//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] NSWDC 43
District Court of NSW
2013-04-12
Levine J
Original judgment source is linked above.
Evans Defendants: Ms S Chrysanthou Plaintiff: Camille E Dezarnaulds & Associates Defendants: Sylvester & Browne Lawyers File Number(s): 2012/225941 Publication restriction: None
Judgment The applications before the court 1These are reasons for the orders that I have made today in relation to the following applications: (a)The plaintiff's application for an extension of time to serve the fourth and fifth defendants; (b)The defendants' application for summary judgment in relation to the fourth defendant; (c)The defendants' application that these proceedings be struck out for want of prosecution; (d)Contested issues of costs, and a further timetable for these proceedings prior to the hearing on 5 June 2013. 2The background to these proceedings is as follows. The plaintiff's claim for damages for defamation, brought against five defendants, was set down for hearing by Elkaim SC DCJ on 1 February 2013, for three days commencing on 5 June 2013. The following pleadings had been filed prior to the hearing date being allocated: (1)a Statement of Claim filed on 20 July 2012, amended on 20 December 2012; (2)a Defence to the Amended Statement of Claim, filed on 18 January 2013. (3)Although no Reply was filed by the plaintiff, this has now been attended to, as a Reply was filed in court on 13 March 2013. 3The Statement of Claim filed on 20 July 2012 named only three defendants, not five. These three defendants are a corporation which conducts a nightclub named "Palms on Oxford" in Oxford Street, Darlinghurst, its sole director, and the licensee. The matter complained of consists of words spoken, at 11.30 p.m. on 23 December 2011, by "the Defendants' security guard/doorman", who said to the plaintiff: "You are way too drunk. Go and sober up somewhere else. You can't come in." 4The imputations in their current form are as follows: (a)The plaintiff was excessively drunk in a public place. (b)The plaintiff was so drunk that he needed to sober up somewhere else. (c)The plaintiff was so drunk as to warrant him not being admitted to the nightclub. 5In addition, the following imputations are pleaded to have been conveyed with the aid of certain extrinsic facts: (a)The plaintiff is a hypocrite because he pretends to oppose drinking of alcohol when he himself consumes alcohol to such excess he becomes drunk. (b)The plaintiff was excessively drunk in a public place. (c)The plaintiff was so drunk that he needed to sober up somewhere else. (d)The plaintiff was so drunk as to warrant him not being admitted to the nightclub. 6Interlocutory argument concerning imputations, vicarious liability and aggravated damages took place before Elkaim SC DCJ on 30 November 2012. No judgment is available, but his Honour made the following orders: (1)Leave to the plaintiff to replead Particulars 4(a) and 5(a) of the Statement of claim and to replead paragraph (b) in relation to aggravated damages. (2)The plaintiff is to file an Amended Statement of Claim giving the particulars of the basis upon which the first and second defendants are vicariously liable for the actions of the security guard. (3)The plaintiff is to give particulars of the basis upon which the licensee is vicariously liable for the actions of the security guard unless that allegation is derived only from the third defendant's position as licensee. (4)The plaintiff is to pay the defendant's costs in respect of preparation for the hearing today. In respect of the hearing today the plaintiff is to pay half the defendants' costs. (5)The plaintiff is to file and serve the Amended Statement of Claim within 14 days. (6)The defendants are to file and serve a Defence to the Amended Statement of Claim by 22 January 2013. (7)Listed for further directions in the Defamation List on 1 February 2013. 7An Amended State of Claim was filed, outside the 14-day period, on 20 December 2012. This pleading went well beyond the leave granted. First of all, it was filed outside the 14-day period, namely on 20 December 2012, which was two days prior to the expiry of the limitation period. Secondly, the pleading added two new defendants, namely the security guard who spoke the words and the company for which he worked. Thirdly, these defendants, who were added without leave being sought or granted, in a pleading filed during the court vacation, were not served with this statement of claim during the one-month service period, in circumstances where any defence had to be filed by 22 January. In addition, the fourth and fifth defendants were not told that, on 1 February 2013, these proceedings were set down for hearing on 5 June 2013. 8I then received the file, as the Trial Judge. Noting the absence of any Appearance or defence filed on behalf of the fourth and fifth defendants, I listed the hearing for case-management directions on 13 February 2013, and asked the parties to advise as to who should be contacted. 9The fifth defendant, a corporation, was served by post on 12 February 2013. The fourth defendant was not served until 4 March 2013. In both cases, the statement of claim which was served was stale (r 6.2(4)(b)(i) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")). The limitation period had also expired. On 13 March 2013 applications were made for an extension of time for service (on the part of the plaintiff) and for summary judgment (on behalf of the fourth defendant), on the basis that the plaintiff had stated, in other proceedings, that the fourth defendant was not the person who had uttered the words set out in the matter complained of. The case management orders on 13 February and 13 March 2013 10On 13 February 2013 the matter could not proceed, as the fourth and fifth defendants were not represented. In addition, the first to third defendants complained of non-compliance with orders for the filing of a Reply and discovery. I made the following orders: (1)Matter stood over for further directions to Wednesday 13 March 2013 at 9:00am. (2)The plaintiff is granted an extension of 7 days to file a Reply. (3)On Wednesday 13 March 2013, the parties are to advise as to whether any point will be taken in relation to non-service of the fourth and fifth defendants, and any argument concerning this issue is to be the subject of directions before Gibson DCJ on that day. (4)Defendants' request for particulars concerning failure to serve the fourth and fifth defendants to be provided in 7 days; reply to be provided 14 days thereafter. (5)The First, Second and Third Defendants agree to the use of documents in the ADT in these proceedings. (6)Costs of today reserved. 11On 4 March 2013, an Appearance was filed in relation to the fifth defendant, and the fourth defendant was served. On 13 March 2013, when the matter was next listed for directions, the solicitor appearing for the fifth defendant advised that the Appearance filed on 4 March 2013, lodged on behalf of a potential insurer, was to be withdrawn. I was also told the plaintiff had not complied with orders in relation to the filing of a Reply, or in relation to discovery and interrogatories, and that certain particulars were outstanding. This meant that the matter was still not ready for case management. I made the following further orders: (1)Note that the Appearance filed on behalf of the fifth defendant is withdrawn and dispense with the need to file any further documents by the fifth defendant. (2)Extend time for the plaintiff to file the Reply to today and grant leave to the plaintiff to file the Reply in court and dispense with the need for service. (3)The plaintiff's application for extension of time of service of the statement of claim is to be listed for argument on Friday 12 April 2013 at 9:30am. (4)All evidence in support of the motion is to be served by Tuesday 26 March 2013 at midday. (5)The defendants' application for summary disposal of the action against the fourth defendant is listed for hearing on Friday 12 April 2013 at 9:30am. (6)All evidence in support of the motion is to be served by Tuesday 26 March 2013 at midday. (7)Extend time for the plaintiff to serve his List of Documents to Tuesday 19 March 2013. (8)Extend time for the plaintiff to serve interrogatories to Tuesday 19 March 2013. (9)Parties to answer each other's interrogatories by Friday 5 April 2013. (10)The plaintiff is to pay the defendants' costs. 12I received submissions on behalf of the defendants by the due date (26 March 2013). The plaintiff provided no submissions. In response to inquiry by the solicitors for the defendants, the solicitors for the plaintiff advised that the plaintiff was not seeking any orders of any kind in relation to the fourth and fifth defendants. The defendants then foreshadowed an application to have the whole of the proceedings struck out for want of prosecution by reason of the plaintiff's asserted repeated failure to comply with timetables and because of the unsatisfactory nature of the claims in relation to the fourth and fifth defendants. 13As the plaintiff now abandons any claim against the fourth and fifth defendants, the first issue is what orders, if any, should be made in relation to costs. The second issue is the defendants' application for summary dismissal of the whole proceedings.
Relevant legislation 14I shall first set out the relevant legislation. Section 60 Civil Procedure Act 2005 (NSW) ("CPA") provides: "60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute." 15Section 61 of the CPA provides: "61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court." 16The provisions for leave to discontinue and for dismissal of proceedings are set out in rr 42.19 and 42.20 UCPR, which provide: "42.19 Proceedings discontinued (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. (3) Despite subrule (2), the defendant's costs in an appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998 are not payable by the plaintiff unless the court finds there are special circumstances to justify an order for their payment by the plaintiff. 42.20 Dismissal of proceedings etc (1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. (2) If the court makes an order striking out a defence, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the defendant must pay the plaintiff's costs of the proceedings in relation to those matters in respect of which the defence has been struck out." 17Rule 12. 7 UCPR provides: "12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit."
What costs orders should be made in relation to the fourth and fifth defendants? 18By letter dated 2 April 2013, the plaintiff's solicitors wrote to the defendants' solicitors as follows: "In respect to your proposed Application to summarily dispose of and/or strike out the Plaintiff's claim against the Fourth and Fifth Defendants on 12 April 2013 we advise that there are no claims to be struck out. We endeavoured to make claims against the Fourth and Fifth Defendants but your Counsel pointed out they had not been served in time. They are therefore defunct and are of no effect and there is no application to extend time." 19As noted earlier, the Amended State of Claim was filed on 20 December 2012. The plaintiff has one month to serve this amended pleading on the defendants. Rule 6.2(4)(b)(i) UCPR provides: "6.2 How proceedings commenced ... (4) Subject to subrule (5), originating process is valid for service: (a) in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or (b) in the case of proceedings in the District Court: (i) except as provided by subparagraph (ii), for one month after the date on which it is filed, or (ii) if the defendant (or at least one of the defendants) is to be served outside New South Wales, for 6 months after the date on which it is filed. (5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process." 20It would not have been easy for the plaintiff to obtain an extension: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433 at [183]. However, the defendants, conscious of their obligations to conduct the matter efficiently (Hoser v Hartcher [1999] NSWSC 527), indicated that they would not take this point if some kind of explanation for delay was available. 21After the matter was stood in the list for some time this morning, counsel for the plaintiff advised that her client consented to the proceedings brought against the fourth and fifth defendants being dismissed (see order 1 below). The plaintiff's decision not to proceed with the application is both reasonable and understandable, but the failure to notify the defendants more promptly of this must have costs implications: Packer v Meagher [1984] 3 NSWLR 486. 22As Hallen AsJ explains in McNamara v Bao San [2010] NSWSC 809 at [12], UCPR r 42.20 does not give rise to a presumption that costs will be ordered against a plaintiff where proceedings are dismissed, but creates a starting point by requiring this outcome to be displaced by a discretionary decision. The plaintiff should be the moving party on an application for an alternative costs order (in the present case, that being an order that each party pay his or its own costs). It is important in such applications to draw a distinction between cases in which one party effectively surrenders to the other and cases where some supervening event occurs. 23Counsel for the plaintiff submitted that the supervening event was that her client realised, in the course of other proceedings where the security guard gave evidence, that the person who had said the words was some other person. Counsel for the defendants submitted that the evidence of the fourth defendant was that he had a good recollection of these events, and that he told the plaintiff he would not be permitted to enter the nightclub because it was apparent to the fourth defendant, from the plaintiff's appearance and demeanour, that he was affected by alcohol. 24This case is a good example of the problem identified by Hallen AsJ in McNamara v Bao San, supra, at 12, namely that neither category can be precisely defined. 25However, whether or not the proceedings against the fourth and fifth defendants have been abandoned, the plaintiff's legal advisers have been well aware of the problem in joining him as a party since reading the affidavit of the fourth defendant in the other court proceedings referred to. The plaintiff's delay in deciding what steps to take consequent upon the decision not to include the fourth and fifth defendants has resulted in appropriate orders not being able to be made until today. The defendants put a number of sensible proposals to the plaintiff over the past two weeks, none of which were acted upon by the plaintiff. The plaintiff elected to contest the costs consequences his inaction. For these reasons, the plaintiff should pay the costs of the fourth and fifth defendants. 26In addition to the application for summary judgment brought by the fourth defendant, all defendants brought an application for these proceedings to be struck out for want of prosecution. This was conducted at the same time as the applications in relation to the fourth and fifth defendants, and there was considerable factual overlap.
The defendants' application to strike out these proceedings for want of prosecution 27The defendants complain of a series of failures to comply with court orders in this matter by the plaintiff. These are summarised in the letter by the plaintiff's solicitor to the defendant's solicitor dated 5 April 2013 in the following nine points: (1)The circumstances of the filing of the Amended Statement of Claim on 20 December 2012. (2)The submissions made by counsel for the plaintiff in court on 13 February 2013. This included concessions that the failure to serve was an oversight and a suggestion (without any formal application) that the hearing be adjourned to accommodate the plaintiff's lawyers' "oversight". (3)Failure to comply with the orders I made on 13 February 2013, including failure to explain the delay in serving the fourth and fifth defendants. (4)The service of the ASOC on the fourth defendant on 4 March 2013 despite the plaintiff stating in other proceedings that the fourth defendant had not spoken the words. (5)The submissions made by counsel for the plaintiff to the court. (6)Failure to comply with the orders of 13 March 2013, including an order that the plaintiff file and serve his evidence in support of the application by 26 March and the fourth and fifth defendants file their evidence to summarily dispose of the proceedings by 26 March. (7)Failure of the plaintiff to respond to the plaintiff's letter of 17 February 2013. (8)The conduct of the plaintiff in failing to respond to correspondence of 13 March 2013 in a timely fashion. (9)The failure of the plaintiff to comply with any of the orders made by the Court on 13 February 2013 and 13 March 2013. This complaint overlaps with grounds.In this letter, the solicitors for the defendants went on to say: "Contrary to your assertion that there is no application to extend time for service - an application was made on the plaintiff's behalf orally on 13 March 2013. That application has been stood over for argument on 12 April 2013. As a result of the notification of that application the fourth and fifth defendants have incurred substantial costs, including the costs of preparing evidence. If the plaintiff has changed his position and will seek to have his own motion dismissed, can you please inform us of that change of position by midday on Monday so that we do not waste further costs preparing for the application on Friday. Further, the plaintiff will need to seek leave to file a Further Amended Statement of Claim to reflect what is apparently now his position, namely that he does not pursue claims as against the fourth and fifth defendants. He will also need to seek leave to discontinue as against the fourth and fifth defendants. That leave will only be consented to if the plaintiff agrees to pay the fourth and fifth defendants' costs." 28The defendants rely upon ss 56-62, and in particular s 56 and 61(3)(a), of the Civil Procedure Act. Counsel for the defendants draws my attention to the insightful analysis of the interaction of these provisions with the entitlement of the parties to a fair trial process which Johnson J has set out in Rivera v State of New South Wales & Anor [2012] NSWSC 1360 at [82]-[86]. 29In Fairey v Fairey (No 2) [2000] NSWCA 173 at [51]-[58] the Court warned that dismissal of proceedings was an exceptional order, and a power not lightly to be exercised. Decisions of this kind must now be made against the framework of the Civil Procedure Act, and courts will not stand by and permit endless opportunities to a litigant to flout court orders, as Johnson J pointed out in Fleet v State of New South Wales [2009] NSWSC 75 at [12]-[15]. 30However, while the Court of Appeal has described the discretion to dismiss proceedings for want of prosecution as being wider under this legislation than under the common law (Pacanowski v Wakerman [2009] NSWCA 402 at [26]-[28]), the principles enunciated by Simpson J in Hoser v Hartcher [1999] NSWSC 527, which predate the Civil Procedure Act, continue to be cited with approval (Pacanowski at [26]-[28]). 31In Hoser there was a delay of three years after defamation proceedings were commenced, during which time the plaintiff was charged with offences and imprisoned. The defendant took no steps during this time, and when the plaintiff reactivated his case, the defendant's failure to act was fatal. This failure outweighed such matters as claims of prejudice and what Simpson J considered to be the plaintiff's poor prospects of success when the matter went to trial. 32The defendants in these proceedings have, however, conducted their case with diligence. That includes this application; the defendant provided the plaintiff with a timetable with alternative steps designed to progress these proceedings towards a hearing date. In addition, unlike Hoser, where explanations were offered by the plaintiff for his three-year delay, the plaintiff here does not proffer explanations or apologies for the failures to comply with timetables for the filing of a Reply, discovery and interrogatories, or for the circumstances in which these proceedings were set down for hearing without the fourth and fifth defendants being informed. These matters, relevant to items (3)-(7) and (9) in Simpson J's checklist in Hoser v Hartcher, are submitted to be matters of some weight. 33Counsel for the defendants also relies upon the circumstances in which these proceedings were set down for hearing without two of the defendants being informed that proceedings have even been started. There have been several recent examples of the problems this kind of conduct causes for both the parties and the court. In Kim v New Korea Herald HC [2011] NZHC 1491; Kim v Lee [2012] NZCA 19, 248, 256 and 600 the fact that one defendant was unrepresented was not discovered until after a trial where damages of $250,000 were awarded. In Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238 the fact that the sole defendant had not been served was not discovered until after the proceedings had been listed for trial. In the present case, the defendants were not avoiding service, or watching from the sidelines (Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727). 34However, the checklist in Hoser v Hartcher relates to its particular facts, and caution should be used when applying it generally to applications such as the present. These are proceedings which were commenced promptly and set down for hearing with, if anything, almost undue speed. There is a qualitative difference between failing to take any steps at all and simple failures to comply with timetables, even where those failures are multiple or repeated. In addition, many of the problems appear to have been the result of errors by the plaintiff's legal representatives rather than the plaintiff, and the plaintiff should not be penalised: Obeid v Australian Broadcasting Corporation & Ors (Supreme Court of NSW, Levine J, 10 July 1998). 35Notwithstanding the defendants' reliance upon the checklist set out in Hoser v Hartcher, I am satisfied that the facts of this case fall far short of amounting to conduct warranting the striking out of proceedings. These are not proceedings of the "stop writ" variety (Obeid, at 5). Many of the failures to comply have been rectified, and there is no reason why the action should not be ready for hearing on 5 June 2013. 36While the application for summary dismissal must fail, I am satisfied that it was a step properly taken, given the plaintiff's unrealistic stance in relation to the claim against the fourth and fifth defendants, and the repeated failure to comply with timetables. For these reasons, and because this application is intertwined with the other applications before me today (in which the defendants have been entirely successful) it is appropriate that the plaintiff pay the costs of today, and that those costs should include this application.
Orders (1)The proceedings as against the fourth and fifth defendants are, by consent, dismissed. (2)The first to fifth defendants' application for summary judgment is dismissed. (3)The plaintiff is to file and serve a further amended statement of claim deleting all references to the fourth and fifth defendants by 4:00pm Monday 15 April 2013. (4)The plaintiff is to pay the defendants' cost occasioned by this further amendment to the statement of claim. (5)The plaintiff to serve a verified List of Documents on or before 4:00pm 16 April 2013. (6)Time for the plaintiff to administer interrogatories is extended to today. (7)The plaintiff is to serve verified answers to interrogatories on or before 4:00pm 16 April 2013. (8)Orders (3), (5) and (7) are self-executing in nature and the proceedings may be dismissed for failure to comply. (9)The plaintiff pay the defendants' costs of today including the costs of the applications listed for hearing today, and including the application for summary disposal of the proceedings. (10)The plaintiff pay the costs of the fourth and fifth defendant's costs of the proceedings against them. (11)Direct the parties to take steps immediately to attend mediation with a private mediator, as no court mediation dates are available prior to the hearing.
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: 19 April 2013
Sleeman
Tuloch Pty Ltd t/as Palms on Oxford