Trkulja v Dobrijevic
[2016] VCC 677
•27 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-15-00714
| MILORAD TRKULJA (aka MICHAEL TRKULJA) | Plaintiff |
| v | |
| IRINEJ DOBRIJEVIC | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2016 | |
DATE OF JUDGMENT: | 27 May 2016 | |
CASE MAY BE CITED AS: | Trkulja v Dobrijevic | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 677 | |
REASONS FOR JUDGMENT
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Catchwords: Defamation – ex parte order made in relation to extending time of validity of Writ – application by defendant to set aside ex parte order – inactivity on behalf of the plaintiff during much of the relevant 52 week period – attempts to serve defendant during last couple of weeks – whether any prejudice exists if period of validity of Writ extended – indication by defendant that it acted on his behalf but with subsequent statement that no instructions to accept service – previous order for substituted service – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Heywood-Smith QC | George Liberogiannis & Associates |
| For the Defendant | Mr D Bracken | Marsh & Maher Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application by the defendant effectively to set aside ex parte orders made by his Honour Judge O’Neill on 24 February 2016. The background to the orders made by his Honour is that the plaintiff is suing the defendant in defamation. It should be said that the defendant is the Serbian Orthodox Bishop of Metropolitan of Australia and New Zealand. The relevant Writ, with an attached Statement of Claim, was filed on 13 February 2015. As at the date of his Honour’s orders, the Writ had not been served. His Honour made an order permitting substituted service, which order may be of some relevance but is not controversial for the purposes of the present dispute. Secondly, on the basis of compliance with other orders essentially relating to service, his Honour extended the time of the validity of the Writ and Statement of Claim until 13 February 2017, this order being made pursuant to Rules 5.12(2) and (3) of the County Court Civil Procedure Rules 2008. It is this last-mentioned order concerning the extension of time of validity of the Writ which lies at the heart of the present dispute.
2 Mr P Heywood-Smith QC of the South Australian Bar appeared on behalf of the plaintiff. Mr D Bracken of counsel appeared on behalf of the defendant, whose application this was. No oral evidence was called. There was reference to various documents, and in particular to affidavits and exhibits. Each counsel spoke to well-prepared and very helpful written submissions.
3 I shall now summarise those submissions, written and oral, in the order in which they were presented.
The submissions on behalf of the defendant (applicant)
4 The submissions of Mr Bracken on behalf of the defendant could be summarised as follows.
5 The order of his Honour Judge O’Neill of 24 February 2016 was made without notice to the defendant and, pursuant to Order 46.08 of the County Court Civil Rules 2008, should be set aside and reheard. There should not be another order extending time. There is prejudice to the defendant. Such an order denies him a statutory limitation defence otherwise applicable. There is no evidence of any good reason for the Writ not being served between 13 February 2015 and 1 February 2016. It was on this latter date that the plaintiff instructed his solicitor to serve the Writ and Statement of Claim, but the affidavit of Mr Stuart Gibson, then the plaintiff’s solicitor, indicates that he was not aware of the reason for the delay between the instructions to issue and the instructions to serve. Essentially, in a later affidavit, Mr Gibson deposed that, on 21 October 2015, he had a meeting with the plaintiff concerning various legal matters. To the best of his recollection, Mr Gibson can recall only a brief discussion of this proceeding, and the instructions that he received were to “hold off on serving the Writ and Statement of Claim”. No reason or explanation was given in relation to this instruction, and the plaintiff’s affidavits do not refer to any instructions given to Mr Gibson.
6 In relation to the plaintiff’s health, Mr Gibson’s second affidavit states that the delay was attributed to the lengthy and involved treatment for the plaintiff’s coronary heart disease. There is reference to what the plaintiff told Mr Gibson in this regard, the treatment having allegedly occurred since mid-2014. Some medical material is exhibited. Two letters from Dr Zakhem refer to the necessity for the plaintiff to avoid court appearances and stress “till the end of August 2015”. There is no reference to the period September 2015 to February 2016. In any event, the issuing of the proceeding would not have involved the plaintiff in any court appearance or stress. All that was required was that he telephone Mr Gibson and give instructions to serve the Writ, or to do the same by email. Section 5(1AAA) of the Limitation of Actions Act 1958 requires a defamation action not be brought after the expiration of one year from the date of the publication of the matter concerning which there is complaint. This causes some complexities in the present situation, where there is an allegation of ongoing publication.
7 Further, in other litigation involving the plaintiff, he was appearing and representing himself during the relevant period. It is apparent that, on 13 August 2015, the plaintiff was present in the Supreme Court of Victoria representing himself in an action against Google Inc and Ors. He made no attempt to adjourn the hearing. It is also apparent that, throughout 2015, there were court appearances in other matters in which the plaintiff represented himself and, on two occasions, was represented by counsel. He drew court documents or gave instructions for their being drawn. He engaged in correspondence.
8 Further, it is submitted that a plaintiff has a duty to serve a Writ promptly. If an application for an extension is made after the Writ has expired, the reason for not having served the Writ within time must be of substance. In considering whether such a reason is good or of substance, all the circumstances of the case should be considered. Prejudice also has to be taken into account, and in this case the prejudice is the expiry of the statutory limitation period when the time within which the Writ was to be served has expired. In relation to many of the submissions, reference is made to the decision of Savcor Pty Ltd v Catholic Protection International APS (2005) 12 VR 639.
9 In addition, the plaintiff was made bankrupt on 29 January 2015. Whilst, unlike the situation with an insolvent company, a bankrupt individual can proceed with litigation, nevertheless the possibility of some prejudice in relation to matters such as costs may arise.
10 In summary, the plaintiff had a year within which to provide instructions to his solicitors to serve the Writ. No physical effort was required from him. The material provided by him does not disclose a reason, much less a good reason of substance, as to why he did not provide those instructions to Mr Gibson, his solicitor, within that timeframe. During that period he attended to a number of other legal tasks. It is clear from Mr Gibson’s second affidavit that the plaintiff had turned his mind to the service of the Writ, and there is no evidence as to why the plaintiff told Mr Gibson he should “hold off” on service.
11 In relation to prejudice, if the Writ should be extended, the defendant would suffer considerable prejudice which could not be remedied. As the Writ expired on 13 February 2016, if another was immediately drawn and filed, the publication upon which such a Writ could be based would only extend back to 13 February 2015. Publication between February 2014 and February 2015 would be beyond its reach. Refusal to extend the Writ does not necessarily shut out the plaintiff from issuing proceedings on the basis of publication of the relevant letter on the website. It may still be there.
The submissions on behalf of the plaintiff (respondent)
12 The submissions of Mr Heywood-Smith on behalf of the plaintiff could be summarised as follows.
13 The plaintiff refers to and relies upon the decisions of his Honour Judge Saccardo in Allan v Dale and Anor [2015] VCC 1248 and of Derham AsJ in Howard v Power [2013] VSC 198. The principles to be determined, as set out in Howard and quoted in Allan, could be reduced in number for the purposes of the present application.
14 In relation to the taking of appropriate steps in relation to service, it is pointed out that, in the two weeks prior to the expiry of the relevant period, the plaintiff’s solicitors had received instructions to serve the Writ. This occurred on 1 February 2016. At the time of receiving those instructions, Mr Gibson was also informed by the plaintiff that Ms Nicola Drakeford of Marsh & Maher acted for the defendant in respect of other court proceedings involving the plaintiff. Accordingly, Mr Gibson telephoned Ms Drakeford on 1 February 2016 and asked her if she acted for the defendant. She replied that she did. Mr Gibson then asked Ms Drakeford whether she had instructions to accept service for the defendant. She said that she would have to obtain such instructions. That service would be a problem did not occur to Mr Gibson at this time. On 3 February 2016, the matter was followed up. Ultimately, shortly after midday on that day, Ms Drakeford advised that she did not have instructions to accept service on behalf of the defendant.
15 Mr Gibson’s assistant, Ms Tasic, immediately engaged a process server and documents were sent by express post to that process-serving organisation in New South Wales (the defendant resides in Sydney). Mr Martin Folkes, who was engaged to carry out the service of the process, has sworn two affidavits. Mr Folkes has sworn that he attempted to serve the Writ on the defendant on 5 February 2016. He could not find the defendant on this occasion, but located a person with whom he left his contact telephone number. He was also given a telephone number. The person to whom he spoke described himself as the bishop’s personal assistant. Mr Folkes returned on 7 February 2016, but could not find either the defendant or his personal assistant. That person was not answering the telephone.
16 Mr Folkes returned again on 8 February 2016. He could not locate the defendant. He called the defendant’s assistant and left a message that such person should call him back. On 10 February 2016 he again attended at the premises in question. He could not locate the defendant, and the defendant’s assistant was not answering his phone.
17 Mr Folkes attempted service again on 12 February 2016. He found a caretaker, who said that the defendant was not there and that it was best to consult an administrator in order to make an appointment to meet with him. On 13 February 2016, Mr Folkes again attempted service but could not locate the defendant. On that day, he spoke with a caretaker via the telephone, and was advised that the defendant had gone to Melbourne.
18 Thus, prior to the expiry of the 52 week period, a process server was engaged and that person made six attempts to serve the Writ and made numerous attempts to establish some sort of contact via the telephone. Accordingly, within the prescribed period the plaintiff had been active in taking steps to serve the Writ. It was the inability to effect service that led to the order for substituted service made by his Honour on the same day that he extended the period of validity of the Writ.
19 An extension of time would not deprive the defendant of a limitation defence. The publication concerning which there is complaint is still being published on the website. Because of publications after 1 April 2015, the cause of action cannot be defeated. If a defence was taken in relation to limitation, the plaintiff has good grounds for extension of time to bring proceedings, bearing in mind the clear notice given to the defendant and acknowledged in the supporting affidavit of the defendant’s solicitor.
20 In relation to the overall delay, when bearing in mind the time at which the plaintiff’s cause of action arose, the particulars of publication pleaded by the plaintiff refer to downloading since 9 May 2014. Accordingly, that is the date when the cause of action is said to have arisen. Reference is made to Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. Accordingly, the Writ was issued well within time. There was no delay preceding the issuing of the Writ.
21 Further, there is no balance of hardship one way or the other. The only prejudice pointed to by the defendant concerns the possible loss of a limitation defence. That has already been discussed and is not a relevant prejudice.
22 Inference can be drawn that the defendant was avoiding service and this inference could also be drawn from the fact that an order was made for substituted service. The fact that the plaintiff is involved in other proceedings is irrelevant, as is the fact that he is bankrupt. Despite what is asserted in the affidavit of the defendant’s solicitor, there is no need for the plaintiff to obtain leave pursuant to s23 of the Defamation Act 2005.
Reply on behalf of the defendant
23 Mr Bracken’s reply on behalf of the defendant could be summarised as follows.
24 There is no basis for the suggestion that the defendant, being a bishop with the responsibilities that he has, was avoiding service. In relation to service generally, there is a large difference between a solicitor representing a person and having instructions to accept service. Between the parties in the present situation, there has been a number of actions, with considerable animosity. It should not have been assumed that there were instructions to accept service. One party can require the other to follow the Rules. A plaintiff is obliged to provide a good reason for the extension of a Writ – see Savcor. A Writ should be served promptly. If a plaintiff waits and then encounters problems, that should not be visited upon the defendant. The plaintiff’s solicitor wrongly formed the opinion that service would be straightforward, but that assumption was not warranted and his confidence was misplaced.
25 Had the plaintiff’s application to extend the time for the Writ been unsuccessful, he could still issue another Writ on the basis of publication. However, then he could only plead his cause of action on the basis of what had occurred in the 12 months prior to February 2015. Thus, there is some prejudice to the defendant. When the plaintiff was attempting to get pro bono assistance in relation to one of his other causes of action during 2015, he made no reference to the fact that he was ill.
Ruling
26 I am of the view that the period of validity of the Writ and Statement of Claim should be extended until 13 February 2017 and that the order of his Honour Judge O’Neill of 24 February 2016 should not be set aside. I have come to that conclusion for the following reasons.
27 Importantly, the plaintiff did take active steps in an attempt to effect service of the Writ within the 12 month period following it being issued. Albeit that the taking of these steps did not occur until the last couple of weeks of the 52 week period, some six attempts were made to effect service within that period. The process server also made a number of telephone calls and left his number. Further, he spoke personally to both the defendant’s personal assistant and to the caretaker of the relevant premises. Thus, whether at the very end of the relevant period or not, substantial efforts were made to serve the Writ and Statement of Claim within time.
28 I appreciate the argument of Mr Bracken that there is a distinction between solicitors having instructions to act on behalf of a party and instructions to accept service of proceedings. Nevertheless, I have some sympathy for Mr Gibson, the plaintiff’s solicitor, in relation to his belief that service would not be a problem and would be accepted by the defendant’s solicitors. In his reply, Mr Bracken argued that the fact that there had been a lot of actions on foot and animosity between the parties should have alerted the plaintiff’s solicitor to the fact that instructions to accept service might not have been forthcoming. Then again, if this was the existing history, the solicitor for the plaintiff, upon receiving confirmation of the identity of the solicitors for the defendant, might well have assumed that acceptance of service would not pose a problem. Other than that the Rules do not require it, no real argument of substance was advanced as to why service was not accepted by those solicitors in this particular case, although, as stated, animosity between the parties was an issue raised by the defendant.
29 I can understand that the refusal of the defendant’s solicitors to accept service would have come as something of a shock to the plaintiff’s solicitors. However, when it did occur, the plaintiff’s solicitor took rapid action. The end result was that numerous attempts at contact and service were made. Ultimately, his Honour Judge O’Neill made an order for substituted service and that was not the subject of any dispute before me.
30 I accept that the plaintiff suffered considerable ill-health during the relevant 12 month period. This did not prevent him from taking an active role in other litigation. However, it may provide some explanation as to why the present litigation was placed on the “back burner” during much of 2015. It is a factor to be borne in mind, but if the plaintiff had not made the attempts at service which were carried out in the last couple of weeks of the relevant period, it may well have been a borderline situation as to whether the issue of the plaintiff’s health, on its own, would have been enough to carry the day.
31 I would agree with Mr Heywood-Smith that the balance of hardship does not tilt one way or the other. There was considerable discussion concerning prejudice. The defendant argues that it has been deprived of a limitation defence. For the purposes of the present argument, there seems to be no dispute but that the letter or publication which is at the heart of the Statement of Claim is still being published. In a situation where there has been ongoing publication, I am not persuaded that the defendant has suffered prejudice to the extent that the scales should tip in his favour.
32 I also accept the argument of Mr Heywood-Smith that the Writ was issued comfortably within time. To some extent, this also impinges upon the prejudice argument. The date of publication alleged in paragraph 1 of the Statement of Claim is “on or around 9 May 2014”. Given that the Writ was issued on 13 February 2015, it was so issued, as argued, comfortably within time.
33 Effectively, this matter is heard by me as a hearing de novo. I have had the opportunity to hear detailed submissions and consider a large amount of documentary material. Having done that, I am of the view that the period of validity of the Writ and Statement of Claim should be extended and for the period nominated by his Honour Judge O’Neill when he made his ex parte order on 24 February 2016.
Conclusion
34 The application of the defendant is unsuccessful and is dismissed. The order of his Honour Judge O'Neill of 24 February 2016 is not set aside or varied and continues to be effective.
35 I shall hear the parties as to any ancillary orders that are required.
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