Michelmore v Brown - [2024] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MICHELMORE -v- BROWN [2024] WASC 277
CORAM:   TOTTLE J
HEARD:   29 JULY 2024
DELIVERED          :   5 AUGUST 2024
FILE NO/S:   CIV 2457 of 2023
BETWEEN:   LAURA JANE MICHELMORE
Plaintiff

AND

ADAM SYDNEY BROWN
First Defendant

JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants

EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Defence - Requirements of a Defence - Self-represented defendants - Where first defendant had not filed and served a defence - Application for judgment in default of defence - Peremptory order made - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA)

Result:

Judgment be entered if defence not filed and served by 30 August 2024

Category: B

Representation:

Counsel:

Plaintiff	:	SK Shepherd
First Defendant	:	In Person
Second Defendants	:	In Person
Third Defendant	:	Not represented

Solicitors:

Plaintiff	:	L J Michelmore
First Defendant	:	In Person
Second Defendants	:	In Person
Third Defendant	:	Not represented

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

Nil

TOTTLE J:

In this defamation action none of the defendants are represented by legal practitioners. At a directions hearing held on 29 July 2024 the plaintiff applied for judgment against the first defendant on the ground that he had not filed and served a defence. The first defendant left the hearing before it ended. Consequently, the first defendant was not present when I said that I would make an order that unless he filed and served a defence by 19 August 2024 judgment would be entered against him and requested the plaintiff's counsel prepare an appropriate minute of the order for my consideration.
The purpose of these short reasons is to inform the first defendant why concurrently with the publication of these reasons I will make an order of the nature described above (although I will extend the time for compliance until 30 August 2024) and what he must do to comply with it. Some reference to the procedural history is required for context.
The action was commenced by a writ issued on 21 December 2023. On 9 January 2024 the first defendant filed a document purporting to be an affidavit. The document failed to comply with the requirements of the Rules of the Supreme Court1971 (WA) as to form but more significantly it contained irrelevant and scandalous material. At a directions hearing held on 1 February 2024, which the first defendant did not attend, I ordered that the document (along with a number of documents filed by the second defendants) be struck out and removed from the eCourts portal.
At the directions hearing on 1 February 2024 orders were made for the filing of a statement of claim by 9 February 2024 and for defences and any counterclaim to be filed and served by 22 March 2024. In addition, the action was referred to mediation.
On 13 March 2024 an application by the plaintiff for a freezing order against the second and third defendants was heard. The application was compromised. During the hearing the first defendant made submissions to the effect that he had a right to have counsel appointed to represent him. He also handed up a document purporting to be an unsigned affidavit. The document did not comply with the Rules of the Supreme Court. Mr Brown was advised that it could not stand as an affidavit. In addition, the first defendant made a statement to the effect that he had filed his defence. I infer this was a reference to the document he had filed on 9 January 2024.
There was a further directions hearing held on 24 June 2024. The first defendant attended the hearing. He repeated the submissions made on 13 March 2024 to the effect that he had a right to be represented by counsel and he had been unable to find a lawyer who was prepared to act for him. He stated that he had 'filed hundreds of pages of defence documents'. It appeared from what he said at a later stage of the hearing that the 'defence documents' to which he had referred were the documents filed on 9 January 2024 and the documents he had attempted to hand up on 13 March 2024.
As a reading of the transcripts of the hearings discloses, the first defendant conducted himself at the hearings on 13 March, 24 June and 29 July 2024 in a manner that prevented effective discussion with him about the substantive and procedural issues in the action. For present purposes it is unnecessary to go into further detail.
In an action, such as the present action, commenced by writ of summons the Rules of the Supreme Court require that the issues be identified by the process of exchanging pleadings. I make the following observations for the assistance of the defendants, in particular, the first defendant.
(a)The function of pleadings is to state clearly the case which each side to the dispute must meet. In this way pleadings are one method by which the court ensures that litigation is conducted fairly with neither side being taken by surprise at trial.
(b)The Rules of the Supreme Court contains the rules that govern the pleadings process. Order 20 is the applicable rule. In summary, the most important sub-rules are as follows.
(c)A plaintiff is required to file and serve a statement of claim setting out the facts on which the claim is based.[1]
(d)A defendant is required to respond to the statement of claim by filing and serving a defence.[2] At its most basic level a defence must respond to the statement of claim by either admitting, denying or not admitting the allegations of fact made in the statement of claim. 'Not admitting' is the appropriate response if the defendant does not know whether a particular fact alleged in the statement of claim is true or not.
(e)In addition, a defendant must include in the defence any matter which makes the plaintiff's claim not maintainable, any matter which, if not included in the defence, might take the plaintiff by surprise and any matter which raises relevant issues of fact not raised in the statement of claim.[3]
(f)In a defamation action in which, as I understand the first defendant may wish to do, a defendant wishes to allege the defamatory words of which the plaintiff complains are statements of fact that are true in substance and in fact, the defendant must include in the defence particulars stating which of the words complained of are statements of fact and particulars of the facts and matters he relies on in support of the allegation that the words are true.[4]
(g)Importantly, a pleading must only contain a statement in summary form of the material facts on which a party relies for the purpose of his claim or defence. A pleading should not contain the evidence by which those facts are to be proved.[5] The distinction between material facts and evidence is not always easy to understand. The following illustration may help. In a traffic accident case, a material fact raised by an injured plaintiff may be that the defendant's vehicle went through a red traffic light. The evidence by which the material fact may be established may include the evidence of eye-witnesses and any available photographic evidence. The material fact that the defendant's vehicle went through the red traffic light must be included in the pleading but the evidence of the eye-witnesses and any photographic evidence should not be included.
(h)Finally, there are various formal requirements for pleadings.[6]
[1] Rules of the Supreme Court 1971 (WA) order 20, rule 2.
[2] Rules of the Supreme Court 1971 (WA) order 20, rule 4.
[3] Rules of the Supreme Court 1971 (WA) order 20, rule 9(1).
[4] Rules of the Supreme Court 1971 (WA) order 20, rule 13A (2).
[5] Rules of the Supreme Court 1971 (WA) order 20, rule 8.
[6] Rules of the Supreme Court 1971 (WA) order 20, rule 7.
None of the documents the first defendant has filed or attempted to file amount to a defence within the Rules of the Supreme Court, nor are they capable (notwithstanding irregularity in form) of serving the purpose of a defence. In other words, this is not a situation in which the first defendant has filed a document that, although not in the correct form, states his position in relation to the allegations made against him in the statement of claim. Parenthetically, the second defendants have filed and served documents that (though not entirely sufficient) do inform the court and the plaintiff of their case.
The difficulty lay people confront when dealing with litigation without the benefit of legal advice and representation is not underestimated. The court extends latitude to such litigants but the effective resolution of civil disputes between members of the community requires that litigants, whether represented or not, comply with the rules of the court. A fair and efficient trial of the action requires an identification of the issues. As between the plaintiff and the first defendant, this is impossible unless the first defendant files and serves a defence identifying which of the facts relied on by the plaintiff are disputed by him and what defences he may wish to rely on. The court will not permit the first defendant to frustrate its processes by failing to file and serve a defence.
So that there is no room for any misunderstanding or uncertainty, the first defendant has not filed and served a defence. If he wishes to defend the action he must file and serve a defence. I will extend the first defendant's time for doing so until 30 August 2024. I urge the first defendant (and indeed the second defendants) to obtain legal advice and assistance. I am not persuaded by the first defendant's submissions to the court that he is not capable of finding a lawyer to act for him. If it is of assistance, the court's website contains links to organisations that may be able to provide assistance to the first defendant.[7] In addition, the Law Society of Western Australia operates the Law Access scheme through which the first defendant may be able to obtain assistance.[8]
[7] 'Supreme Court of Western Australia', Representing Yourself – Useful Links' (Web page) < Under the subheading 'Finding Legal Assistance' there is a list of resources containing hyperlinks to relevant websites.
[8] 'Law Access', Finding Legal Help (Web page) < The contact details for law access can be found on their website which provides the following email address and telephone number, [email protected] ; (08) 6488 8725.
The order I make is as follows: unless by 4:00 pm on 30 August 2024 the first defendant files and serves a defence in accordance with the requirements of Order 20 of the Rules of the Supreme Court judgment be entered against him for damages to be assessed and for costs to be assessed.
Compliance with this order requires the first defendant to file and serve a defence that meets the requirements of the Rules of the Supreme Court by the time specified. Filing and serving documents of the nature that the first defendant has previously attempted to file and serve will not be sufficient to comply with the order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
5 AUGUST 2024