Michail v Mount Druitt and Area Community Legal Centre (No. 6)

[2017] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:	Michail v Mount Druitt & Area Community Legal Centre (No. 6) [2017] NSWDC 25
Hearing dates:	22 February 2017
Date of orders:	22 February 2017
Decision date:	22 February 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff called three (3) times outside Court 13D at 9:05am – No appearance. (2) Plaintiff called three (3) times outside Court 13D at 9:25am – No appearance. (3) Plaintiff called three (3) times a third time outside Court 13D at 9:50am – No appearance. (4) Proceedings are dismissed. (5) Plaintiff pay defendant’s costs of the application and of the proceedings. (6) A copy of this judgment is to be forwarded to the Office of the Legal Services Commissioner.
Catchwords:	PRACTICE AND PROCEDURE – plaintiff fails to comply with peremptory order to file amended statement of claim – long history of delay in pleadings – application by defendant pursuant to ss 61(3)(a) and 61(3)(b) Civil Procedure Act 2005 (NSW) and rr 12.7(1) and 12.9(2)(c) Uniform Civil Procedure Rules 2005 (NSW) to strike out proceedings – complaints concerning plaintiff’s conduct of proceedings, including making private recordings of court proceedings – proceedings dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 and 61 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 12.9
Cases Cited:	Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Jane Doe 1 v Dowling [2017] NSWSC 57 Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145 Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Michail v Mount Druitt & Area Community Legal Centre (No. 3) (District Court of New South Wales, Gibson DCJ, 9 February 2016) Michail v Mount Druitt & Area Community Legal Centre (No. 4) (District Court of New South Wales, Gibson DCJ, 1 June 2016) Michail v Mount Druitt & Area Community Legal Centre (No.5) [2017] NSWDC 13
Category:	Principal judgment
Parties:	Plaintiff: Nancy Michail Defendant: Mount Druitt & Area Community Legal Centre
Representation:	Counsel: Defendant: Ms S Chrysanthou   Solicitors: Plaintiff: In person Defendant: Kennedys Lawyers
File Number(s):	2015/53739
Publication restriction:	None

Judgment

Background

1. These are proceedings for defamation which were commenced on 20 February 2015 but which, as my previous five judgments (Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145; Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214; Michail v Mount Druitt & Area Community Legal Centre (No. 3) (District Court of New South Wales, Gibson DCJ, 9 February 2016); Michail v Mount Druitt & Area Community Legal Centre (No. 4) (District Court of New South Wales, Gibson DCJ, 1 June 2016); Michail v Mount Druitt & Area Community Legal Centre (No.5) [2017] NSWDC 13) and the judgment of the New South Wales Court of Appeal (Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396) demonstrate, have not progressed past the defendant’s successful challenges to the statement of claim, despite the action having been managed in a specialist list over the past two years.

The orders made on 9 February 2017

2. The defendant has sought orders for compliance with my orders for an amended pleading and, in default of those orders, that the proceedings be dismissed. The plaintiff sought adjournments while she was obtaining pro bono legal advice and for personal reasons following the deaths in succession of two family members. Her requests were granted for an extended period but these extensions cannot continue, for the reasons set out in my judgment of 9 February 2017, when I made the following orders:

1. These proceedings removed from the Inactive List.

2. The plaintiff’s applications contained in paragraphs 98 – 107 of her document entitled “Prominent Unresolved Issues for Resolution by Chief Justice of NSW and NSW District Court Chief Justice [sic] by Monday 12 December 2016 and Requested Outcomes” are dismissed.

3. A peremptory order for the plaintiff to file and serve a Further Amended Statement of Claim in accordance with my orders of 24 September 2015 by Wednesday 22 February 2017 at 4:00pm.

4. Any applications by the defendant in relation to this pleading (including any failure by the plaintiff to comply with order (3)) are stood over to Thursday 23 February 2017.

5. Costs reserved.

The plaintiff’s response to these orders

3. The plaintiff attended the hearing on 9 February 2017 by telephone, and heard me make the orders set out in paragraph 2 above.

4. At 1:50 pm on the same day that these orders were made, the plaintiff wrote to my associate in the following terms:

“Dear Mr Mok

Thank you for below judgement to directions hearing resumed today at 9:40 AM.

This continuous evasiveness of the issues, scapegoating, gaslighting, abuse, etc. needs a neutral/independent/public forum for determination and it won't be a forum that politicians claws are able to reach.

The Court may strike out the proceedings -- I won't be appearing on 23 February 2017 nor will I comply with any Court orders because evidently the Courts, the opponent (i.e. Defendant, well-established political connections, etc.), and all other parties involved are unwilling to take ownership of their actions. Enough is enough.

Yours faithfully

Nancy Michail”

5. Shortly thereafter, at 2:49pm, the plaintiff wrote:

“Dear Mr Mok

Further to below, I would be pleased to receive Court's notification once proceedings are dismissed/struck out.Yours faithfully 

Nancy Michail”

6. That same evening, at 9:01pm, the plaintiff sent the following email to certain judges in the Supreme and District Courts as well as to my associate and to the defendant:

“Good evening ladies and gentlemen

I refer to above two matter [sic], today's directions hearing which resumed at 9:40 AM (dh [sic]), today's judgement handed down at 1:21 PM (dhj [sic]) and below two emails, and would like to establish the following:

1. In dh, I briefly went through the issue of defendant's well-established political connections interference with both proceedings in NSW District Court and NSW Court of Appeal.

2. Judge Gibson informed Ms Chrysanthou that she does not need to respond to me regarding the issues I raised, mentioned in paragraph 2 hereof, and Ms Chrysanthou thanked her Honor [sic]. 

3. Further, Judge Gibson would not allow for me to go through the issues contained in pibr06112016.pdf document in order for her and/or the defendant's legal representatives to respond in open court to the issues.

4. In addition, Judge Gibson once more evaded addressing the issues I raised in dh and pibr06112016.pdf in dhj. Instead, Judge Gibson went back to the old ways of abuse, scapegoating, passing the buck, blame, etc. 

Due to the continuous evasion of the Courts when it comes to addressing the serious issues at hand (as per my repeated requests), and reverting to old ways of abuse, blame, scapegoating, projections, etc. I advised the Court that it may strike-out/dismiss the proceedings. I further advised the Court that I would not be appearing in the directions hearing on 23 February 2017. In addition, I advised the Court that I will not comply with any Court orders made to date by either Court due to the fact that the orders contained in dhj (and all previous Court orders from both Courts involved) are based on wrongful practices, amongst other issues, as stated in my brief submissions today in dh, my many emails, affidavit of 29 April 2016, oral submissions of 5 May 2016 and pibr06112016.pdf.

The issues will now be taken elsewhere for resolution and it won't be ICAC and/or any other entity where politicians’ claws may be able to reach and/or influence. I would be pleased to receive the Court's notification once the proceedings are struck-out and/or dismissed (whatever the terminology may be). I reserve my right to respond to all allegations contained in all judgements made to date in due course.

All the best

Nancy Michail”

7. On the next day, on 10 February 2017, at 8:45am, the plaintiff sent the following email to the same judicial officers and court staff, to my associate and to the defendant:

“Good morning all

I refer to above and please be advised that I am pro-recording to protect my own legal interests. In fact, I have been pro- recording for just over approximately two (2) years. 

Registrar Riznyczok

Remember how I wanted to listen to original recordings for NSW Court of Appeal hearing of 9 December 2016 (recording) at Court and you would not allow me to do so. In fact, you would not even send me a copy of the recording, notwithstanding RBS stated that they would. Instead, you insisted that I would come to Court and listen to a copy of the recordings at Registry. Would you believe, I am so pro-recording that I even recorded that (file size is too large to attach herewith).

Mr Mok

Judge Gibson's judgement handed down 9 February 2017 once more contains many inaccuracies. In order to assist the Court, if I may, I attach herewith copy of Directions Hearing of 9 February 2017 at 9:40 AM recording. I hope the Court would find this helpful.

I would be pleased if you do not correspond with me regarding laws pertaining to recordings, etc. because all evidence I have proves that the Courts and all parties involved are the last entities to preach laws. Hope you have a lovely day.

All the best

Nancy Michail”

8. This email attaches a sound recording (in M4A format) of the argument before me on 9 February 2017. This email was resent to the same group of recipients at 8:55am.

9. As I have set out in earlier judgments, the plaintiff has never had my permission to record court proceedings privately. If she wished to obtain a sound recording of the court proceedings, she should have sought a CD-rom from Court Reporting. That CD-rom would clearly demonstrate whether there was any error in the transcription of the proceedings.

The application before the court today

10. Ms Chrysanthou noted the non-compliance of the plaintiff with the peremptory order and, conformably with the letter sent by the solicitors for the defendant to the plaintiff on 22 February 2017, asked the court to dismiss the proceedings pursuant to rr 12.7(1) and 12.9(2)(c) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or alternatively s 61(3)(a) or s 61(3)(b) Civil Procedure Act 2005 (NSW), or for the court to require the plaintiff to show cause why the proceedings should not be dismissed.

11. It is clear from the plaintiff’s correspondence that she has no intention of complying with the orders or of attending today. She has been called three times outside the court and does not appear. In those circumstances, a show cause application would be a futility.

12. The plaintiff has failed to comply with a peremptory order to file an amended statement of claim. She was warned that failure to do so could result in the dismissal of her claim. This is the application the defendant now makes.

13. While failure to comply with a peremptory order need not be fatal (Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 135), the plaintiff’s stated refusal to comply with my orders and failure to attend today, in the context of the history of the litigation to date, is continued evidence of the plaintiff’s refusal to conduct this litigation in an expeditious and efficient way.

14. As I noted in my previous judgment, the plaintiff has been given every opportunity to conduct her case, not only by the courts, but also by the registrars who administer the pro bono referral scheme, the New South Wales Bar Association legal assistance referral scheme and the barristers who clearly devoted considerable time to helping the plaintiff. The plaintiff, who has a law degree and has worked in a legal office, must have been aware of the amount of time these persons spent trying to help her. Regrettably, she has responded to their attempts to advise and assist her with abuse and unfounded allegations.

15. The plaintiff should not be entitled to any further indulgences in the form of adjournments or pro bono assistance of the kind she seeks. She has failed to comply with a peremptory order to file an amended pleading and has no excuse for not doing so. Her failure to conduct this litigation in accordance with her obligations to do so under the provisions of s 56 Civil Procedure Act2005 (NSW) cannot be permitted to continue. Accordingly I propose to dismiss the proceedings.

Costs

16. On 22 February 2017 the solicitors for the defendant forwarded an email to the plaintiff noting her failure to comply with orders and advising:

“6. In court tomorrow, we will be applying to the Court to dismiss the Proceedings against the Defendant pursuant to Rule 12.9(2)(c) Uniform Civil Procedure Rules 2005 (NSW) or alternatively Rule 12.7(1) Uniform Civil Procedure Rules 2005 (NSW) or alternatively Section 61(3)(a) or 61(3)(b) of the Civil Procedure Act 2005 (NSW). The Court may require you to show cause as to why the Proceedings should not be dismissed.

7. We will also be seeking orders for you to pay the Defendant’s costs of the application and the proceedings.

8. We have copied Mr Mok on this correspondence.”

17. Ms Michail forwarded two replies. The first letter she relied on her email correspondence of 9 and 10 February 2017 and in the second she stated:

“Dear all

I refer to Ms Bicknell's below email correspondence of even date and it's attached letter. In addition to my below response of even date at 6:28 PM, as I stated in directions hearing of 9 February 2017 at 9:40 AM (please refer to attached recording with my email correspondence of 10 February 2017; since Courts' recordings and transcripts are not authentic), while I have evidence that the opponent has been communicating with the Courts, including but not limited to NSW District Court, in my absence (i.e. one of the many wrongful practices followed by both Courts involved in my claims during the past two years) and the Courts (and other parties) participating in the opponent's continuous abuse of Courts' processes which caused unreasonable delays (amongst other issues, and as the Courts are aware, "Justice delayed is justice denied"), to date, I do not have any evidence that these wrongful practices have ceased. To the contrary, I have evidence that they remain to exist. 

Further, both the Courts and the opponent have continuously evaded responding to the wrongful practices I repeatedly brought to their attention. Therefore, I will also not comply with any orders that may be made tomorrow, 23 February 2017 directions hearing (I already notified the Court that I would not be appearing in directions hearing scheduled on 23 February 2017 through my email correspondences of 9 February 2017 and stated my reasons, as well as stated my reasons for not complying with any Courts' orders made by both Courts involved in my claims), including but not limited to, any costs orders made in favour of the opponent.

All of this is going to move to a level playing field and I do hope that all parties involved would actually cease evading addressing the serious issues at hand once this takes place. Going by my experience with all parties involved in this over the past two years, I am not holding my breath. But the good news is, at least the field will be level playing field, which is a nice change from what has been occurring over the past two years.

All the best

Nancy Michail”

18. The defendant’s application for costs is based on the failure of the plaintiff to comply with my order of 9 February 2017 and the history of this litigation. The general rule is that costs follow the event and there are no grounds put forward by the plaintiff for any variation of this fundamental principle. Accordingly, I propose to order that the plaintiff pay the defendant’s costs of the application and of the proceedings.

Referral to the Office of the Legal Services Commissioner

19. Ms Chrysanthou also asked me to note, on the public record, the plaintiff’s persistence in recording proceedings in this court and in the Court of Appeal (as is admitted to in her emails above), without leave to do so being formally sought, let alone granted, and contrary to my express orders for her to refrain from doing so. Such recording without leave is not permitted: Jane Doe 1 v Dowling [2017] NSWSC 57.

20. I also note that, while the plaintiff has not been prepared to conduct her case with expedition, she has nevertheless been able to find time to send a series of vituperative letters to court staff, judicial officers and a wide range of unrelated parties. A summary is set out as a schedule to my previous judgment. The tone and content of these emails (notably those addressed to the pro bono lawyers who assisted her) fall well short of what is acceptable for a member of the legal profession, even making allowances for the emotional stress a practitioner may suffer when acting on his/her own behalf. The sending of such correspondence to the court is also not to be encouraged.

21. In addition to recording these proceedings and sending the correspondence referred to above, the plaintiff’s manner of representation of herself in this court has made the conduct of these proceedings difficult. I note the observations expressed by the New South Wales Court of Appeal in Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 at [10] as to the plaintiff’s conduct of her application in that court.

22. These are matters of concern. I accordingly propose to send a copy of this judgment to the Office of the Legal Services Commissioner.

Orders

1. Plaintiff called three (3) times outside Court 13D at 9:05am – No appearance.

2. Plaintiff called three (3) times outside Court 13D at 9:25am – No appearance.

3. Plaintiff called three (3) times a third time outside Court 13D at 9:50am – No appearance.

4. Proceedings are dismissed.

5. Plaintiff pay defendant’s costs of the application and of the proceedings.

6. A copy of this judgment is to be forwarded to the Office of the Legal Services Commissioner.

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Decision last updated: 23 February 2017