Ferrier v McRae

[2015] NSWSC 1379

Supreme Court

New South Wales

Medium Neutral Citation:	Ferrier v McRae [2015] NSWSC 1379
Hearing dates:	18 September 2015
Date of orders:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Direct the plaintiff to file any further amended statement of claim by close of business on 2 October 2015. Proceedings stood over to 9 October 2015
Catchwords:	DEFAMATION – pleadings – application to strike out statement of claim – where counsel recently briefed in matter
Category:	Procedural and other rulings
Parties:	Mark Ferrier (plaintiff) Adrian McRae (defendant)
Representation:	Counsel: B Connell (plaintiff) L Barnett (defendant)   Solicitors: Plaintiff self-represented M & K Lawyers Group Pty Ltd (defendant)
File Number(s):	2015/203013
Publication restriction:	None

Judgment – Ex Tempore

1. HER HONOUR: These are proceedings for defamation commenced by Mr Mark Ferrier against Mr Adrian McRae. The proceedings were commenced by statement of claim filed electronically on 10 July 2015. Owing to the fact that the filing was electronic and the inability of the Court's computerised court record system to recognise the terms of the Defamation List practice note (SC CL 4), the proceedings first came before the registrar on 7 August 2015 (contrary to the provisions of clause 10 of the practice note). In any event, on that occasion the plaintiff did not appear. The matter was stood over by the registrar to the Defamation List.

2. On 20 August 2015 a notice of change of solicitor for the plaintiff was filed. The proceedings came before me on 21 August 2015. On that occasion, the plaintiff was represented by Mr Potter of counsel and the defendant was represented by Ms Barnett of counsel. Although I do not recall it, Ms Barnett assures me (and I accept) that Mr Potter informed the Court that, since he had only just come into the matter, he wished to have an adjournment, evidently accepting that the form of the pleading in the original statement of claim required the attention of counsel. The matter was adjourned to today on that basis. The plaintiff was directed to file and serve an amended statement of claim on or before 4 September 2015. That did not occur.

3. Two days before the amended statement of claim was due, the solicitor then on the record filed a notice of intention to file a notice of ceasing to act. A notice of ceasing to act was subsequently filed on 9 September 2015. That solicitor was the second on the record; the solicitor under whose name the statement of claim was filed evidently having ceased to act on 20 August 2015, the day before the matter first came before me in the Defamation List.

4. Today when the matter was called, the plaintiff was represented by new counsel, Mr Connell, who again was briefed only yesterday and who again sought an adjournment in order to give some attention to the form of the pleading. Ms Barnett strenuously opposed that course, contending that it would be appropriate for the Court to strike out the existing pleading today. I should record that the existing pleading now is an amended statement of claim evidently filed by the plaintiff personally yesterday. The amendment makes no attempt to cure the objections previously notified by the defendant.

5. However, I have not today proceeded to determine that application, only because it does not seem to me to be a constructive use of the Court's time in circumstances where, albeit for a second time, counsel has appeared today acknowledging the need for the pleading to be reviewed by counsel.

6. It should go without saying from the history I have recorded that, if the plaintiff does not file a further amended statement of claim addressing the substance of the defendant's objections and is not ready to argue any objections to that pleading on the next occasion, the defendant will be well placed to invite the Court to dismiss the proceedings for want of due despatch.    

7. I direct the plaintiff to file any further amended statement of claim within 14 days of today; that is, by close of business on 2 October 2015. I stand the proceedings over to 9 October 2015 on which occasion the Court will entertain any application in respect of the amended statement of claim filed 17 September 2015, if that is still the most recent pleading, or any application in respect of the further amended statement of claim, if one has been filed. I make orders two and three in the short minutes of order handed up.

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