Nash v The West Australian Newspapers Ltd and/or for SHANNON HAMPTON
[2023] WADC 40
•21 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NASH -v- THE WEST AUSTRALIAN NEWSPAPERS LTD and/or for SHANNON HAMPTON [2023] WADC 40
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 21 MARCH 2023
DELIVERED : Ex tempore
PUBLISHED : 4 APRIL 2023
FILE NO/S: CIV 1182 of 2021
BETWEEN: MARK NASH
Plaintiff
AND
THE WEST AUSTRALIAN NEWSPAPERS LTD and/or for SHANNON HAMPTON
Defendant
Catchwords:
Practice and procedure - Application to strike out pleadings and dismiss action - Inadequate pleadings - Unrepresented litigant - Previous guidance and multiple opportunities to replead
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B(1), O1 r 4B(2), O 16 r 2, O 20 r 7(2), O 20 r 8(1), O 20 r 19, O 20 r 19(1)
Result:
Application allowed
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | Mr A V McCarthy |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Steedman Stagg Lawyers |
Case(s) referred to in decision(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369; (2014) 88 NSWLR 421
Culleton v Permanent Custodians Ltd [2018] WASC 251 [
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Dart v Norwich Union Life Australia Ltd [2002] FCA 168
Fairhead v West Australian Newspapers Ltd [No 3] [2016] WASC 44
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Morgan v Banning (1999) 20 WAR 474
Nash v The State of Western Australia [2023] WADC 14
Nyoni v Patterson [2012] WASCA 171
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150
Rayney v Reynolds [No 4] [2022] WASC 360
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Re Rules of The Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237
Strata Plan 47027 v McGinn [2018] NSWSC 1228
Vitale v Bednall [2001] WASC 278
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
PRINCIPAL REGISTRAR MCGIVERN:
[These reasons were delivered orally on 21 March 2023. They have been edited from the transcript to correct matters of grammar and infelicity of expression.]
Introduction
This is an application by the defendant for orders striking out the plaintiff's statement of claim (and consequential orders).
In these reasons I will refer to the applicant as the defendant, and the respondent as the plaintiff, reflecting their respective party status in the substantive action.
For the reasons that follow, the application is allowed.
Relevant procedural history
The plaintiff, who is unrepresented:
(a)commenced defamation proceedings against the defendant by writ filed on 8 April 2021; and
(b)filed a statement of claim on 27 April 2021, and has since filed amended and re-amended statements of claim on 3 May 2022, 20 September 2022, 23 September 2022, 13 October 2022, 17 October 2022 and 1 November 2022 (referred to respectively as the First, Second, Third, Fourth, Fifth, Sixth and Seventh SOC).[1]
[1] This nomenclature is to distinguish between the various iterations of the statement of claim for the purposes of understanding the history of the proceeding. As I have previously remarked, however, where a statement of claim is validly (in the sense that leave is either not required or given) amended, then the amended statement of claim stands as the only operative pleading: Nash v The State of Western Australia [2023] WADC 14 (Nash) [42].
At a directions hearing on 13 April 2022, the plaintiff was ordered to file a substituted statement of claim,[2] following which the plaintiff filed the Second SOC (on 3 May 2022).
[2] An order was also made to extend the time within which the defendant was required to file and serve any application to strike out, or for summary judgment, to 28 days from the date of service of any substituted statement of claim. As is evident in those orders, the adequacy of the plaintiff's pleadings was squarely raised in that hearing.
The defendant brought an application, by chamber summons filed 31 May 2022, for summary judgment pursuant to O 16 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC), alternatively to have the entirety of the plaintiff's Second SOC struck out pursuant to RSC O 20 r 19. That application was heard on 13 October 2022 and:
(a)in relation to the application for summary judgment, was dismissed;
(b)in relation to the strike out application, was allowed; and
(c)the plaintiff was given leave to replead his claim by filing and serving any substituted statement of claim within 14 days.
The defendant brought the present application by chamber summons dated 1 November 2022 - by which time the plaintiff had filed the Sixth SOC, which the defendant sought to have struck out.[3] On the same day the plaintiff filed the Seventh SOC.
[3] With judgment being entered for the defendant, alternatively with the action being permanently stayed.
By orders made on 17 November 2022:
(a)the application was amended to an application to strike out the Seventh SOC; and
(b)various directions were made programming the application to a hearing at a special appointment listed on 1 February 2023. Those directions included orders requiring each party to file and serve an outline of submissions and any supporting affidavit material before the special appointment.
By email to the court (but not copied to the defendant's legal representative) dated 30 January 2023, the plaintiff sought an adjournment of the special appointment listed on 1 February 2023 on the ground that he was unwell. The special appointment was initially adjourned to 17 February 2023, but the plaintiff advised the court that he would not be in the state at that time and sought a hearing date after 25 February 2023.
On 6 February 2023, the court advised the parties that the application had been re-listed for hearing at a special appointment on 17 March 2023, at 9.30 am. That correspondence included the following:
Any further adjournment of this Special Appointment will be required to be sought by way of consent between the parties.
You are reminded of the need to comply with Rule 61 of the District Court Rules 2005 which requires that:
1. List of Documents to be relied upon on must be filed and served at least 7 clear working days before the hearing.
2. Outlines of Submissions and List of Authorities must be filed and served at least 2 clear working days before the hearing.
At 6.35 pm on 16 March 2023, the plaintiff emailed the court (not copied to the defendant's legal representative) in the following terms:
I apologise for the Late Notice
I am now a resident in NSW.
I wish to request adjournement to allow a fair and non bias hearing [sic].
I request an adjournment subject to myself making an application to either attend via video conference or further an application in Cross‑vetting [sic] / change of venue to a District Court in NSW.
At the commencement of the hearing at 9.30 am on Friday, 17 March 2023, I made orders which included:
(a)granting a short adjournment of the special appointment to Tuesday, 21 March 2023 at 2.15 pm; and
(b)requiring the plaintiff, by no later than 4.00 pm on 20 March 2023:
(i)to attest to the date on which he became resident in NSW and any reasons for the lateness of the application to adjourn the special appointment on 17 March 2023; and
(ii)provide a telephone number on which he would be available to attend the special appointment on 21 March 2023.
The plaintiff did not comply with the latter orders. He replied by email to the court in the following terms:
I understand the Orders given.
However i am not in a position to be able to provide such document. I can however confirm i am a resident of NSW ...
I would like to request this matter be transferred to a NSW Court on the grounds that i believe there is Bias and unfairness in this matter within the WA court. Pursuant to Jurisdiction of Courts (Cross Vesting) Act 1987[.]
No reasons were given for the plaintiff's non-compliance with the orders, or for the belief of there being bias and/or unfairness in this court.
Being satisfied that the plaintiff had been given a reasonable opportunity to participate, and not being satisfied that there were sufficient (or any) grounds to find bias or unfairness, I proceeded to hear the application at the special appointment on 21 March 2023 in the absence of the plaintiff.
The application
Parties' positions
The defendant:
(a)pursuant to the orders made on 17 November 2022, filed an outline of submissions on 1 December 2022; and
(b)made oral submissions at the hearing of the special appointment.
The defendant's position may be summarised as follows:
(a)the Seventh SOC is likely to embarrass, prejudice and delay the proceedings and should be struck out because:
(i)it does not plead with sufficient clarity, or at all, the words complained of or the imputations said to arise, which are essential elements of a defamation pleading; and
(ii)otherwise contains unclear and unnecessary matters;
(b)noting that the plaintiff is unrepresented, the plaintiff should have been granted, and has (by the orders made on 13 April 2022 and 13 October 2022) been granted, an opportunity to replead; and
(c)despite the defendant having prepared a minute (Minute), which is annexed to its outline of submissions dated 1 December 2022 and which 'sets out what the plaintiff is contending and, once completed with clarity, would allow the matter to proceed on a reasonable basis', the plaintiff has failed to adopt that minute or otherwise file an unobjectionable statement of claim; and
(d)in the premises, the action should be terminated by judgment being entered for the defendant, and the plaintiff should bear the defendant's costs.
I am unable to outline the plaintiff's position in relation to the application because:
(a)contrary to the orders made on 17 November 2022, the plaintiff never filed an outline of submissions;[4] and
(b)did not attend by telephone (or otherwise) to make oral submissions at the hearing at the special appointment.
Rules and principles
[4] I note that he did, however, file certain documents as a 'list of documents' on 1 February 2023 (although those documents did not speak to the application).
I begin by noting that where, as here (where the application is to strike out the entirety of the plaintiff's statement of claim), the effect of the application is to deprive the plaintiff of the opportunity to run a case:
(a)any decision to strike out should be approached with significant caution;
(b)the defendant will bear a heavy onus in satisfying the court that such an outcome is warranted; and
(c)the task should not be approached in an overly technical manner.[5]
[5] See, for example, Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 (Gates) [24], [26]; Re Rules of The Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237 (Ruba) [25].
The need to approach such an application with caution is amplified when the claimant is self-represented.[6]
[6] As has often been repeated, courts should approach the peremptory determination of litigation by an in person litigant with special care, to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537.
Nevertheless, while a degree of leniency and flexibility is proper, it remains the case that all litigants, including self-represented litigants are bound to comply with the rules of the court, which are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources.[7]
[7] Nyoni v Patterson [2012] WASCA 171 [36]; Culleton v Permanent Custodians Ltd [2018] WASC 251 [35]; Gates [57].
Of particular relevance to the application, RSC O 20 r 19(1) provides:
The Court may at any stage of the proceedings … order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
Although the approach taken in determining the application itself should not be overly technical, the (overlapping) terms used in the various limbs of RSC O 20 r 19(1) carry a technical rather than colloquial meaning.[8]
[8] As to which, see: Nash [22] - [24], and the authorities cited therein.
Objections going to the adequacy of pleadings and indorsements, and the exercise of the court's discretion to make orders in that regard, should be approached in a manner that:
(a)reflects the contemporary role of pleadings, in the context of contemporary case management practices;[9] and
(b)best attains the objectives contained in O 1 r 4A and O 1 r 4B(1) RSC,[10] which relevantly include:
(i)promoting the just determination of litigation;
(ii)avoiding delays and disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources; and
(iii)ensuring proportionality between the subject matter and complexity of a dispute, and the procedure and costs of resolving it.
[9] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay Mowlem) [5] - [7]; Ruba [31].
[10] RSC O 1 r 4B(2).
Relevant to the statement of claim in this case, the general function of pleadings is to provide a statement of a party's case sufficiently clearly that an opposing party has a fair opportunity to meet it,[11] by adequately identifying the issues to be tried and disclosing an arguable cause of action.[12]
[11] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.
[12] Barclay Mowlem [7].
The basic requirement of any pleading is that it contain a statement in a summary form of the material facts on which the party pleading relies for his claim, but not the evidence by which those facts are to be proved. Those allegations, and the claims arising from them, must fall within the parameters set by the indorsement of claim in the writ.[13]
[13] RSC O 20 r 7(2), O 20 r 8(1).
Consideration
Strike out
In order to disclose a reasonable cause of action in this case, the plaintiff must plead such facts as disclose the elements of a defamation action. That means that he must plead:
(a)that there was publication by the defendant;
(b)that the publication contained particular words[14] which:
(i)were about the plaintiff (who could be identified); and
(ii)have a defamatory meaning (imputation);[15]
and
(c)the damage caused by the defamatory publication.[16]
[14] In this case, it is apparent from the plaintiff's indorsement and pleadings that the defamatory matter contemplated by the claim comprises written words.
[15] The matters in subparagraphs (a) and (b) reflect the elements of a cause of action in defamation, being publication, identification and defamatory meaning - see, for example: Rayney v Reynolds [No 4] [2022] WASC 360 [95].
[16] Meeting the requirement that a pleading must disclose the factual situation linking the nature of the action and the relief sought: Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150 [97] ‑ [98], citing Morgan v Banning (1999) 20 WAR 474 (this is a shared requirement of indorsements and pleadings).
The imputations (that is, the defamatory meanings) said to arise from the words published about a person lie at the heart of a defamation action.
As identified in the authorities cited by the defendant in its outline of submissions,[17] and indeed other authorities,[18] the requirement of identifying the imputations contended by the plaintiff is fundamental in pleading a defamation claim.
[17] Fairhead v West Australian Newspapers Ltd [No 3] [2016] WASC 44 [59]; Strata Plan 47027 v McGinn [2018] NSWSC 1228 [29]; Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 [168] - [169], and the authorities cited therein.
[18] As to the need to plead, with precision, the imputations said to arise, see for example: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369; (2014) 88 NSWLR 421 [21]; Vitale v Bednall [2001] WASC 278 [8] and the authorities cited therein; Hepburn v TCN Channel Nine Pty Ltd[1984] 1 NSWLR 386.
It is essential, in order to meet a claim in defamation, that the defendant is in a position to understand precisely which words or phrases[19] are the subject of the claim, and what meaning or meanings are alleged to arise from them. The imputations themselves are essential to considering the available defences in a defamation proceeding, because it is commonly the 'sting' of the publication that must be defended[20] (assuming the action is otherwise made out).
[19] More broadly, the published matter the subject of the claim (however, as noted earlier, in this case the plaintiff appears to found his claim on words and/or phrases published in written articles).
[20] See, for example: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 [274].
In this case, the Seventh SOC comprises a 'background' statement (going to the plaintiff's imprisonment on 22 October 2020) followed by 17 numbered paragraphs in which the plaintiff:
(a)identifies, in par 1, the occasions of publication the subject of his claim, being:
(i)'an article … [published] in the "The West" Newspaper and the Sunday Times' on 25 October 2020; and
(ii)publication of that article on Facebook by the defendant, and republication via Facebook by others;
(b)pleads, in par 2, that he is identified in the article by his age, image, full name and employment;
(c)describes, in pars 3 - 8, various incidents in which he describes his interactions with other people. Those paragraphs are in a largely narrative form and do not clearly identify whether, and if so how, they go to:
(i)the identification of the plaintiff from the publications;
(ii)any particular words in the publications, and the imputations alleged to arise from those words; and/or
(iii)the harm suffered by the plaintiff;
(d)in pars 9 - 12, identifies to some extent some of the words complained of, but does not identify with particularity the imputations said to arise from them;
(e)pleads, in pars 13 - 16, that he has been harmed by the publication/s; and
(f)in par 17, pleads that the publication is not a fair report of proceedings, because the defendant 'knew the proceedings were on the foundation of malice arising from false and misleading evidence and police misconduct'. That plea is conclusionary in that it contains no particulars of the alleged knowledge of the defendant, or of the assertions of police misconduct and false and misleading evidence.
In my assessment, even making allowances for the plaintiff being unrepresented, the Seventh SOC is deficient in that it does not meet the fundamental objective of placing the defendant in a position to understand or meet the case against it.
Specifically, pars 3 - 17:
(a)do not plead the material facts in a coherent order capable of putting the reader (being the defendant, and indeed the court) in a position to understand the case;[21] and
(b)are embarrassing in that the pleadings are ambiguous or not reasonably intelligible. They fail to connect the facts pleaded with the elements of the claim advanced by the plaintiff, and raise his case in terms which lack clarity or are conclusionary.
[21] In the sense of being able to discern from the pleadings the requisite elements of a cause of action in defamation, such as to be in a position (in the case of the defendant) to meet the claim against it.
I am satisfied that the plaintiff's pleading is liable to be struck out in its entirety.[22]
Dismissal
[22] Pursuant to RSC O 20 r 19(1) - specifically, the statement of claim does not disclose a reasonable cause of action, and is embarrassing.
The defendant has directed my attention to the decision in Dart v Norwich Union Life Australia Ltd[23] and in particular to [45] - [47] thereof (and the authorities cited therein).
[23] Dart v Norwich Union Life Australia Ltd [2002] FCA 168 (Dart).
That decision (and in particular those paragraphs) is to the effect that, even where a plaintiff is unrepresented:
(a)where opportunities have been given to amend a deficient pleading; and
(b)successive attempts, made with the assistance, have failed to produce a pleading that discloses a reasonable cause of action,
there can come a point where the prospects of achieving a workable pleading are so low that it may be proper to conclude that the action not only is, but is likely to remain, unfair and oppressive and ought to be brought to an end.
In this case, I note that there have been previous opportunities afforded to the plaintiff to amend his pleadings. Those opportunities have arisen by reason of the orders of this court made on 13 April 2022 and 13 October 2022. In each case, those orders were made with explanation to the plaintiff. In particular, I have been taken to some of the comments made in the latter hearing by the deputy registrar and I am satisfied that the issue of the need to plead imputations was raised with the plaintiff expressly by the deputy registrar on that occasion.[24]
[24] The deputy registrar also warned that, in the continued absence of proper pleadings, there was a real prospect that the action may be dismissed: ts 86 - ts 87, 13 October 2022.
Following that hearing, the plaintiff has had further - and highly practical - assistance in the form of the Minute prepared by the defendant. Although I do not say that the plaintiff ought to have adopted that Minute, I am satisfied that that document gave the plaintiff an opportunity to consider how his pleadings could be reframed (and indeed the assistance afforded by that document went beyond the kind of assistance that it would be proper for this court to provide in a hearing).
Accordingly, the plaintiff has had the assistance of an explanation provided by the court, as well as assistance in the form of reframed pleadings.
As such, I am satisfied that not only has he had opportunities to amend his pleadings, but that those opportunities were supported by the kind of assistance that ought to have put him in a position where he was able to provide a workable pleading.
In those circumstances:
(a)I am satisfied that it is proper to conclude that further opportunities to replead are unlikely to be productive of a workable pleading;
(b)I therefore accept the submission of the defendant that (as was the case in the Dart decision) the time has now come where it is proper to conclude that the proceedings are oppressive and ought to be brought to an end; and
(c)I am satisfied that it is appropriate also to dismiss the proceedings.
Costs
The application has been allowed in whole. There being no good reason to depart from the ordinary position that costs follow the event, I consider it appropriate that the plaintiff should bear the costs of the application and of the proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
4 APRIL 2023
0
18
1