Hall v TCN Channel Nine Pty Limited (No 2)

[2016] NSWSC 1250

Supreme Court

New South Wales

Medium Neutral Citation:	Hall v TCN Channel Nine Pty Limited (No 2) [2016] NSWSC 1250
Hearing dates:	2 September 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The proceedings are dismissed.
Catchwords:	DEFAMATION – application to dismiss proceedings - non-compliance with directions of court – discovery   PROCEDURE – interlocutory steps – whether due dispatch
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 63 Uniform Civil Procedure Rules 2005, r 12.7
Cases Cited:	Bi v Mourad [2010] NSWCA 17
Category:	Procedural and other rulings
Parties:	David Hall (plaintiff) TCN Channel Nine Pty Limited (first defendant) Nine Network Australia Pty Limited (second defendant)
Representation:	Counsel: M Rollinson (plaintiff) M Richardson (defendants)   Solicitors: Kalantzis Lawyers (plaintiff) Mark O’Brien Legal (defnednats)
File Number(s):	2013/342936
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation which are listed for trial with an estimate of three weeks commencing on 17 October 2016, some six weeks hence. The defendants apply today to have the proceedings dismissed on the basis of alleged repeated noncompliance with orders of the Court.

2. The application invokes the Court's power under to s 61(3) of the Civil Procedure Act 2005 (NSW) to dismiss proceedings for failure to comply with a direction of the Court and alternatively the Court's power under Rule 12.7 of the Uniform Civil Procedure Rules 2005 to dismiss proceedings for want of due despatch.

3. The proceedings have a lengthy and unfortunate history. The steps the defendants have taken endeavouring to enforce compliance with previous interlocutory orders for discovery and interrogatories are set out in detail in the affidavits of Mr Paul Svilans sworn 18 March 2016, 17 August 2016 and 2 September 2016.

4. Perhaps most pertinently, while I have regard to all of that history, it is appropriate to take up the story from 18 March 2016 when, in response to an application for further orders for discovery and answers to interrogatories made by the defendants, I made the following directions.

1.     I direct the plaintiff to serve within 28 days a verified response to the matters raised in Mr Svilans' correspondence dated 3 February 2016 and 11 March 2016 regarding the plaintiff's discovery.

2.    I direct the plaintiff to provided further answers to interrogatories responsive to the matters raised in Mr Svilans' correspondence referred to in order 1 by the end of June 2016.

5. To put the application for discovery in context it is appropriate to turn to the pleadings. The statement of claim alleges defamatory meanings large in number but mostly relating broadly to attributions of engaging in a scam in the conduct of building work and taking money from people promising to do building work which was not completed. Individual imputations specify attributions that the plaintiff ripped off particular people by taking particular amounts of money.

6. The defence pleads defences of truth to those imputations as well as a defence of contextual truth. As noted in the defendant's written submissions in support of the present application, there are two critical aspects of the particulars pleaded in support of the defence. First, the defendants make the general allegation that the plaintiff misappropriated money by using that money to pay unrelated and personal legal bills instead of completing the work for which the money was paid, and by continuing to take customer money after it was plain his business could not meet its obligations and had even ceased to be registered. Secondly, the defendants make allegations in relation to specific customers that the plaintiff failed to complete works for those customers or performed defective work.

7. Leaving aside the relevance of the plaintiff's previous financial transactions and financial position to the truth defences raising those issues the defendants note that a further issue is raised in the proceedings by a claim maintained by the plaintiff for general damages for loss of business. Accordingly, the plaintiff’s past financial position and financial transactions will plainly be important issues in the trial and important matters for investigation in preparation for the trial.

8. In that context the defendants have on many occasions sought to obtain from the plaintiff financial records by way of discovery and answers to interrogatories relating to a number of issues including specific former clients of the building business.

9. When the proceedings came before me on 18 March 2016 the plaintiff represented himself. The transcript of the hearing on that date is annexed to Mr Svilans' affidavit sworn 17 August 2016. It cannot be doubted from a review of the transcript that the importance of complying with the orders I made that day was of the utmost and that the plaintiff was warned in no uncertain terms as to likely consequences of failure to comply with those orders.

10. Relevant extracts from the transcript are set out in the written submissions of the defendant. In particular, two matters may be noted. One is that, in relation to discovery, in response to the plaintiff's suggestion that he was unable to obtain particular documents because they were either with the Liquidator or with his accountant, it was made plain to the plaintiff that the obligation was on him first to name banks with which he held accounts; secondly, to name his accountant and, thirdly, to access the documents held by the Liquidator which had been produced on subpoena to the court.

11. One answer the plaintiff gave during those exchanges is of particular resonance in the application today. There was the following exchange:

HER HONOUR: I think the discovery can be dealt with by you putting a document and setting it out.

PLAINTIFF: The affidavits--

HER HONOUR: I want you to put on affidavits. I want you to put on a short affidavit saying that you say you have provided everything you actually have and identifying the accountant. Are you happy with that approach for the discovery, Mr Richardson?

RICHARDSON: Yes, if your Honour pleases. But also the bank or banks or financial institution where he held accounts.

HER HONOUR: Yes. Identifying them.

RICHARDSON: Yes.

PLAINTIFF: That’s a cost and I don’t bank with that bank.

HER HONOUR: You’re just being asked to name the bank.

PLAINTIFF: Yep.

HER HONOUR: You’re being asked to name the bank and the accountant.

PLAINTIFF: Yes. It was Westpac. However, however, there was changes of banks as we were trying to avoid liquidation so.

12. I concluded that exchange by informing the plaintiff that he needed to tell the defendants the information specified and I made it plain that he needed to put on an affidavit setting that information out.

13. Since that day, the plaintiff has discovered no further documents. An affidavit sworn 25 April 2016, apparently in response to direction 1 set out above, simply states:

“There are no documents within the plaintiff's possession relating to the matters in Mr Svilans' correspondence referred to in [my] orders."

14. The plaintiff states his belief that the documents are within the possession of “Condon Associates” (the Liquidator). No bank is identified. No accountant is identified. The defendant's solicitors wrote in response asserting that the plaintiff had failed to discover further documents including, for example, taxation or bank records and asserting that, in the circumstances, the plaintiff had failed to comply with my orders, as he plainly had.

15. In a later letter dated 10 August 2016 the defendants observed that the plaintiff's discovery of documents in the proceedings to date comprised one letter from the New South Wales Fair Trading Department to the plaintiff and three one-page notices of assessment from the Australian Taxation Office.

16. In my view, noting the issues in the proceedings to which I have already referred relating to the plaintiff’s financial position and past financial transactions, it is plain beyond any dispute that the defendants should not be expected to continue to sail towards a three-week hearing with one hand so firmly tied behind their backs owing to the plaintiff’s refusal to engage with the requirements outlined to him so clearly in March.

17. The plaintiff was represented on the present application by Mr Rollinson of counsel, who has accepted instructions on a direct access basis. Mr Rollinson, it should be recorded, put everything that can be put in defence of the plaintiff's present position. Appropriately, he accepted that the plaintiff has been told explicitly more than once of the importance of identifying the Bank and the accountant and providing his taxation records. He submitted, however, that there are a number of extenuating circumstances which should warrant the plaintiff being given one further opportunity to comply with the orders of the court. First, he noted that the plaintiff was not represented on the previous occasion. He further noted the difficulties for an unrepresented party in complying with interlocutory orders. Those matters may be accepted. However, my very direct exchanges with the plaintiff on the 18 March could not have left him under any misapprehension as to what was required of him.

18. Secondly, Mr Rollinson observed that one cannot know what the previous solicitors might have been doing during the lengthy period when solicitors were on the record and interlocutory steps were supposed to be being attended to. I do not think it is appropriate for me to speculate as to any failure on the part of the solicitors. The plaintiff could have put on evidence in response to the present application about that, had he chosen.

19. I am persuaded that, as colourfully submitted by Mr Richardson on behalf of the defendants, the case now presents what might be termed a 'mulberry bush' problem. Nothing has changed since 18 March, when the plaintiff’s entitlement to prosecute his action was hanging by a thread. The defendants have had to chase the plaintiff repeatedly only to end back where they started and to begin again. The proceedings were hanging by a thinner thread two weeks ago when this application first came before the court and was adjourned to enable Mr Rollinson (who had only just accepted instructions) to prepare for it.

20. In my view, the plaintiff is, at best, a reluctant gladiator in the sense in which that expression was used by Young JA in Bi v Mourad [2010] NSWCA 17 at [31]. Indeed, in my view, there is a proper basis for inferring that the plaintiff is not engaging with these processes because he is seeking to prevent the defendants from having material they need for the purpose of preparing for the proceedings.

21. I am persuaded that it is appropriate to exercise my power under s 61(3) to dismiss the proceedings for failure to comply with the directions of the court made 18 March 2016 or, alternatively, under r 12.7 for failure to prosecute the proceedings with due despatch.

Orders

1. The proceedings are dismissed.

2. I order that the plaintiff pay the defendants’ costs of the proceedings.

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Decision last updated: 13 September 2016