Lashansky v Coombs [No 3] - [2009] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LASHANSKY -v- COOMBS [No 3] [2009] WASC 300

CORAM: LE MIERE J

HEARD: 23 JULY 2009

DELIVERED : 16 OCTOBER 2009

FILE NO/S: CIV 1437 of 2008

BETWEEN: ROBERT JAMES LASHANSKY
Plaintiff
AND
CATHERINE FRANCES MARY COOMBS
First Defendant
THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Practice and procedure - Springing order - Application for extension of time to comply with springing order - Turns on own facts

Legislation:

Limitation Act 1935 (WA), s 38

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr M D Cuerden
Second Defendant         :     Mr M D Cuerden

Solicitors:

Plaintiff:     In person
First Defendant             :     Legal Practice Board
Second Defendant         :     Legal Practice Board

Case(s) referred to in judgment(s):

Lashansky v Coombs [2008] WASC 207
Lashansky v Coombs [No 2] [2009] WASC 87

LE MIERE J:

Introduction

On 7 April 2009 Newnes J ordered that 'unless on or before 12 May 2009 the plaintiff do file and serve a minute of amended statement of claim, together with an application for leave to amend the statement of claim in terms of that minute, the action be dismissed and there be judgment for the defendants with costs' (the springing order). The plaintiff failed to file or serve a minute of amended statement of claim, or an application for leave to amend the statement of claim, on or before 12 May 2009. On 15 May 2009, pursuant to the order of Newnes J, it was ordered that the action be dismissed and the plaintiff pay the defendants' costs of the action. The plaintiff now applies for an order that the time allowed by the springing order be extended.
At the hearing of his application on 23 July 2009, as at the hearings on 9 and 18 June 2009, the plaintiff represented himself. The plaintiff has some familiarity with the processes of this court. He was a legal practitioner until suspended from practice by order of the Legal Practice Board on 27 November 2000. He was subsequently struck off the Roll of Practitioners pursuant to the order of the Full Court on 5 September 2007.

History of the action

The plaintiff commenced this action by writ of summons issued on 24 April 2008. The writ was indorsed with a claim for damages for defamation of the plaintiff on 26 April 2002 in the foyer of the Supreme Court of Western Australia when the first defendant referred to the plaintiff in the presence of several bystanders, including former clients of the plaintiff's practice, as being nothing more than a liar and a cheat. The plaintiff also seeks an injunction to restrain the defendants from further publishing the words complained of or any similar words and an injunction requiring the defendants to publish a formal apology to the plaintiff.
On 24 April 2008 the plaintiff filed a statement of claim. The defendants applied to strike out the statement of claim on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lashansky v Coombs [No 3]

Details

AGLC: Lashansky v Coombs [No 3] [2009] WASC 300
Case: [2009] WASC 300
Decision Date: 16 OCTOBER 2009

CaseChat Overview and Summary

In the matter of Lashansky v Coombs [No 3], the plaintiff sought an extension of time to comply with a springing order that had been made in the defendants' favour in relation to their application for summary judgment. The defendants had applied for summary judgment in the defamation action brought by the plaintiff, and the springing order provided that if the plaintiff did not provide an amended statement of claim within a specified period, judgment would be entered for the defendants. The plaintiff sought an extension of time to comply with the springing order on the grounds of his inability to afford legal representation and his ongoing attempts to secure funding for his case.

The legal issues before the court were whether the plaintiff had provided sufficient grounds for an extension of time to comply with the springing order, and if so, whether it was in the interests of justice to grant the extension. The court noted that while the authority to extend the time for compliance with a springing order was well established, the ultimate sanction effected by the operation of a springing order could not be avoided by showing that non-compliance came about by the same sort of inattention or laxity that caused the order to be made in the first place. The court also noted that there were several matters it would normally have regard to in deciding whether to extend the time for compliance with a springing order, including the circumstances in which the springing order came to be made, the reason for non-compliance with the springing order, the prejudice to the defaulting party if the time were not extended, and the prejudice to the other party if the time were extended.

The court found that the plaintiff had not provided sufficient grounds for an extension of time to comply with the springing order. The plaintiff had not shown that his inability to afford legal representation or his ongoing attempts to secure funding for his case were sufficient grounds for an extension of time, particularly given that the alleged defamation occurred over six years prior to the commencement of the action. The court also found that the circumstances in which the springing order came to be made did not provide any basis on which the court should exercise its discretion to extend the time, as the plaintiff had failed to provide an amended statement of claim or a draft of a proposed amended statement of claim, and had not particularised the republication(s) on which he relied. The court held that the plaintiff's non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place, and that granting an extension of time would undermine the authority of the court.

The court declined to grant the plaintiff an extension of time to comply with the springing order, and held that judgment should be entered for the defendants. The court noted that the plaintiff had had ample opportunity to provide an amended statement of claim that complied with the requirements of the court, and that further delay would not be countenanced. The court also noted that there was no point in resuscitating a case that was devoid of merit, and that the plaintiff's failure to provide an amended statement of claim that set out a cause of action for defamation meant that there was no case to answer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The legal principles relevant to the determination of this application are not in dispute. They are conveniently set out at [3.5.6] of the Civil Procedure Western Australia:This rule [ie O 3 r 5] provides authority to extend the time for compliance with a springing order, even after judgment has been entered by its automatic operation: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 286; 77 ALR 411.The authority of the court will, however, be undermined if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non‑compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place: MTQ Holdings Pty Ltd [2007] WASC 49; BC200701820 at 51.There are four matters to which the court will normally have regard in deciding whether to extend the time for compliance with a springing order. They are:•the circumstances in which the springing order came to be made;•the reason for non‑compliance with the springing order;•the prejudice to the defaulting party if the time were not extended; and,•the prejudice to the other party if the time were extended.It will also be appropriate to consider the merits of the action, albeit briefly, there being no point in resuscitating a case that is devoid of merit: Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86; BC200803413 at [24]; Brocx v Hughes [2008] WASC 34; BC200801622 at [32]. The alleged defamation of which the plaintiff complains occurred on 26 April 2002. The plaintiff commenced his action on 24 April 2008, that is, two days short of six years after the words complained of were allegedly spoken. In Lashansky v Coombs [No 1] Newnes J said:Assuming for the moment that, as the plaintiff contends, the relevant limitation period is six years, the plaintiff waited until the death knock before commencing this action. It is well-established that where a party waits until the last minute to commence an action it is particularly incumbent upon them thereafter to pursue the action diligently. That is even more important where, as here, what is complained of are words that the plaintiff alleges were spoken. In such circumstances, further delay will not readily be countenanced [21]. On 22 September 2008 the statement of claim was struck out on the ground that it failed to plead that the plaintiff had suffered special damage by reason of the alleged defamation nor were there any facts pleaded which are capable of making out such a case. The plaintiff was given leave to serve any amended statement of claim on or before 20 October 2008. The plaintiff failed to do so but in November 2008 produced the draft amended statement of claim which I have referred to as the minute. On 7 April 2009 Newnes J held that the minute failed to plead facts capable of making out a case that he suffered special damage by reason of the alleged defamation. In the minute the plaintiff pleaded that as a result of the republication of the words complained of by the first defendant he has lost two lucrative business ventures. The business ventures are a venture in 2002 with the Wormall Group of Companies which was aimed at exploiting the market for waste water and environmental technology in China and a venture in 2003 aimed at exploiting the digital meter reading market in the Republic of South Africa. The minute failed to plead when, where or to whom the republication was alleged to have taken place. There was no plea as to who republished the words or any plea of facts capable of making the defendants liable for the alleged republication. The springing order was made on the defendants' application for summary judgment. Newnes J declined to order that judgment be entered for the defendants. His Honour said at [43] of Lashansky v Coombs [No 2] that the plaintiff should be given a further opportunity to put the statement of claim into an acceptable form. The plaintiff has not done that. The plaintiff has made no attempt to do it. The plaintiff has not produced an amended statement of claim or a draft of a proposed amended statement of claim. The plaintiff has not particularised the republication(s) on which he relies. In short, the circumstances in which the springing order came to be made do not provide any basis on which the court should exercise its discretion to extend the time.