Michail v Mount Druitt & Area Community Legal Centre

[2015] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:	Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145
Hearing dates:	18 June 2015
Date of orders:	18 June 2015
Decision date:	18 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff to file and serve a Second Further Amended Statement of Claim by 16 July 2015. (2) Matter stood over for further directions in the Defamation List on Thursday 30 July 2015 at 9:00am.
Catchwords:	TORT - statement of claim for breach of contract, defamation and other causes of action - defendant foreshadows summary dismissal application and lists a series of asserted pleading and particularisation errors - plaintiff granted leave to replead
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.30(3)
Texts Cited:	P Taylor, Dr E Elms, M Meek SC, The Hon Justice G Bellew , Ritchies Uniform Civil Procedure NSW (LexisNexis) Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)
Category:	Procedural and other rulings
Parties:	Plaintiff: Nancy Michail Defendant: Mount Druitt & Area Community Legal Centre
Representation:	Counsel: Plaintiff: Ms N Michail (Solicitor – in person) Defendant: Mr A Moore (Solicitor) Solicitors: Plaintiff: In person Defendant: Clayton Utz
File Number(s):	2015/53739
Publication restriction:	None

Judgment

Introduction

1. This judgment is a short outline of the issues concerning the plea of defamation in these proceedings, and is intended to summarise, in a somewhat informal way, the points I made when discussing these problems in court with the plaintiff on 18 June 2015. The purpose is to assist the plaintiff, who is distressed by the events leading up to the bringing of this claim, as well as by a recent bereavement.

2. These proceedings unfortunately did not get off to a good start, and this is not necessarily the fault of the plaintiff. They were commenced, incorrectly, by Summons filed in the Parramatta registry on 20 February 2015, when they should have been commenced by statement of claim. A statement of claim was subsequently prepared, and is stamped “received on 5 March 2015”, the date of the callover before the Registrar, who made orders for the plaintiff to file that document. The Registrar’s orders refer to the filing of a “defence” but the parties have explained that this is an error.

3. As these proceedings were commenced in Parramatta and not in the Sydney Registry Defamation List, they are one of a series of claims where case management has been delayed, through no fault of the parties, by the lack of procedures for defamation proceedings in that court. This is why the proceedings were transferred to Sydney. While these delays have made the plaintiff suspicious that the defendant is engaging in misconduct, the problem is in fact court-related, in that it results from case management changes made by the court in relation to defamation matters.

4. When the matter came before me for directions on 16 April 2015 the plaintiff, who had filed an amended statement of claim on 11 March 2015, sought orders for the defendant to file a defence immediately. I explained to the plaintiff that the statement of claim contained a series of pleading errors which would make the filing of a defence unrealistic at this stage. For example the pleading set out only part of the 9 February 2015 email from the defendant to the plaintiff which was stated to be the matter complained of, and did not identify any imputations; there was even less information about the other publications.

5. I accordingly invited the plaintiff to redraft her claim to set out the full text of all publications upon which she intends to sue, followed by the imputations pleaded and, where relevant, the particulars of the publication of any such defamatory matters to third parties.

The plaintiff’s current pleading

6. The plaintiff filed a further amended statement of claim on 25 May 2015. The statement of claim now identifies two publications as matters complained of (9 and 24 February 2015) but also refers to one or more oral publications in October 2014 (described as “communication” in paragraph 76) and electronic publications from 30 January 2015, although some of these appear to have been made by the plaintiff (paragraph 87).

7. The plaintiff filed a further amended statement of claim on 25 May 2015, although this document is entitled Amended Statement of Claim. This document will hereafter be referred to as the Further Amended Statement of Claim or the current statement of claim. The Further Amended Statement of Claim now identifies two publications as matters complained of (9 and 24 February 2015) but also refers to one or more oral publications in October 2014 (described as “communication” in paragraph 76) and electronic publications from 30 January 2015 (paragraph 87):

“6. Defamation

75. The plaintiff is only aware of the communications and publications pleaded herein.

76. On or about end of October 2014 NC defamed the plaintiff in her workplace by communicating the theme that the plaintiff likes being abused, which he admitted to in the presence of VC on 15 January 2015 (communication).

77. Imputations: The plaintiff is a masochist who enjoys public abuse and humiliation. The plaintiff is a doormat. The more the plaintiff is abused, the more she will remain with, idolise, worship and praise her abusers. The plaintiff will keep her head down and put-up with ill treatment.

78. In addition to paragraphs 45 to 53 inclusive, on 9 February 2015 (first publication and notification date), approximately 5 working hours subsequent to the plaintiff’s complaint, the plaintiff received an email from the defendant’s Executive Management Committee, attaching a letter of their unlawful and harmful termination of the plaintiff’s contract of service, annexed hereto and marked “A” (first publication).

79. The first publication was made on the defendant’s letterhead, sent from the defendants volunteers email account, and contained legal terminology and formatting. DO does not have legal background and therefore the first publication was made in collaboration with VC and/or NC.

80. Imputation paragraphs 1 and 2: serious misconduct.

81. Defendant’s advice in paragraph 3: The defendant prevented the plaintiff from making any contact with them, thereby denying her the right to request particulars, explanations and/or reasons for their unlawful and harmful first publication.

82. Imputation paragraphs 4 and 5: violent and unlawful conduct. The plaintiff is violent towards the defendant not only in person, but also through Electronic Media Communications. The plaintiff was previously removed from the defendant’s premises by the police for violent and unlawful conduct.

83. On Friday 20 February 2015 the plaintiff summoned the defendant to Court for defamation.

84. On Tuesday 24 February 2015, approximately 9 working hours subsequent to the plaintiff instigating this proceeding, VC made a verbal complaint against the plaintiff at the Mount Druitt police station (second publication).

85. And in addition to paragraphs 78 and 79, the second publication is based on the plaintiff’s electronic media communications from on or about 30 January 2015 onwards, which is the plaintiff’s electronic media communication prior to the first publication and notification date.

86. Imputation of the second publication: Unlawful conduct on behalf of the plaintiff through electronic media communications as to warrant police intervention. VC is a principal solicitor who has approximately 10 years post-admission experience.

87. The defendant’s second publication authorised Mount Druitt police station to publish a report on the second publication – report number is 58567655 (police record) on NSW police electronic filing system. Mount Druitt police did not take any legal action against the plaintiff due to the second publication.”

8. The text of the first matter complained was attached to the Further Amended Statement of Claim, and is in the following terms:

“[Mt Druitt & Area Community Legal Centre Inc. letterhead]

9 February 2015

Ms Nancy Michail

[Plaintiff’s address]

SUBJECT: Notice of Termination of Voluntary Services

Dear Ms Michail,

The Executive Management Committee has been made aware of a number of disturbing incidents which have occurred since 30 January 2015.

The Executive Management Committee has made the decision to terminate your Voluntary Services from 30 January 2015. The decision is final.

You are advised to immediately cease electronic media contact with the Mt Druitt and Area Community Legal Centre either on an individual or collective basis.

This letter also acts as notification, should you enter the MDCLC premises, you will be deemed to be trespassing and will be liable to be dealt with as a trespasser according to the law.

If you continue with your electronic media contact or attend the premises, the MDCLC staff have been instructed to request the assistance of police.

Yours sincerely,

[Signature]

D O’Grady

President MDCLC”

9. In accordance with the timetable of 16 April 2015, the defendant has provided a letter of objections (dated 11 June 2015), identifying many alleged errors in the pleadings, and seeking the summary dismissal of the whole of the claim.

10. The defendant’s letter of 11 June 2015 is, however, unhelpful to the court, as well as to the plaintiff, in that it simply lists pleading errors and refers the plaintiff to the relevant Rules. The plaintiff has asked the defendant for a list of authorities in accordance with the case note, but in my opinion what should be provided are the facts and matters (as well as the authorities) in support of the application, hopefully in the form of written submissions.

11. Pleading errors may lead to amended pleadings being filed, but are not of themselves a sufficient basis to strike out the whole of the claim other than in an extreme case. The defendant’s application will not be dealt with until a clear explanation of the basis for summary dismissal is sought. The plaintiff clearly has some kind of claim of employment (whether paid or unpaid) which is relevant to her legal career, and her claim will not be struck out on the basis of the current long and rather unhelpful letter of complaint.

12. Having noted these problems, I set out what I see as the principal problems with the defamation claims as presently pleaded.

Pleading problems

13. The defamation pleading is deficient in the following respects.

(a) Publication

14. The first matter complained of is an email published only to the plaintiff. No claim for defamation may be made without publication to a third party: see Tobin & Sexton, Australian Defamation Law and Practice at [5,001].

15. The text of the “second publication” referred to in paragraph 84 is not provided, and it is unclear what the relationship of this publication is with the electronic publications of 30 January 2015 (the texts of which are not provided). The plaintiff clearly has some idea of what was said, in that she pleads imputations, so she should set out what the matter complained of is likely to contain, and that will enable more precise details to be obtained through discovery (or subpoenae to third parties).

16. The publication(s) referred to in paragraph 76 must be set out individually, and not rolled up, with details of the dates as well as the text of the matter complained of (to the best of the plaintiff’s ability). Imputations for each publication must be pleaded; the pleading of one rolled-up set of imputations is not permitted.

17. Any claim for republication (in particular, in relation to further publications by the police) should be identified with precision. It should be clear whether any such claim is a separate claim for defamation or relevant to quantum only.

(b) Text of the matter complained of

18. As noted above, only the text of the first matter complained of has been provided. Where the matter complained of is a slander, the plaintiff need only set out a general summary of what she believes to have been said, providing dates and persons.

19. These publications should be identified in chronological order and the texts set out (marked “Annexure A” and following) in the amended pleading, with the imputations for each such claim numbered in alphabetical order.

20. If there are identification issues (i.e. if the plaintiff was not named), the relevant particulars of identification should be provided.

(c) Imputations

21. The imputations should be labelled from (a) onwards, and the plaintiff should plead meanings which have a defamatory sting. They should differ in substance: r 14.30(3) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

22. Abbreviations, such as “serious misconduct”, are impermissible and should not be included.

(d) Damages

23. Particulars of aggravated damages and, if applicable, special damages, arising from these publications (as opposed to the breach of contract claim) must be identified with precision.

General remarks

24. The statement of claim generally should avoid discursive narrative of matters which are the subject of evidence. There should be no reference to malice, or long histories of ill will or arguments between the parties. If relevant, those are matters for evidence at the trial.

25. When these matters have been attended to in a further amended pleading, any objections by the defendant to the form and capacity of the imputations may be dealt with. No defence need be filed to the claim until those steps have been completed.

26. Careful pleading in accordance with UCPR r 14.30 is essential. The relevant principles are set out in detail in Ritchie’s Uniform Civil Procedure at [14.30.5] – [14.30.75]. Sample pleadings are provided by LexisNexis at (subscription required). The statement of claim for the proceedings Davis v Nationwide News Pty Ltd is set out in Australian Defamation Law and Practice at [60,000], which is accessible in most law libraries as well as online (subscription required).

27. The defendant has other objections to the statement of claim, which will be determined once the pleading of the defamation claim has been resolved, and after correspondence between the parties concerning the plaintiff’s need for a statement of employment. Given the one-year limitation for defamation claims, correct pleading of the publications is a high priority.

Correspondence with the court

28. Although these proceedings have only been in this court on one prior occasion, the plaintiff has, between 7 April and 18 June, forwarded 23 emails to my associate, some of which were not sent to the defendant. These emails were not in response to any correspondence from the defendant. The defendant had only forwarded one email to my associate, on 7 April 2015, inquiring about the applicability of the Practice Note (it should be noted that the Practice Note, prior to amendment on 3 June 2015, did not apply to proceedings outside the Sydney registry).

29. In the course of her correspondence, the plaintiff has expressed concerns that the defendant has been corresponding with the court. Not only is this wrong, but it would be improper of the defendant to do so. No party to litigation should correspond with the court, other than for the purposes of fixing or altering a court date, without a court order to that effect, and copies of any such letters should always be provided to the opposing party. Any emails forwarded to my associate of this kind in the future will be deleted without being read.

Orders

1. The plaintiff to file and serve a Second Further Amended Statement of Claim by 16 July 2015.

2. Matter stood over for further directions in the Defamation List on Thursday 30 July 2015 at 9:00am.

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Decision last updated: 06 August 2015