Saltearn v Saltearn

[2015] NSWSC 582

Supreme Court

New South Wales

Medium Neutral Citation:	Saltearn v Saltearn [2015] NSWSC 582
Hearing dates:	1 May 2015
Date of orders:	01 May 2015
Decision date:	01 May 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Parties directed to file a duly executed notice of discontinuance in accordance with their agreement within seven days, failing which the Registrar is authorised to execute the notice of discontinuance on behalf of the plaintiff. Plaintiff to pay the defendant's costs of today.
Catchwords:	PROCEDURE – civil – settlement – agreement by plaintiff to discontinue proceedings on terms – where plaintiff subsequently changed his mind – whether agreement actually concluded – application of s 73 of Civil Procedure Act 2005 (NSW) to give effect to agreed discontinuance – where exercise of power would give effect to overriding purpose and s 56 of Civil Procedure Act 2005 (NSW) – where proceedings liable to be dismissed on the grounds stated in Bleyer v Google Inc
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 73
Cases Cited:	Bleyer v Google Inc [2014] NSWSC 897 Smith v Lucht [2014] QDC 302
Category:	Procedural and other rulings
Parties:	Jason Saltearn (Plaintiff) Decima Rosemary Saltearn (Defendant)
Representation:	Counsel: Plaintiff in person A Paterson (Defendant) Solicitors: Plaintiff (Self-represented) Sarvaas Ciappara Lawyers (Defendant)
File Number(s):	2014/191429
Publication restriction:	None

Judgment – Ex tempore

1. HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 27 June 2014. On 9 October 2014, the plaintiff filed a notice of motion seeking leave to amend that pleading but that motion has not been determined. The plaintiff is Mr Jason Saltearn. The defendant is his mother. The publication on which Mr Saltearn would wish to sue is a publication by his mother to his father.

2. Following the first return of the proceedings before the Court, the proceedings were stood over on a number of occasions on the application of the plaintiff at a time when, I think, the defendant had not yet been served with either form of pleading. The defendant is now represented by Mr Paterson.

3. The application before the Court today is the defendant's application for orders to give effect to an alleged agreement between the parties arising from correspondence commencing on 9 April 2015. On that date, after Mrs Saltearn had obtained legal representation, a defence to the original statement of claim was filed. The solicitors expressed the view in that correspondence that the statement of claim did not disclose a proper cause of action and invited the plaintiff to discontinue his claim with no order as to costs. That was a concession to the usual position, which is that a discontinuance results in an order for costs in favour of the party against whom the proceedings have been discontinued.

4. The plaintiff responded in the following terms:

"Thank you for filing a defence on my mother's behalf which contains a number of falsifications and omissions, of which I have made note. I have decided to accept your offer to discontinue proceedings without orders to costs and include the appropriate form to be filed at the Supreme Court. Please return to me with your signature consent today whereupon I will sign and file tomorrow."    

5. The solicitor, Mr Tauschek, responded two days later as follows:

"We refer to your email letter dated 15 April 2015. We attach notices of discontinuance. This discontinuance is a slightly amended version in form only, and not in substance to the one that accompanied your letter dated 2 April 2015, and has been so amended to conform with the form prescribed by the Court.

Assuming you have no objection to this notice of discontinuance, please sign the same and provide us with a scanned copy. Upon receipt of the scanned copy, we will then execute it on behalf of our client and arrange for it to be filed with the Court after which we will then provide you with a sealed copy for your records.”

6. On the strength of that exchange, Mrs Saltearn moves the Court for an order giving effect to an agreement that the proceedings be discontinued on terms that each party pay his or her own costs. Mr Saltearn opposes that course and does not accept that a binding agreement was reached.

7. Jurisdiction to determine any question in dispute between the parties as to whether and on what terms proceedings have been compromised or settled may be found in s 73 of the Civil Procedure Act 2005 (NSW). There is evidently a schism as between the jurisprudence in England and in this country as to whether, in order to enforce an alleged settlement agreement, new proceedings must be commenced seeking specific performance or whether a settlement agreement may be enforced by an application in the original proceedings. In Australia, the latter course has been approved.

8. Having regard to the overriding purpose of the Civil Procedure Act and my duty under s 56(2) of the Act to give effect to that purpose when exercising any power under the Act, and having regard to the nature of the claim in these proceedings, I consider it expedient to entertain the defendant's application in the proceedings and to determine the matter in this List.

9. I have heard submissions this morning from Mr Saltearn as to why he is not bound by the exchange of correspondence to which I have referred. He offered four reasons as to why the relief sought by Mrs Saltearn should not be granted.

10. First, he submitted that his acceptance of the offer communicated on behalf of his mother was qualified. He contended that a decision to accept an offer may be distinguished from a formal communication of acceptance of an offer and that such a decision is amenable to being revised, reviewed or overturned. In support of that contention, as I understand the submission, Mr Saltearn relied upon the opening words of Mr Tauschek’s email of 17 April 2015, "assuming you have no objection". Noting the full terms of that email (set out above), I would not understand that phrase to reflect any sort of concession but rather as the language of polite discourse, which is to be commended in professional correspondence and is, unfortunately, frequently lacking. In other words, since the defendant was providing a different form of notice of discontinuance from that provided to her by Mr Saltearn, as a concession to politeness, an opportunity was offered to remark on that development. I do not read those words as accepting that there was any qualification to Mr Saltearn's acceptance of the offer.

11. In my view, the wording of his correspondence, read objectively, communicated clearly and unequivocally his acceptance of the offer made. That offer, as already indicated, reflected real compromise on the part of Mrs Saltearn.

12. Secondly, Mr Saltearn submitted that, after sending his email of 15 April 2015, he received advice about the effect of a discontinuance which caused him to wish to revise his decision. He stated that he had always considered that he would reinstitute proceedings at a later point. That is as may be but, for present purposes, the test is the objective construction of the correspondence which, as I have indicated, in my view, reflects a concluded agreement.

13. Mr Saltearn contended today that he was labouring under the misapprehension that Mrs Saltearn was, in the defence filed on her behalf, addressing the proposed amended statement of claim the subject of Mr Saltearn's notice of motion. Again, that is as it may be, but it does not reflect the true position of the proceedings at that time.

14. Thirdly, Mr Saltearn submitted that he has a reasonable prospect of obtaining pro bono legal assistance. He submitted that would be a preferable way for the proceedings to move forward. I do not think that is a consideration which derogates from his unequivocal acceptance of his mother's offer.

15. Finally, Mr Saltearn relied upon what he described as "tardiness" on the part of Mrs Saltearn in engaging with him. He submitted that, although he had asked for the agreement to be put into effect that day, it took 48 hours for the defendant to respond and they failed to return a phone call during that time and sent only a blank form of notice of discontinuance, not one signed by Mrs Saltearn. I do not think any of those considerations can properly be regarded as derogating from the concluded agreement.

16. In considering whether to exercise my discretion to give effect to the concluded agreement, I have also had regard to the nature of Mr Saltearn's claim. In my view, Mr Saltearn’s claim is one which would, if it were to proceed, be liable to be dismissed on the grounds of the principles considered by me in Bleyer v Google Inc [2014] NSWSC 897 (but cf Smith v Lucht [2014] QDC 302).

17. For those reasons, I consider that the appropriate order is to direct the parties to file a duly executed notice of discontinuance in accordance with the agreement within seven days, failing which the Registrar is authorised to execute the notice of discontinuance on behalf of the plaintiff. I order the plaintiff to pay the defendant's costs of today.

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Decision last updated: 18 May 2015