YZ v Amazon (No 2) - [2014] NSWSC 415

Supreme Court

New South Wales

Medium Neutral Citation: YZ v Amazon (No 2) [2014] NSWSC 415
Hearing dates: 7 April 2014
Decision date: 07 April 2014
Before: McCallum J
Decision:
Plaintiff referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in settling an amended statement of claim.

Catchwords: PRACTICE AND PROCEDURE - self-represented litigant - where statement of claim drafted by plaintiff struck out as embarrassing - plaintiff failing to serve amended pleading within time allowed - whether proceedings should be struck out for want of due despatch
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: YZ v Amazon [2013] NSWSC 1522
Category: Interlocutory applications
Parties: YZ (plaintiff)
Amazon (1st defendant)
Smashwords Inc (2nd defendant)
OP (3rd defendant)
QRS (4th defendant)
TUV (5th defendant)
WX (6th defendant)
Representation: Counsel:
Plaintiff self-represented
A Hutchinson (1st defendant)
No appearance by 2nd defendant
LW Maher (3rd to 5th defendants)
6th defendant self-represented (via audio link)
Solicitors:
HWL Ebsworth Lawyers (1st defendant)
Dwyer Bruce Legal (3rd, 4th and 5th defendants)

File Number(s): 2013/178073
Publication restriction: Note: some of the parties in these proceedings are the subject of an anonymisation order

Judgment

HER HONOUR: These are proceedings for defamation commenced by a plaintiff to whom I refer as "YZ", for the reasons stated in my previous decision in the proceedings: YZ v Amazon [2013] NSWSC 1522. In that judgment, on the application of the third, fourth, fifth and sixth defendants, I struck out the statement of claim as against them. The first defendant, Amazon, had not filed a Notice of Appearance as at the time that application was determined but appears today represented by Ms Hutchinson (by leave). The second defendant I understand has been served with the statement of claim and that understanding is reinforced by the receipt by the Court of correspondence from it but it has not appeared today.

In my earlier judgment published on 18 October 2013 I ordered the plaintiff to serve an affidavit annexing any proposed amended statement of claim on or before 25 November 2013. That did not occur. The defendants who have appeared today, that is, all of the defendants other than the second defendant, have informed me that they have not received any correspondence or explanation for the delay from the plaintiff. The question accordingly arises whether the plaintiff should have a further opportunity to amend or whether the proceedings should be dismissed for failure to prosecute the claim with due dispatch.

The plaintiff has appeared today. This is the first occasion when the proceedings have come before me when there has been an appearance by the plaintiff. She has explained her circumstances from the Bar table and, to some extent, the matters she has told me repeat information I have received from the represented parties and the sixth defendant on previous occasions.

Without descending into too much detail, as recorded in my previous judgment, these proceedings arise broadly out of a dispute between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading YZ v Amazon (No 2)

Details

AGLC: YZ v Amazon (No 2) [2014] NSWSC 415
Case: [2014] NSWSC 415
Decision Date: 07 April 2014

CaseChat Overview and Summary

The matter involved the plaintiff, YZ, suing Amazon for damages resulting from alleged breach of contract. YZ, a self-represented litigant, filed a statement of claim that was subsequently struck out as it contained embarrassing information. YZ failed to serve an amended pleading within the time allowed by the court. The court was required to determine whether the proceedings should be struck out for want of due despatch.

The court found that the plaintiff, despite being self-represented, was still required to comply with the court's procedural rules. The plaintiff's failure to serve an amended pleading within the time allowed was a clear breach of the court's orders. The court considered the circumstances of the case, including the plaintiff's conduct and the impact on the efficient administration of justice. The court ultimately concluded that the proceedings should be struck out due to the plaintiff's failure to comply with the court's directions.

The court's reasoning was grounded in the need to ensure the efficient and effective administration of justice. The court found that the plaintiff's conduct had caused significant delays and had the potential to further disrupt the proceedings. The court emphasised the importance of litigants, whether self-represented or not, adhering to procedural rules and court orders. In light of the plaintiff's failure to serve an amended pleading within the time allowed, the court found that the proceedings should be struck out for want of due despatch.

The court ordered that the proceedings be struck out and that no costs be awarded. The court noted that the plaintiff had the right to appeal the decision, but that the appeal would not stay the operation of the order. The court also noted that the plaintiff could file a new proceeding if they wished to pursue their claims, provided that they complied with the court's procedural rules and directions.

Orders