Belacho v Farrington No. Scgrg-00-579

[2000] SASC 301

[2000] SASC 301

BELACHO V FARRINGTON

Magistrates Appeal: Ex Tempore

1................ LANDER J....... The plaintiff commenced proceedings against the defendant by issue of proceedings out of the Magistrates Court on 14 March 2000. The summons had annexed to it number of documents, none of which complied with any sort of pleading.  A reading of the documents annexed to the summons indicates that the plaintiff’s claim was in slander in relation to a statement alleged to have been made by the defendant on 5 March 2000.

1. The defendant filed a defence on 5 April 2000 in which the defendant denied having made any statement to the plaintiff in the terms alleged in the documents annexed to the summons.

2. On 1 May 2000 the matter came on before Mr Kleinig SM for directions. He ordered the plaintiff to file amended particulars of claim within 14 days. I must say that the order is not precise and it is not entirely clear what was intended by the order.  The order did not, for example, strike out the existing statement of claim, or purported statement of claim. In any event, the magistrate also directed the defendant to file an amended defence seven days thereafter disclosing all available legal defences. The magistrate adjourned the directions hearing to 1 June 2000 “to ensure compliance with the above orders” and indicated that he would forward the matter to mediation at 10.15 am on that day.

3. He made orders for discovery and made an order that costs be in the cause. There is a note in his directions in the following form:

   ‘1..... P has been advised by me that on current stated pleadings, her claim will not succeed.

   2.      RHK SM disqualified from hearing the trial, if it proceeds.’

4. On 8 May 2000 the plaintiff filed a further summons annexed to which were a number of documents. Those documents included a document with assertions in separate paragraphs which purported to be a statement of claim.  A number of letters which had passed between the plaintiff, the Nurses’ Board and a number of other documents were also annexed.  Again, it has to be said that the plaintiff’s documents do not comply with the pleading rules.  However, it is clear enough that the plaintiff’s claim is against the defendant in slander for words spoken by the defendant on 5 March 2000 to the plaintiff, but in the hearing of other persons. The ‘statement of claim’, using that term loosely, refers to an incident on 5 May 2000, but that is clearly a typographical error.

5. It is also clear that in that further statement of claim the plaintiff complained about a restatement of those words to another person on another occasion.  However, whilst those matters are clear, it must be recognised that the plaintiff’s claim, as presented, did not comply with the rules of pleading.  On 10 May 2000 the defendant applied for an order striking out the plaintiff’s amended statement of claim. That application came on before Mr Myers SM on 24 May 2000.

6. On that occasion Mr Myers SM adjourned the matter until 7 June 2000 to enable the plaintiff to get legal advice. He reserved the question of costs. Implicit, in my opinion, in his order was an order vacating the order made by Mr Kleinig SM that the matter be adjourned to 1 June 2000.

7. On 1 June 2000, without the attendance of either party and without any application by the defendant, Mr Kleinig SM, apparently of his own motion, and notwithstanding Mr Myers SM’s orders of 1 June 2000, made the following orders:

   ‘1..... P’s action dismissed:

   (1)    For non-attendance by P.

   (2)    For non-compliance with my orders made on 1/5/2000.

   2.      No order as to costs, as D not present to claim same’.

8. It is surprising that the order was made when there was presently before the court an application to strike out the summons and statement of claim of 8 May 2000, which had been adjourned to 7 June, to enable the plaintiff to get legal advice.

9. There can be no doubt on the order made by Mr Kleinig SM he purported to strike out not only the statement of claim, but also the whole of the plaintiff’s proceedings.

10. On 7 June 2000 the plaintiff and the solicitor for the defendant appeared before Mr Myers SM.  There is a note on the file in the following terms:

    ‘P wishes to file amended Claim to now revert to MC jurisdiction - claim perused. 

    Trib. Considers proceedings inapprop - abuse of process.

    Nurses’ Board proceedings are being held up whilst P currently sues a wit for defamation

    - Further agree that proceedings frivolous & vexatious 

    - Cost to be D’s to be taxed unless agreed’.

11. It is not clear to me, from those notes, what order was made by Mr Myers SM, except that he made an order for costs. Indeed, it is not clear to me, having regard to the order made by Mr Kleinig SM of 1 June 2000, what order Mr Myers SM could have made in relation to the proceedings themselves. If Mr Kleinig SM’s order was made within jurisdiction, there were no proceedings upon which Mr Myers SM could have made any order except, perhaps, an order for costs.

12. It is also not clear to me, from those notes, what tribunal Mr Myers SM is referring to when he has referred to ‘The Trib considers proceedings were inappropriate, as Nurses Board proceedings were being held up.’

13. It may be that these proceedings were holding up proceedings in the Nurses’ Board, but that would not mean that these proceedings were necessarily an abuse of process or that, as he has further noted, they are frivolous and vexatious.

14. The plaintiff has appealed to this Court against the order made by Mr Myers SM on 7 June 2000. The grounds of appeal are not stated in the notice of appeal, but are referred to again in attachments to the notice of appeal and in an affidavit, both of which were filed at the same time as the notice of appeal. The plaintiff recites the matters to which I have referred in the affidavit and complains of the order made by Mr Myers SM.

15. She has not appealed against the order made by Mr Kleinig SM on 1 June 2000.  There is good reason for that. She was not aware of that order until this morning. Mr Mills, who appeared for the respondent on this appeal, was also unaware, until this morning, that Mr Kleinig SM had made an order dismissing the whole of the plaintiff’s claim on 1 June 2000.

16. Mr Mills generously and appropriately, in my opinion, indicated that the plaintiff should have leave to amend her notice of appeal so as to include an appeal against the order made by Mr Kleinig SM on 1 June 2000.

17. There will be an order that the plaintiff have leave to amend her notice of appeal to appeal against the order made by Mr Kleinig SM on 1 June 2000.

18. The plaintiff’s notice of appeal, therefore, can be treated as an appeal against both orders made by Mr Kleinig SM on 12 June 2000 and Mr Myers SM on 7 June 2000.

19. Unfortunately, the appeal itself suffers from another of procedural defect, apart from the defect to which I have already referred. The orders from which the appeal should be brought were, in my opinion, interlocutory in nature: T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312. If those orders are interlocutory, then there is no right of appeal to this Court from those orders: r 96B.02 of the Supreme Court Rules.

20. The plaintiff has not obtained a certificate from a magistrate that the proposed appeal involves a point of law of difficulty or of importance, or a point of sufficient importance in the proceedings to warrant an interlocutory appeal being dealt with before final judgment in the action and, therefore, needs leave of this Court for any appeal to go forward: r 96B.02.

21. She has not sought leave to appeal to this Court and the appeal is, therefore, on the face of it, incompetent.

22. However, again, Mr Mills has appropriately, in my opinion, conceded that the appeal should be allowed to go forward and has, therefore, conceded that leave should be granted.

23. It seems to me, therefore, that I should treat the notice of appeal as an application for leave to appeal: Nash & Nash v Lapins (Judgment No. S6345, Lander J, 27 August 1997).  Mr Mills concedes there would be no prejudice to the defendant in doing so.

24. The plaintiff has been unrepresented throughout and, whilst unrepresented parties must comply with the Rules of Court, like any other party, regard may be had, it seems to me, to the very great difficulties that unrepresented parties have in attempting to prosecute proceedings in any of the civil courts in this state.

25. The rules of the Magistrates Court are significantly less complex than the rules of the higher courts and I think are easier to comply with than those of the higher courts. But, at the same time, unrepresented parties find it difficult to understand the complexities associated with litigation.  In this case, the plaintiff has embarked upon proceedings in slander. Proceedings in defamation are notoriously difficult, even for those who are practise in the area.

26. There is no doubt, in my opinion, that the two statements of claim that were filed in the Magistrates Court were defective. However, the plaintiff has exhibited to the affidavit filed in this Court a particulars of claim which, in my opinion, does comply with the pleading rules and does disclose two causes of actions.  In my opinion, if the particulars of claim were allowed to be filed in the Magistrates Court, the defendant would not be embarrassed.

27. The particulars of claim identify the words spoken and the person to whom the words were spoken. They show that the words were alleged to have been spoken on two separate occasions to separate persons. The plaintiff has, in those draft particulars of claim, indicated the imputations which she says arise out of the natural and ordinary meaning of the words, and she has indicated precisely her claim for damages.

28. Because the claims are in slander it might have been better to plead that the words were defamatory of and concerning the plaintiff in her trade, profession or calling, so as to identify the claim as being one which was actionable per se, but the omission of that plea, in my opinion, is not embarrassing.

29. The particulars of claim now indicate a cause of action of sufficient particularity for the defendant to plead to and for the matter to be litigated.

30. In those circumstances, I believe that it would be appropriate to make the following orders:

    1...... Grant leave to the plaintiff to appeal from the decisions of Mr Kleinig SM of 1 June 2000 and Mr Myers SM of 7 June 2000.

    2...... Allow the appeal and set aside the orders made by Mr Kleinig SM on 1 June 2000 and the order of Mr Myers SM made on 7 June 2000.

    3...... Strike out the statement of claim filed by the plaintiff on 8 May 2000.

    4...... Allow the plaintiff seven days in which to file the particulars of claim in the form of Exhibit A to her affidavit sworn on 28 June 2000 and filed in the Supreme Court.

    5...... The plaintiff to pay the defendant’s costs in the Magistrates Court of and incidental to the application of 10 May 2000 and the attendances before the Magistrates Court on 24 May 2000 and 7 June 2000.

    6...... The plaintiff to pay the defendant’s cost of this appeal fixed at $150.