Facer v Wolfe

[2013] NSWDC 231

District Court

New South Wales

Medium Neutral Citation:

Facer v Wolfe [2013] NSWDC 231

Hearing dates:

28 November 2013

Decision date:

28 November 2013

Before:

Gibson DCJ

Decision:

(1) The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance.

(2) By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons).

(3) These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained.

(4) Note Gibson DCJ is not part heard.

(5) Costs of today reserved.

Catchwords:

TORT - defamation - email by member of a body corporate management to 5 fellow members containing imputations about strata manager - defences of justification, contextual truth, honest opinion and unlikelihood of harm - defendant fails to answer a request for particulars and defence is struck out - proceedings listed for hearing as an assessment hearing in circumstances where the defendant, a litigant in person, is not present - defendant advised of hearing date the week beforehand but is overseas - hearing vacated

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), ss 56 - 62 and 66
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), ss 35 and 38
Uniform Civil Procedure Rules 2005 (NSW), rr 15.22 - 15.30 and 29.7

Cases Cited:

Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6
Attrill v Christie [2007] NSWSC 1386
Ford v Nagle [2004] NSWCA 33
French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584
Hallam v Ross [2011] QCA 274
Hickie v Perkins (Supreme Court of NSW, Levine J, 15 November 1996)
Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.)
Kingdon v Kirk (1887) 37 Ch D 141
Knapp v Hinchcliffe [2004] QSC 326
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Martin v Bruce (2007) 6 DCLR 15
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Scott v Handley [1999] FCA 404
Stone v Smith (1887) 35 Ch D 188

Texts Cited:

Ritchie's Uniform Civil Procedure (NSW)
Tobin & Sexton, Australian Defamation Law and Practice

Category:

Procedural and other rulings

Parties:

Plaintiff: Jeffrey Michael Facer
Defendant: Jane Wolfe

Representation:

Plaintiff: Mr R Weaver
Defendant: No appearance
Plaintiff: Worthington & Reading Lawyers
Defendant: No appearance

File Number(s):

2011/226458

Publication restriction:

None

Judgment

1. These proceedings were listed before me today for hearing. I set out my reasons for adjourning the hearing, as reflected in the orders set out below.

1. The plaintiff commenced proceedings for defamation after the defendant sent an email on 28 February 2011 to five fellow management committee members for the strata title company which ran the home unit block in which they resided. A claim for republication to another resident in the block of flats (relevant to damages only) is also made. The matter complained of was one of a series of emails between the members about delays in obtaining access to the financial records for the body corporate from the defendant. The subject matter was "Inspection of the books for SP17382" and the contents of the email were as follows:

"I am most concerned by the actions of the Strata Manager regarding access to our financial records.

If we do not have our financial records by email as proposed, I suggest we simply refer the matter to Moss Vale Police to investigate as embezzlement.

Stephen and I will not waste a day travelling to Moss Vale tomorrow."

1. The imputations pleaded in the statement of claim filed on 13 July 2011, are:

(a)   The plaintiff is an embezzler;

(b)   The plaintiff so conducted his business, Highland Strata, as to warrant his being referred to Moss Vale Police to be investigated for embezzlement.

A third imputation was struck out in an imputations argument on 2 March 2012.

1. The defendant, who has been represented from time to time by legal practitioners but is effectively a litigant in person, sought an adjournment after being served, because she had been diagnosed with cancer and had to undergo treatment. In a letter dated 28 September 2011, the solicitors for the plaintiff sought a report from her treating oncologist to confirm the treatment she was to undergo and to indicate whether the oncologist believed that the treatment would prevent the defendant from instructing a solicitor as claimed. Mr Weaver told me, from the bar table, that this report was provided, and that the defendant's health problems had resulted in very little activity taking place between the two mediations held in this matter (on 7 May 2012 and 25 March 2013).

1. The defendant did, however, file a defence on 13 December 2011. That defence is poorly drafted and does not refer to any of the usual defences but, significantly from the point of view of an assessment of damages, identifies an apology the defendant sent on 27 March 2011 (five days after receiving a request for an apology) and a statement that she had resigned from the executive committee of the body corporate for this reason. A number of body corporate emails and other documents are attached. Notwithstanding these defects, and perhaps also because of the plaintiff's ongoing health problems, no challenge was made to this defence.

1. On 11 April 2013, after the second mediation failed, the defendant filed an amended defence. This was a slight improvement on the previous defence, in that it referred to the defences of qualified privilege, justification and contextual justification, honest opinion and unlikelihood of harm. It did not provide particulars for these defences.

1. This was the defence before the court on 12 April 2013, when orders were made by consent for the plaintiff to seek further particulars of the defence by 26 April 2013 and for the defendant to reply by 10 May 2013, as well as for further orders, including standing the matter over to 28 June 2013.

1. The plaintiff did not seek these particulars by 26 April 2013, or indeed take any other steps to make the matter ready for hearing, until 12 June 2013, when the plaintiff's solicitors sent the defendant a letter complaining about the inadequacy of the defence (principally absence of particulars), demanding that these particulars to be answered by 25 June 2013. If those particulars were not answered, the letter warned that the plaintiff would "seek to have the defence struck out and proceed to summary judgment".

1. The reasons for the minatory tone of this proposal are unclear. The defendant had filed a similar defence 18 months beforehand, to which no objection had been taken, and there was no prior history of non-compliance. The complaint was that the plaintiff had not provided particulars under Part 15 rr 15.22 to 15.30 Uniform Civil Procedure Rules 2005 (NSW) for the defences, or identified whether the comment and qualified privilege defences were also pleaded at common law. Some of the complaints are unmeritorious; for example, it is not necessary to plead additional contextual imputations if this defence is limited to the truth of one or more of the imputations pleaded by the plaintiff, nor is it necessary to provide anything other than the most general particulars of the defence of unlikelihood of harm (particulars are generally provided by the formulaic statement that the defendant relies upon the circumstances in which the claim was made.)

1. As noted, the letter states that if the defendant will provide these particulars by the date nominated by the plaintiff, the plaintiff would be happy to mention the matter on 28 June 2013 and have the timetable "extended by consent"; however, if the particulars are not provided, then summary judgment will be sought. However, it was not the fault of the defendant that the timetable was in arrears. This was wholly the fault of the plaintiff, who had not sought any particulars of the defence by the due date of 26 April 2013, or filed a Reply by 17 May 2013, or provided discovery or interrogated by the respective dates of 10 May and 14 June 2013. All the plaintiff had done was to send a generalised complaint about the adequacy of the defence which, rather than amounting to particulars, would have required the filing of an amended defence. This was well outside the parameters of the timetable and contrary to the fresh step rule.

1. On 28 June 2013 the plaintiff sought orders to strike out the defence. The defendant was in court. This was the last time she attended court. According to Mr Weaver, it was at about this time that the defendant may have told the plaintiff's solicitor that she would be overseas. If so, that would explain the reference in her email of 21 November 2013 to "as already advised" when stating that she would be away until December 30 2013.

1. The plaintiff's notice of motion to strike out the defence was filed and served on the defendant, who acknowledged receipt. She did not attend court on 9 August 2013, when the defence was struck out, and should be taken to know that this was very likely to happen if she did not attend. The defendant was served with a copy of the orders made, which included an order that the matter was stood over to the defamation list on 23 August 2013 on which date "the defendant is to provide any reason why Summary Judgment should not be entered". There could be no doubt the defendant knew her defence was struck out and would have been aware that a summary judgment application was going to be made on 23 August 2013, although this date, and the final nature of the relief sought by the plaintiff, were not referred to in the covering letter, which was of the "we enclose" style of correspondence.

1. The plaintiff's application for summary judgment was the only matter in the defamation list before Levy SC DCJ on 23 August 2013, according to Mr Weaver. The defendant was called three times outside the court and did not appear. The orders made were:

(1)   Summary judgment entered against the defendant.

(2)   The matter is set down for assessment hearing at 10.00 am on 28 November 2013 (with an estimate of up to 2 hours);

(3)   The defendant is to pay the plaintiff's costs of the application for summary judgment.

1. It is as a result of these orders that these proceedings are listed before me today for hearing.

1. No order was made by Levy SC DCJ for service of his orders of 23 August 2013 on the defendant. Mr Weaver put to me that no order was made because Levy SC DCJ did not consider it to be necessary for the defendant to be informed. The defendant had not attended court on the summary judgment application, and had either waived her right to further notification about the proceedings, or shown a sufficient lack of interest to warrant the case proceeding to assessment without her being informed of the hearing date.

1. Mr Weaver told me that it was only "for more abundant caution" that his instructing solicitor on 19 November 2013 emailed and posted a "we enclose" letter to the defendant advising of the orders made by Levy SC DCJ, including the hearing date. This produced two results. The first was that the plaintiff sent an email in reply stating "As advised previously, I return to Australia on 30 December " (affidavit of R A Reading, Exhibit I). The second was that, after Mr Reading swore this affidavit on 21 November 2013, the defendant's sister telephoned him to tell him that the defendant was overseas until 30 December 2013.

The plaintiff seeks to go ahead with the hearing

1. The plaintiff opposed the adjournment of the hearing on three bases:

(a)   The plaintiff was not ordered to notify the defendant of the hearing date, and has given sufficient notice of it by sending a letter and email on 19 November 2013;

(b)   These proceedings have already taken two and a half years to come to court, in circumstances where the defendant has stood idly by while judgment was entered against her; and

(c)   The plaintiff is ready to proceed today and should be permitted to do so.

1. Mr Weaver submitted his client was ready to proceed and had come to court with his witnesses and written submissions. His client had not been ordered to advise the defendant of the hearing date, and the defendant's response that she was overseas until 30 December 2013 amounted to "cocking a snook" at the plaintiff's action. I shall consider each of the matters he raised in turn.

The obligation to notify the defendant of the hearing date

1. If Levy SC DCJ had ordered the plaintiff to notify the defendant and this had not been done, it would have been inappropriate for the hearing to take place.

1. His Honour was entitled to take for granted that the defendant would be notified within a reasonable time. The hearing was three months away and there would be plenty of time for the defendant to advise if there were problems with the date selected.

1. In the absence of a judgment on the issue, I do not consider that his Honour dispensed with service on the defendant of the orders or of notification of the defendant. Complaints that an order should have been made are a counsel of perfection.

1. The defendant should have been notified promptly of the orders of 23 August 2013. A letter and email sent the week before the hearing would be insufficient, whether or not the solicitor for the plaintiff knew of the defendant's likely absence overseas.

The defendant's inactivity and failure to appear when her defence was struck out

1. This was the principal basis upon which Mr Weaver submitted that the hearing should proceed as otherwise his client would suffer the prejudice of further delay.

1. Mr Weaver pointed out that these proceedings had taken two and a half years to get to court. He identified delays by the defendant in retaining a solicitor (a delay of about three weeks) and in relation to the mediation, but acknowledged that these delays occurred in the context of the defendant being treated for cancer.

1. The defendant did not indulge in delay in the form of failure to comply with court orders. There was an imputation argument where a costs order was made, but that is a standard part of defamation proceedings. The only other costs orders I can find in relation to the mediation are costs orders made (and then vacated) by Gibb DCJ on 8 and 15 June in favour of the defendant, not the plaintiff. The first mediation was unsuccessful, and one of the complaints of the defendant was that the plaintiff did not appear in person but by telephone. A further mediation order was made, but this mediation was also unsuccessful.

1. Mr Weaver complained that the solicitors for the defendant sought adjournments while they investigated whether the defendant's email was written on an occasion falling within the body corporate insurance. This included vacating a mediation date (8 October 2012) so that the question of indemnity from the body corporate could be pursued. The "duty to defend" principles of indemnity under an insurance contract for homeowners sued for defamation have been the subject of discussion in caselaw both in Australia (Knapp v Hinchcliffe [2004] QSC 326) and overseas (Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.)), and the existence of such insurance may be relevant not only to the defence, but to the plaintiff's claims (Knapp at [5] - [7]; Hickie v Perkins (Supreme Court of NSW, Levine J, 15 November 1996)). I regard this as a legitimate inquiry and not as time-wasting.

1. Mr Weaver relied in particular upon the failure to answer a request for particulars which led to the striking out of the defendant's defence, with a costs order against her, as well as her failure to attend court on 9 and 23 August. I have taken this into account. The striking out of the defendant's defence occurred, however, after she was given only one opportunity to provide particulars, in circumstances where the plaintiff had allowed the time for seeking particulars to elapse (but cf Ford v Nagle [2004] NSWCA 33, Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 and Hallam v Ross [2011] QCA 274) and these orders have been given full weight by me in coming to my determination.

1. I cannot identify substantial, or indeed minor, inactivity or failure to appear by the defendant, other than the failure to answer the particulars of 12 June 2013 and her subsequent non-appearance on the applications to strike out and for summary judgment on 9 and 23 August 2013. The plaintiff's delay in seeking particulars between 26 April (the final date given by the court) and 12 June (the date these particulars were sought) is unexplained.

1. The plaintiff's delay and failure to comply with orders is thus limited to her failure to attend court or to comply with the request for particulars made on 12 June 2013, namely between 28 June 2013 (when the application was made to the court for the defence to be struck out on this basis) and 23 August 2013 (when Levy SC DCJ entered summary judgment and listed the matter for hearing on 28 November 2013). This does not necessarily mean that she does not wish to be heard on the subject of quantum, particularly in circumstances where, as she recites in her defences, she has published an apology. Nor would her failure to attend on these occasions mean she had lost the right to be told about the hearing date with due notice, particularly in circumstances where it would appear that she had previously advised the solicitor for the plaintiff, in about June 2013, that she would be absent from Australia until December 2013.

1. While two and a half years to get to hearing is a considerable period of time, the delays in this case should not be laid at the foot of the defendant. A further delay of several months in order to enable the defendant to prepare her case on quantum, or to take such other steps as she may be advised, is delay sounding essentially in costs, and I have made an order reserving the costs of today to preserve the entitlement of both parties on this issue.

The hearing is ready to proceed

1. The next basis upon which Mr Weaver submitted that the matter should proceed was that the plaintiff was ready for hearing, in that he had assembled his witnesses and written submissions had been provided to the court.

1. These written submissions do not refer to the uniform legislation in place since the Defamation Act 2005 (NSW) or to any damages awards made in accordance with the provisions of that legislation, which is akin to making submissions in a negligence action without referring to the Civil Liability Act 2002 (NSW). To the contrary of those statutory provisions, these written submissions state (at paragraph 13) that defamation damages are "at large", which is a misstatement of the law even under the repealed legislation. Section 35 Defamation Act 2005 (NSW) imposes a cap on damages and this section, the relevant gazetted figure and the provisions relevant to the claim for aggravated compensatory damages (s 35(2)) and mitigation (s 38(1)(a)) should be set out. References in the submissions under the heading "Awards in other cases" to comparable damages awards consist of jury verdicts and judgments handed down under the now repealed Defamation Act 1974 (NSW), where the legislation was entirely different. In addition, the comparable judgments referred to in the plaintiff's written submissions are all mass media defamation actions (some of them jury verdicts), and not private publications such as emails of the kind sent to a handful of people. In particular, the submissions do not refer to any matters in mitigation, such as the apology the defendant has attached to her defences. These submissions were not served on the defendant and it would be left to the trial judge to pick up these issues. Mr Weaver's statement that oral submissions could cure all these defects or omissions is unpersuasive.

1. In determining what course to take, I have been guided by the principles set out in the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). I set out the relevant provisions and rules as well as the discussion and analysis of the principles involved in practice decisions in the New South Wales Supreme Court.

The legislative framework

1. Pt 29 r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that if an action is set down for hearing and one of the parties fails to appear, the court may proceed with the trial, so far as concerns any claim for relief in the proceedings, or adjourn the trial. If it is the defendant who fails to appear, then the plaintiff may prove its claim so far as the burden of proof lies upon it and, if a plaintiff can establish that he or she is entitled to the relief claimed, and such other relief as is consistent with what is sought, the court may proceed to make final orders (see Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]. In an adversarial system, the responsibility for conduct of a case rests with the party concerned and failure to appear in court is not a matter into which courts should inquire.

1. However, for a party to be relevantly absent, they must have had "adequate" notice of the hearing date (Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], citing Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]).

1. "Adequate" notice was identified as being "reasonable" by Hallen J in French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584 at [14]:

"The clear purpose of UCPR rule 29.7 is the efficient dispatch of Court business. However, in despatching Court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589):

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case that has been no valid trial at all."

1. Mr Weaver did not take me to any cases where one week's notice of a hearing was considered reasonable. I have been unable to find any appellate consideration of such a proposition. It is a practice that should be avoided.

1. Section 66 Civil Procedure Act 2005 (NSW) provides that the court may adjourn a trial, a power generally exercised in accordance with the principles set out in ss 56 - 62. Examples include late service of documents on an unrepresented litigant (Scott v Handley [1999] FCA 404). Ritchie's Uniform Civil Procedure (NSW) notes at [s.66.5] that, "where proceedings have been regularly fixed for hearing, with due notice to the affected parties", applications for adjournments are unlikely to succeed.

1. The question is what amounts to due notice. If Levy SC DCJ had made an order for service on the defendant and it had not been complied with, it is unlikely that this hearing could go ahead. If the defendant had had legal representatives who had not been notified, Mr Weaver agreed it would have been difficult for the case to proceed. The question is therefore whether Levy SC DCJ's asserted failure to order service of the orders was a considered decision (an unlikely result, as there were no reasons for judgment) or whether his Honour simply took for granted, as a busy judge with a heavy workload might easily do, that the orders would be served on the defendant in the usual way without the necessity for him to order the plaintiff to do so.

1. Notification of procedural steps to an opponent is such a fundamental step in litigation that judges ought to be able to take this for granted. While it may have been preferable for a specific order to have been made, the plaintiff should not have needed an order from Levy SC DCJ to tell the defendant the date of hearing. Common sense, fairness and the provisions of ss 56 - 62 Civil Procedure Act 2005 should have been enough motivation for the plaintiff to take this essential step, and to do so well prior to 19 November 2013, especially if (as appears to be the case) his solicitor had some prior knowledge, however vague or scanty, that the defendant was, or could be, absent overseas.

1. Nor do I consider that litigants in person should be treated with less consideration than litigants who are legally represented. There have been many defamation actions where a defendant is self-represented; courts generally give a greater degree of leeway to such litigants: see Hallam v Ross [2011] QCA 274. As is noted in Tobin & Sexton, Australian Defamation Law and Practice at [60,590], defendants represent themselves in about 20% of all defamation actions resulting in a jury trial or hearing, and around 10% of all defamation trials are undefended. Litigants in person are common in defamation actions. Both the courts and their opponents need to have the flexibility to cope with this.

1. Nor does the defendant's apparent concessions as to liability deny her the right to be heard on quantum. Issues of liability and quantum are perhaps more often dealt with separately in defamation than other causes of action, and concessions as to liability do not mean that the defendant will have nothing to say about quantum. The first two hearings under the Defamation Act 2005 (NSW) were for assessment of damages only and in both cases quantum was a hotly contested issue (Martin v Bruce (2007) 6 DCLR 15; Attrill v Christie [2007] NSWSC 1386). A party who may not oppose the striking out of a defence may still wish to be heard on damages in defamation, in much the same way that damages in relation to a motor vehicle accident or a claim for breach of contract may be divided. Nor is it uncommon for a party to file a defence on all issues to determine, at a later date, to contest quantum only.

1. The circumstances in which a court would refuse the request of a party to conduct a hearing in the absence of the opponent would need to be compelling in the extreme. Having regard to the "just, quick and cheap" requirement in s 56, failure to advise of the hearing date until a week before the hearing is, however, one of the few grounds upon which a court would be reluctant to proceed. As Hallen J explained in French Consulting Pty Ltd v Lawson Stuart Donald, supra, at [14], failure to observe the right of a defendant to be informed means that there has been "no valid trial at all". However weak the defendant's arguments on quantum may be, or even if she does not wish to attend at all, she is entitled to be given adequate and reasonable notice of the hearing date. That has not occurred in these proceedings and I accordingly propose to vacate the hearing date and return these proceedings to the Defamation List for further management, including the allocation of a hearing date if considered appropriate by the judges conducting that list.

1. The orders I have made provide for the court to make a copy of this judgment and today's orders available to the defendant, and my associate will accordingly forward (by both post and email) copies of these documents to her, as well as to the plaintiff, as soon as practicable, and no later than 29 November 2013.

Orders

(1)   The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance.

(2)   By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons).

(3)   These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained.

(4)   Note Gibson DCJ is not part heard.

(5)   Costs of today reserved.

**********

Decision last updated: 29 November 2013