HER HONOUR: This case presents a stark and frustrating illustration of the familiar difficulties faced by self-represented litigants. The plaintiff is referred to in the proceedings by a pseudonym for the reasons explained in one of my earlier judgments in the proceedings: YZ v Amazon [2013] NSWSC 1522. For most of the proceedings she has represented herself. There was a short period during which she had the benefit of a pro bono referral but she did not find that helpful and has indeed been quite critical of the barrister involved (unfairly, in my view).
On 21 August 2015, I determined the defendants' objections to imputations in a draft pleading propounded with the assistance of the pro bono barrister, referred to by the parties as the "June draft": YZ v Amazon (No 3) [2015] NSWSC 1130. As a reading of that judgment will reveal, the plaintiff had a measure of success in the determination of those objections. That, however, is not her perception. Being unhappy with the barrister's draft, she had (at the time argument in respect of those objections was heard) propounded a further draft evidently prepared by herself, referred to by the parties as the "July draft" but was also unhappy with that version of the pleading. She wished to have a further opportunity to propound a further draft.
For the reasons recorded in my judgment, I refused that further opportunity and instead gave rulings by reference to the June draft, also allowing some inclusion of the part of the July draft identified by the plaintiff as being important to her. Upon the publication of my judgment, the plaintiff was directed to file a further amended pleading in accordance with my reasons within 14 days.
Her response, as she had foreshadowed during argument, was to seek first an extension of the period within which an amended pleading could be filed pending the determination of an appeal against my judgment and separately a stay of the proceedings pending the determination by the High Court of a special leave application against the decision of the Court of Criminal Appeal dismissing her conviction appeal in related criminal proceedings.
YZ v Amazon [2015] NSWSC 1346 | Case summary | Zoe
The defendants reacted to those applications by seeking a dismissal of the proceedings. Although the plaintiff had in the meantime been granted a short extension of the period within which to file an amended pleading in accordance with my judgment, the defendants submitted that it is now clear she has no intention of complying with that order. In argument, however, Mr Potter, who appears for the first, third, fourth and sixth defendants, acceded to my suggestion that the more appropriate course would be to abide the plaintiff actually falling into default and, rather than dismissing the proceedings, to make a self-executing order that the proceedings be dismissed if an amended pleading is not filed within some further period.
Finally, there remains outstanding a question of the costs of the previous applications. This judgment determines the first three applications; that is, the plaintiff's application for an extension of the time within which to file a further amended pleading, her application for a stay and the defendants' application for a self-executing dismissal order.
It is appropriate first to refer to the stay application. The plaintiff was convicted in the District Court of an offence relating to her removal of her son from this jurisdiction at a time when the father of that child was entitled to have access to the child. The Court of Criminal Appeal dismissed her conviction appeal. She has now made an application for special leave to appeal to the High Court and, so far as the information before me reveals, that application has not yet been determined.
Considered on its own, that might be a basis for a stay of these proceedings since one of the imputations raises the question of the plaintiff having "committed crimes", as recorded at [67] of my earlier judgment. However, it is appropriate to consider that application in the context of the other issues to be determined today.
Mr Potter submitted that there is no point granting a stay of these proceedings pending the determination of the application for special leave since the plaintiff has made clear that she has no intention of abiding by my orders. That may be accepted and that is the frustration to which I referred at the outset of this judgment. I have said on previous occasions that the book on which the plaintiff sues is plainly defamatory. The question for trial will be what imputations it conveys and whether any of those imputations is defensible.
For that reason, the formulation of the imputations is important. It was in recognition of that principle that I endeavoured in my earlier judgment to find some middle ground between the plaintiff's ongoing inability to settle the form of her imputations and the frustration of the defendants at the continuing delay in the proceedings. The plaintiff submitted on the hearing of the present applications that she has had no opportunity to amend her pleading and that it would be "very oppressive" and "extremely unjust" to force her to proceed on the strength of the rulings in my earlier judgment.
I do not think that could be accepted on any objective analysis of the history of these proceedings. Conversely, I have accepted on a number of occasions that the plaintiff faces extreme stress in these proceedings in part due to the publication on which she seeks to sue. As with many self-represented litigants, at the heart of her complaints there is the foundation for a proper claim. It nonetheless remains the case that with appropriate allowance for those considerations I am bound to seek to further the overriding purpose of the Civil Procedure Act 2005 (NSW) of facilitating the just quick and cheap resolution of the issues in the proceedings: s 56.
I have revisited my judgment published in August and I do not think on any objective analysis I can properly afford this plaintiff any further opportunity to revise the form of her pleadings. She has submitted that she has only had one statement of claim. That ignores a number of opportunities that have been allowed to her to amend, as recorded in my earlier judgment at [3] to [4]; first, an opportunity of several months allowed by Harrison J; secondly, an opportunity allowed by me; thirdly, the referral to the pro bono panel and fourthly, my consideration of her July draft propounded after the preparation of a draft by the barrister on the pro bono panel. That is not to mention the lengthy period for which I was reserved on the ruling published in August and the passage of one month since the publication of that judgment.
The plaintiff has said on a number of occasions that it is her understanding that a plaintiff in a defamation action can have many opportunities to amend. As I recorded in my earlier judgment, that is a misconception. The time has been reached in this case, I think, where the Court must say enough is enough. It is frustrating because the plaintiff, as I have mentioned, has a good claim which, in my view, is now adequately distilled in the rulings I gave in August. As I think I said in argument in this case on one occasion, all one can do is lead the horse to water.
The appropriate course is to accede to the defendants' application for a self-executing order allowing one last generous interval failing compliance with which, regrettably, I think these proceedings must necessarily be dismissed. I propose to allow a generous interval for compliance with my earlier orders for two reasons. One is my concern (as already explained) that there is some force in the stay application based on the special leave application. Secondly, while I may be criticised for being overly optimistic, there is some prospect, I hope, of the plaintiff revisiting my judgment and coming to the view that she can properly prosecute her claim on the strength of it.
For those reasons, the orders I propose are:
1. Unless the plaintiff files a further amended statement of claim in accordance with my reasons published 21 August 2015 by 8 October 2015 that the proceedings be dismissed.
2. Costs are reserved.
3. The proceedings are listed on 9 October 2015.
[2]
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Decision last updated: 30 September 2015