The plaintiff by notice of motion filed on 23 November 2017 seeks orders pursuant to s 63 Civil Procedure Act 2005 (NSW) ("the Act") that the date of commencement of these proceedings on JusticeLink be amended to 6 October 2017.
The statement of claim in these proceedings (Exhibit D) is currently date-stamped 10 October 2017, which means that any publication prior to that date between Sunday 8 and Monday 9 October 2016 would fall outside the limitation period which expired on Monday 9 October 2017 (see s 36 Interpretation Act 1987 (NSW)).
Although the statement of claim bears the date 10 October 2017, it is not in dispute that it was presented for filing on Friday 6 October 2017, when it was taken to the District Court Registry by Nathan Storos, senior court clerk employed by Global X, a company carrying on business as the filing clerks for the solicitors for the plaintiff. The form given to Global X was accompanied by copies of the statement of claim and the trust account cheque, which ticked the box for manual services as "court filing" and contained instructions "please file statement of claim in the District Court of NSW - Civil Registry".
Some time on the morning of 6 October 2017, Mr Storos attended the District Court Registry and placed the statement of claim, the manual service request form and the trust account cheque in the "bulk box" for subsequent processing by court staff. This "bulk box" is for the assistance of the court registry staff, and replaces the previous (and inefficient) system of persons wishing to file documents taking a ticket and waiting in the queue and then waiting at the counter while the document is processed.
I should first note some special features about filing of documents in the Registry in current times to take into account the need for all documents to be properly lodged on JusticeLink. The statement of claim filed in these proceedings was prepared manually and, for this reason, the names of all of the defendants appear on the first page. However, documents which are electronically filed often only contain the name of the first and second defendants on the front page, together with the total number of defendants (in this case, 5). A screenshot of the proforma statement of claim is as follows:
(see "Approved civil forms" at ).
I note that the words "Refer to Party Details at rear for full list of parties" appear in the proforma statement of claim. In the present case, the full names of all defendants, and their addresses, are set out at the end of the statement of claim, and this is the source for the file creation on JusticeLink.
As the Court of Appeal has noted on many occasions (see Mills v Futhem Pty Ltd (2011) 81 NSWLR 538), the process of "filing" is now electronic and a document is not validly filed unless it is electronically processed.
There is no dispute that each of the five defendants was correctly named and identified in numerical order under both the headings "Party Details" and "Details about Defendants". It is to these portions of the statement of claim that the attention of any person processing the statement of claim on JusticeLink is directed. This is because it is necessary to record not only the name of each of the defendants but the address. All of that information is correctly set out in the statement of claim.
The problem in this case arises from the fact that although the defendants are again correctly named in the same order and the first and second defendants are correctly described as first defendant and second defendant, the third, fourth and fifth defendants are not. They are erroneously described as "first defendant" in each case.
It was clearly the intention of the court staff when this document was received to process the document for filing on 6 October 2017. That much may be gleaned from the document which is Annexure A to the affidavit of Mr Spencer, which bears a stamp "6 October 2017". However, it would appear that in the course of processing the statement of claim, the District Court employee who is in the process of entering this material onto JusticeLink changed his or her mind, because this date was then scrubbed out by a series of black lines.
It used to be the case that when a document was rejected, a notice of rejection would be prepared and the party lodging the document would receive the notice of rejection together with the reasons for rejection. That did not occur in this case. What happened was that when Mr Storos on Tuesday 10 October 2017, he discovered that the document had not been filed. He consulted the Duty Registrar and informed the solicitor for the plaintiff. As a result, the statement of claim has amendments replacing the word "first" with "third", "fourth" and "fifth" for each of the third, fourth and fifth defendants in these proceedings.
The difficulty for the plaintiff is that these proceedings relate to a publication which was made the social media messaging service "WeChat". The publication in question is a letter in PDF and JPG form which was sent to approximately 85 persons who were members of an association. As has been noted in many defamation actions involving social media and other electronic publications, there is no single publication rule and the publication the subject of these proceedings is not time-barred. All that will happen if the plaintiff's action is taken to have commenced on 10 October 2017 is that for the period between Sunday 8 and Monday 9 October 2016 any downloads of the matter complained would fall outside the limitation period. It is more likely than not that the matter complained of was read on or very shortly after the date of its being posted, namely 10 October 2016, by nature of the rapidity with which messages were sent and received on WeChat are processed.
[2]
The relevant statutory provisions
Section 63 Civil Procedure Act 2005 (NSW) provides:
"63 Directions with respect to procedural irregularities
(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.
(2) Such a failure:
(a) is to be treated as an irregularity, and
(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.
(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):
(a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,
(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.
(4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure."
While there is a typographical error in describing the third, fourth and fifth defendants as "first defendant" on the front page, they are correctly described in the most relevant section of the statement of claim, namely the back page where each of them is identified as a defendant and an address is provided. The manner in which documents may be filed is set out r 4.10 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), which provides:
"4.10 Filing generally
(1) A person may lodge a document for filing in relation to any proceedings:
(a) by delivering it to an officer of the court in the registry, or
(b) by sending it by post to the registry's business address.
(2) Any person may lodge a document with an officer of the court for the purpose of its being filed in relation to proceedings, or proposed proceedings, in the court.
(3) Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing.
(4) The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.
(5) An officer of the court may refuse to accept a document for filing in the following circumstances:
(a) in the case of originating process:
(i) if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or
(ii) if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,
(b) in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment."
The notes to r 4.10 UCPR (see P. Taylor, Dr E. Elms, M. Meek SC, The Hon Justice G. Bellew, Ritchie's Uniform Civil Procedure NSW (LexisNexis, Australia) at [4.10.10]) provide that if a document is initially rejected after lodgement, but subsequently accepted, the date of actual acceptance should be taken as the date of filing: Riniker v University College London, The Times, 17 April 1999. However, that decision must be treated with caution, as it turns on its facts and not upon a consideration of s 63 of the Act.
Rule 4.3 UCPR provides:
"4.3 Paper and writing
(1) A document must be on standard A4 paper of durable quality, capable of receiving ink writing.
(2) Subject to the rules:
(a) a document may be one-sided (that is, with writing on one side of each sheet) or two-sided (that is, with writing on both sides of each sheet), but not partly one-sided and partly two-sided, and
(b) the sheets of a document must be securely fastened:
(i) if the document is one-sided, at the top left hand corner, or
(ii) it the document is two-sided, along the left hand side, without obscuring the writing or the margin, and
(c) a left margin of at least 25 millimetres, and a top margin of 30 millimetres, must be kept clear on each sheet of a document that bears writing, and
(d) the pages of a document (that is, the sides of the sheets that bear writing) must be consecutively numbered.
(3) The spacing between the lines of writing in a document must be at least 3 millimetres.
(3A) The following information in a document must be set out in bold:
(a) the name of the first plaintiff and first defendant in the title of the proceedings,
(b) in the case of a cross-claim, the name of the first cross-claimant and first cross-defendant in the title to the proceedings,
(c) in the case of a notice of motion, the name of the person affected by the orders sought,
(d) in all cases, the name of the person specified in the filing details as the person for whom the document is filed.
Note : Rule 4.2 requires the title of proceedings to be included in the originating process or other documents filed on or behalf of a person in proceedings.
(4) A document must bear writing that is clear, sharp, legible and permanent, must not be a carbon copy and must not bear any blotting, erasure or alteration that causes material disfigurement.
(5) This rule does not apply to a document to the extent to which the nature of the document renders compliance impracticable."
Although not noted in Ritchie's Uniform Civil Procedure NSW, the provision for a statement of claim to be "securely fastened" was the subject of consideration by McCallum J in Marson v Network Ten Pty Ltd [2016] NSWSC 1245, where her Honour referred to and followed Bobolas v Waverley Council [2016] NSWCA 139 at [108]-[109]. A failure to "securely fasten" the statement of claim by a staple (as opposed to a clip) was the error that resulted in the application to her Honour.
Rule 4.3(3A) UCPR provides that the names of "the name of the first plaintiff and first defendant" must appear in bold "in the title of the proceedings", namely the first page. It is arguable that this means that the naming of the first defendant only on the front page is sufficient to comply with the rules. That is certainly the case with documents which are electronically filed, as there is no space for any further names.
The final rule which is of relevance is r 4.2 UCPR, which states that an originating process must contain "the address, if known, of any defendant". No requirement for numbering any of these defendants is included.
Looking at these rules as a whole, there has been no breach of any of the specific provisions in the Rules.
I am satisfied, in the circumstances, that the document was wrongly rejected by the Registry. The fact that a typographical error in a court document does not entitle the Registry to reject that document unless there is clear failure to comply with the rule expressed to be found in the UCPR. That was not the case here. The question is whether, in those circumstances, the plaintiff is entitled to an order under s 63 Civil Procedure Act.
[3]
The relevant authorities
Failure to comply with the provisions of the Act and UCPR is hardly unexpected. The recognition of the likelihood of error and the need for the overarching principles of ss 56 - 62 of the Act are the rationale for s 63, which give the court power to deal with irregularities and require the court to treat a failure to comply with any requirement of the Act or Rules as an irregularity which, subject to s 63(3), does not invalidate any step taken in the proceedings or any document, judgment or order in the proceedings.
It is because of these provisions that omissions and mistakes, which had such a harsh and unfortunately result in many of the earlier decisions (such as Nazer v Wade (1861) 1 B & S 728) can now be rectified so long as this occurs without injustice: Bobolas v Waverley Council at [109], citing Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 753 per Priestley JA, applying Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735-736 per Lord Denning MR. As McColl JA emphasises in Bobolas v Waverley Council at [110]-[111], s 63 confers a broad power on the court to rectify irregularities occurring as a result of failure to comply with the requirements of the Act or Rules, noting Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 at [24]. McColl JA applied these principles to the incomplete document the subject of the appeal, noting that it was "not the intention of the legislature that failure to complete an approved form by not filling up all the details is fatal to its efficacy" (at [110]).
These principles were approved in a case with similar facts with the present, namely Marson v Network Ten Pty Ltd. A defamation statement of claim was rejected by the Supreme Court Registry because it was fastened with a Tudor owl paper clip instead of a staple and the accompanying documents were put together with a bulldog clip. The reason for the rejection of the document was the asserted failure to comply with r 4.3 UCPR (it should be noted that, in the present case, no actual rule can be identified as being breached). As a result of the rejection of the filing of the document, the limitation period came into effect.
In holding that s 63 applied to permit the proceedings to continue even though the statement of claim was not filed within the limitation period, McCallum J said at [21]-[22]:
"[21] Those remarks were cited with approval in both Windsurf Holdings at [22] and Bobolas at [109] (fn 90). My consideration of those authorities has persuaded me that s 63 of the Civil Procedure Act does enable the Court to rectify an irregularity in the commencement of proceedings as well as an irregularity in any step taken in the proceedings. Contrary to the submissions put on behalf of the defendant by Ms Eastman, I do not think that amounts to a circumvention of the limitation period. On the contrary, in my respectful opinion, that submission begs the question. The very issue to be determined in the present application is whether, notwithstanding the irregularity, the proceedings are to be taken to have been commenced within the limitation period. The steps taken by Mr Slattery were all taken within that period and an otherwise compliant statement of claim reached the registry within that time. Either because Mr Slattery was responsible for an irregularity in failing to fasten the document securely, or because the registry was responsible for an irregularity in wrongly concluding that he failed to fasten the document securely, the statement of claim was not sealed on that date but otherwise the proceedings were all but commenced. A copy of the unsealed statement of claim was served on that date, within the limitation period. As held by Lord Denning in Harkness, an honest litigant in Her Majesty's Supreme Court should not be defeated by such a technicality.
[22] The discretionary factors all point in favour of exercising the authority under s 63 to cure the irregularity. In my respectful opinion, to determine otherwise would be frankly ridiculous and would tend to bring this Court into disrepute. The plaintiff plainly has a viable cause of action for defamation, subject to any defences that may be relied upon by the defendant. To keep her on the wrong side of the Court's door because of the use of an owl clip in place of a staple would not, in my view, be a sensible exercise of the Court's authority."
The decisions of the Court of Appeal and McCallum J fly in the face of the highly technical approach taken in the cases relied upon by Mr Goldsmith.
Only two of those decisions were handed down in the twentieth century: E Ryan & Sons Ltd v Rounsevell (1910) 10 CLR 176 and Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15. In both those cases, the solicitor filing the document failed to comply with a rule. Gower v Woodman Sales Pty Ltd may be distinguished because there was not in fact an irregularity with the form of the writ; the problem was that the filing fee was not paid in full, which was a difference of another kind.
The profound changes to the conduct of modern litigation, including case management principles of the kind set out in ss 56 - 62 of the Act, mean that emphasis is given to the contents of the documents rather than to their forms, and technicalities of the kind which occurred in the facts of each of those decisions do not apply.
However, there is a more fundamental reason why the decisions referred to by Mr Goldsmith may be distinguished. In each of those decisions, the court was satisfied that the solicitor, and not the Registry, was at fault. I do not consider that this is correct in the present case. The requirement to name all of the defendants in numerical order and to provide their addresses relates to the provision of this material at the end of the form. As the Rules set out above made clear, all that that is necessary to be put on the front page is the name of the first defendant. That was in fact done.
However, there are also discretionary features to take into account. I next set out the basis upon which Mr Goldsmith urges that I should not exercise my discretion in favour the of making of the orders sought.
[4]
Discretionary features
Mr Goldsmith points to a series of factual differences between the facts in this case and the facts in Marson v Network Ten Pty Ltd and in particular to the asserted failure of the solicitor for the plaintiff to exercise diligence to ensure the statement of claim was filed in time given the imminence of the expiry of the limitation period.
I consider that these are counsels of perfection. Mr Spencer had an office procedure which relied upon Global X, a company specialising in filing court documents, to file documents in accordance with instructions. The use of the bulk box and of electronic filing occur because, unlike the dimly remembered days of filing clerks in queues 30 or 40 years ago, pleadings filed in court now are rarely, if ever, rejected, no matter how poorly presented or prepared, as long as the basic information necessary for entry of the relevant information on JusticeLink is sufficient (see UCPR Part 3). It is not to the point that the solicitor in Marson v Network Ten Pty Ltd made unsuccessful attempts to file the documents electronically and serve the documents on the opponents in unfiled form; the absence of such conduct does not warrant the lack of exercise of discretion.
In a case such as the present, Mr Spencer was entitled to rely upon an experienced and efficient document filing service to file the document on the next working day in accordance with the usual practice.
The alternative basis upon which Mr Goldsmith urged me to refuse to exercise my discretion is what he called "the need to maintain public confidence in the judicial system".
Mr Goldsmith submitted that if I permitted the filing of a document with typographical errors of this kind, it amounted to sending a message to practitioners and members of the public that they "need not worry about the Rules" because as long as they made some attempts to comply the court would allow the filing of the pleading.
I consider this submission is best answered by the observations of McCallum J in Marson v Network Ten Pty Ltd at [22] (see the passage as set out above), to the effect that, rather than maintaining public confidence in the court, it would instead expose the court to ridicule for such technical points to be taken.
The same is the case here. At least in Marson v Network Ten Pty Ltd there was some arguable failure to comply with specific rules. As already noted, Mr Goldsmith was unable to identify which rule, if any, the plaintiff had failed to comply with, and, as set out above, I am satisfied that it was the Registry and not the plaintiff's solicitor who was in error.
Mr Goldsmith acknowledged that there was no actual prejudice caused and confined his submissions to the form of prejudice discussed by the High Court in Aon Risk Services Australia v Australian National University (2009) 258 ALR 14. The period of time involved is little more than a day. The application was brought at the first opportunity and complies with the fresh step rule.
All of the discretionary factors point in favour of exercising the discretion given by s 63 to cure the irregularity by making the order sought.
[5]
Costs
Mr Potter informed me that, although it is not noted in the judgment, the unsuccessful defendant in Marson v Network Ten Pty Ltd was ordered to pay the plaintiff's costs.
The solicitors for the plaintiff wrote to Goldsmiths Lawyers on 24 November 2017 enclosing a copy of Marson v Network Ten Pty Ltd and inviting the defendants not to oppose the relief sought. Instead, the application was opposed, and opposed with considerable vigour.
If I had been satisfied that the Registry had correctly rejected the filing of the statement of claim, the plaintiff would have been seeking an indulgence. However, it is clear, from the examination of the UCPR rules for the filing of documents that the document filed by the plaintiff is not in fact in breach of any of the rules.
It is common practice for not only statements of claim but subsequent pleadings not to nominate all of the defendants in chronological order. Mr Goldsmith in fact did not do so in the affidavit he filed in these proceedings. Out of all of the potential failures to comply with the requirements for pleading with particularity, the failure to identify the correct numerical order for the five correctly named and listed defendants on the first page of a document, when they are correctly listed in the appropriate place, would have to be the least important. The defendant's application comes perilously close to nit-picking, and this should be reflected in the costs order.
Taking all of the above into account, I am satisfied that the defendants should be ordered to pay the plaintiff's costs of this application.
[6]
Orders
1. Pursuant to s 63 Civil Procedure Act 2005 (NSW) the date for commencement of these proceedings is deemed to have been 6 October 2017.
2. The defendants pay the plaintiff's costs of the plaintiff's notice of motion filed on 23 November 2017 and of this application.
3. The parties have liberty to bring in Short Minutes of Order reflecting an agreed timetable for the conduct of these proceedings.
[7]
Amendments
12 December 2017 - Paragraph 1 - "s 73" changed to "s 63"
Paragraph 9 - "name" changed to "named"
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: 13 December 2017