Healy v Chopping as Commissioner for Consumer Protection
[2021] WASC 328
•28 SEPTEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HEALY -v- CHOPPING AS COMMISSIONER FOR CONSUMER PROTECTION [2021] WASC 328
CORAM: KENNETH MARTIN J
HEARD: 27 AUGUST 2021
DELIVERED : 27 AUGUST 2021
PUBLISHED : 28 SEPTEMBER 2021
FILE NO/S: CIV 2092 of 2020
BETWEEN: ALWYN ROBERT HEALY
Plaintiff
AND
LANIE CHOPPING AS COMMISSIONER FOR CONSUMER PROTECTION
First Defendant
PATRICIA SURTEES
Second Defendant
Catchwords:
Defamation action - Original originating summons of self-represented litigant rejected for filing - Second document electronically filed - Procedural irregularities - Serious deficiency - So-called amended writ of summons struck out - Proceeding set aside
Legislation:
Defamation Act 2005 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Folio document 2 set-aside
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | M C Goldblatt & A Shuy |
| Second Defendant | : | N Atiya |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | Steenhof Brothers Barristers & Solicitors |
Case(s) referred to in decision(s):
Atwell v Roberts [2004] WASC 120
Meyer v Solomon [2019] WASC 458
Meyer v Solomon [2021] WASCA 168
Otway Developments Pty Ltd v Waller (Unreported, WASC 9042, Library No 9042, 10 September 1991)
Wookey v Quigley [No 2] [2010] WASC 209
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 27 August 2021 and has subsequently been edited from the transcript.)
Introduction
On 3 November 2020 the plaintiff, Mr Healy, attempted to issue an originating summons over this court's electronic filing system (ECMS). It goes without saying that Mr Healy is a self-represented litigant acting for himself in these proceedings. Mr Healy's document, as electronically submitted, was entitled 'Originating Summons - No Appearance Required - Form 75' (folio doc 1).
Originating summonses are governed by O 58 of the Rules of the Supreme Court 1971 (WA) (RSC). They are discrete to other methodologies for the commencement of actions. The normal mode of commencement is by a writ of summons, which is governed by RSC O 4, r 1(a).
On the face of the 3 November document, it appeared that Mr Healy was seeking to complain about being defamed by a media release of 2 June 2020. I note that the 3 November 2020 document referenced the date of 2 June 2019 - but Mr Healy's subsequent filing had changed the date of the media release as being 2 June 2020. Mr Healy looks to say that the information contained in the release was extensively broadcast on social media platforms, television stations, community newspapers and radio stations. Mr Healy says he had issued a concerns notice under the (presumably) Defamation Act 2005 (WA) the same day, and that a 28 day offer associated with that concerns notice had lapsed.
However, the originating summons document as filed by Mr Healy was plainly inappropriate. It was deficient in both form and substance for several reasons. First, the document said that an appearance was not required. Plainly, that was wrong. Second, Mr Healy was described as an applicant, not a plaintiff. Furthermore, a sole 'respondent' was then identified as Lanie Chopping. She is now in fact, the named first defendant and is represented by counsel today.
Non-acceptance for filing - originating summons dated 3 November 2020
As with all documents attempting to commence actions in this court (electronically submitted or otherwise), Mr Healy's 3 November 2020 filing came to the attention of the Supreme Court registry and from there, to the Principal Registrar. The Principal Registrar identified very quickly the deficiencies in that originating summons - as attempted to be filed for a putative defamation action. As already mentioned, one of these deficiencies was that the commencing process should have been issued by a writ and not by an originating summons.
The Principal Registrar sent Mr Healy a letter via email on 6 November 2020 advising him of this problem. The letter read in these terms:
Documents presented for filing | Healy v Chopping
I refer to the originating summons presented for filing at the registry of the Supreme Court on 3 November 2020. The document has been referred to me for review.
The proceeding you wish to commence appears to be an action based on a claim by you in respect of alleged defamation.
I refer you to the Rules of the Supreme Court 1971 (WA) (RSC). An action based on a claim in respect of an alleged defamation must be commenced by a writ, [I note that in that respect, the Principal Registrar was referring correctly to the terms of O 6, r 1 to r 3, particularly O 6, r 3] ...
The Principal Registrar continued:
… and not by originating summons. The document presented by you is not in the correct form and will not be accepted for filing.
If you wish to present for filing a writ, please note that the writ must include indorsement of claim and not a statement of claim: RSC Order 6, r 3.
At the time of the filing of the so-called originating summons of 3 November 2020, Mr Healy had also lodged an outline of written submissions in another action, namely civil action 2066 of 2020. That obviously appears to have been a completely misconceived endeavour. [On 3 August 2021, I ordered that this outline of written submissions document be removed from this matter's electronic file and be redirected].
Nothing happened in CIV 2092 of 2020 until 31 May 2021, save that the registry of this court made a mistake of omission.
Amended writ of summons filed 31 May 2021
Given Mr Healy's attempted filing by way of an attempted originating summons had been rejected on 6 November 2020 and Mr Healy was duly notified to that effect, the registry should then have entered into the ECMS filing system that the matter status for CIV 2092 of 2020 was 'completed'. If that had been done, there would have been no residual capacity left for any further filings in this electronic matter number. By omission, that entry was not made as it should have been. That was erroneous.
As a consequence of the CIV 2092 of 2020 matter (incorrectly) being left open, Mr Healy has later managed to get filed and stamped on this electronic file matter, a further document. This document on its face reads 'General Form of Writ of Summons'. But the document as submitted and by Mr Healy had been labelled in the ECMS system as an 'Amended Writ of Summons' on the electronic file (see folio doc 2). Consequently, it slipped through as a perceived amendment. It was not.
This filing occurred on 31 May 2021 (which I note is very close to 12 months after the alleged 2 June 2020 media release defamation sought to be complained of by Mr Healy). The document of 31 May 2020 essentially alleges like defamatory complaints as the rejected November 2020 document, but this time attaching a so-called 'Indorsement of claim' spanning some 13 pages, as well as an extra party.
On the face of the document, Mr Healy is now described as a plaintiff by contrast to his 3 November 2020 document - which named Mr Healy as an 'applicant'. Likewise, Ms Chopping, formerly described as 'respondent' was now described as a 'first defendant'. In addition, a newly emerged further party, namely Patricia Surtees, had been added as a so-called second defendant.
The Named Defendants' Conditional Appearances
Subsequent to Mr Healy lodging that 'Amended Writ of Summons' on 31 May 2021, his filing came to the attention of both so-called defendants. The so-called first defendant was, at the time, the Commissioner of Consumer Protection, and so, the filing came to the attention of the State Solicitor's Office acting for that State official. Concern was soon expressed about an ostensibly ineffective filing - to the registry of this court.
The matter wended its way eventually to me from the registry, referred effectively for case management consideration. All defamation filings in this court are referred to a judicial officer in the CMC list under a separate Defamation List.
In due course on 5 July 2021, the first defendant, through the State Solicitor's Office, filed what was a conditional appearance under RSC O 12, r 6. This drew attention, correctly, to non-compliances by Mr Healy's 31 May 2021 document with RSC O 5, r 10; O 5, r 11 and O 6, r 1 to 3. Likewise, on 2 July 2021, the second defendant had filed a conditional appearance drawing attention to like issues over the asserted validity of the filing, including an uncertain commencement date and lack of a reasonable cause of action.
Following the filing of conditional appearances by both named defendants, an application as is envisaged by the RSC was made by the first defendant within a 14-day timeframe - to ventilate the issues raised under the conditional appearance (see RSC O 12, r 6(2)).
That has occurred under the SSO's communication made via letter to the court of 19 July 2021 (see folio doc 5). That letter stands effectively (see RSC O 4A r 5A(2)) as an application to ventilate jurisdictional deficiencies complained of in the filing of the 31 May 2021 document. The as named first defendant, in essence, sought an order that the document be set aside or alternatively struck out in its entirety. The named second defendant abides the court's decision on that issue.
Programming orders made
In due course, the application of the named first defendant came before me at a directions hearing on 3 August 2021. That day I made certain programming orders - first, limiting the access to Mr Healy's document filed on 31 May 2021 and then issuing programming orders - on a basis that one or both named defendants would wish to press the as filed application to set aside the 31 May 2021 filing (see my orders of 3 August 2021, specifically orders 2 and 3).
On 20 August 2021, I issued further programming orders for the exchanging of written outlines of submissions. I afforded the parties an opportunity to file affidavit materials in respect of the application to set aside Mr Healy's filing. To that extent, the named first defendant has filed an affidavit of Michelle Anne Steiner sworn 20 August 2021 (folio doc 8), which explains a number of details around electronic filing in the general division of this court - not the least of which is a publication accessible from the court's website entitled 'Electronic Filing Guide for Self-Represented Litigants'.
Essentially then, the dispute was programmed to a special appointment before me following receipt of the first defendant's outline of written submissions of 20 August 2021 (folio doc 7) and then, Mr Healy's written submissions of 24 August 2021 (folio doc 10).
Deficiencies of the 'Amended Writ of Summons' filed 31 May 2021
Having considered the parties' as filed written submissions and today's oral arguments, I make the following observations and determinations regarding the regularity of Mr Healy's so-called 'Amended Writ' document, as it came to be filed by him on 31 May 2021.
Incorrect filing
There are numerous curiosities associated with Mr Healy's 31 May 2021 document. The first is that it was even capable of being submitted in matter CIV 2092 of 2020, despite it being a 2021 filing. That was by reason of the failure of the registry to have the matter status updated and entered as 'completed' at the time of Mr Healy's attempted, but then unsuccessful, filing of an originating summons - when rejected on 6 November 2020.
A further curiosity, solely attributable to Mr Healy, was his lodgement of his 31 May 2021 document under a heading 'Amended Writ Summons', rather than as an originating document. Plainly, this was not an amended writ of summons. There was no prior writ to amend.
If the 31 May 2021 document had been lodged by Mr Healy as a writ commencing a proceeding, then as a matter of course, it would have been referred to the Principal Registrar or a registrar of this court for review, before it obtained the seal of the court. A review did not eventuate because of the misdescription of the filed document by Mr Healy as an 'Amended Writ of Summons' - that would not be, as an amendment, commencing anything. As such, the 31 May 2021 document was not referred to anyone for review. By its lodgement description, it 'slipped through the cracks' as an electronic lodgement that eventually obtained the seal of the court.
Deficiencies in document content
Had the 31 May 2021 filing of Mr Healy been regular in other respects, there would have been an interesting question as to whether its legal status is that of nullity, or simply as an irregular filing. Certainly, Mr Healy's attempted commencement of a defamation action at 31 May 2021, (which may only be commenced by writ: see RSC O 4, r 1) under a heading of 'Amended Writ of Summons', carried implications - in terms of avoiding the usual procedural scrutiny undergone by all defamation lodgements commenced in this court, particularly by self‑represented defamation plaintiffs - where bitter past experiences teach that a potential for abuses of process is ever present.
Not only did the 31 May 2021 filing avoid scrutiny by a registrar and potential rejection then, but it also escaped scrutiny in terms of it's so‑called indorsement of claim spanning pars 1 through to 34 of that document. The briefest of glances at the content of those paragraphs displays that they go well beyond anything that might be legitimately viewed as an indorsement of claim that accords with the requirements of the RSC (see O 6, r 1, 2 and 3). Pursuant to RSC O 6, r 1 and as I had mentioned to Mr Healy at the directions hearing on 3 August 2021, an indorsement must only be a 'concise statement of the nature of claim made and of the relief or remedy required in the action'. His plainly, is not.
The policy reason behind that rule (limiting, in effect, the details provided in the initial defamation filing) is that original filings commencing actions, along with orders of this court, are publicly accessible documents - not to only the parties in an action, but also to third parties generally, including to the media (see RSC O 67B, r 6(3) at table A, items 1 and 2).
To the extent that the filed documents of a would be plaintiff commencing a process in this court are publicly accessible, their content is, or is capable of being widely accessed and then disseminated.
Accordingly, to the extent that the content of a defamation filing could potentially articulate serious, even scandalous or outrageously false allegations against named defendants on a protected basis as a court filing, the RSC dictates (for sensible policy reasons) that there be limitations on public access to following detailed pleading documents. This rule applies unless good reason is demonstrated to the contrary - for certain causes of action, including for defamation actions - essentially so serious allegations (if they do make it to a trial), come to be resolved only in the court room, after a fair hearing to all sides.
Master Sanderson's decision in Atwell v Roberts [2004] WASC 120 (Atwell v Roberts) references the policy explanation as was provided by Anderson J in Otway Developments Pty Ltd v Waller (Unreported, WASC 9042, Library No 9042, 10 September 1991) - in the context of fraud actions. Anderson J had noted (at [6]) that whether it was by an action of actual fraud or equitable fraud, only an indorsement of claim rather than a full unexpurgated statement of claim (pleading)) was mandated for a commencing process for a fraud action. The same policy applies equally to defamation actions, including to this attempted commencement of proceedings by Mr Healy at 31 May 2021.
There are even further problems with Mr Healy's 31 May 2021 filing. The date of the document, on its face, was described as 3 May 2021, albeit it's date of filing was 31 May 2021. Further, there was no time identified for the service (of the writ - or amended writ) upon the defendants, as is required. Ordinarily, if the defendants reside in the metropolitan area of Perth, that period stated would be 10 days (see RSC O 5, r 11). That pre-requisite is also missing.
Likewise, in terms of a reference on the second page of the document to it being witnessed by the Chief Justice, a date ought to have been inserted there - namely the date of filing of 31 May 2021. It was not.
Further, between the 3 November 2020 and the 31 May 2021 document filings of Mr Healy, the second defendant has somehow emerged as a named extra party to the proceedings. That addition violates RSC O 21, r 1(3)(a), which requires a party to seek leave before adding a further party (i.e. here a defendant) to a writ. Another problem.
Limitation period issue
As one gets to the indorsement itself (which in fact carries elaborate details akin to a pleaded statement of claim), reference is made to a talkback radio station interview by the first defendant, in which the second defendant is said to have participated. That, however, is alleged to have occurred at 3 June 2012 (see par 2 of the so-called indorsement of claim). That is another manifest error.
It appears that on 31 May 2021, Mr Healy attempted (as he seemingly had tried previously at 3 November 2020) to commence a defamation action. Defamation actions are closely regulated processes of the court for obvious policy reasons - stemming from the public interest in protecting reputations. There are as well, limitation of action considerations under the Limitation Act 2005 (WA).
Ordinarily, a plaintiff only has 12 months to commence their defamation action, but with an outer limit of three years by extension in limited circumstances (see ss 15 and 40 of the Limitation Act 2005 (WA)). A plaintiff must obtain leave to obtain an extension to commence an action beyond the 12 months timeframe - in circumstances which they must explain (Limitation Act 2005 (WA) s 40(1)). I canvassed that area of the law in the past: see my reasons in Wookey v Quigley [No 2] [2010] WASC 209 and Meyer v Solomon [2019] WASC 458 and see Meyer v Solomon [2021] WASCA 168, which I would reiterate.
Having discussed the problems with Mr Healy's filed document of 31 May 2021, I turn now to an evaluation of the first defendant's set aside application.
Evaluation - set aside application
This court can set aside a writ or a filing under RSC O 2, r 1(2) on such terms as to costs or otherwise as the court thinks just. But I note an exhortation by the RSC under O 2, r 1(3), which says:
The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
The policy underlying that rule is for the court, in assessing a commencing process that ought to have been commenced by a particular method, but was not - to not elevate form ahead of substance in terms of assessing the gravity of such an error. Consequently, it is not uncommon for this court to issue orders to the effect that actions wrongly commenced, say by originating summons or by originating motion, (see RSC O 54) are to be treated as if they had been (correctly) filed as if by a writ of summons.
If a misfiling by the wrong commencing process was the extent of the problem here, I would be significantly minded towards viewing Mr Healy's 31 May 2021 document as an irregularity, then issuing accompanying orders to assist his position of a self-represented plaintiff doing his best to lodge a defamation process filing, but essentially not succeeding.
Regrettably however, the problems that I have now canvassed are far worse than that. They are so numerous that they are not capable of remedy. Consequently, I will make an order setting aside, as against all named defendants, the document that was filed by Mr Healy on 31 May 2021 which calls itself on its face, 'General Form of Writ of Summons'
- but managed to get electronically filed as an amendment under a pre-existing action number CIV 2092 of 2020.
In setting aside Mr Healy's so-called writ or amended writ, my concern is essentially a policy one. As previously articulated, Mr Healy's filing of 31 May 2021 should have, and almost invariably would have been brought to the attention of a registrar of this court, had it been submitted then as a writ articulating a defamation cause of action. If that had been done, the evident deficiencies would likely have been then identified and the document as well would then have likely been rejected for filing, at least until the obvious deficiencies were fixed.
There are accompanying considerations to my set aside conclusion
- including that a second defendant has emerged as an extra named party without leave of the court. The so-called 'indorsement of claim' was plainly not an indorsement and is in the nature of a detailed defamation pleading. There are as well underlying limitation of action considerations which do not allow for any level of ambiguity over when a defamation action has been filed.Under all these circumstances, the position is unduly blurred and murky. Mr Healy managed to electronically file something on 31 May 2021 under the electronic lodgement rubric of an 'Amended Writ' when plainly, there never was any 'writ' filed prior to that. That is a serious deficiency. The filing has slipped through the cracks in 2021 because that matter status was not closed off in November 2020, as it should have been at the time. That was the court's omission then. But Mr Healy took matters well beyond that omission by seriously misdescribing what he was electronically filing, on 31 May 2021.
I would have attempted to cure mere irregularities. However, the problems here are too great. For similar reasons to those as were expressed by Master Sanderson in Atwell v Roberts, (noting that the Master chose there to set aside the fraud action that had not been filed by a correct indorsement in accordance with the RSC), I consider that the deficiencies in Mr Healy's filing carry even greater adverse implications warranting a set aside order.
Grave errors in Mr Healy's 31 December 2021 documents have been objected to by the first defendant. The second defendant abides the decision of the court, having entered a conditional appearance which became unconditional upon the expiration of the timeframe to bring an application pursuant to RSC O 12, r 6(2).
Under all the circumstances, the appropriate order must be (notwithstanding the admonition in RSC O 2, r 1(3) towards rehabilitating a bare misfiled commencing process) for Mr Healy's filing to be set aside. There are simply too many adverse potential repercussions bearing on a future defamation action for his 31 May 2021 filing to be allowed to subsist. Consequently, I will strike it out and set it aside.
Final orders
Consequently, on the hearing of the first defendant's application on 27 August 2021, orders will issue in terms:
1.Folio document 2 as electronically filed by Mr Healy on 31 May 2021 in CIV 2092 of 2020, as his 'Amended Writ of Summons', whilst displaying on its face the title, 'General Form of Writ of Summons', is hereby set aside.
2.The costs, including the reserved costs of the present application of the first defendant, are to be paid by the plaintiff, as agreed, or absent agreement, to be taxed in due course.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Martin
28 SEPTEMBER 2021
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