Kang v Channel Seven Sydney Pty Ltd

[2016] NSWDC 307

District Court

New South Wales

Medium Neutral Citation:	Kang v Channel Seven Sydney Pty Ltd [2016] NSWDC 307
Hearing dates:	10 November 2016
Date of orders:	15 November 2016
Decision date:	15 November 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s Notice of Motion filed in court on 10 November 2016 dismissed. (2) Defendants’ Notices of Motion of 29 July 2016, 25 August 2016 and 30 August 2016 granted; these proceedings are struck out and dismissed. (3) The plaintiff is to pay the defendants’ costs of these proceedings. (4) Liberty to apply concerning costs.
Catchwords:	PRACTICE AND PROCEDURE – delay in commencement and conduct of litigation – plaintiff commences defamation proceedings against seven defendants but fails to serve the defendants before the first return date – substantial pleading errors in statement of claim remain unrectified despite leave to amend being granted and, when those orders were not complied with, costs orders being made – defendants bring applications for summary dismissal and to set aside the claims made against the unserved parties – belated application by plaintiff for extension of time to serve the statement of claim and for leave to amend – proposed amended statement of claim still defective – whether proceedings should be summarily dismissed under UCPR r 12.7 and s 61 Civil Procedure Act 2005 (NSW) – whether unserved parties entitled to a declaration that the statement of claim had not been served and an order that the statement of claim be set aside under UCPR r 12.11(1)(c) – unsatisfactory explanations by plaintiffs for delay, failure to serve and failure to comply with orders – orders sought by defendants made
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 and 67 Defamation Act 1974 (NSW), s 9(3) Defamation Act 2005 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 10.20, 12.7, 12.11 and 18.5
Cases Cited:	Alex v Australian Broadcasting Corporation [2015] NSWDC 78 Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998) Crux - Southern Cross University Post Graduate Association Inc v Watts [2013] NSWDC 254 Duke of Brunswick v Harmer (1849) 14 QB 185 Foley v Rosier [2014] NSWDC 92 Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 Habib v Radio 2UE Pty Ltd [2009] NSWCA 231 Hanson v Hunter [2015] NSWDC 220 Hunter v Hanson [2014] NSWCA 263 Hunter v Hanson [2015] HCATrans 16 Kang v Australian Broadcasting Corporation [2015] NSWCA 376 Kang v Australian Broadcasting Corporation [2015] NSWSC 893 Kang v Immigration News Pty Ltd [2016] NSWDC 74 McCarey v Associated Newspapers Ltd [1965] 2 QB 86 Smith v Grant (2006) 67 NSWLR 735 SZWCA v Minister for Immigration & Anor [2015] FCCA 1249 Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79 White v Sparks [2015] NSWDC 53
Texts Cited:	J.D. Evans, “Seizure of a Member’s document under search warrant”, The Table, Vol 72, 2004 Report of Standing Committee on Parliamentary Privilege and Ethics (Report 23 – December 2003), Legislative Council of New South Wales Spencer Bower, “A Code of the Law of Actionable Defamation”, 2nd ed (1923) Butterworth & Co
Category:	Procedural and other rulings
Parties:	Plaintiff: Edward (Eddie) Kang First Defendant: Channel Seven Sydney Pty Ltd (ACN 000 145 246) Second Defendant: Helen Wellings Third Defendant: State of New South Wales Fourth Defendant: The Hon. Matthew Ryan Mason-Cox Fifth Defendant: David Byrne, Department of Fair Trading Sixth Defendant: Nationwide News Pty Ltd Seventh Defendant: Jay Bishop, Department of Fair Trading
Representation:	Counsel: Plaintiff: Mr R Rasmussen First and Second Defendants: Mr R Jedrzejczyk Third, Fourth, Fifth and Seventh Defendant: Mr B Watts (solicitor) Sixth Defendant: Ms L E Barnett   Solicitors: Plaintiff: Etheringtons Solicitors First and Second Defendants: Johnson Winter & Slattery Third, Fourth, Fifth and Seventh Defendant: Crown Solicitor’s Office Sixth Defendant: Macpherson Kelley
File Number(s):	2016/54514
Publication restriction:	None

Judgment

The applications before the court

1. These are proceedings for defamation commenced by the plaintiff by statement of claim filed on 19 February 2016 against seven defendants.

2. The seven defendants bring three Notices of Motion, filed in accordance with directions, seeking summary dismissal and/or the setting aside of the statement of claim on the grounds set out below. On the evening before the hearing, the plaintiff foreshadowed bringing a Notice of Motion seeking leave to amend, to discontinue against two parties, and an extension of time to serve those parties who complained they had not yet been served.

3. The applications before the court, in date order, are as follows:

1. 29 July 2016: The third, fourth, fifth and seventh defendants filed a Notice of Motion seeking orders that the statement of claim to be set aside under r 12.11(1)(c) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that the statement of claim had not been served upon them. This Notice of Motion was served in accordance with orders made by McLoughlin SC DCJ on 16 June 2016. In written submissions provided prior to the hearing of this motion, these defendants also sought dismissal of the proceedings pursuant to r 12.7 UCPR and ss 56 – 57 Civil Procedure Act 2005 (NSW) for failure to prosecute the claim diligently.

2. 25 August 2016: The first and second defendants filed a Notice of Motion seeking summary dismissal of these proceedings pursuant to r 12.7 UCPR and ss 61 and 67 Civil Procedure Act 2005 (NSW) for failure to prosecute the claim diligently. This Notice of Motion was served in accordance with orders made by McLoughlin SC DCJ on 16 June 2016.

3. 30 August 2016: The sixth defendant filed a Notice of Motion seeking summary dismissal of these proceedings pursuant to r 12.7 UCPR or alternatively the setting aside of the statement of claim pursuant to r 12.11(1)(c) UCPR. This Notice of Motion was served in accordance with orders made by McLoughlin SC DCJ on 16 June 2016.

4. 9 November 2016: The plaintiff foreshadowed seeking to rely, at the hearing set down for the defendants’ motions on 10 November 2016, on a Notice of Motion seeking an extension of time for service of the statement of claim filed on 19 February 2016 to 24 November 2016, leave to file an amended statement of claim and leave to discontinue against the fifth and seventh defendants. This Notice of Motion is not the subject of any timetabled grant of leave, and was sent to my associate the evening before the hearing of this motion. In this regard, I note that I made the following order on 10 November 2016 requiring the plaintiff to file this Notice of Motion in the registry:

“Upon the undertaking of Ms Candice Lau of Etheringtons Solicitors to file in the Registry in 7 days, and pay the requisite filing fee, the Notice of Motion upon which the plaintiff propose to rely today, grant leave to the plaintiff to move on the Notice of Motion served on the first, second and sixth defendants yesterday, returnable instanter, but preserving the right of the third, fourth, fifth and seventh defendants to object to the hearing of the notice motion pursuant to r 18.5 Uniform Civil Procedure Rules 2005 (NSW).”

4. There are affidavits in support of the three filed Notices of Motion. The plaintiff’s Notice of Motion merely annexed the proposed amended statement of claim but an affidavit from the plaintiff dated 9 November 2016 was provided at 5.56 pm on the evening prior to the hearing of this motion.

5. There are written submissions in support of the three filed Notices of Motion. The plaintiff did not provide any written submissions.

The issues for determination

6. The issues for determination are as follows:

1. The defendants ask me to dismiss these proceedings because the plaintiff has failed to comply with any of the court orders since these proceedings were commenced. This includes the plaintiff’s failure to serve the third to seventh defendants in accordance with r 18.5 UCPR, for which failure those defendants alternatively ask that the statement of claim be set aside.

2. The plaintiff seeks an extension of time to serve the unserved parties (except the fifth and seventh defendants, against whom they wish to discontinue) and leave to file an amended statement of claim.

The application for summary dismissal

7. Only in exceptional circumstances should proceedings be dismissed for failure to comply with court orders or to conduct the case expeditiously. The relevant principles, as set out by Macfarlan JA in Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 at [37]–[44], are:

1. Where there is delay in the conduct of defamation proceedings at an interlocutory level, the explanation or excuse which is offered is relevant, as is the satisfactoriness (or otherwise) of that explanation or excuse.

2. Evidence of particular prejudice to the opposing party by reason of the delay may be relevant (at [40]).

3. The principles underlying ss 56 – 60 Civil Procedure Act 2005 (NSW) are of fundamental importance when determining applications for dismissal for want of due dispatch.

8. Three areas of conduct of the proceedings are of particular relevance:

1. Where defamation proceedings are commenced towards the end of the limitation period, plaintiffs are required to prosecute them diligently thereafter. Delay in commencement of defamation proceedings may result in the reduction of damages (McCarey v Associated Newspapers Ltd [1965] 2 QB 86). These factors are of long standing and are in addition to, not merely resulting from, from the principles enunciated in ss 56 – 62 Civil Procedure Act 2005 (NSW). By way of example, in Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998), Levine J stated:

“Where the plaintiff has been “late” in the initiation of proceedings, first, the quality of the remedy sought in defamation will or could be, severely affected both in terms of quantum and costs; and secondly, the requirement in a plaintiff diligently to prosecute the action will be one that demands strict adherence to the Rules of Court or directions given”.

2. The question is not the length of the delay but the nature and pattern of the delay: Kang v Australian Broadcasting Corporation [2015] NSWCA 376; Kang v Australian Broadcasting Corporation [2015] NSWSC 893 at [21] – [25]. This may include delay in similar proceedings: Kang v Immigration News Pty Ltd [2016] NSWDC 74 at [25] – [30].

3. A careful examination of the procedural history of the proceedings is necessary, as is the plaintiff’s explanation for those delays.

The procedural history of the plaintiff’s claims

9. The plaintiff filed a statement of claim on 19 February 2016 seeking damages for defamation for the following publications against the following defendants:

1. A broadcast by the first and second defendants asserted to have been made on 18 February 2015. The transcript of the broadcast (described in the statement of claim as “the first matter complained of”) was not attached.

2. A publication by the third and fourth defendants on 19 February 2015, on the website of the Department of Fair Trading, the text of which was attached as Schedule A to the statement of claim. No particulars of downloading were provided.

3. No cause of action was pleaded specifically against the fifth, sixth and/or seventh defendants. However, an article from a newspaper published by the sixth defendant was attached.

4. A rounded-up claim, headed “Claims against all defendants” stated that by reason of publication of the matters complained of the plaintiff had suffered damage to his reputation (paragraph 12 of the statement of claim).

10. The first return date of these proceedings was 24 March 2016. That was also the first return date for Mr Kang’s defamation action against Immigration News Pty Ltd (see Kang v Immigration News Pty Ltd). The plaintiff, Mr Kang, was in court on 24 March 2016, accompanied by a solicitor, Ms Tannous of MacKellars, solicitors, and timetable orders were made in both these proceedings.

11. On its face, the statement of claim in these proceedings was hopelessly drafted, for the reasons identified above. Ms Tannous, who appeared for the plaintiff on 24 March 2016 (who actively participated in the making of directions, as I noted in Kang v Immigration News Pty Ltd at [4]), also described to me the plaintiff’s inability to serve the defendants. She also described to me her own firm’s position. In those circumstances, I took care to include the details of what she told me in my orders, which were as follows:

“1. Note that the plaintiff’s solicitor, Ms Tannous, advises the court that Mr Kang had not been able to effect service on any of the seven defendants in accordance with the Rules, although two of the defendants (the 5th and 7th defendants) have been sent copies of the statement of claim by email (which the plaintiff acknowledges does not constitute valid service).

2. Matter stood over to the Defamation List on Thursday 27 April 2016, noting the plaintiff has been advised that the statement of claim is now stale.

3. Reserve the plaintiff’s right to seek to extend time for consideration on Thursday 27 April 2016 when the plaintiff may foreshadow such application as the plaintiff proposes to make, noting the obligations imposed by Civil Practice Note 6.

4. Note the appearance of Ms Tannous from MacKellars Lawyers is for today only and she is excused from having to file a Notice of Appearance, but any solicitor appearing for Mr Kang in the future must file a Notice of Appearance.”

12. I have set out these orders in full because the plaintiff’s explanation for delay in his affidavit, which sets out his asserted difficulty in obtaining legal representation, does not refer to Ms Tannous, or to MacKellars Lawyers, or to the discussion about the extension of time for service of the statement of claim, or to the separate defamation proceedings against Immigration News Pty Ltd, or to any of the orders that I made on 24 March 2016.

13. As my judgment in Kang v Immigration News Pty Ltd sets out, the defendants’ application for summary dismissal of those proceedings was listed for hearing on 28 April 2016. On that date, Mr Goldsmith of Goldsmiths Lawyers appeared. He sought an adjournment, telling the court he had only been briefed in Kang v Immigration News Pty Ltd a matter of hours before the application was listed for hearing. That application was refused and the defendants’ application was heard.

14. Orders were also made on 28 April 2016 in these proceedings. Mr Goldsmith had filed a Notice of Appearance in these proceedings on 21 April 2016. He advised the court he was aware of the following problems in relation to the statement of claim as currently drafted:

1. He had told the plaintiff the statement of claim required amendment and that he did not have the transcript of the broadcast of the publication made by the first and second defendants.

2. He had forwarded a proposed amended statement of claim to the sixth defendant which included a publication in The Australian dated 20 February 2016 (which was outside the limitation period as to the hard copy, but within time for the internet publication).

3. He foreshadowed the striking out of the claims against the fifth and seventh defendants, acknowledging there was no claim pleaded against them.

4. The position in relation to service of the statement of claim on the other defendants was unclear, which was of concern, as leave was likely to be sought to add an additional claim against the third and fourth defendants.

15. I made the following orders on 28 April 2016:

“1. Matter stood over for direction to 9 June 2016 so that the plaintiff may obtain transcript of the matter complained of.

2. Any proposed amended Statement of Claim is to be provided to the other parties by 4pm on 8 June 2016.

3. These Orders are without prejudice to any outstanding applications by the parties.

4. Noting the absence of the matter complained of in Statement of Claim and other pleading defects as well as late service of claims the plaintiff is to pay costs of all parties to these proceedings for today.”

16. Mr Kang does not refer to any of these events in his affidavit of explanation of 9 November 2016.

17. On 29 April 2016 the Crown Solicitor wrote to Goldsmiths Lawyers, inquiring about the failure to serve the third, fourth, fifth and seventh defendants. After an email on 15 May 2016 advising that they were awaiting instructions, Goldsmiths Lawyers filed a Notice of Intention of Ceasing to Act, which was served on the Crown Solicitors on 2 June 2016.

18. The matter was next listed for directions on 16 June 2016, when the following orders were made by consent before McLoughlin SC DCJ:

“1. Plaintiff to file an Amended Statement of Claim and serve it upon any active party by 29 July 2016.

2. Any defendant to file any motion and serve it on any parties by 25 August 2016.

3. Defendants to file and serve any evidence in support of any motions by 2 September 2016.

4. Plaintiff to file and serve any evidence in reply to any motions by 23 September 2016.

5. Matter listed for hearing of any motions on 6 October 2016.

6. Liberty to apply on 7 days notice to all parties.

7. By consent, plaintiff to pay defendants’ costs of today.”

19. Notices of motion were filed by the third, fourth, fifth and seventh defendants on 29 July 2016 seeking to set aside the statement of claim and by the first and second defendants on 25 August 2016 for the proceedings to be summarily dismissed. The sixth defendant’s notice of motion was filed on 30 August 2016.

20. On 6 October 2016 the hearing of the motions was not able to proceed. The plaintiff had new solicitors, Etheringtons Solicitors. They foreshadowed amended pleadings, but were not in a position to provide them to the court. I made the following orders:

“1. Grant leave to the plaintiff to file a Notice of Appearance in Court.

2. Matter specially fixed for argument on Thursday 10 November 2016 (2 hour estimate).

3. Costs reserved.”

21. The plaintiff’s legal representatives had come into the matter so recently that they had not yet filed an appearance. The defendants wished the application to go ahead, but I adjourned the hearing to give the plaintiff another opportunity to put his house in order. Regrettably, this has not occurred.

22. The principal problem the plaintiff faces is the complaint of continued failure to comply with case management orders for the filing of amended pleadings. This is the first of the two bases upon which the defendants seek summary disposal of the plaintiff’s claim.

The application under r 12.7 UCPR and s 61 Civil Procedure Act 2005 (NSW)

23. The following facts are not in dispute:

1. The plaintiff commenced these proceedings at the end of the limitation period or, in relation to the online publications, in circumstances where he had been aware of their contents for at least a year, which meant he thereafter should have conducted them diligently in accordance with the warnings noted by Levine J in Campbell v Regional Publishers Pty Ltd, set out above.

2. The statement of claim in its current form is inadequate and must be amended. The plaintiff has failed to avail himself of opportunities to do so on two prior occasions, namely the orders to file an amended statement of claim by 8 June 2016 and again by 29 July 2016.

3. In the course of argument, counsel for the plaintiff has acknowledged that the claim against the sixth defendant includes a claim for publications some of which are time-barred and which will require further amendment.

4. The statement of claim has not been served in accordance with the rules and the plaintiff had never, until the Notice of Motion sent to my associate on 9 November 2016, sought an extension of time for service. Although the plaintiff’s Notice of Motion seeks an extension of time for service for up to 14 days in the future, counsel for the plaintiff acknowledges that he cannot proceed with that application, as the third, fourth, fifth and seventh defendants are not active parties and pursuant to r 18.5 UCPR must be personally served. This effectively means that the plaintiff cannot ask the court to deal with any of the orders sought in the plaintiff’s Notice of Motion in this application at the current time.

1. The plaintiff has failed to comply with any of the orders made by the court to date (in paragraph 4 of his written submissions, Mr Lynch, solicitor on record for the first and second defendants, calls this “a ‘clean sweep’ of non-compliance”).

2. The plaintiff has brought the applications for extension of time for service and leave to amend in the face of applications by all the defendants for summary dismissal which have been in his possession for over two months.

3. The plaintiff has had two other defamation proceedings struck out in the Supreme Court and this court for similar non-compliance.

24. This brings me to the plaintiff’s explanation for delay.

The plaintiff’s explanation for delay

25. Mr Kang, the plaintiff, in his affidavit of 9 November 2016, sets out explanations for his reasons for delay in these proceedings.

26. Mr Kang first sought legal advice about his defamation claims from Mr Goldsmith “in or about February 2016”. This was already a matter of weeks before the expiry of the limitation period for some of these publications. There is no explanation for the plaintiff waiting for so long.

27. Mr Kang sought that advice generally, about “various publications about me” (paragraph 1) but stated that:

“I did not have any retainer with Mr Goldsmith apart from the initial work referred to at paragraphs 3 and 4 above.” (Paragraph 5)

28. However, as is set out below, Mr Kang was in fact instructing Mr Goldsmith in other defamation matters during 2014 – 2015 and he later instructed Mr Goldsmith to appear on his behalf in other proceedings in this court, brought against Immigration News Pty Ltd and Mr Konrad.

29. Mr Goldsmith sent Mr Kang a draft which sought relief against six defendants but which did not include the fifth or seventh defendant in the current proceedings. Mr Kang redrafted the claim to add the fifth and seventh defendants and deleted two of the defendants Mr Goldsmith’s pleading had included. How this resulted in seven defendants instead of six is not explained, but Mr Kang notes that in the course of this drafting he accidentally deleted the paragraphs of the matter complained of which included the pleading of imputations arising against Nationwide News Pty Ltd, the current sixth defendant, an error Mr Kang did not realise he had made when he filed the statement of claim in these proceedings in the registry.

30. At paragraph 6, Mr Kang sets out that, on an unspecified date “after filing the statement of claim”, he posted the statements of claim to Channel Seven Sydney Pty Ltd and Ms Helen Wellings (the first and second defendants), as well as Nationwide News Pty Ltd (the sixth defendant). At paragraph 7, he sets out that “in about March 2016” he rang Mr Goldsmith to ask how to serve the other defendants and Mr Goldsmith told him to serve the State of New South Wales at its 1 Farrar Place address. He went there to attempt to serve the statement of claim but could not locate the right address. Mr Kang says he next went to Parliament House to serve the Honourable Matthew Ryan Mason-Cox MLC but the receptionist said he was out. Mr Kang then left. That was perhaps fortunate, since serving a Member of Parliament in Parliament House could amount to contempt (Report of Standing Committee on Parliamentary Privilege and Ethics (Report 23 – December 2003), Legislative Council of New South Wales, paragraphs 3.66 and 3.70; J.D. Evans, “Seizure of a Member’s document under search warrant”, The Table, Vol 72, 2004). It seems most unlikely Mr Goldsmith would have given this advice to Mr Kang.

31. Mr Kang states that, as he was “not aware of the time limit of one month” for service of the statement of claim, he decided to retain a solicitor on his behalf and on about 20 April 2016 he retained Goldsmiths Lawyers to act for him (paragraphs 12 and 13). However, on 9 June 2016 Goldsmiths Lawyers filed a Notice of Ceasing to Act and on 16 June 2016 Mr Kang was obliged to represent himself before McLoughlin SC DCJ, following which he decided that he needed to retain another lawyer to look at the statement of claim Mr Goldsmith had redrafted (paragraphs 14 – 16).

32. The narration of events set out in the preceding paragraphs is very different to what I was told when I made orders on 24 March 2016 and 28 April 2016 or the orders made on 16 June 2016. I particularly note:

1. Mr Kang does not mention consulting MacKellars Lawyers or Ms Tannous at all, although Ms Tannous appeared with Mr Kang on 24 March 2016 in both the defamation actions commenced by Mr Kang which had their first return date in the Defamation List on that day.

2. Mr Kang was aware of the time limit of one month for service of the statement of claim because I told him, on 24 March 2016, that his statement of claim was stale, and included this information in order 2, as well as reserving his right to make an application to extend time for service.

3. Mr Kang does not mention that Mr Goldsmith appeared for him on 28 April 2016 in both the proceedings against Immigration News Pty Ltd and these proceedings, and that I made orders for the amended statement of claim to be served by 8 June 2016, as well as a costs order by reason of Mr Kang’s delay.

4. It is not uncommon, where the time to commence proceedings has expired, for the plaintiff to put evidence before the court that the delay has been occasioned by his legal representatives: Smith v Grant (2006) 67 NSWLR 735. Mr Rasmussen submitted that I could assume, from Mr Goldsmith ceasing to act for Mr Kang, that “something was afoot”, the meaning of which was not made clear, but appeared to be that Mr Goldsmith had left Mr Kang inconvenienced by a lack of representation at short notice. However, Mr Kang had instructed Mr Goldsmith regularly from early 2014 until about June 2016: see Kang v Australian Broadcasting Corporation at [6] – [24], Kang v Immigration News Pty Ltd (at [23]) and SZWCA v Minister for Immigration & Anor [2015] FCCA 1249 at [21]. If the inference is that Mr Goldsmith let Mr Kang down by ceasing to act in circumstances where Mr Kang’s ability to conduct his case was compromised, I see no basis for it.

33. Individually, these inconsistencies and gaps in explanation would be unsatisfactory. In combination, they are matters for concern. There is a repeated pattern of inadequate pleadings and failure to comply where two costs orders have not functioned as any kind of warning, but these issues have not been explained adequately or, in some circumstances, at all.

34. In Kang v Australian Broadcasting Corporation, McCallum J was not satisfied that the affidavit of explanation for delay was full and frank, and particularly noted:

“[18] According to the material in Mr McAvaney’s affidavit, that also appears to be a less than full and frank account of the circumstances in which Mr Goldsmith was retained.”

35. The same is the case with Mr Kang’s affidavit, but there are additional problems of much greater seriousness. These are the plaintiff’s failure to serve the statement of claim despite being made aware on the first return date that his statement of claim was already stale, the “clean sweep” of failures to comply with orders which included two orders for the filing and service of amended pleadings (which resulted in two costs orders against him) and the belated sending of the plaintiff’s Notice of Motion, without leave or even prior notice, on the evening before this hearing. Additionally, these claims were commenced on the last day of the limitation period for at least one of the publications, were poorly drafted and still require amendment. This is a substantially longer and more serious history of delay than occurred in Kang v Australian Broadcasting Corporation.

36. In Kang v Australian Broadcasting Corporation at [23], McCallum J stated:

“[23] Mr Goldsmith submitted on the show cause application that there is no evidence in this case of any prejudice to the defendants. The prejudice, in my view, is manifest. There have been wasted appearances, costs incurred (which may or may not be recoverable) and, to Mr Konrad, the undoubted personal inconvenience and vexation of returning to meet a claim moving along slowly, at a pace determined by Mr Kang.”

37. The defendants submitted that the same prejudice had occurred here. Costs orders against Mr Kang have not operated as a deterrent to date.

38. Not only are costs orders ineffective. Case management orders aimed at explaining service requirements and pleading errors have also failed. Counsel for the first and second defendants submitted that Mr Kang had shown a disregard not only for his opponents but also for the court. Unfortunately, attempts to assist Mr Kang by incorporating the steps he should take into the court orders have not had the result of his taking those steps.

39. In Kang v Australian Broadcasting Corporation at [25] – [26], McCallum J concluded:

“[25] The events I have recited are very concerning and give me no confidence that Mr Kang has any intention of complying with the duty imposed upon him by s 56. His affidavit sets out his determination “moving forward” to adhere to directions of the court but there is no basis for accepting that assurance.

[26] In my view, the dictates of justice require that the proceedings now be dismissed.”

40. Not only was this decision upheld on appeal, but Mr Kang subsequently suffered the dismissal of other defamation proceedings in this court as well. I have been cautious not to make too much of the fact that two of his actions have been struck out, but it is a relevant factor, although a very small one.

41. Taking all of the above into account, the dictates of justice require that these proceedings now be dismissed as against all defendants.

The s 23 Defamation Act 2005 (NSW) argument

42. Mr Rasmussen submitted, in relation to both this application and the application under r 12.11(1)(c) UCPR, that striking out these proceedings was a futility, because the plaintiff can simply commence fresh proceedings in relation to the online publications.

43. The plaintiff may indeed be able to do so, but he will require leave under s 23 Defamation Act 2005 (NSW), which provides:

“23 Leave required for further proceedings in relation to publication of same defamatory matter

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.”

44. I note that the plaintiff could commence proceedings against another party for the same publication, for the reasons set out by McColl JA in Habib v Radio 2UE Pty Ltd [2009] NSWCA 231. That decision related to the repealed legislation (namely s 9(3) Defamation Act 1974 (NSW)), which related to fresh proceedings against the same defendant), but the principles would still apply. The court specifically rejected a submission that the commencement of fresh proceedings concerning the same matter complained of but brought against a different defendant amounted to an abuse of process.

45. Concepts of abuse of process are changing, and it may be that such an application, if brought under the new legislation, might not enjoy the same success. However, the potential right of the plaintiff to sue other persons in relation to these publications should not deter me from striking out these claims.

46. This brings me to a consideration of the challenges brought by the third to seventh defendants on the basis that they have not been validly served. As I have determined that these proceedings should be dismissed for other reasons, my observations in relation to these applications are brief.

47. There are two applications for the proceedings against certain defendants to be set aside on the basis of failure to serve the statement of claim. I shall set out first the claim against the sixth defendant.

The sixth defendant’s application under r 12.11(1)(c) UCPR

48. Service by post of the statement of claim was validly effected on Nationwide News Pty Ltd on 8 April 2016. However, Ms Barnett submitted that service of the original statement of claim on her client was invalid by reason of the omission, from the pleading, of the necessary claims of publication and defamatory imputations. Although the matter complained of was attached and a claim of defamation against “all defendants” was set out in the final paragraph, Ms Barnett submitted that this omission in the pleadings was insufficient to amount to the bringing of a claim for defamation.

49. If such a claim had been made under the repealed Defamation Act 1974 (NSW), where the imputation was the cause of action, this would have been an attractive argument. However, the matter complained of was attached and there was a claim, in the final paragraph of the pleading, against “all defendants”.

50. While the statement of claim accidentally omitted the plea of publication and the imputations, I am satisfied that the attachment of the matter complained of and the contents of the final paragraph were sufficient to amount to the bringing of a claim for defamation. The sixth defendant’s submission that it was not validly served is therefore not made out.

The third, fourth, fifth and seventh defendants’ application under r 12.11(1)(c) UCPR

51. Pursuant to r 12.11(1)(c) UCPR, these defendants seek a declaration from the court that the statement of claim, which has not been served within the one month period provided for by r 6.2(4)(b)(ii) UCPR, has not been served, and an order setting the statement of claim aside.

52. The plaintiff opposes this application and seeks an extension of time for service.

53. There is no doubt the plaintiff failed to serve the statement of claim within the one-month period or to seek an extension of time. This is not necessarily fatal to a later retrospective grant, even where there is considerable delay and the limitation period has long since expired: Hunter v Hanson [2014] NSWCA 263; Hunter v Hanson [2015] HCATrans 16.

54. The requirement for personal service of a statement of claim is set out in a series of rules, which include UCPR rr 10.20 and 18.5. Mr Rasmussen acknowledges that personal service has not been effected. That means that an extension of time is required.

55. Mr Watts pointed to the total absence of any claim against the fifth and seventh defendants, and other deficiencies, arguing that these would militate against any extension of time for service. The fact that a claim is hopeless on its face is of little relevance to such a claim; as is set out in Hanson v Hunter [2015] NSWDC 220, the plaintiff’s claims (other than the time-barred defamation claim) were so hopeless that the plaintiff discontinued them as soon as time to serve was extended in the defamation claim. Additionally, unlike Hunter v Hanson, the causes of action pleaded against these defendants are online publications, and the limitation period potentially does not start to run until the matter complained of is taken off the website. That is because, in Australia, unlike more technologically aware jurisdictions such as the United Kingdom, there is no “single publication rule”, and the principles set out in Duke of Brunswick v Harmer (1849) 14 QB 185 still apply. The result is that “indefatigable” plaintiffs (to use the description given to the Duke by Spencer Bower in “A Code of the Law of Actionable Defamation”, 2nd ed (1923) Butterworth & Co at 5, footnote (v)) can simply sue other parties (Habib v Radio 2UE Pty Ltd) or even (subject to leave being granted under s 23 Defamation Act 2005 (NSW)) the same parties for defamation.

56. However, considering the checklist in Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79 at [20], I am not prepared to extend time as requested by the plaintiff.

57. First of all, the statement of claim in its current form is still deficient, in that the claims for all online publications include a claim for a statute-barred period and the particulars of downloading, which give no dates for those downloads, are potentially time-barred as well.

58. Second, as has been set out above, I do not accept the explanation on affidavit by the plaintiff for his extraordinary failure to serve the statement of claim from 19 February 2016 onwards.

59. Third, failure to serve the opposing party with the initiating proceedings in defamation actions is unacceptable. Such failure has caused or contributed to the dismissal of the whole proceedings in other applications in this court (see Crux - Southern Cross University Post Graduate AssociationIncv Watts [2013] NSWDC 254; Foley v Rosier [2014] NSWDC 92 at [22]; White v Sparks [2015] NSWDC 53; Alex v Australian Broadcasting Corporation [2015] NSWDC 78). This is because failure to serve a statement of claim is the clearest and most obvious example of failure to comply the principles upon which ss 56 – 62 Civil Procedure Act 2005 (NSW) are based. Out of all the failures to take steps in litigation, failure to serve the initiating statement of claim on a defendant who is easy to locate is the least pardonable.

60. For the above reasons, in the event that I have erred in summarily dismissing the proceedings, I would have set aside the statement of claim as against the third, fourth, fifth and seventh defendants.

Concluding remarks and costs

61. As I have made the orders sought by the defendants, I propose to dismiss the plaintiff’s Notice of Motion and to make orders in accordance with the defendant’s Notices of Motion.

62. Costs should follow the event. I have made an order for the plaintiff to pay the defendants’ costs, with liberty to apply, as Ms Barnett foreshadowed an application for indemnity costs.

Orders

1. Plaintiff’s Notice of Motion filed in court on 10 November 2016 dismissed.

2. Defendants’ Notices of Motion of 29 July 2016, 25 August 2016 and 30 August 2016 granted; these proceedings are struck out and dismissed.

3. The plaintiff is to pay the defendants’ costs of these proceedings.

4. Liberty to apply concerning costs.

**********