The plaintiff, by Notice of Motion dated 11 November 2011, seeks leave nunc pro tunc pursuant to s 23 Defamation Act 2005 (NSW) to continue the proceedings commenced by the statement of claim filed on 22 July 2016. The plaintiff relies upon the affidavit of David Otto (a.k.a. David Ashworth) affirmed on 11 November 2016.
The defendant neither consents to, nor opposes, the relief sought.
The previous proceedings which trigger the s 23 application are proceedings commenced by the plaintiff in the Supreme Court of Queensland, under the name "David Ashworth" (the plaintiff's stage name), and filed in that court's registry on 27 July 2015, the contents of which are described in more detail below.
[2]
The defendant's broadcast and the plaintiff's response
The circumstances leading to this application are as follows. On 24 July 2015 "A Current Affair" broadcast a program in which the plaintiff was referred to, amongst other epithets, as "David Otto, also known as David Ashworth, loves a business scam and also loves the highlife". The broadcast went on to describe those business activities and concluded with the warning:
"He's got plenty of tricks doesn't he, and if you've been approached by David Otto in relation to his various events please contact police."
The plaintiff drafted an originating application and filed it in the Supreme Court of Queensland registry, together with an application for reduction of filing fees, on 27 July 2015, and was given a return date of 13 August 2015. The proceedings were commenced by the plaintiff using the name "David Ashworth" and not by use of the other name also used in the program, namely "David Otto".
There can be no doubt that the Queensland proceedings relate to the same matter complained of as the broadcast the subject of the plaintiff's claim for defamation in this court. Although the plaintiff did not identify a cause of defamation in precise terms or plead his claim in the usual manner, the relief sought is clearly for damage to reputation.
The plaintiff sought this relief against the same defendant, in that the relief he sought was that the defendants (described as Patricia Higgins, one of the interviewees, and the "Nine Network") take down the publication from its website, apologise and pay the plaintiff $200,000 general damages, $250,000 aggravated damages and $10,000 punitive damages. These sums were asserted to total of $3,018,960 "being total damages less punitive damages payable to the state [sic]", although how this sum is calculated is unclear (see the pleadings attached to the affidavit of the defendant's solicitor, Mr C D Jankie, sworn on 29 September 2016).
The affidavit in support of the originating application complains of "criminal defamation" and sets out factual information about the plaintiff's business affairs and music career. He states that one of his accusers is a former girlfriend who is "bitter" and another is a former employee who is "malicious". While it is a rambling and occasionally vituperative document, it is indicative of a desire by the plaintiff to vindicate damage to his reputation. Unfortunately, he went about this the wrong way.
[3]
The plaintiff seeks legal advice
Within a day or two of filing the originating application and affidavit, the plaintiff sent a copy of these pleadings to a respected member of the Queensland bar whom I do not propose to name. The plaintiff's letter to that barrister is not disclosed, but the barrister's reply dated 30 July 2015 was as follows:
"I am not sure why you have sent this email to me but I should make it clear that I would not act in a Claim of this kind on a speculative basis (no win no fee).
Sorry to tell you but your application is doomed to fail in August. You quite simply cannot commence this kind of proceeding by an originating application. At best the court would order you to file a Statement of Claim but more likely it would strike out the application and order costs against you.
You would need to fix this before the court appearance.
If you find a solicitor that is willing to assist you, they could brief me but as I already indicated I would not do it on a speculative basis." (Affidavit of the plaintiff, annexure "A")
Also on 30 July 2015, the plaintiff received an email from a solicitor (the text of which is not revealed) warning that proceedings had been commenced by using the incorrect form, and stating that proceedings would need to be commenced by statement of claim.
The plaintiff then states that:
"In view of the advice I received…I filed a Notice of Discontinuance on 13 August 2015." (Affidavit of the plaintiff, paragraph 4)
The Supreme Court printout refers to a directions hearing on 13 August 2015 where the proceedings were noted as "discontinued". That was effectively the end of the proceedings, which were never served on the named defendants.
Although the proceedings had already been discontinued, on 18 August 2015 at 6.13 am, the plaintiff sent an email to employees of Channel Nine, including the reporter for "A Current Affair". This email (sent under Mr Otto's own name, and not under the stage name he used in the pleadings filed in the Supreme Court registry) was in the following terms:
"Concerns Notice - you are hereby formally asked to remove this defamatory material as it is based in untruth. An initial application has been made against you containing an outline of some of the proof as to why this material is both untrue and intended to cause harm and further proceedings are being launched against you. If this is not removed from your website within 24 hours and an apology made in the same manner as the material was first published further damages to the application for orders to be made against you. It is understood that there are various events companies that are subsidiaries of your primary entertainment conglomerate that would benefit from this type of false report. No further notice will be given before trial proceedings unless this untrue, damaging and unable to be proven material is removed.
The material created by your organisation containing the defamatory imputations can still be found here:
http://aca.ninemsn.com.au/article/9011512/ticket-con"
The plaintiff did not provide any of these documents in support of this application. They were all attached to the affidavit of Mr Jankie sworn on 29 September 2016, which was filed in support of the defendant's foreshadowed application to strike out these proceedings if the plaintiff did not seek leave under s 23. The plaintiff has acknowledged, in his affidavit of 11 November 2016, that the contents of Mr Jankie's affidavit, which attached the plaintiff's Supreme Court pleading, the Supreme Court of Queensland file record and this email to Channel Nine, correctly reflect the contents of these documents.
The plaintiff has not revealed any information about his activities between the date of discontinuance (13 August 2015) and commencing these proceedings (24 July 2016) All that he sets out in his affidavit is that he "subsequently instructed Carters Law Firm who commenced the current proceedings (affidavit, paragraph 5). Whether or not he told them about commencing proceedings in Queensland is not revealed.
Proceedings in this court were commenced very late and contain significant defects. The plaintiff's statement of claim was filed the day before the expiry of the limitation period for the first matter complained of (the broadcast) and failed to identify the defendant correctly. The pleadings failed to identify any downloads for the second matter complained of (the publication of the broadcast on the defendant's website). On the first return date of these proceedings, the plaintiff was granted leave to amend the defendant's name and the proceedings were stood over to 22 September 2016 for an imputations argument or "other pleading issue".
The defendant learned of the proceedings in Queensland from its own inquiries. These proceedings were stood over to 6 October 2016 to enable further inquiry to be made by the defendant and on 29 September 2016 the defendant served the affidavit of Mr Jankie concerning the Queensland proceedings.
Counsel for the plaintiff wrote to my associate on 5 October 2016, advising the matter could not proceed on 6 October 2016 for the following reasons:
"When our instructing solicitor received the letter from the defendant's solicitors dated 29 September 2016, he wrote to the plaintiff seeking to obtain instructions concerning the alleged trial proceedings in Queensland.
Unfortunately no reply has yet been received and for that reason we are not at this stage able to make application pursuant to s 23 of the Defamation Act for leave to continue the current proceedings in the District Court.
If the defendant's solicitor had written earlier, the issue may have been resolved."
On 6 October 2016 I stood the application over to 20 October 2016 for directions. I made a costs order in favour of the defendant. I did not accept the submission that the onus lay on the defendant to make these inquiries, or that the defendant's solicitor should have written earlier. The onus lay on the plaintiff to be honest with the court by revealing the earlier proceedings and by seeking leave under s 23 at the earliest opportunity. Honesty is not the best policy with the court; it is the only policy.
On 20 October 2016 the plaintiff was still not ready to proceed and I made orders for the filing of an affidavit and written submissions in accordance with Practice Note 6. The contents of the plaintiff's affidavit are set out above. I have not received any written submissions.
[4]
The relevant legal principles
Judicial considerations of the ambit of s 23 Defamation Act 2005 (NSW) to date have to date been restricted to whether the relief may be granted nunc pro tunc (Carey v Australian Broadcasting Corporation (2012) 200 ALR 348) or whether the proceedings commenced in the other court are the same as those for which it is asserted that leave is required (Sullivan v Griffin [2012] NSWSC 687). The circumstances in which leave should be refused for discretionary reasons are largely judicially unexplored, although I note the comments made by McCallum J in Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136 at [59] - [63], in relation to the portion of Mr Carey's claim which was not statute-barred. More recently, an application for leave under s 23 was refused on its merits, in Ghosh v Miller [2016] NSWSC 1574, but the circumstances there were that the pleadings the subject of the application were incomprehensible and that the pleadings in the prior proceedings had been even worse. The question of relevant factors for the exercise of discretion are therefore best considered within the framework of ss 56 - 62 Civil Procedure Act 2005 (NSW).
The plaintiff's absence of frankness and promptness in acknowledging that he did commence proceedings in the Supreme Court of Queensland leaves much to be desired. That must weigh against the exercise of discretion.
However, the terms of s 23 ("except with leave of the court") are broad. The discretion I exercise is unfettered, although it must be exercised judiciously, and not capriciously.
While there are unsatisfactory aspects of the plaintiff's conduct of the proceedings to date, these should not result in his being denied the chance to have his claim proceed to trial. To deny a plaintiff a right to bring proceedings is a step of last resort.
I also take into account the defendant's position, in that no claim of prejudice is put. The "just, quick and cheap" conduct of these proceedings (to quote s 56 Civil Procedure Act 2005 (NSW)) by the defendant's legal representatives, not only in relation to this application but generally, is to be commended.
I will grant leave to the plaintiff under s 23 Defamation Act 2005 (NSW) to continue the proceedings that he has already commenced. However, after this false start, the plaintiff will have to do better. Further delay in proceedings commenced at the end of the limitation period for the first matter complained of would be unwise, for the reasons explained by Levine J in Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998):
"Where the plaintiff has been late in the initiation of proceedings, first, the quality of the remedy sought in defamation will or could be, severely affected both in terms of quantum and costs; and second, the requirement in a plaintiff diligently to prosecute the action will be one that demands strict adherence to the Rules of Court or directions given."
That will include amending the statement of claim to plead downloads of the second matter complained of, as well as conducting these proceedings in a speedy and efficient manner in the future. The parties have leave to bring in a timetable reflecting the outstanding interlocutory issues, including the r 28.2 Uniform Civil Procedure Rules 2005 (NSW) imputations argument foreshadowed by the defendant.
[5]
Costs
The plaintiff brought this application only after the defendant foreshadowed striking out the proceedings if an application for leave was not sought, and was dilatory in his conduct of it. As a result of his unreadiness, he has already been ordered to pay costs on 22 September and 6 October 2016 and I reserved the costs of the directions hearing on 20 October 2016.
In these circumstances, and given the nature of the application (which is the seeking of an indulgence from the court) the plaintiff should pay the costs of the defendant for the directions hearing on 20 October 2016 and in relation to this application today.
[6]
Orders
1. Upon the undertaking of the solicitor for the plaintiff to file the Notice of Motion dated 11 November 2016 in the registry in 7 days, grant leave to the plaintiff to move upon the notice of motion for leave to continue the proceedings commenced by statement of claim filed on 22 July 2016.
2. Notice of motion granted.
3. Plaintiff pay defendant's costs of 20 October 2016 and of 17 November 2016.
[7]
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Decision last updated: 17 November 2016