally went off the record (if that firm ever came on to the record).
The show cause hearing was last Friday. At the outset of the hearing, the defendant submitted that, leaving aside the requirement to show cause, the time had come to dismiss the proceedings pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW) or r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).
When the plaintiff was called upon he appeared to take the position, surprisingly, that there was nothing for which to show cause. It may be accepted that there had by that time been only a small number of defaults in compliance with the court's directions, being the late service of the amended statement of claim and the failure to appear at the second listing (which triggered the show cause requirement), but the proceedings had otherwise moved at a glacial pace.
Perhaps more troublingly, the plaintiff's explanation for his failure to appear at the second listing and his state of readiness for the show cause hearing revealed an attitude to the conduct of the proceedings which falls well short of the standard expected of litigants. The content of the duty of a litigant to prosecute an action with due expedition is addressed in detail in the relevant provisions of the Civil Procedure Act 2005 (NSW), the Defamation List Practice Note and in my earlier judgment in Minus (No 2) in these proceedings. In that judgment I said at [8]:
The plaintiff submits that his application to vacate the listing was reasonable in the circumstances explained in the correspondence. So much may be accepted, but that is not the point. The simple fact is that a plaintiff, having commenced proceedings, is expected to prosecute his claim in accordance with the Practice Note. There will of course be occasions on which that cannot occur, for good reason. But parties should not expect the Court to vacate a listing that has become inconvenient. Proceedings in the Court are ordinarily conducted in open court, in the presence of the public. The making of orders in chambers by consent is often expedient and saves costs but is not a matter of right.
Whilst those remarks addressed a different issue, the plaintiff ought to have been well on notice by 4 August 2017 of his obligation to prosecute these proceedings expeditiously. He has not.
I nonetheless formed the view that it would be too draconian a sanction to dismiss the proceedings at this stage, as the defendant submitted I should.
The relevant principles are set out in an earlier judgment of mine in this list in Templar v Watt [2014] NSWSC 937. In that case, as in these proceedings and in circumstances of more severe breaches and delay than is the case here, I concluded at [40] (with some equivocation) that it would be too extreme a sanction to dismiss proceedings for want of due despatch. I noted however that the judgment ruling on that issue gave the clearest warning to the plaintiffs as to the need for them to prosecute the action with due despatch from that point.
I had regard in the present case to the fact that the defamation alleged by Mr Minus is one that strikes at the heart of his professional reputation and that the matter complained of was broadcast on a popular Sydney radio show. Accordingly, I decline to dismiss the proceedings. Mr Minus should, however, be under no misunderstanding as to the need for him to improve the degree of attention and expedition given to the prosecution of this action.
[3]
Objection to imputation
The application heard this afternoon relates to a single imputation in the further amended statement of claim as follows:
"The Plaintiff, an arbitrator with the Investigation Unit of the Department of Energy, condoned POSCO's behaviour of forcing Kathy and John Roche into arbitration against their will in order to obtain access to their property."
That imputation is pleaded as arising from both the first and second matters complained of.
The defendants' objection is that the imputation is imprecise by reason of the inclusion of the word "condoned". The defendants submitted that that word has a number of possible meanings ranging from mere tacit acceptance to actual approval or encouragement. In a short written submission provided in accordance with my directions made last Friday, Mr Minus has submitted that the word has only one meaning, namely, tacit approval, acceptance or acquiescence and that it does not extend to active encouragement.
Mr Richardson submitted that the imputation is unclear but could appropriately be clarified in the manner contemplated in that submission.
I accept that where there is an ambiguity in an imputation the Court should direct its amendment rather than leave the ambiguity to be resolved by a concession on behalf of a party, in accordance with the principles stated in Singleton v Ffrench (1986) 5 NSWLR 425. In the present case, however, I think the meaning of the imputation as it stands is sufficiently clear. I do not think clarification is required. The objection on the grounds of form based on the submission that the imputation is ambiguous or insufficiently precise is rejected.
It follows that the further amended statement of claim may stand as the final form of the plaintiff's pleading.
[4]
Costs
HER HONOUR: The defendants seek their costs of the listings on 4 August 2017 and 11 August 2017 and an order that those costs be assessed on an indemnity basis on the grounds of the plaintiff's frank concession that on each of those occasions he was unaware (on the first occasion) of his obligation to appear and (on the second occasion) of the reason for the listing, by reason of his failure to read his own emails. The email address had been nominated as a place where the plaintiff could be contacted.
In my view the plaintiff's inattention to those matters does fall into the category of conduct which warrants an order that the defendants have their costs assessed on an indemnity basis and I make that order.
[5]
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Decision last updated: 03 October 2017