Alawadi v Widad Kamel Farhan trading as the Australian Arabic Panorama Newspaper

[2015] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:

Alawadi v Widad Kamel Farhan trading as The Australian Arabic Panorama Newspaper [2015] NSWDC 279

Hearing dates:

19 November 2015

Date of orders:

30 November 2015

Decision date:

30 November 2015

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) The plaintiff’s claims for defamation for publication of the first and second matters complained of on 12 June 2014 are struck out and dismissed pursuant to s 14B Limitation Act 1969 (NSW).

(2) The plaintiff’s claim for defamation for publication of the third matter complained of on 26 June 2014 is struck out and dismissed pursuant to s 61 Civil Procedure Act 2005 (NSW) and r 12.7 UCPR.

(3) A self-executing order that the plaintiff is to serve particulars of extrinsic facts and identification for each of the five remaining matters complained of (published 10 July 2014, 2 October 2014, 6 November 2014, 5 March 2015 and 21 May 2015) by 4pm Wednesday 9 December 2015, such particulars to be provided with verification.

(4) The defendant’s application for summary dismissal of the five remaining causes of action is stood over for further hearing after compliance with the steps set out above, and listed for directions on Thursday 10 December 2015 at 9am.

(5) Costs reserved with liberty to apply.

Catchwords:

TORT - defamation - plaintiff commences proceedings for defamation for eight publications, two of which were published outside the limitation period - proceedings commenced on the last day prior to the limitation period for the third publication - plaintiff not named in any of the publications - correspondence from defendant's solicitors complains of missing schedules for extrinsic facts and inadequate particularisation of identification - plaintiff fails to avail himself of two orders granting leave to amend - defendant brings application pursuant to s 61 Civil Procedure Act 2005 (NSW) and r 12.7 Uniform Civil Procedure Rules 2005 (NSW) - whether particulars of identification and extrinsic facts sufficient - relevant principles for determining delay in defamation proceedings - whether different principles for determination of delay apply where a plaintiff commences at the very end of the limitation period - whether the plaintiff was a "reluctant gladiator" (Bi v Mourad [2010] NSWCA 17 - whether proceedings should be struck out or the plaintiff directed to provide the particulars in question - first and second matters complained of struck out pursuant to s 14B Limitation Act 1969 (NSW) - third matter complained of (commenced on last day prior to limitation period) struck out pursuant to s 61 and r 12.7 - self-executing order for the plaintiff to provide the extrinsic facts and particulars of identification with verification for remaining five publications

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-60, 61 and 67
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 15.19

Cases Cited:

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Bi v Mourad [2010] NSWCA 17
Bidner v Queensland [2000] QCA 368
Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, Levine J, 30 October 1998)
Creative Resins International Ltd v Glassam Europe Ltd [2006] All ER (D) 178
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dijakovic v Perez [2015] NSWCA 174
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Emmerton v University of Sydney (1970) 2 NSWR 633
Facer v Wolfe (2013) 17 DCLR 391
Fei v Director-General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Hoser v Hartcher [1999] NSWSC 17
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Jenman v McIntyre [2013] NSWSC 1100
John Fairfax Group Pty Ltd v Farley (Supreme Court of the Australian Capital Territory, Gallop, Burchett, Gummow JJ, 2 May 1994, unreported)
Kang v Australian Broadcasting Corporation [2015] NSWSC 893
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356
Templar v Watt [2014] NSWSC 937
Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437
Whiteoak v State of New South Wales [2012] NSWADT 135
Younan v Nationwide News Pty Ltd [2013] NSWCA 335

Category:

Procedural and other rulings

Parties:

Plaintiff: Alaa Alawadi
Defendant: Widad Kamel Farhan trading as The Australian Arabic Panorama Newspaper

Representation:

Counsel:
Plaintiff: Mr R Walton
Defendant: Ms C Amato

  Solicitors:
Plaintiff: Lex Fori Lawyers
Defendant: Mitry Lawyers

File Number(s):

2015/187167

Publication restriction:

None

Judgment

The application before the court

1. The defendant brings an application for summary dismissal of the plaintiff’s claim for defamation pursuant to s 61 Civil Procedure Act 2005 (NSW) and r 12.7 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. The circumstances leading to the commencement of proceedings were as follows. The plaintiff carries on business as “Al-Awadi Spiritual Therapist” (ABN 79 714 561 471) and provides services including, but not limited to, horoscope readings, spiritual healing, dream interpretation, “spiritual cleansing” and parapsychology services. Between February 2008 and October 2013, he advertised his parapsychology services in the Australian Arabic Panorama Newspaper (ABN 59 969 303 449) (“Panorama”). The plaintiff had also, over the same period, sponsored Panorama dinners.

3. The defendant is the Editor-in-Chief of Panorama and an occasional contributor to this Arabic-language publication.

4. Between 12 June 2014 and 21 May 2015, Panorama published eight articles which are the matters complained of in these proceedings, which were commenced on 25 June 2015. These articles cover stories ranging from what is called a “brawl” in the Iraqi embassy to a complaint about the services of an unnamed spiritual healer. The plaintiff is not named in any of these articles, but he asserts he is identifiable in each of them by reason of the particulars of identification set out in the statement of claim.

5. Although these proceedings have been listed on five occasions prior to the date of hearing this motion, they have not proceeded beyond objections to the statement of claim. The deficiencies of the statement of claim and the conduct of these proceedings by the plaintiff (including failing to take advantage of orders granting leave to amend) have led to the application which is before me to determine.

6. Where a pleading is acknowledged to be inadequate, leave to replead is generally given unless the court is satisfied “either that there was no reasonable cause of action available or that there was some other reason (such as the history of the proceedings) why leave to replead should not be granted”: Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 at [15].

7. However, the application before me is not whether the plaintiff should be granted leave to amend. No application for leave to amend the existing statement of claim is before the court (as Ms Amato, for the defendant, regularly reminded me). The issue before the court is whether, given the procedural history of these proceedings, they should be struck out pursuant to s 61 Civil Procedure Act 2005 (NSW) and/or r 12.7 UCPR.

8. Both parties relied upon affidavits from their legal representatives, consisting largely of exchanges of acrimonious correspondence. Neither the plaintiff nor the defendant provided any affidavit material.

9. Although not attached to any of the affidavits relied upon by the plaintiff, there is a draft amended statement of claim in existence. In the course of the hearing, in response to a call, the plaintiff produced the draft Amended Statement of Claim which had been (at paragraph 35 of the affidavit of Ms Natalie Audisho of 17 November 2015) described as being “ready to be filed”.

10. Unfortunately, production of this document revealed that this was not the case. This draft amended statement of claim does not address many of the defects complained of by the defendant. Additionally, it includes new claims for publications on the website of Panorama (including the four publications for which the limitation period has now expired), but without particulars as to who downloaded them, or where, or whether they were viewed within the limitation period (cf Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676).

The parties’ submissions in brief

11. The defendant’s submissions may be summarised as follows:

1. Failure to comply: The plaintiff has acknowledged deficiencies in the statement of claim but has failed to use the occasion of orders granting leave to amend to correct these deficiencies (orders dated 13 August and 7 October 2015) or to provide the missing documents requested (order dated10 September 2015), or indeed to provide any proposed amended statement of claim until it was called for during this application. The draft produced in answer to that call does not cure those acknowledged deficiencies. It creates new pleading problems, in that it adds website claims for an unspecified period, part of which would be out of time, and fails to provide particulars of downloading or even a proper link to the alleged electronic publications.

2. Explanations for delay: The plaintiff’s explanations for the delay are submitted to be inconsistent and implausible. This includes evidence that the documents necessary to establish identification was complex and required weeks to translate, when these documents were 4 advertisements totalling 132 words of the most simple kind. The plaintiff’s legal advisers’ explanation that their own “honest mistakes” should not be accepted, as the plaintiff should have been able to provide the missing documents and information promptly.

3. The nature of the delay: Four aspects of this are asserted to be of significance. First, the documents which have not been provided included not only the documents to establish the extrinsic facts relied upon for identification but also copies of the matters complained of. The particulars provided were inadequate and irrelevant, and did not name (contrary to the usual practice) the persons who identified the plaintiff. Failure to establish identification can lead to the proceedings being dismissed: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 191-192 per Hunt J (“Lazarus”). Second, the plaintiff allowed the limitation period to expire for the first two publications and commenced on the last day for the third publication, without providing an explanation. Third, the plaintiff did not provide an affidavit in relation to the delay. Fourth, this delay is likely to continue, as the plaintiff still does not seek leave to amend, or provide a draft pleading capable of curing the pleading failures. The defendant complains of prejudice in the form of legal costs accruing from the additional time spent relisting the matter and drawing these problems to the attention of the plaintiff’s solicitors.

12. The plaintiff’s submissions may be summarised as follows:

1. No failure to comply: The plaintiff has not actually failed to comply with any orders to amend because the orders concerning amendment were mere invitations to amend. The statement of claim is conceded to require substantial amendment but this can be cured in the future, and the statement of claim should not be struck out now. The plaintiff has now provided most if not all of the missing documents and given explanations for the problems in obtaining them.

2. Reasonable explanations for delay: The failure to provide documents and particulars arose from a series of misunderstanding between counsel, the solicitors, the plaintiff and the translator, and these explanations should be accepted.

3. The nature of the delay: Any delay is minimal in time, and the failure to provide the relevant particulars and documents arose from a lack of experience in defamation by the plaintiff’s legal representatives.

Matters no longer in dispute

13. The following points are no longer in issue:

1. The first and second matters complained of are out of time and, no application for extension of time having been brought, should be struck out and dismissed pursuant to s 14B Limitation Act 1969 (NSW); and,

2. The plaintiff has now provided to the court particulars of the advertisement in the missing “Schedule @@@ [sic]” in the statement of claim and the missing copies of the matters complained of.

14. The particulars of identification refer to a schedule of advertisements (called “Schedule @@@” in the statement of claim) which are the central basis for the plaintiff’s case on identification. The plaintiff’s position is that this schedule, once produced, cures all the defendant’s complaints about the inadequacy of the pleading of extrinsic facts and identification, so I shall set this document out before listing the publications the subject of this claim and the imputations and particulars of publication for each of them.

The advertisements in the missing schedule

15. The four advertisements which were intended to comprise the missing schedule of identification material as set out in paragraph 5 of the statement of claim are as follows:

“Panorama Newspaper

The spiritualist Alaa El Deen.

Treatment of spiritual and psychic diseases

Magnetic treatment

Treatment by magic and touch

Spiritual consultations

0421 906 377”

“Panorama Newspaper

Meet the media man Alaa El Deen

98.5 FM

8-9 AM Thursday – Friday

2-3 PM Sunday

Advertise at Arab Radio

Contact Number: 040 225 777

98.5 FM

Thursday and Friday 8-6 AM

Sunday 3-2 Noon.”

“Panorama Newspaper

Heading: Panorama’s man for 2011

The spiritual scientist Alaa Alawadi

Most of his projections at the cover of this newspaper last year proved to be correct.

Read his expectations for 2012 at Panorama.”

“Panorama Newspaper

Heading: The spiritual and parapsychological world

By Alaa Alawadi

Member of most of Astronomical and Spiritual societies

Read in this issue

thru parapsychology

Treatment of spiritual and psychic diseases

Hypnotherapy magnetic therapy

Treatment by magic and touch.”

16. There are two features to note:

1. While I am prepared to accept that “Alaa El Deen” is the plaintiff, none of these advertisements is dated. They could have appeared at any time between 2008 – 2013 (one refers to the year 2011). How these advertisements could relate the identity of the plaintiff to publications made between June 2014 and May 2015 is unexplained both in the particulars and the plaintiff’s solicitors’ affidavits.

2. The information contained in these advertisements is brief, consisting of a bare statement of specialty and relevant contact details such as telephone numbers. The first and fourth advertisements refer to the plaintiff providing treatment by “magic”. No reference to fees is made, although charging fees of $3,000 is set out as a particular. How the readers of these advertisements could relate the identity of the plaintiff to the contents of the six remaining matters complained of is similarly unexplained.

17. These newspaper advertisements are referred to in the particulars of identification for all publications except the seventh matter complained of (for which no particulars are given). Examination of each matter complained of reveals the tenuous nature of the identification link sought to be drawn.

The first and second matters complained of

18. Although the claims for the first and second matters complained of were abandoned during the hearing by reason of the expiry of the limitation period, it is still important to consider the relationship between the contents of these publications and the particulars of identification because the plaintiff did not abandon these claims until well into the hearing.

19. The defendant contends that, while the particulars for these publications are deficient, they are no more deficient than the particulars for the remaining publications, and that the court should draw an inference that the plaintiff deliberately allowed the limitation period to expire in relation to these two publications, a relevant factor to the success of the defendant’s application: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 (“Itek Graphix”).

20. The first matter complained of is as follows:

“Published soon

Panorama wrote [sic]:

“We are going to publish real stories related by the sons of the Iraqi and Arab communities who fell victims to the swindle of an imposter who claims to undo magic and decode ambiguities…Thousands of dollars were stolen from them in the [sic] broad daylight.”

21. This two-sentence article appeared in the same edition of Panorama (under the heading “Published soon”) as the second matter complained of.

22. The imputations pleaded to arise from this matter complained of are (paragraph 8 of the Statement of Claim):

1. The plaintiff is a thief.

2. The plaintiff is a swindler.

3. The plaintiff is a fraudster.

23. Paragraph 7 of the statement of claim asserts that the plaintiff is identifiable because this brief notice refers to a person “who claims to undo magic and decode ambiguities”, for the following reasons:

“The class of persons who understood the First Matter Complained Of to refer to the plaintiff was such persons who read the First Matter Complained Of and knew the nature of the services offered by the Plaintiff through his business; and/or has seen/heard the Plaintiff’s advertisements”.

24. The second matter complained of is also published on 12 June 2014, but under a different heading, namely “What was Hidden: and “The Fortune of a Magician and an Outgoing Office””. The author is Wedad Al-Farhan. The contents are a generalised smear of an unnamed person who uses the Internet to slander others with his “hypocritical lies”, is guilty of “swindle [sic] and charlatanism” and is “staggering in a loud boisterous laughter”. There is a reference to his being able to “decode the ambiguity with $3,000 and undo magic with $5,000” in the opening paragraph of the publication but there is otherwise no reference to anyone carrying on any kind of business of the kind advertised by the plaintiff.

25. The imputations pleaded to arise are (paragraph 10 of the Statement of Claim):

1. The plaintiff deals in black magic.

2. The plaintiff is a con man.

3. The plaintiff is a swindler.

4. The plaintiff is a fraudster.

5. The plaintiff is a liar who spreads his lies via the internet.

6. The plaintiff lives lavishly on the profits from people he has conned and exploited.

7. The plaintiff deserves hatred because of his behaviour.

26. There could be a link between the first matter’s reference to “an imposter who claims to undo magic and decode ambiguities” and the use of a similar phrase in the opening paragraph of the second matter complained of, but this is not referred to in the particulars of identification, which are as follows.

“The Second Matter Complained Of was read by a class of persons who understood the Second Matter Complained Of to refer to the Plaintiff by reason of their knowledge of the following extrinsic facts:

(1) The Second Matter Complained Of refers to decoding ambiguity, undoing magic and the sums of $3,000 and $5,000.

(2) The class of persons who understood the Second Matter Complained of to refer to the Plaintiff was such persons who read the Second Matter Complained Of and knew the nature of the services offered by the Plaintiff through his business and/or the prices charged by the Plaintiff for his services from time to time and/or had seen or heard the Plaintiff’s advertisements.”

27. As is evident from the text of the advertisements set out above, this information is not contained in the four advertisements produced by the plaintiff during this application as the missing schedule.

28. The similarity of the particulars of identification for all of the matters complained of means that there is substance in the defendant’s submission that the plaintiff allowed the limitation period for the first two matters complained of to expire without commencing proceedings. In addition, the plaintiff sued on them despite knowing that the proceedings were commenced out of time.

The third matter complained of

29. The third matter complained of, written by Wedad Al-Farhan, was published on 26 June 2014 in Panorama under the heading “Starkly Evident”. The text of the matter complained of does not refer to a person carrying on a business as a caster or horoscopes or spiritual healer, let alone charging money for it. The sole reference to “witchcraft” in this publication is to a person who owns “books of sorcery and witchcraft” which he employed when he “directed his Jinni and demonic soldiers to protect Mosul”. This mission failed because the books of sorcery and witchcraft got him “nowhere” and he remained “a stark sorcerer”.

30. The imputations pleaded to arise are (paragraph 12 of the Statement of Claim):

1. The plaintiff deals in black magic and witchcraft.

2. The plaintiff controls demons.

3. The plaintiff exploits innocent people. [Note: this imputation has been deleted in the drafted Amended Statement of Claim.]

31. The particulars of identification are that the third matter complained of refers to a person who has “books of sorcery and witchcraft and is a sorcerer”, but it is not suggested in the particulars that this is a fact true of the plaintiff, or that this fact is known to others. All that is asserted is that the plaintiff is known to an unspecified class of persons to offer services “involving astrology and the removal of negative spells” (paragraph 11 of the statement of claim).

32. Not only is this the weakest of the claims in relation to identification, but proceedings for this publication were commenced one day prior to the expiry of the limitation period. As is set out in more detail below, the failure to prosecute this claim with diligence puts it into a different class to the remaining five matters complained of.

The fourth matter complained of

33. The fourth matter complained of was published in Panorama on 10 July 2015 under the heading “Real Stories: The Hidden was greater”.

34. The fourth matter complained of repeats the words of the first matter complained of about exposing “those who falsely claim that they are versed in the heavenly sciences and humanities” (as the text acknowledges) by giving an example of a person who consulted a “charlatan and imposter” residing in “one of [Sydney’s] classiest residential quarters”. This publication is a lively and sarcastic account of a visit by a customer to a “charlatan”’s office. The unnamed customer recites that he made an appointment after hearing radio advertisements and having “read the advertisements in the newspapers”. The description of the unnamed visitor’s treatment includes a careful description of the office, the treatment offered and a demand for payment of services in the sum $3,000 (reduced to $220 when the customer refused to pay this), and the ultimate acceptance by the provider of the treatments of “$180 in cash”.

35. The imputations pleaded to arise are (paragraph 14 of the Statement of Claim):

1. The plaintiff is a fraudster.

2. The plaintiff is a con man.

3. The plaintiff cheats his customers.

4. The plaintiff is an imposter. [This imputation was deleted in the drafted Amended Statement of Claim.]

5. The plaintiff is a destructive force in society. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff’s actions have a harmful effect on society”.]

6. The plaintiff lies to his clients.

7. The plaintiff is grotesque. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff is unpleasant to look at”.]

8. The plaintiff is inept at his work.

9. The plaintiff appears ridiculous when he works.

10. The plaintiff charges excessive fees for his work.

36. The plaintiff asserts he is identifiable because the article refers to:

1. A person who claims “that they are versed in the heavenly sciences and humanities”;

2. A “magician” who advertises on radio and in newspapers;

3. A client’s visit [sic] to a practitioner who reads zodiacs, has a modern office, a treatment bed and a stereo;

4. The practitioner describes himself as a therapist and gets the client to lie on the treatment bed while he moves his hands over the client and speaks verses from the Koran;

5. The practitioner claims that the client is “haunted and possessed” and offers an amulet to “dismantle the possession”; and,

6. The practitioner charges $3,000.

37. These facts are asserted to be known to persons who knew the office layout, nature and costs of the plaintiff’s business, or had seen or heard his advertisements in the newspapers or on radio.

The fifth matter complained of

38. The fifth matter complained of was published in Panorama on 2 October 2014 under the heading “Consul General in Sydney Refutes the Allegations recently propagated and prejudicing the Consulate General in Sydney”.

39. The fifth matter complained of refers to a claim by an unknown person that Mr Dawood, the Iraqi Consul-General, “personally backs him and supports his activities”. It then quotes Mr Dawood as denying that he supports this person. There is no mention of witchcraft or sorcery.

40. The imputations pleaded to arise are (paragraph 16 of the Statement of Claim):

1. The plaintiff is a liar.

2. The plaintiff is a social climber. [This imputation was deleted in the drafted Amended Statement of Claim.]

3. The plaintiff is a hypocrite. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff exploits people and situations for his own gain”.]

4. The plaintiff lied about his relationship with the Iraqi Consul General.

5. The Iraqi Consul General rejected the plaintiff because the plaintiff has agendas that are in conflict with Iraq and the Iraqi people. [This imputation has been amended in the drafted Amended Statement of Claim to read “The Iraqi Consul General rejected the plaintiff socially because the plaintiff has agendas that are in conflict with Iraq and the Iraqi people”.]

41. The particulars of extrinsic facts assert that persons who saw the plaintiff’s photograph on his Facebook page with the Iraqi Consul-General would know that the plaintiff was identified in the matter complained of.

42. I was not provided with these entries. It would not be enough to demonstrate that there were hits on this Facebook page; it would be necessary to show that there was some specific connection, including a time connection, given the uniquely short-term and high-volume nature of publications placed on social media. Again, proper particulars in the form required in Lazarus would be required; without them, this claim is so weak as to face being struck out.

The sixth and eighth matters complained of

43. The sixth matter complained of is an article headed “The Iraqi Ambassador in Australia seeks the help of a juggler to decode the talismans of the Embassy’s scandals in Canberra”. This refers to another Iraqi ambassador, Mr Saleh, having a meeting in Sydney with a group of persons, one of whom is described (using inverted commas) as a “magician” and a “juggler”. The scandal in question is a “brawl” between Mr Saleh and a Ms Khadim, the First Secretary at the Embassy. This magician is described as having been intended “to silence and muzzle the information media or perhaps to help in securing one [sic] to defend him in case of need or necessity”. The magician had failed in this regard, as the conduct of Mr Saleh had been discovered by the media. This is accompanied by a cartoon of a magician waving his arms, apparently weaving a spell.

44. The imputations pleaded to arise are (paragraph 18 of the Statement of Claim):

1. The plaintiff performs black magic. [This imputation was deleted in the drafted Amended Statement of Claim.]

2. The plaintiff conjures demons in an attempt to silence the media.

3. The plaintiff is arrogant and pompous.

4. The plaintiff assisted the ambassador of Iraq in attempting to inappropriately cover up information that was being investigated.

45. One of the particulars of identification is that this cartoon depicts the plaintiff. If so, it should explain how this is so. The fact that Mr Saleh consults a “magician” or “juggler” to help him resolve problems arising from his “brawl” with Ms Khadim is not sufficient, without proper particularisation, to identify the plaintiff.

46. The sixth matter complained of appears to be the article referred to in the eighth matter complained of, also written by Tareq Al-Haris, which refers to “intruders on the information and the media field, including the sorcerers, the magicians, the swindlers and the illiterates”. He thanks the members of the public who wrote to him about “my previous article” which concerned “a sorcerer and swindler” who gave advice to Mr Saleh, the Iraqi ambassador referred to in the sixth matter complained of.

47. The eighth matter complained of was published in Panorama on 21 May 2015 (not 21 March 2015, as stated in paragraph 23(a) of the statement of claim) under the heading “The Moaning of the People’s Playground. Any threat I receive increases my determination, insistence… even madness”.

48. The imputations pleaded to arise from this final publication are (paragraph 24 of the Statement of Claim):

1. The plaintiff is a sorcerer.

2. The plaintiff is a magician. [This imputation was deleted in the drafted Amended Statement of Claim.]

3. The plaintiff is a swindler. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff is a con-man”.]

4. The plaintiff is illiterate.

5. The plaintiff is an intruder. [This imputation was deleted in the drafted Amended Statement of Claim.]

6. The plaintiff is unintelligent.

7. The plaintiff’s line of work in the radio media industry is questionable. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff’s work in the radio media industry is worthless”.]

8. The plaintiff and the Iraqi Ambassador are socially connected. [This imputation was deleted in the drafted Amended Statement of Claim.]

9. The plaintiff issued a threatening letter to the Newspaper. [This imputation was deleted in the drafted Amended Statement of Claim.]

49. The only particulars of identification provided (paragraph 23) are that the matter complained of refers to “sorcerers”, “magicians” and “swindlers” and that anyone who had read one or more of the previous publications would know that these referred to the plaintiff. That is not a proper particular, since the matter complained of is clearly referring to the incident involving Mr Saleh; the plaintiff appears to have assumed that the mere reference to “magician” means that he is entitled to sue, but the mere reference to an occupation, without more, does not entitle all members of that occupation (whether they have advertised in the defendant’s newspaper or not) to sue. As is the case with all other particulars of identification, there is no compliance with the requirements set out in Lazarus.

The seventh matter complained of

50. The seventh matter complained of was published in Panorama on 5 March 2015 under the heading “What great difference between the two nomenclatures”. The imputations pleaded to arise are (paragraph 21 of the Statement of Claim):

1. The plaintiff is a coward.

2. The plaintiff is a heretic. [This imputation was deleted in the drafted Amended Statement of Claim.]

3. The plaintiff is a criminal. [This imputation was deleted in the drafted Amended Statement of Claim.]

4. The plaintiff is a thief who preys on innocent people. [This imputation has been amended in the drafted Amended Statement of Claim to read “The plaintiff steals from innocent people”.]

5. The plaintiff is a fraudster and con-man. [This imputation has been repleaded in the drafted Amended Statement of Claim to read “The plaintiff is a fraudster”, with an additional imputation (imputation (f)) “The plaintiff is a con-man” added.]

51. The seventh matter complained of, also written by Tareq Al-Haris, refers to receiving a “threatening letter” which the author advises now “rests at the bottom of the garbage bin”. The person who sent the letter is described as “a charlatan and confidence trickster” but there is no reference to his being a magician.

52. No particulars of identification are pleaded for this publication. Paragraph 19 of the statement of claim states that the plaintiff’s solicitors sent a Concerns Letter on or about 27 February 2015, but does not set out how readers of the 5 March 2015 matter complained of would have identified the (unnamed) plaintiff or name the person (or groups of persons) who did so. Clearly publication can only be established for readers who identified the plaintiff through knowledge of those extrinsic facts, and this should be pleaded with precision. No attempt to do so was made in the draft statement of claim produced during the hearing.

The defendant’s objections to the pleadings

53. The defendant’s principal objection is to the failure to particularise proper facts and matters giving rise to identification. Rule 15.19 UCPR provides:

“(1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following:

(a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,

(b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,

(c) if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning-particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including:

(i) full and complete particulars of the facts and matters relied on to establish a true innuendo, and

(ii) by reference to name or class, the identity of those to whom those facts and matters were known,

(d) if the plaintiff is not named in the matter complained of-particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, and

(e) particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation.

(2) Such of the following as is applicable must be filed and served with a statement of claim seeking relief in relation to the publication of defamatory matter (or any amended statement of claim) and be referred to in the statement of claim or amended statement of claim:

(a) a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy,

(b) a typescript, with numbered lines, of:

(i) if the original publication is in English-the text of the original publication, or

(ii) otherwise-a translation of the text of the original publication.

(3) Subrule (2)(b) must be complied with in respect of radio and television publications.” (Italics added)

54. The main complaint is the plaintiff’s failure to provide proper extrinsic facts and particulars of identification.

The identification issue

55. In Lazarus (at 191-192), Hunt J stated:

“The plaintiff should also have given in his Statement of Claim particulars of the identity of the persons to whom the publication is alleged to have been made. The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial or trivial damages (Fullam v Newcastle Chronicle & Journal Ltd (supra), at 659), and the application of the defence of unlikelihood of harm afforded by s 13 of the Defamation Act (Chappell v Mirror Newspapers Ltd (Court of Appeal, 14.6.1984, unreported), at 13), will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published.”

56. These principles extend to publication in newspapers (Lazarus at 193). They also extend to publications on the Internet, because of the concurrent obligation to provide particulars of publication in the form of the date and place of downloading: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

57. These principles are the basis of r 15.19 UCPR. The statement of claim does refer to a “class” of persons, but calling a group of persons a “class” does not make them a class, or satisfy the requirements of the test set out and discussed by the Court of Appeal in Younan v Nationwide News Pty Ltd [2013] NSWCA 335. The first step is to identify, with some precision, the extrinsic facts which the readers needed to possess. The second step is to identify that the matter complained of was published to a person or persons who had such knowledge at the time of reading the article:

“[14] As the plaintiffs’ Amended Statement of Claim recognised, it is an essential element of a claim in defamation that the plaintiff prove that the published statements were made “of and concerning the plaintiff” (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371). If, as here, the matter complained of did not expressly mention the plaintiff and the identity of the plaintiff as a person referred to would only be known to readers who had knowledge of special circumstances, it is necessary for the plaintiff to prove, first, that the matter complained of was published to a person or persons who had such knowledge and believed that the plaintiff was referred to (Steele at 373 - 4).”

58. That is something of a problem here, given the gap in time between the advertisements and the publications. That brings me to the next aspect of the test, which the NSW Court of Appeal explains as follows:

“[17] Secondly, for a plaintiff to succeed he or she is required to prove that not only were there readers of the article who, on the basis of the extrinsic facts of which they had knowledge, believed it to be referring to the plaintiffs, but also that those persons were “ordinary sensible readers” who could reasonably have come to that conclusion (Steele at 374).

[18] Whether identification has been established at trial is a question of fact, in the case of a jury trial, for the jury. Whether the evidence is capable of establishing it is a question of law (Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121). Thus it is a question of law for the judge “to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff” (Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; Aust Torts Reports 81-932; at [43] quoting Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). Unless an affirmative answer can be given to the question of law, the case should not, in the case of a jury trial, be left to the jury (Steele at 364 - 5).

[19] On the assumption that the present plaintiffs’ pleading and particulars defined the ambit of the evidence that they would be able to lead at the trial, the analogous question of law of whether the plaintiffs’ allegations were, if proved by evidence, capable of proving the identification element of the plaintiffs’ cause of action was able to be determined prior to the trial, with a view to dismissal of the proceedings if the answer was in the negative. This was the course taken by the primary judge, utilising the provisions of UCPR Pt 28 allowing for separate determination of questions arising in proceedings. As explained by Hunt J in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 122 and following, in the defamation context, as in others, this procedure is distinct from the court’s jurisdiction to strike out proceedings as manifestly groundless (or indeed to give summary judgment) where the principles stated in General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; 112 CLR 125 (and more recently in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118) are applicable. That jurisdiction is presently to be found in UCPR Pt 13, concerned with summary disposal, and UCPR r 14.28, concerning the striking out of pleadings.

[20] Unlike the summary disposal or strike out jurisdiction, where the question for the court is, in effect, whether the opponent’s point is unarguably bad, determination of a point as a separate question simply requires its consideration as on a final hearing, that is, whether it has been established on the balance of probabilities. The circumstances in which it is appropriate to order under Pt 28 that a separate question be determined need not be discussed here as there was no challenge to the primary judge’s decision to take that course. It is sufficient to note that that course will often be appropriate where, as here, the determination of a question of law in one way will dispose of the proceedings.

[21] Notwithstanding that the General Steel Industries approach was inapplicable in the present case, the parties proceeded before the primary judge upon the basis that it did apply. Nevertheless, that is not of significance because the question separately determined here itself involved, as does the General Steel Industries approach, a consideration of possibilities. That is, the question required consideration of whether an ordinary sensible reader (with the particularised extrinsic knowledge) could reasonably have come to the conclusion that the article referred to the plaintiffs. The parties, and the primary judge, treated this as the question for determination and did not suggest, based on the General Steel Industries principles, that it was necessary to consider whether it was unarguable that ordinary sensible readers could not have come to that conclusion.”

59. The role played by particulars of extrinsic facts and identification in this exercise is vital. A party cannot say, as the plaintiff does here, that these are particulars which can be added to after discovery (a course unlikely to be productive of such information in any event), or at the trial. The particulars which are provided need to be sufficient when pleaded, as the court went on to stress at [22]:

“[22] Returning to the assumption I made earlier concerning the role of the particulars in the present case (see [19] above), I note that before this Court the plaintiffs contended that their particulars would not have confined the evidence that they could have led at the trial. I do not accept this to be the case. Pleadings and particulars “enable the relevance and admissibility of evidence to be determined at the trial” (Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664). A plaintiff will not be restricted by his or her particulars if evidence extending beyond the particulars is led without objection and a broader issue than particularised is litigated, but the particulars should subsequently be amended to conform with the evidence (ibid; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497). That a defendant may choose not to object at a trial to evidence going beyond the plaintiff’s particulars or that the court may at a trial give a plaintiff leave to amend his or her particulars, does not derogate from the principle that the plaintiff’s pleadings and particulars define the ambit of his or her case and thus provide a proper basis for assessing whether the plaintiff’s case should be permitted to go to trial.”

60. Evidence of publication to a person or a class of persons knowing the extrinsic facts is essential for the following reasons:

1. The cause of action is not complete without evidence of publication to a third party.

2. The extent of publication may be relevant to the defences to be pleaded (for example, the very nature of the class may indicate duty and interest features relevant for qualified privilege at common law).

3. The particulars of identification may be relevant to limitation issues: Emmerton v University of Sydney (1970) 2 NSWR 633.

61. It is for all these reasons that Hunt J warned (in Lazarus at 194) that the plaintiff must “name those persons, or suffer the loss of his action“.

62. The problem with the generalised references to advertisements is that the subject matter and the references to the person(s) the subject of the matters complained of vary greatly from one article to the next. The mere fact that the plaintiff advertised his services as a fortune teller or faith healer on radio and in the defendant’s newspaper in the years prior to publication of one or more of the matters complained of is not sufficient, without more, to be capable of identifying him in each of the publications. Only the fourth matter complained of even refers to these advertisements, or to the plaintiff carrying on the kind of business that he advertises.

63. There are statements of fact in the matters complained of suggesting that they are referring to each other, such as the sixth and eighth publications. Where identification is asserted to arise by reference to another publication (for example, the reference to the sixth matter complained of in the eighth matter complained of), that should be particularised, with careful attention to the identities of the persons who identified the plaintiff by reason of that reference.

64. The particulars of identification for all of the matters complained of fail the identification test to be exercised by the judge hearing the challenge (Younan v Nationwide News Pty Ltd at [22]). Who are the readers who know the facts in question, and when and where did they read the relevant matter complained of? How did the fact that the plaintiff advertised his horoscope and faith healing skills, on unknown occasions between 2008 and 2013, lead to his being identified by those persons in each publication? On the particulars as they currently stand, all particulars, except possibly those for the fourth matter complained of, are “unarguably bad” (Younan v Nationwide News Pty Ltd at [20]).

65. The plaintiff’s failure to identify himself with precision by reason of the details in the matters complained of is difficult to understand. For example, if he was present at the meeting with Mr Saleh and/or took steps to prevent media coverage of his “brawl” with the Ms Khadim, those are matters which it would be easy to particularise. Similarly, the plaintiff should identify with precision the advertising or other promotional material in which he stated that he had the backing of Mr Dawood and set out how those who read that material identified him as the person referred to in the fifth matter complained of.

66. These problems are only added to by the proposal to enlarge the six remaining publications by a claim that they were published on the Internet. A pleading that publication was made on the Internet is insufficient, without more, in establishing publication: Creative Resins International Ltd v Glassam Europe Ltd [2006] All ER (D) 178; Jenman v McIntyre [2013] NSWSC 1100. However, that issue is not yet before the court.

67. The particulars as they currently stand do not sufficiently explain how the plaintiff is identified. Failure to provide proper particulars of identification was for many years regarded as an insufficient basis for the dismissal of proceedings: John Fairfax Group Pty Ltd v Farley (Supreme Court of the Australian Capital Territory, Gallop, Burchett, Gummow JJ, 2 May 1994, unreported). That is no longer the case, given the approach taken by the Court of Appeal in Younan v Nationwide News Ltd, at [20] – [22].

68. This brings me to the other bases upon which Ms Amato submits that the claim should be struck out.

Want of prosecution and delay in defamation litigation

69. How should the issue of delay in litigation be approached? The parties each relied upon different approaches to this issue over the past 15 years. Mr Walton relies upon the principles enunciated in Hoser v Hartcher [1999] NSWSC 17. Ms Amato relies upon Kang v Australian Broadcasting Corporation [2015] NSWSC 893, which in turn endorses the principles set out in Bi v Mourad [2010] NSWCA 17.

70. Mr Walton submits that the Hoser v Hartcher checklist has not been made out here. In particular, a delay of three years was considered acceptable. In the present case, there has only been delay since August 2015, a matter of a few months.

71. Hoser v Hartcher has been cited with approval by the New South Wales Court of Appeal (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]), Supreme Court (Templar v Watt [2014] NSWSC 937) and Administrative Decisions Tribunal (Fei v Director-General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109 at [58], cited most recently in Whiteoak v State of New South Wales [2012] NSWADT 135).

72. In Bi v Mourad Sackville AJA stated at [41]:

“[41] The Judicial Registrar stated the principles governing the application in terms which recognise that the ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. On one view, the statement of principle derived from the judgment of Simpson J in Hoser v Hartcher [1999] NSWSC 527 may be somewhat too generous to the claimants: cf Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Aon Risk Services Pty Ltd v Australia National University [2009] HCA 27; 239 CLR 175; Civil Procedure Act, ss 56–60. In any event, her Honour’s statement of the relevant principles reveals no error.”

73. Allsop P concurred at [46] with Sackville AJA’s additional comments and went on to state at [49]:

“[49] In particular, I would like to add that careful attention to the Civil Procedure Act and ss 56–60 is what is required in each case. While I in no way criticise the terms of Hoser v Hartcher as laid down at the time that decision was made and without wishing to be critical in any way of it, I would say that the surest guide to be employed in any exercise of the discretion of this kind is a careful attention to the terms of the Civil Procedure Act, in particular ss 56–60.”

74. Young JA disagreed, and restated the principles of Hoser v Hartcher, and it remains a decision to be followed.

75. However, there are some reasons for care in relation to its application:

1. The subsequent enactment of the Civil Procedure Act2005 (NSW), especially ss 56-60; see the comments to this effect of Allsop P and Sackville A-JA in Bi v Mourad as set out above.

2. Hoser v Hartcher was handed down before major legislative changes were made to defamation legislation and also to defamation case management in New South Wales (such as the reduction of the limitation period to one year) and the adoption of Practice Notes in the Supreme and District Courts. Although the uniform defamation legislation means that interstate practice decisions are often cited with approval, Hoser v Hartcher has never even been referred to outside New South Wales.

3. Where Hoser v Hartcher has been applied, this has been only in a general sense, with modifications, as was the case in Fei v Director-General, Department of Commerce (State of NSW) (No 2).

4. The checklist in Hoser v Hartcher is limited to the facts of that case, namely a simple delay of 3 years in prosecuting a claim, and does not refer to other delay issues such as commencing on or shortly before expiry of the limitation period, deliberately allowing the limitation period to expire before commencing proceedings, inadequate pleadings, or failure to comply with timetables. Those kinds of delays may require examination of other principles. In particular, the decision should not be read as endorsing delays of three or more years in litigation.

76. Ms Amato referred to the approach taken by McCallum J in Kang v Australian Broadcasting Corporation, where a similarly short period of time was involved, and the plaintiff was for part of that time a litigant in person. I commend the approach taken by McCallum J, but consider that each case must turn on its facts.

77. I formally note submissions made by Mr Walton to the effect that greater importance should be placed on the impact of the Civil Procedure Act 2005 (NSW) than was the case in Kang v Australian Broadcasting Corporation. In addition to his reliance upon Hoser v Hartcher, Mr Walton submitted that the circumstances in which parties should relist matters needs to be considered in the context of the overriding principles of the Civil Procedure Act 2005 (NSW). He argued that Kang v Australian Broadcasting Corporation had a limited application because it turned on its own facts, and that a better explanation of these principles was to be found in Kunc J’s judgment in Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437:

“[69] First, it must be emphasised that s 56 of the CP Act and its related provisions are not just pious exhortations to be acknowledged and then ignored. They have real consequences for the clients and lawyers in this court and are to be applied rigorously in the conduct of all litigation, great or small.

[70] Second, solicitors and barristers are members of a profession. It is of the essence of a profession that relations between its members are characterised by civility, trust and mutual respect. The court sees far too much correspondence between lawyers that bears none of those qualities. They must never be abandoned at the behest of clients or in the misguided belief that that is what successful representation of a client requires.

[71] Third, many interlocutory issues can be solved or at least better understood by a simple telephone call. It has been suggested that some lawyers no longer speak to their opponents on the telephone for fear of being “verballed“ in an affidavit. If that is true, then it is a retrograde development which the CP Act gives legislative authority to the profession to reverse.

[72] Fourth, if one party requires information or an explanation from another, then the request should be reasonable and focused. A clear justification for the request should be given.

[73] Fifth, faced with a reasonable request, the recipient should not automatically respond with an unthinking denial of legal entitlement to the information. The obligation to facilitate the overriding purpose will sometimes require information or an explanation to be given to which the party may not be “legally“ entitled. Furthermore, if it is information which would be required to be produced in response to a subpoena or notice to produce then it is contrary to the s 56 obligations of a party and that party‘s lawyers to resist providing it unless and until the court‘s process is invoked. If there is concern for the confidence of such material then an undertaking of the kind considered in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 (which would apply if the information were provided under compulsion) should be sought and given.

[74] Sixth, the filing of a motion should be regarded as a last resort. It will inevitably add to costs, and delay the progress of the matter to hearing.

[75] Seventh, no motion should be filed without the putative respondent being given final, written notice of the relief to be sought, the reason for it and a reasonable opportunity to respond. The court sees far too many examples of deadlines of a day or less being set in correspondence. My own view, as a rule of thumb, is that three clear business days is reasonable to allow for a response on any matter of substance. If the recipient requires more time to obtain instructions, then they should send a prompt request with an explanation to that effect and an indication of when a proper reply will be provided. In relation to challenges to pleadings it was once the practice for opposing counsel to confer before a strike out motion was filed. To the extent that practice has been lost, it should resurrected.

[76] Eighth, once a motion is filed, the parties are obliged to ensure that only the real or essential issues are litigated. This calls for discrimination in both the preparation of evidence and argument. As to the former, real thought must be given to the precise evidence required. The practice of exhibiting “everything“ or “the file“ to provide an evidentiary cornucopia from which only a few morsels are ultimately selected to be referred to in argument is completely unacceptable. Where it becomes apparent that an application or argument is unsustainable, it should be abandoned, and that abandonment notified to the other parties, at the earliest opportunity.

[77] Ninth, where delay or unnecessary expense has been caused by conduct which is contrary to the obligations of parties and their lawyers under s 56 and its related provisions, parties and lawyers should not be in any doubt that in appropriate cases the court will exercise its power in relation to costs (see s 56(5) of the CP Act) to provide some measure of justice in response to such conduct.”

78. Mr Walton stated that none of these steps had been embarked upon by the defendant, who had brought this application hastily, in circumstances where they themselves had started the ball rolling by seeking an adjournment of four weeks.

79. These submissions are of no assistance. First, the defendant has in fact taken precisely the approach recommended by Kunc J, in that, rather than bringing a summary dismissal claim or lengthy interlocutory arguments, the plaintiff was given two opportunities to replead, a third opportunity to provide documents, and plenty of notice of this application. The reluctance of the plaintiff’s legal advisers even to provide the amended statement of claim that was supposedly “ready to be filed” is indicative of the plaintiff’s unexplained reluctance to proceed.

80. Second, the situation in these proceedings has gone beyond the problems outlined by Kunc J.

81. Third, the observations of Kunc J did not relate to defamation proceedings, and the approach of McCallum J in Kang v Australian Broadcasting Corporation should be preferred.

82. This brings me to a consideration of r 12.7 UCPR and s 61(3)(a) Civil Procedure Act 2005 (NSW).

Defamation litigation and the “reluctant gladiator”

83. As noted above, the defendant’s application is brought on two bases:

1. Rule 12.7 UCPR, namely dismissal for want of due dispatch; or

2. Section 61(3)(a) Civil Procedure Act 2005 (NSW), namely dismissal for failure to comply with court directions.

84. The relevant considerations for r 12.7 and s 61 generally (which are usually dealt with interchangeably where, as is the case here, both kinds of delay are involved) were most recently considered by Macfarlan JA in Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 at [37]-[44], and may be summarised as follows:

1. Where there is delay, the explanation or excuse which is offered is relevant, as is the satisfactoriness (or otherwise) of that explanation or excuse;

2. Evidence of particular prejudice to the opposing party by reason of the delay may be relevant (at [40]);

3. The principles underlying ss 56-60 Civil Procedure Act2005 (NSW) are of fundamental importance when determining applications for dismissal for want of due dispatch.

85. Although not referred to explicitly in any of the judgments set out above, I consider it relevant to note that there are different types of delay in defamation litigation. These are as follows:

1. In Itek Graphix there was only one cause of action, unlike defamation claims, where there may be a number. Although there is no statement directly to this effect in decisions concerning delay, where a plaintiff has deliberately allowed a limitation period to expire without commencing proceedings, that should be viewed as a significant handicap to indulgences granted where there is delay in the litigation concerning proceedings which are commenced within time.

2. It has long been recognised that a plaintiff who commences an action at the very end of the limitation period and thereafter conducts the proceedings in a dilatory fashion does so at his or her peril. This is particularly the case in relation to the third matter complained of in these proceedings. In Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998), Levine J stated:

“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 secondly, 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”.

3. Delay in litigation may be a deliberate tactic, or may be due to incompetence, or to some very good reason, such as ill health. Failure to differentiate between these reasons and to deal with the reason for delay can lead to unfairness or injustice: Facer v Wolfe (2013) 17 DCLR 391. These issues are relevant when considering a range of delaying behaviours, such as failure to comply with orders, overuse of the court system or action which is not constructive.

Lack of constructive action

86. Ms Amato submits that no constructive action has been taken since the Statement of Claim was filed in circumstances of some haste by reason of the looming limitation period for the third matter complained. Ms Amato particularly points to the following:

1. The failure to provide the matters complained of in full and proper form;

2. The failure to provide the schedule referred to in the pleading as “schedule @@@” despite being directed to do so on two occasions (13 August and 10 September 2015), which are the essence of the plaintiff’s case on identification;

3. The failure to serve the foreshadowed proposed Amended Statement of Claim despite consenting on three occasions to orders that they do so (13 August, 10 September and 7 October 2015). Additionally, although Ms Audisho confirms “that the advertisements have all been translated and the Amended Statement of Claim is ready to be filed” (affidavit of Ms Natalie Audisho sworn 17 November 2015, paragraph 35), it was only produced in answer to a call by Ms Amato for this document during the course of this application, on the basis that it was referred to in an affidavit. Ms Amato, having read that document, submits that it is just as deficient as its predecessor.

87. Ms Amato particularly relies upon what she calls the unsatisfactory nature of the explanation for the delay. There is no affidavit by the plaintiff or the translator, but the explanations of problems with translations set out at paragraphs 26 and 29 of Ms Audisho’s affidavit of 17 November 2015 are difficult to accept. Those conversations are (paragraphs 26 and 29 of Ms Audisho’s affidavit):

“26. On or around 18 October 2015, the plaintiff and I had a conversation to the following effect:”

Plaintiff: I have found some old articles dated from 2008 which include advertisements in the Panorama newspaper. I have spoken to the translator Mike Nasir. He told me it will take about four (4) weeks to complete the translations and that they will be extremely costly, even though Mike provides these services to me at a reduced cost.

Me: I understand but we need to have them.

…

29. I contacted the translator, Mike Nasir and we had a conversation to the following effect:

Me: We need the translations as soon as possible.

Nasir: These articles are extremely complex. They will take at least a month.

Me: It’s a matter of urgency. Can you do them any faster please?

Nasir: I can’t make promises but I will try to complete all the translations within two (2) weeks. The words are extremely difficult and hard to translate into the English language.

Me: Thank you, I appreciate it. I will get advice on what is the minimum we need so maybe you can just do those.”

88. Ms Amato’s criticisms of the inconsistency and unreliability of this evidence are well-founded. The conduct of all the plaintiff’s legal advisers was incompetent, and is acknowledged to be so, and Ms Audisho’s attempt to blame the translator does not put her in a good light. However, courts should be cautious about visiting the consequences of such incompetence on the litigant (Dijakovic v Perez [2015] NSWCA 174), particularly where the cause of action is complex and the client entirely reliant upon expert advice.

Conclusions

89. The plaintiff has an inadequately drafted statement of claim for which he does not seek leave to amend. The amount of delay is small in terms of time, and the principal problem is want of constructive action, rather than failure to comply with an order to amend to correct an error the subject of court rulings. The prejudice to the defendant is the costs of the proceedings, a prejudice which can be readily resolved by appropriate costs orders.

90. The deficiencies in the plaintiff’s statement of claim have not yet been the subject of argument. Some are frankly shameful, such as the commencing of proceedings for two claims which are out of time; others may be capable of rectification, although the degree to which one or more of the causes of action can be rescued is unclear. What course should the court take – strike out the proceedings now, or order the plaintiff to provide the missing information?

91. In the course of the hearing, much of the missing information – the missing matters complained of and the advertisements – was provided. The real difficulty is that, until the plaintiff provides proper particulars of identification and of extrinsic facts (these being largely unchanged in the proposed amended statement of claim provided during the hearing), there seems little point in these proceedings continuing.

Should the plaintiff be permitted to continue the proceedings and, if so, on what terms?

92. The current statement of claim would not survive an application for it to be struck out, and the draft amended statement of claim is no better. The plaintiff’s unwillingness to amend to correct obvious pleading errors is hard to understand. Whether it is in the hope of going to trial without disclosing weaknesses in the case, or due to the same incompetence that has been admitted to in Ms Audisho’s affidavit, it certainly puts the plaintiff in a difficult position.

93. Ms Amato submits that the plaintiff should not be permitted to amend because his legal representatives have not sought leave, and that I am not able to make orders which include requiring the plaintiff to amend because his legal advisers have not sought such an order. That would certainly be the case if I were the trial judge, but the role of the case management judge (particularly in a specialist list) is different, as the Queensland Court of Appeal explained in Bidner v Queensland [2000] QCA 368. Nevertheless, Ms Amato would need to be heard on any such application, so I cannot take this step, particularly given the likelihood that claims for publication on the website appear to be foreshadowed if leave to amend is granted.

94. In the course of the hearing, I suggested the adjournment of the argument in order to permit the plaintiff to make a final attempt at either redrafting his particulars, or the whole of the statement of claim, and Mr Walton suggested that this would be possible if he were given 14 days. While I continued to hear the defendant’s application at Ms Amato’s request, I have now come to the view that the appropriate procedure is to consider giving the plaintiff this final opportunity rather than taking the drastic step of striking out the whole claim.

95. My reasons for this are as follows. First, defamation proceedings are complex, and the pleading of extrinsic facts and identification need to be approached with particular care. Mr Walton stated that this was the first time he had drafted a statement of claim for defamation and, while Ms Amato was critical (and indeed suspicious) of this claim, a degree of latitude should be given to relatively inexperienced practitioners, especially where there is a language barrier with the client. Second, while the likelihood of the plaintiff being identifiable in relation to some of the remaining claims is hard to understand, the advertisements and other material set out in the particulars of identification (such as the description of the office and the reference to radio advertising) go some way to suggest that the plaintiff might be the “charlatan and imposter” who attempted to charge a client $3,000 for performing an exorcism (the fourth matter complained of).

96. Although the delays in the present case closely resemble those of Kang v Australian Broadcasting Corporation, I consider the plaintiff should be given a last chance to articulate identification and extrinsic facts. This is not a grant of leave to replead, but an order to provide particulars of extrinsic facts and identification for the remaining five claims for defamation on the statement of claim as currently pleaded (namely in relation to the print publication only). If those particulars are adequate, the issue of what leave to replead the plaintiff may seek, and should be granted, may then be clarified.

97. The plaintiff’s legal representatives have had plenty of opportunity, since the hearing of this motion, to reflect on the inadequacies of their pleadings, having had the benefit of Ms Amato’s insightful analysis of the failure to provide proper particulars of identification and extrinsic facts. They should therefore be able to provide these particulars in the period of time I have allotted.

98. However, the manner in which those particulars should be provided should be not only prompt, but with verification and in affidavit form. This was the course adopted by Levine J in Campbell v Regional Publishers Pty Ltd, where proceedings were commenced late and conducted in a dilatory fashion by a plaintiff who provided inadequate particulars of identification. Levine J stated:

“Complaint has been made, as I have noted, as to the form and adequacy of the particulars of extrinsic facts and identification. I consider it appropriate that when redrafted, these particulars be verified, not only conformably with the statements of Hunt J in Lazarus v Deutsche Luftansa AG (1985) 1 NSWLR 189 at 192-196 and Brown & Anor v Australian Broadcasting Corporation (1973-98) A Def R 40,061 at 40,063, but also at this late stage to present a clear case to the defendant on those issues and to that extent on the ambit or extent of publication it will have to meet.”

99. The particulars of extrinsic facts and identification for each remaining publication should be made with verification by the plaintiff who, if those particulars are inadequate, may then be cross-examined about them. There must be a separate set of particulars for each publication, including the publication on 5 March 2015, for which there are currently no particulars of identification, and those particulars should name the person or persons who identified the plaintiff.

100. I have accordingly made a self-executing order that the particulars for the five remaining publications be provided, in this form, by Wednesday 9 December 2015 at 4 pm, and these proceedings will be listed on Thursday 10 December 2015 at 9 am for directions so that the defendant can then consider its position.

Costs

101. Proceedings should never have been commenced in relation to the publications which are the first and second matters complained of, as they were known to the plaintiff’s legal representatives to be out of time. Ms Audisho acknowledged the first and second matters complained of were out of time in her affidavit:

“3. The Statement of Claim was filed on 25 June 2015. There was some urgency to file the Statement of Claim because the limitation period on the First and Second matters complained of had expired and the limitation period on the Third Matter Complained Of was due to expire on 26 June 2015.

4. It was intended that an application would be made to extend the limitation period on the First and Second Matters Complained of on the basis that the Concerns Letter had been served prior to the expiry of limitation. However, this plan was later abandoned.” (Affidvait of Natalie Audisho sworn 17 November 2015)

102. The plaintiff’s failure to amend to exclude these claims (despite being granted leave on 13 August or 7 October 2015) and his persistence with them until part way through this hearing may be the subject of an application for an order for costs other than on the usual basis. I shall, however, wait for the parties to address me on this issue before determining it, as well as the issue of what costs order should be made in relation to the costs of the third matter complained of. Proceedings are at an end for these three causes of action, and the parties should address s 67 Civil Procedure Act 2005 (NSW) in this regard.

103. As I have taken the precaution of leaving the defendant’s application on foot, I propose to determine all costs issues after the defendant has had an opportunity to consider her position following production of the revised particulars of identification. This will also enable the plaintiff’s legal advisers, given their acknowledgement of mistakes and oversights, to consider whether they should offer to bear the burden of any costs order that is made.

104. Costs are accordingly reserved, with liberty to apply.

Orders

1. The plaintiff’s claims for defamation for publication of the first and second matters complained of on 12 June 2014 are struck out and dismissed pursuant to s 14B Limitation Act 1969 (NSW).

2. The plaintiff’s claim for defamation for publication of the third matter complained of on 26 June 2014 is struck out and dismissed pursuant to s 61 Civil Procedure Act 2005 (NSW) and r 12.7 UCPR.

3. A self-executing order that the plaintiff is to serve particulars of extrinsic facts and identification for each of the five remaining matters complained of (published 10 July 2014, 2 October 2014, 6 November 2014, 5 March 2015 and 21 May 2015) by 4pm Wednesday 9 December 2015, such particulars to be provided with verification.

4. The defendant’s application for summary dismissal of the five remaining causes of action is stood over for further hearing after compliance with the steps set out above, and listed for directions on Thursday 10 December 2015 at 9am.

5. Costs reserved with liberty to apply.

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Decision last updated: 30 November 2015