HER HONOUR: These are proceedings for defamation brought against Harbour Radio Pty Limited and Mr Alan Jones. The plaintiff, Mr Derek Minus, is a barrister.
The proceedings have suffered an unhappy history, the details of which are recorded in my earlier judgments: Minus v Harbour Radio (No 2) [2017] NSWSC 585 and Minus v Harbour Radio Pty Limited (No 3) [2017] NSWSC 1332.
Clause 21 of the Defamation List Practice Note SC CL 4 provides that a plaintiff who fails to comply with the Practice Note or a direction of the Court may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act 2005 (NSW) or r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). As recorded in judgment No 3, Mr Minus has already survived a show cause requirement in these proceedings, determined by me on 17 August 2017.
Further, as a result of the determination of previous interlocutory disputes, Mr Minus has received ample warning of the expectations of this list. In judgment (No 2) at [8], I said:
"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. The defendants, for their part, responded appropriately in declining to consent to a third vacation of the first listing. It is not a question of punishing the plaintiff but simply a case of his having to bear the costs of an adjournment sought by him. In my view, the order for costs thrown away should include the costs of the listing on 18 November 2016."
In the course of argument on 11 August 2017, at page 14 of the transcript, line 26, I said:
"HER HONOUR: Well, no Mr Minus, because it is not ordinary to give someone a surrebuttal to a reply and I don't think it is necessary to hear from you in response to that last point. Mr Richardson, I accept that it is very unsatisfactory. You are aware of the earlier judgments I have given on these kinds of hearings. I take the view that I would be at risk of falling into error if I dismiss a proceeding in the kind of circumstances that present themselves today. I think there is every likelihood that I would be corrected on appeal if I did, but today's application serves as the clearest and sternest warning to the plaintiff that from this moment he is at high risk of having his action dismissed if there is the smallest further default."
Finally, in the judgment published following that argument (judgment No 3), I said at [11]:
"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."
Extraordinarily, since that time, the plaintiff has again failed to comply with directions of the Court.
On 17 August 2017, I ordered the defendants to file and serve a defence by 13 September 2017; I ordered the plaintiff to file and serve any reply by 27 September 2017 and I listed the proceedings for second listing on 17 November 2017.
The plaintiff did not file and serve his reply by the required date but, it should be acknowledged, was only a day late in serving it on the defendant. More importantly, however, the plaintiff was not, on 17 November 2017, ready to address any application by him for further interlocutory steps.
The requirements of parties at the second listing are identified in the Practice Note, the terms of which the plaintiff's email to my associate dated 16 November 2017 reveals he was then aware.
As a result of the plaintiff's failure to attend to the steps required for that purpose, it was not possible to determine all of the usual second listing issues on 17 November 2017 but only those brought forward by the defendants.
On that occasion, I made the following directions: I directed the plaintiff to serve on the defendants any proposed interrogatories and categories for discovery by 31 January 2018, saying, "after which date no further opportunity to demonstrate the need for any further interlocutory steps will be allowed". I directed the plaintiff by 28 February 2018 to answer interrogatories 7 to 25 served on him by the defendants and to give discovery of the categories of documents identified in the documents served on him; and I stood the proceedings over to 23 March 2018.
On 21 March 2018, Mr Minus again wrote to my associate seeking a revised timetable, evidently not having complied with those orders of 17 November 2017.
The email sought until 4 April 2018 to allow Mr Minus to comply with the Court's previous orders. The defendants did not oppose an extension of the timetable on that basis.
Accordingly, on 22 March 2018 I made the following orders in chambers:
1. The plaintiff to answer interrogatories 7-25 served on him by the defendants by 4 April 2018.
2. The plaintiff to give discovery on oath of the categories of documents served on him by the defendants by 4 April 2018.
3. The plaintiff to respond to the defendants' objections to his proposed interrogatories and categories for discovery by 4 April 2018.
4. The matter be listed for further directions on 20 April 2018.
On 4 April 2018, the plaintiff provided unsworn answers to the interrogatories. He did not at the same time serve the documents referred to in those answers; those were served later. By way of discovery, he provided a USB stick containing a large number of documents to Mr Richardson this morning in court and has not verified that discovery.
In response to my calling upon Mr Minus to show cause why the proceedings should not now be dismissed, he sought an opportunity to put on an affidavit explaining the delay. Before determining whether to allow that to occur, I called upon Mr Minus to outline what would be the contents of the affidavit. Mr Minus gave me the chronology of a series of hurdles he has faced over recent periods, some of which had already been set out in his email to my associate dated 21 March 2018. Importantly, that chronology includes the fact that on 21 February 2018 he underwent surgery and that he subsequently suffered complications requiring him to see the surgeon again, not returning to work until 12 March 2018.
Separately, Mr Minus informed me that on 22 March 2018 the government announced an inquiry as a result of which he has professional obligations to undertake certain work which appears to have commenced with a meeting in Canberra on 26 March 2018, for which Mr Minus says he had to undertake some preparation in advance.
The circumstances of his health condition were known to Mr Minus at the time he sought an extension of the timetable until 4 April 2018. He may not, on that date, have known of the announcement made the following day concerning the professional obligations. In any event, I determined there was no utility in affording Mr Minus an opportunity to put on an affidavit to explain those matters since, taking the explanation at its highest, I am persuaded that it is appropriate at this stage to dismiss the proceedings for want of due despatch.
One troubling aspect of the explanation provided by Mr Minus for failure to comply with the direction as to discovery was his explanation as to why he did not put on an affidavit at that time.
The explanation indicated either disregard for the clear terms of the Court's order or, coming from a barrister, an inability to understand the most basic obligation of verification of discovered documents.
Separately, the explanation given in respect of work commitments echoes explanations Mr Minus has given on several previous occasions in this list. The warning I gave in the judgment of 17 August 2017 should have left Mr Minus under no misapprehension as to his obligation to arrange his affairs so as to enable himself to fulfil his duty to the Court as a party to these proceedings.
I have reached the conclusion that Mr Minus is either unable or unwilling to comply with the duties imposed on a litigant under Part 6 of the Civil Procedure Act 2005. The manner in which Mr Minus has responded to my questions reveals that he has either a disregard for orders of the Court or an inability to process the importance of complying with them. On either analysis, I am persuaded that the defendants should no longer be subjected to the nuisance and inconvenience of the manner in which Mr Minus persists, after warning upon warning, in conducting this litigation.
For those reasons, I have concluded that the proceedings must be dismissed with costs.
[2]
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Decision last updated: 08 May 2018