DOSSIS v Andreadis - [2012] SADC 104

District Court of South Australia
(Civil)
DOSSIS v ANDREADIS
[2012] SADC 104
Reasons for Decision of His Honour Judge Slattery (ex tempore)
17 August 2012
PROCEDURE
Defendant seeks leave to substitute amended defence and counterclaim for original defence. Form and content of pleadings. Disclosure of a valid defence or cause of action. Failure to comply with the District Court Civil Rules 2006. No special circumstances. Application refused.
District Court Rules 2006 rr 91(1), 99, 100, referred to.
District Court Rules 2006 rr 54, 98 - 105, 120, considered.

DOSSIS v ANDREADIS
[2012] SADC 104

Before the court is an interlocutory application filed on behalf of Dimos Andreadis, being FDN50. It seeks the following orders:
1. Leave to file and serve a Defence and Cross Action Counterclaim.
The document is supported by an affidavit of the same date of Mr Andreadis. It is FDN49. It essentially deposes to the fact that Mr Andreadis did not understand the process of the formulation and preparation of the initial defence which has found its way to the second trial book, commencing at p 52. That document is dated 9 February 2012 and was settled by Mr Peter Quinn, counsel, and filed by Mr Andreadis’s solicitors, Adelaide Legal. In essence, Mr Andreadis alleges that he was not of sound mind when giving instructions and when affirming affidavits and instructions.
The document that Mr Andreadis seeks to file is document FDN51 dated 5 June 2012. It is a document entitled ‘trial affidavit cross-action counterclaim’. It consists of an affidavit of nine pages and numerous exhibits.
The genesis of the filing FDN51, was that this action was called on for hearing for trial on 19 July 2011 before his Honour Judge Beazley in this court. Mr Andreadis did not appear at the hearing. The plaintiff was represented by Mr Roger Sallis of counsel. Mr Sallis has appeared before the court today on behalf of the plaintiff. On 5 August 2011, the trial was adjourned part-heard. Judge Beazley made a default judgment on the defamation claim, adjourned the matter for assessment of damages and gave leave to the plaintiff to file affidavit material, together with minutes of order.
Following the default judgment and the adjournment of the trial, an application was taken by Mr Andreadis to set aside the default judgment and to file a further defence.
On 9 February 2012 Master Blumberg made orders by consent setting aside the default judgment entered by Judge Beazley, and the defendant was given permission to file and serve the defence as exhibited to the affidavit of Ms Thompson, FDN43, on or before 16 February 2012. There were then ancillary orders made on that day for disclosure, and the matter was adjourned to a settlement conference.
The defendant did not comply with those orders of Master Blumberg. On 15 June 2012 Master Blumberg was informed that the defendant was prepared to attend the trial currently listed for 3 September 2012 and that he was prepared to proceed with the matter to dispose of the claim and his counterclaim on that day. He was given leave to serve upon the plaintiff’s solicitor, Mr Ross Richards of Richards Legal, a document being a proposed defence and proposed cross-action referred to in his application, FDN50. I have already identified the content of FDN50 and the content of FDN49, the affidavit filed in support.
The document before me for consideration today, namely, the document of 5 June 2012, document FDN51, is the response by the defendant to order number 2 made by Master Blumberg on 15 June 2012. The question for consideration is whether leave should be given to file and serve that document as a pleading.
The matter was adjourned by Master Blumberg for argument on 29 June 2012 at which time the plaintiff was to indicate her attitude to the application FDN50. The matter was not heard and disposed of on that day. It has been listed before me today for disposal of that issue.
I am the trial judge to hear this matter on 3 September 2012. I am satisfied that the defendant has been given every notification possible of the hearing of this matter, and notwithstanding his failure to appear at this application, it is appropriate that I dispose of the matter forthwith. In my view, it is in the interests of justice, having regard to the claim of the plaintiff and the defence of the defendant.
Before the matter was called on for hearing I ensured that telephone calls were made to Mr Andreadis’s phone. Messages were left and an email sent to him ensuring that he was aware of the hearing today. I also ensured that an all courts call was made by my Associate before the matter started, and at the time of the substantive application commencing. I also ensured that a further phone call was made to Mr Andreadis’s phone from the courtroom today. There has been no response to any of the three forms of approach made to him before or during the disposal of this application today. The only communication from the defendant received by the court was a letter of 13 August 2012 addressed to the court. This is not in evidence. In summary, the letter disputes the jurisdiction of the court to deal with this matter. He has not attended today. In my opinion I am therefore at liberty to proceed to dispose of the matter.
Under r 54 of the District Court Rules 2006 an amendment may be made to pleadings with the court’s permission. An amendment may not be made, in exercise of the court’s discretion, in the event that it fails to comply with the rules of pleading, it fails to raise a proper defence, it is a frivolous, vexatious or an abuse of the process of the court, or for any other reason that the court in the exercise of its discretion would not permit the filing of the pleading as proposed.
It is to be recalled that the document FDN51 is merely a proposed document. It is also to be recalled that under the operation of r 120, a certificate has been given for the action to proceed to trial. It is a requirement of r 120(5) that a party will not, after the action has been ordered to proceed to trial, amend its proceedings unless special circumstances exist justifying the action in the interests of justice. ‘Special circumstances’ is a matter at large and those words must be given their ordinary meaning. No exhaustive definition is possible.
I have reviewed the document FDN51. It only purports to be a defence and counterclaim. It is an affidavit which recites what Mr Andreadis considers the detailed history of his relationship with his former wife, the breakdown of that relationship, the loss of his children by orders apparently of the Family Court, the separation of his children from him and the sequelae of all of those events in his life.
In his submissions on the status of FDN51 Mr Sallis argued that the document does not deal in any direct way with the pleadings of the plaintiff. It merely contains a lengthy recitation of events involving the plaintiff which have already been dealt with by the Family Court, and in relation to which the District Court has no jurisdiction. Indeed, the document outlines the relocation of the plaintiff, the defendant’s difficulties in communicating with the children and the state of the children’s maintenance, appointments and school shoes. Mr Sallis submitted that none of these issues are capable of founding a valid cause of action, nor are they able to rebut or defend any claim made by the plaintiff. One would merely be ‘stabbing in the dark’ to discern or anticipate any defence or claim from that document which may be raised at trial.
It was also submitted that many of the paragraphs in the document may well be used as evidence at trial or in determining the quantum of any award of damages. However, they are not material facts and add nothing to the pleadings by way of valid defence or claim. Mr Sallis went on to submit that even if the document was accepted as a pleading, it had been filed out of time and creates an unfairness to the plaintiff as it fails to clarify the case which she must face at trial. It is for a combination of those reasons that Mr Sallis described FDN51 as “meaningless” and “embarrassing”, and urged the court to refuse leave for the defendant to file it in substitution of his earlier Defence.
It is first to be identified that FDN51 does not constitute a defence under the terms of r 100. It also does not constitute a counterclaim under the terms of rr 91(1) and 99. Whatever may be the truth or otherwise of the content of the affidavit, it is sufficient to say that it does not accord with the rules as to pleading (see rr 98 – 105).
I am satisfied, having read the document, that the interests of justice would not be served by allowing it to be filed as a pleading in this Court. It does not answer the plaintiff’s claim. It is mere recitation of events and circumstances involving the plaintiff, the defendant and their children. It does not fulfil the requirement of a pleading because it does not comply with the rules, but it also may only be relevant to questions of damages.
Mr Sallis has properly, in my view, conceded in court today that the document may well be relevant to questions of damages, and the information contained therein may be matters the court will receive for that purpose.
The document was filed late and no special circumstances are disclosed. In my view there are none disclosed on the face of the material and there are no reasons given by Mr Andreadis as to why the documents should be received now. It certainly does not clarify his position in any way.
It is also my view that the document would constitute a vexation for the court because it would be left to the court to try and pick out of the document some defence that may be available to the defendant, Mr Andreadis. In other words, the document does not disclose any defence clearly on the face of the document. Rather, it leaves the reader to try to divine out of the material some defence that might be raised by Mr Andreadis at trial.
This is inappropriate in two respects. Firstly, it contravenes the rules as to pleading, and secondly, in terms of the administration of justice it is unfair to the plaintiff. She must know the case that she will need to meet at trial in relation to the case to be put by Mr Andreadis in his defence, and in the prosecution of his counterclaim. The document does not achieve those aims.
Finally, in my view, on any fair reading of the document it is merely a recitation of complaints about events that happened a very long time ago. It does not address the substantive issue of the proceedings, namely, the defamatory content of the material published by Mr Andreadis which forms the subject of the complaint of the plaintiff.
For those reasons, namely, the failure to comply with the rules, the interests of justice, that no special circumstances have been disclosed and because the document constitutes a vexation which will adversely affect the administration of justice in this Court, I am of the opinion the application ought to be refused and I so order. I order that the plaintiff should have her costs of the application certified fit for counsel.