Rice v Hall
[2013] WASC 260
•10 JULY 2013
RICE -v- HALL [2013] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 260 | |
| Case No: | CIV:1926/2013 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 10/07/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted | ||
| B | |||
| PDF Version |
| Parties: | DAVID JAMES RICE MARCUS HALL |
Catchwords: | Defamation Pleadings Extension of time Potential strike out of statement of claim Plaintiff in person Extension opposed Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 20 r 8, O 20 r 13A, O 20 r 19 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- ON PAPERS
- Plaintiff
AND
MARCUS HALL
Defendant
Catchwords:
Defamation - Pleadings - Extension of time - Potential strike out of statement of claim - Plaintiff in person - Extension opposed - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 8, O 20 r 13A, O 20 r 19
Result:
Extension of time granted
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : No appearance
Defendant : No appearance
Case(s) referred to in judgment(s):
(Page 3)
1 KENNETH MARTIN J: The defendant seeks an extension of time of 21 days (until 24 July 2013) in order to bring, if necessary, a strike out application against the plaintiff's statement of claim.
2 The action is within the CMC list of Le Miere J. In his Honour's absence, I am dealing with an opposed application, which arises during the court's winter recess.
3 Mr Rice issued his writ on 12 June 2013. Mr Rice is acting on a self represented basis. There has been antecedent correspondence between Mr Rice, a resident of New Zealand, and the defendant's solicitors, including their response to a 'concerns notice' issued by Mr Rice, of 3 April 2013. Essentially, Mr Rice contends that, whilst employed in Western Australia during 2012, he was defamed by three publications of and concerning him by the defendant.
4 Contemporaneously with the generally endorsed writ, Mr Rice also filed on 12 June 2013 a 25-page statement of claim, comprising some 125 paragraphs.
5 The defendant, through his solicitors, entered an unconditional memorandum of appearance on 17 June 2013.
6 Although the matter has been recently assigned to Le Miere J as a defamation action to be managed within the CMC list, the matter would not yet appear to have been the subject of any pre-trial directions hearings or a strategic conference. The plaintiff's residency in New Zealand would bear upon the logistics of such an exercise.
7 Ordinarily, in a defamation action, an early directions hearing or strategic conference will set a timetable for the orderly progression of the action until trial. However, pleading issues and resultant strike out applications do arise frequently in defamation actions.
8 Absent an extension of time, the defendant needed to file any strike out application within 21 days of the plaintiff's statement of claim: see Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a). In this case, a statement of claim was filed on the same day as the writ. Although an appearance was only entered on 17 June 2013, the defendant's solicitors calculate they must file any strike out application before 3 July 2013. Accordingly, this application was made by the defendant on 3 July 2013, seeking the extension until 24 July 2013.
(Page 4)
9 The matter was brought to my attention. In the circumstances, my associate advised the parties by email at 5.10 pm on Wednesday, 3 July 2013 that I would determine the extension application on the papers and further that, if it was opposed by the plaintiff, he would need to file any written submissions (not exceeding three pages) by 4 pm on Thursday, 4 July 2013.
10 The defendant's application for an extension of time is supported by an affidavit sworn by his solicitor, Mr Fiocco, of 3 July 2013. Within the materials submitted in that affidavit is a communication of 2 July 2013 (JGMF 10), by which Mr Rice advised:
The advice I have received is that I have a strong claim albeit that some amendments may be required to fully reflect this before listing for trial. I give you notice that I will be amending the Statement of Claim before listing for trial. I intend to wait to hear your objections before making these amendments. I urge you to advise which parts of my claim are objectionable and allow me the opportunity to amend before making the summary judgment application. Otherwise, you may be wasting the [court's] time.
11 In accord with my 3 July 2013 direction, Mr Rice did then file a 12-paragraph written submission on 4 July 2013, opposing any extension of time. At pars 6 and 7, he said:
[6] After I received Mr Fiocco's demand for security of costs of 24 June 2013, I engaged a Perth-based, specialist defamation, lawyer, with 20 years WA experience, to provide an opinion on the strength of my Statement of Claim in the security of costs demand. This advice was received on 28 June 2013.
[7] The advice was that, my claim has a 60% chance of winning in its present form. If I amend the claim, with legal assistance, this percentage will increase significantly. I, therefore, find that Mr MacLaurin's deduction that the claim (a) discloses no reasonable cause of action, (b) may prejudice, embarrass or delay the fair trial of the action, (c) is otherwise an abuse of the process of the court is without merit.
12 Mr Rice concluded:
[12] I oppose the application because I believe the Defendant has squandered the last 21 days seeking ways to suppress my ability to proceed with the action, rather than investigating the true merit of my claim and preparing a Statement of Defence.
13 On 8 July 2012, the defendant filed 9 1/2 pages of written submissions in support of the extension of the application. Those written (Page 5)
- submissions carry the names of counsel (Mr MacLaurin) and Mr Fiocco. The submissions exceed the 3-page limit I directed. However, I will waive non-compliance given I have subsequently received a further (unexpected) written submission from Mr Rice on 9 July 2013.
15 The defendant's written submissions also make the point that further time is needed for the conferral process to continue, in order to attempt to resolve what would appear to be difficulties with the pleading. The defendant, at par 4 of his submissions, submits that (as outlined above) Mr Rice himself has foreshadowed amendments to the pleading and correspondence with the defendant in the future.
16 Mr Rice filed his further written submission on 9 July 2013 complaining of various further matters. Mr Rice argues that the defendant's solicitors have wasted time by making a demand for security for costs of him, making unnecessary enquiries about his address for service and notifying him (on 1 July 2013) that an application to strike out the statement of claim was imminent. Other grievances are raised, including alleged attempts to mislead the court, a provision of unnecessary information and 'critical typing errors' (see par 12 of Mr Rice's second submissions). None of that is helpful.
17 Mr Rice also requests that the proceedings and any decision to grant the extension of time be stayed until they can be determined by Le Miere J. An assertion is made at par 10 on the basis that:
[T]he plaintiff has reason to believe that a conflict of interest may exist between Honourable Justice Kenneth Martin and Jason MacLaurin through association with Francis Burt Chambers.
18 The latter contention is thoroughly misconceived. More than half the current Justices of this court at one time practised as barristers at Francis Burt Chambers before appointments to the bench, including both Le Miere J and myself. It is necessary to deal with the extension issue now, in circumstances where Mr Rice is self represented and clearly does not agree to the extension of time as requested.
(Page 6)
Determination
19 I am of the view there should be an extension of time as sought by the defendant until 24 July 2013, in order to enable him to bring, if necessary, an application to strike out Mr Rice's current statement of claim.
20 In short, my reasons for reaching that conclusion are:
(a) Having looked Mr Rice's 25-page self prepared pleading and his reference therein to the three alleged defamatory publications of which he complains, I can ascertain possible merit in the foreshadowed potential strike out application. I point out that such an application would ultimately be determined by Le Miere J, not by me.
(b) The current statement of claim presents prima facie as a rather turgid and prolix document, obviously prepared without the benefit of significant legal input and is unusual in its manifesting characteristics, in a defamation action.
(c) In the passing correspondence to which I have referred, Mr Rice himself foreshadows future possible amendments to his statement of claim at an indeterminate time.
(d) I assess it to be a constructive deployment of resources for further conferral to continue about deficiencies in this pleading, rather than wasting the court's time on hearing a defended strike out application, if that hearing can be avoided. The extension sought until 24 July 2013 would enable further conferral over deficiencies in Mr Rice's pleading.
(e) In all the circumstances, I do not assess the duration of the request for the extension of time to 24 July 2013 to be unreasonable.
(f) Presently, the court is in its winter recess from hearings until 22 July 2013. It is unlikely that a non-urgent interlocutory application to strike out the statement of claim could be heard before 24 July 2013 in any event.
21 Accordingly, there will now be orders on the defendant's application via his chamber summons of 3 July 2013, that:
(1) There be an extension of time until 4 pm on 24 July 2013 to the defendant for him to file any application pursuant to O 20 r 19 of
- the Rules of the Supreme Court seeking to strike out the plaintiff's statement of claim filed on 12 June 2013.
- (2) The obligation of the defendant to file a defence pleading is, in the interim, stayed until further order.
(3) The costs of this application shall be the defendant's taxed costs in the cause of this action.
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