Crux - Southern Cross University Post Graduate Association Inc v Watts

[2013] NSWDC 254

District Court

New South Wales

Medium Neutral Citation:

Crux - Southern Cross University Post Graduate Association Inc v Watts & Ors [2013] NSWDC 254

Hearing dates:

6 September 2013

Decision date:

06 September 2013

Before:

Gibson DCJ

Decision:

(1) The plaintiff's application to extend time to serve the statement of claim is dismissed, but the plaintiff is granted leave to amend the statement of claim (without prejudice to the rights of the defendants to object to failure to serve the statement of claim filed on 16 April 2013).

(2) Amended statement of claim is to be filed and served upon the defendants in 14 days.

(3) Matter stood over part heard to Friday 27 September 2013 before Gibson DCJ at 10:00am.

(4) Costs reserved.

Catchwords:

PRACTICE AND PROCEDURE - plaintiff files but does not serve statement of claim - causes of action poorly pleaded - application for extension of time for service - principles upon which time for service will be extended - whether time should be extended where the cause of action may be statute-barred - application for extension of time refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 6.2(4)(b)(i) and 10.21

Cases Cited:

Berger Investments Group Pty Ltd v Cocoon Pty Ltd [2011] NSWSC 122
Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Ghosh v Google Australia Pty Ltd [2013] NSWDC 146
Sleeman v Tuloch Pty Ltd [2013] NSWDC 43
Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Weston (in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq)) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80

Texts Cited:

-

Category:

Interlocutory applications

Parties:

Plaintiff: Crux - Southern Cross University Post Graduate Association Inc (ABN 16 447 031 300)
First Defendant: Alison Watts
Second Defendant: Lawrence Perry
Third Defendant: Craig Wilson
Fourth Defendant: Southern Cross University (ABN 41 995 651 524)

Representation:

Plaintiff: In person
Defendant: No appearance
Plaintiff: In person
Defendant: No appearance

File Number(s):

2013/117003

Publication restriction:

None

Judgment

1. These are my reasons for making orders refusing leave to extend time to serve the statement of claim in its current form, but granting leave to the plaintiff to file an amended statement of claim.

1. These proceedings have an unusual history. The plaintiff by statement of claim filed in the Sydney Registry on 16 April 2013 seeks orders as follows:

(1)   Written apology published within the Southern Cross University Newsletter "Discovery" or equivalent publication;

(2)   Loss and damages of $750,000;

(3) Interest at a rate of 7% thereon pursuant to the s 100(2) and (2) of the Civil Procedure Act 2005 (NSW) from 31 May 2012 until payment or judgment; and,

(4)   Costs.

1. The matter complained of is a publication on the Crux website at a site hosted by the fourth defendant. The claim brought against the defendants is firstly that the fourth defendant "through its own negligence" allowed the second defendant to gain access to emails which the first, second and third defendants then published on this website, and that on 8 March 2012, the first to third defendants distributed copies to members and non-members of the plaintiff at the premises of the fourth defendant on or about 8 March 2012.

1. These publications are asserted to be "defamatory" (paragraph 17) because they "contained mistruths, imputations and false statements with respect to the plaintiff and the committee".

1. The matters complained of are not attached, the imputations are not set out, the particulars of damage include claims for persons other than the plaintiff, the nature of the publication and its extent are unclear, and the proceedings were commenced outside the 12-month limitation period in which actions for defamation must be brought.

1. There appear, however, to be other causes of action. Apart from the references to "negligence" by the fourth defendant, if the matter complained of is in fact a document of the plaintiff's which is alleged to have been obtained in some improper manner, the cause of action may not be defamation at all. The hopelessness of the pleadings is such that the precise cause of action is completely unclear.

1. However, the principal problems that concern me today are not the form and content of the pleading, but the circumstances in which these proceedings have been before the court three times between 10 May 2013 and today without the statement of claim being served in accordance with r 10.21 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

1. The plaintiff was represented before me this morning by Mr Hallman, who advised me that while he had previously been a solicitor he is now in very poor health. He appeared by telephone link as his health precludes him from travel.

Procedural history

1. A short history of these proceedings is as follows. On 6 March 2013, Mr Hallman completed an application to postpone filing fees in the District Court at Lismore. He also appears to have filed the statement of claim on that day. However, the Registry rejected the statement of claim and returned it to him, on the basis that defamation proceedings should be commenced in the Sydney Registry and not in the Lismore Registry.

1. The proceedings were refiled by the plaintiff in the Sydney Registry on 16 April 2013. By that date, any defamation claim was out of time. A return date of 10 May 2013 was given by the Registry.

1. On 10 May 2013 these proceedings were listed before Bozic SC DCJ. There was no appearance for any of the parties. Bozic SC DCJ stood the matter over for directions to 24 May 2013. His associate made some inquiries, and the following notation appears in the orders:

"Statement of Claim on file filed 16.4.13. Nothing else on file.

Associate telephoned Mr Hallmann [sic] who had filed statement of claim at 10.20am on his mobile. Brief conversation with Mr Hallman who said that he was not aware matter in court today and had received nothing from the court and had not been advised that the matter was on. I said the matter was before Judge Bozic in the defamation list today and that he was proposing to stand the matter over for a week. I said statement of claim on file filed 16.4.13. He said he had not received anything from the court and queried whether he had a year to serve statement of claim. I said I could not give legal advice but would let HH know. The court will send out further documentation regarding the matter. He said he was not proposing to serve the statement of claim at this stage.

See also further email correspondence with the plaintiff on file."

1. The email correspondence referred to includes an email Mr Hallman sent to the court later that same day, stating that he had not received a sealed copy of the statement of claim but adding that it was "not our intention" to serve the statement of claim as "we were hopeful of resolving the matter".

1. On 17 May 2013, Ms Mills in the Court Registry emailed a copy of a letter sent by post confirming that the sealed copies were returned by the court to the address in the statement of claim. On 20 May 2013, the plaintiff was granted leave to appear by telephone for the directions hearing on 24 May 2013. He was notified that this request had been approved in the email of 20 May 2013.

1. On 24 May 2013, the only order made was that the proceedings was stood over for directions to Friday 16 August 2013. Mr Hallman appeared by telephone link.

1. On 16 August 2013, there was no appearance by either the plaintiff or the defendants. No fresh application had been made for the plaintiff to be represented by telephone link. This is an essential step, in that the relevant telephone number must be provided to the court, and the equipment set up to enable the taking of such a telephone call. As there was no appearance, I made the following orders:

(1)   Matter called three times at 10:30am, noting the prior failure to appear of the plaintiff and that it would appear that the statement of claim has not been served, matter stood over to Friday 6 October for the plaintiff to show cause why these proceedings should not be struck out for want of prosecution.

(2)   The Registrar is to notify the plaintiff and the defendants of these orders as follows:

(a)   By email to the plaintiff at [email protected];

(b)   By ordinary prepaid post to the defendants to the addressed in the statement of claim,

attaching a copy of the statement of claim.

1. Mr Hallman contacted the registry to say that the date of 4 October 2013 was not convenient, and the proceedings were relisted for today. The court not only notified Mr Hallman but endeavoured to notify the defendants. They have not attended court today.

The application to extend time for service of the statement of claim

1. When the matter came before me today, Mr Hallman first stated that he had served the statement of claim by post, two days ago. He said that he had not served the statement of claim beforehand, because he had been informed by a member of the Court Registry in April or May 2013 that the period of time for service of the statement of claim was six months.

1. I read out aloud the notation of the associate to Bozic SC DCJ. Mr Hallman was adamant that he had been given the six-month advice and he had relied upon it. He said that he has since been advised that the period of time is one month, and that he is now aware it is necessary to plead imputations and attach copies of the matters complained of. His application on behalf of the plaintiff was to extend time for service of the statement of claim.

1. The statement of claim as currently drafted is hopelessly pleaded. It is not simply that the publications in question are not attached and the imputations are not set out. There are many other problems, including whether this is a claim for defamation at all, the reference to claims for damage for persons other than the plaintiff, the nature and extent to which each of the defendants is asserted to have participated in any publication and whether publication has in fact occurred, since the complaint is of publication of the plaintiff's material firstly on its website and secondly at a meeting of the members of the plaintiff's organisation. In addition, the mere fact that the university provided the premises at which the second matter complained of was published would not, without more, amount to an act of publication: Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035.

1. Mr Hallman's explanation for the problems in drafting relate to the plaintiff's lack of funds, his lack of experience in defamation litigation and the fact that the plaintiff is a litigant in person. He also said that he was trying to have the matter mediated. On this basis, he seeks an extension of time to effect service.

1. Service of a statement of claim is an essential part of the commencement of proceedings. I am troubled by the inconsistent explanations given to the Registry, to Bozic SC DCJ's associate, and to myself today, as to why this fundamental step in litigation has not occurred. I do not accept Mr Hallman's claim that an unnamed person in the registry told him that he had six months to serve the statement of claim, because that is inconsistent with the statements he made to Judge Bozic SC's associate on 10 May 2013.

The principles relevant to extension of time for service

1. Rule 6.2(4)(b)(i) UCPR provides that a statement of claim remains valid for service for one month after the filing of the statement of claim. Rule 1.2 UCPR provides that the time for service of a statement of claim may be extended. The relevant principles are set out by the New South Wales Court of Appeal in Weston (in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq)) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 ("Weston") at [20] as follows:

"[20] The principles governing the exercise of the power conferred by r 12.11(1)(e) of the UCPR can be summarised as follows:

(1) The principles relevant to an application to extend time for service under r 1.12 also apply to a motion pursuant to r 12.11(1)(e) to discharge orders for extension: Kirk, at [58], per Tobias JA (with whom Macfarlan JA and Sackville AJA agreed).

(2) In exercising the discretion conferred by r 12.11(1)(e), the court should consider:

"the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally and the hardship or prejudice caused to the plaintiff by [discharging the orders] or to the defendant [by refusing to discharge the order]."

Buzzle (at [43]) per Ipp JA (with whom Tobias and McColl JJA agreed) cited with approval in Kirk (at [94]):

(3) The discretion is to be exercised in the context of, and by reference to, the statute by which it is conferred: Buzzle, at [28]. Consequently, in New South Wales, ss 56-59 of the Civil Procedure Act 2005 (the CP Act) require a judge exercising the discretion to have regard to whether the relevant party has:

(a) diligently pursued the object of disposing of the proceedings in a timely way;

(b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and

(c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Buzzle, at [36].

(4) The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37]-[39]; cited with approval in Kirk, at [98]-[99].

(5) It is for the court and not one of the litigants to determine whether there should effectively be a stay of proceedings. Accordingly, it is generally:

"inappropriate to allow an extension of time for the service of a ... statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court's duty to exercise, alone, the discretion conferred upon it."

Buzzle, at [82] cited with approval in Kirk, at [101].

(6) Ordinarily, it is not a good reason for delay that a plaintiff wishes to hold up proceedings while some other case is tried: Buzzle, at [90]. However, this is not an inflexible rule: Kirk, at [102].

(7) If a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk, at [123]."

1. Expiry of the limitation period is of particular relevance. Young CJ in Eq stated in Weston, supra, that there were three categories, adding, at [27]-[28]:

"[27] Her Honour later found (at [325]) that the SPL, after weighing the advantages and disadvantages of the courses of action open to him, "chose to delay the service of the originating process and to keep it confidential". Her Honour inferred (at [325]) that:

[325] ... there was perceived to be a tactical advantage in keeping [the respondents] in the dark as to the claims it was then intended to bring against them.

[28] The primary judge rejected (at [148]) a suggestion made by the SPL that the respondents should have asked the SPL for a copy of the statement of claim. The PBL respondents had unsuccessfully sought a copy from the court and the SPL (via reports to creditors) had stated that the claim would be kept confidential. In these circumstances:

[148] ... no criticism can ... be made of the [respondents] in failing to ask the SPL for it ... [I]t was a matter for the SPL, if he wished to minimise the chance that extensions of time would be set aside, to make a copy available (on a confidential basis if thought necessary) to the [respondents] rather than waiting for them to ask for it."

1. This case is in the third category, namely the limitation period has expired and the initiating process is no longer valid for service: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337.

1. The reason for delay given to me today is reliance upon a member of the Sydney Registry, who allegedly told Mr Hallman that the statement of claim did not need to be served for six months. As indicated, I find this to be inconsistent with the notes made by Bozic SC DCJ's associate concerning her telephone call to Mr Hallman and with the correspondence in the file from the Registry as set out above.

1. Applying the principles set out in the cases above to the facts, I make the following findings:

(a)   No attempt has been made at service until the last few days, according to Mr Hallman. That has consisted of forwarding a copy of the statement of claim to the defendants by post which, in the case of the first to third defendants, who are natural persons, would be insufficient even if the claim were in time.

(b)   The delay in question is lengthy, taking into account the fact that these proceedings were commenced in the Lismore Registry in March 2013, and have been before the court on several occasions without extensions being sought. Service was only recently attempted after my associate sent an email to the plaintiff pointing out the issue of service.

(c)   The delay was deliberate. I note the statement by Mr Hallman to Bozic SC DCJ's associate that the failure to serve was a deliberate decision of the plaintiff.

(d)   No notice was given by the plaintiff to the defendants about these proceedings having been commenced or being listed in this court. As the defendants all reside outside Sydney, this places them in a difficult position in relation to finding out about the proceedings.

(e)   A relevant factor is the merits of the claim. For the reasons set out above, the statement of claim is hopelessly drafted.

(f)   Hardship and prejudice are of significance. Any issue of prejudice is to be weighed in the exercise of the discretion: Berger Investments Group Pty Ltd v Coccoon Pty Ltd [2011] NSWSC 122 at [83]. Mr Hallman submits that issues of prejudice go in the plaintiff's favour, but the sole issue he points to is the prejudice of not being able to proceed with the case.

(g)   The policy considerations underlying the Defamation Act 2005 (NSW) and s 56 Civil Procedure Act 2005 (NSW) are issues to which I should have regard.

1. This is the fourth time in the past year where proceedings have come before me where a defendant has either not been served or is unaware of the proceedings being in court:

(a)   In Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238, a defamation action was referred to me for hearing. The defendant had sent a request for particulars of the claim which was unanswered, and had not been told the proceedings had been listed for hearing. The hearing date had to be vacated and the proceedings returned to the Defamation List.

(b)   In Sleeman v Tuloch Pty Ltd [2013] NSWDC 43, a defamation action was referred to me for hearing. Two of the five defendants had been joined prior to the hearing date being allocated, but had neither been served with the claim nor told of the hearing date. An application by the plaintiff to extend time for service was abandoned and the hearing proceeded against the first three defendants only.

(c)   In Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 the plaintiff commenced proceedings against a corporation and seven other defendants. Those defendants were served by post only, a matter of days before the proceedings came before me. I made orders for personal service of each of them.

1. The importance of personal service of a statement of claim was recently emphasised by the NSW Court of Appeal in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268. Their Honours' concerns are all the more relevant here, since facts in Flo Rida, in which I was the trial judge, were considerably weaker than the present. The plaintiff, Mothership Music Pty Ltd, had commenced proceedings within days of Mr Dillard's contumelious breach of contract (Mr Dillard had accepted a performance fee in advance but at the very last minute failed to appear, without explanation) against both him and the Australian company which had engaged him. The Australian company was served and when Mr Dillard could not be served, orders for substituted service on that company by email (and on Mr Dillard's Facebook account) were sought. In addition, Mothership Music Pty Ltd had made numerous attempts to serve Mr Dillard personally, and sought orders for substituted service when these methods failed.

1. By contrast, the plaintiff in these proceedings has made no attempt to inform the defendants of court dates or serve the statement of claim until the last few days. Given the effluxion of time since the events in question, those defendants would not anticipate the bringing of a claim for substantial damages.

1. No satisfactory explanation having been provided for the failure to serve the defendants, I decline to extend time to serve the statement of claim in its current form.

1. However, it would be unfair to shut the plaintiff out at this early stage of the proceedings in the event that there is a valid claim. Mr Hallamn has informed me that the plaintiff has no assets. He obtained a waiver of filing fees when these proceedings were commenced. There would be little point in striking out these pleadings and requiring the plaintiff to start all over again if the claim can simply be amended instead.

1. While I have dismissed the application for the plaintiff to extend time for service of the statement of claim in its current form, a statement of claim in proper form, and identifying a genuine cause of action, may still be brought. That statement of claim will have to first be filed and served, so that the defendants not only have a statement of claim identifying the cause of action in their possession, but may make appropriate submissions in relation to the future conduct of this litigation when the matter is next in court. That may include, if the cause of action is not a claim for defamation, transfer back to the Lismore Registry, as this is the venue with the closest connection with the parties and the cause of action.

1. Mr Hallman identified the names of some barristers he had consulted about these proceedings. In order to ensure that he can comply with the timetable I set down, the court will provide copies of the orders to them, as well as these reasons for judgment, which I have essentially prepared in order to assist the parties in the future conduct of this infelicitously drafted claim.

Orders

(1)   The plaintiff's application to extend time to serve the statement of claim is dismissed, but the plaintiff is granted leave to amend the statement of claim (without prejudice to the rights of the defendants to object to failure to serve the statement of claim filed on 16 April 2013).

(2)   Amended statement of claim is to be filed and served upon the defendants in 14 days.

(3)   Matter stood over part heard to Friday 27 September 2013 before Gibson DCJ at 10:00am.

(4)   Costs reserved.

**********

Decision last updated: 08 January 2014