PRACTICE AND PROCEDURE - absent defendant -where informal evidence suggests legal incapacity - appropriate directions
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PRACTICE AND PROCEDURE - absent defendant -where informal evidence suggests legal incapacity - appropriate directions
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: These are proceedings for defamation arising out of a series of posts on Facebook. The proceedings were commenced by statement of claim filed on 22 May 2014. The plaintiffs named in the original statement of claim are Melanie Norman, Christine Humphrey and Pound Rounds Incorporated. Ms Humphrey is since deceased and accordingly her cause of action cannot be continued: see s 10 of the Defamation Act 2005 (NSW). The first defendant to the action is Shirley Cowell. The proceedings against her were discontinued on 7 December 2015. The only remaining claim is the claim brought by Ms Norman against the second defendant, Melinda Woods.
The current pleading is an amended statement of claim filed on 16 September 2015. Most of the publications sued on in that pleading are cartoons alleged to have been published on Facebook by Ms Cowell (the party against whom the proceedings have been discontinued). The claim against Ms Woods relates to a single cartoon allegedly published on 13 February 2014 depicting two women with the caption (as written) "Shirley cantbelievemnstill gets donations…Aren't people educated to scams?"
The cartoon is in the style of those allegedly published by Ms Cowell; it may be a republication of matter posted by her. The particulars of publication allege publication by Ms Woods to "readers of her Facebook page" but identify only one such person. The matter complained of does not name the plaintiff; the particulars of identification include reliance upon the reference to "mn", being the first plaintiff's initials. The scope of publication is accordingly confined to any person who read the Facebook post, knew all of the extrinsic facts specified in the statement of claim and understood the cartoon to refer to Ms Norman.
Ms Woods has not formally entered an appearance in the proceedings but has been in contact with the plaintiffs' solicitor and the court, indicating that she is aware of the proceedings. The plaintiffs accordingly seek an order that she file a defence within 28 days "failing which default judgment may be entered against her". That order is sought by the first and third plaintiffs. However, the pleading does not identify any claim against Ms Woods at the suit of the third plaintiff.
Notice of the order sought together with a supporting affidavit was received by the Court by email from the office of the solicitor for the plaintiffs, Mr Barry Goldsmith of Goldsmiths Lawyers, at 5.16pm the evening before the defamation list in which the application was intended to be made. As is known to practitioners in that list, late notice of matters for argument in the list will (depending on the business of the list) ordinarily result in the loss of priority for argument that day. As events transpired, the burden of the list precluded the inclusion of any further matters for oral argument. Accordingly, I decided to determine the application on the papers.
The plaintiffs' claim against Ms Woods has encountered a series of difficulties. Unable to locate her so as to serve the originating process, the plaintiffs made two unsuccessful applications for substituted service (one was refused by the Registrar on 31 July 2014; the second, based on practically the same material, was refused by me on 30 January 2015).
On 17 July 2015 a further application for substituted service was made to the Registrar. The application was complicated by a separate application to amend the name of the second defendant, who had been named incorrectly in the originating process. Following a requisition by the Registrar, a notice of motion seeking those orders was filed 19 August 2015. That motion was determined by me on 11 September 2015 when orders were made for an amended pleading, substituted service and an extension of the period of validity of the originating process to 31 October 2015: Norman v Cowell (No 2) [2015] NSWSC 1366. An amended statement of claim was filed on 16 September 2016. There is no evidence as to when it was served.
The proceedings were next due before the Court on 13 November 2013. Shortly before that date, a solicitor contacted Goldsmiths Lawyers on behalf of Ms Woods and requested an adjournment. The listing was postponed by consent to 27 November 2015.
On 27 November 2015 there was no appearance for Ms Woods. An affidavit filed by Goldsmiths Lawyers that day recorded that the solicitor then speaking on Ms Woods' behalf informed a solicitor employed by Mr Goldsmith that the plaintiff wanted to appoint a tutor, suggesting the possibility that she is under legal incapacity within the meaning of r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW). The proceedings were stood over to 11 December 2015 for directions.
In the meantime, as already noted, the proceedings as against Ms Cowell were discontinued.
On 10 December 2015 Ms Woods contacted my Associate by telephone to say that she was too ill to come to court the next day. She was informed that a medical certificate would have to be provided. Later that day, a solicitor emailed a medical certificate to the Registrar describing a serious medical condition suffered by Ms Woods. The medical certificate recorded the doctor's opinion that attendance at court would antagonise the medical condition and may lead to "another hospital admission this year". The certificate was accompanied by underlying medical records which confirmed a previous hospital admission of some weeks during 2015. On the strength of that information, I stood the proceedings over to 26 February 2016.
On 3 February 2016 Ms Woods provided a further medical certificate reiterating the content of the earlier certificate. In an email dated 5 February 2016 she stated that, due to her current medical condition, she is unable to instruct a lawyer on her behalf. It was presumably in response to that communication that, on the evening before the adjourned date, Mr Goldsmith filed his affidavit.
Notwithstanding the lengthy history of the proceedings, Ms Woods cannot be taken to have been served with the originating process until at least 16 September 2015 (the date on which the amended statement of claim was filed following the orders for substituted service). As already noted, there is no evidence as to when the pleading was in fact served.
Since that date, the effect of Ms Woods' communications has been to suggest that she may be under legal incapacity. If that were established, the plaintiff would not be permitted to take any further step in the proceedings until a tutor entered an appearance on Ms Woods' behalf: r 7.17 of the UCPR. The medical material that has been provided to the court to date strongly suggests that it would be wrong to allow the plaintiffs to proceed at this stage without determining the issue of capacity. There is no formal evidence before the court to sustain the opinions expressed in the two medical certificates but, as already noted, the first certificate was supported by underlying medical records tending to corroborate the risk identified.
Separately, I am gravely concerned that significant legal costs appear to have been expended in the prosecution of a claim which, according to the recently amended pleading, seeks a remedy for the publication to one person of a cartoon that does not name either plaintiff. The risk of disproportion between legal fees and the interest at stake is manifest. In that context I note that the third plaintiff, according to the extrinsic facts pleaded in the amended statement of claim, is a registered charity.
In all the circumstances, I am not persuaded that it is appropriate to make the order sought by the plaintiffs at this stage, at least not without affording Ms Woods an opportunity to address the issue of legal capacity by formal evidence.
Separately, I am concerned to ensure that the issue of proportionality is one to which the plaintiffs have turned their minds.
I have concluded that the appropriate course in respect of the plaintiffs' application is to afford the second defendant an opportunity to file an affidavit or verified medical report addressing her medical condition with a view to determining whether she is a person under legal incapacity who requires a tutor to conduct the defence of the proceedings on her behalf.
At the same time, I consider it appropriate for the court to raise the issue of proportionality of its own motion so as to guide the court in its pursuit of the overriding purpose of the Civil Procedure Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings.
In my view, it is open to the court to require a party to address the issue of proportionality on affidavit. Section 61 of the Civil Procedure Act appears to confer ample authority to make such an order; if that is wrong, such authority is, in my view, necessarily ancillary to the court's authority to control the use of its own processes. In Bleyer v Google [2014] NSWSC 897, I took the view that, in an extreme case of disproportion between the resources that will be expended to determine a claim and the interest at stake, proceedings may be stayed as an abuse of process. That determination was made in response to an application by the defendant. But even without resort to the decision in Bleyer, I think it must be within the authority of the court to compel transparency on the issue of costs so as to assist the court to further the overriding purpose. This is not an issue which should be governed by notions of politeness or delicacy; it is not possible to conform to the norm imposed by s 60 of the Civil Procedure Act without open access to such information.
However, since this issue has not been raised with the plaintiffs, the appropriate course before making any such order is to afford them an opportunity to be heard.
For those reasons, I make the following orders:
1. I direct the second defendant within 28 days to file and serve any affidavit or verified medical report upon which she may wish to rely addressing her current and likely future capacity, in light of the medical condition addressed in the two medical certificates, to participate in the proceedings.
2. Subject to order (3), I direct the plaintiffs' solicitor to file and serve an affidavit within 28 days addressing his estimate of the likely proportion of the plaintiffs' costs of the proceedings against the second defendant to any likely verdict against the second defendant.
3. In the event that the plaintiffs wish to be heard as to order (2), the proceedings may be relisted for that purpose by contacting my Associate within 14 days, in which event the operation of order (2) will be suspended.
4. I stand the proceedings over to 13 May 2016.
[2]
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Decision last updated: 18 March 2016