YZ v Amazon (No 4) - [2015] NSWSC 1346

Supreme Court

New South Wales

Medium Neutral Citation: YZ v Amazon (No 4) [2015] NSWSC 1346
Hearing dates: 11 September 2015
Date of orders: 21 September 2015
Decision date: 21 September 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Unless the plaintiff files a further amended statement of claim in accordance with my reasons published 21 August 2015 by 8 October 2015 that the proceedings be dismissed.

Catchwords: DEFAMATION – pleadings – application to amend statement of claim – application for stay of previous order – where plaintiff seeking stay pending determination of special leave application in High Court – where plaintiff has had multiple opportunities to amend – where prejudice suffered by defendants
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Cases Cited: YZ v Amazon (No 3) [2015] NSWSC 1130
YZ v Amazon [2013] NSWSC 1522
Category: Procedural and other rulings
Parties: YZ (Plaintiff)
Amazon (1st defendant)
Smashwords Inc (2nd defendant)
OP (3rd defendant)
QRS (4th defendant)
WX (6th defendant)
Representation:
Counsel:
Plaintiff self-represented
No appearance for 2nd defendant
R Potter (1st, 3rd , 4th and 6th defendants)
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 pseudonym orders.

Judgment

HER HONOUR: This case presents a stark and frustrating illustration of the familiar difficulties faced by self-represented litigants. The plaintiff is referred to in the proceedings by a pseudonym for the reasons explained in one of my earlier judgments in the proceedings: YZ v Amazon [2013] NSWSC 1522. For most of the proceedings she has represented herself. There was a short period during which she had the benefit of a pro bono referral but she did not find that helpful and has indeed been quite critical of the barrister involved (unfairly, in my view).
On 21 August 2015, I determined the defendants' objections to imputations in a draft pleading propounded with the assistance of the pro bono barrister, referred to by the parties as the “June draft”: YZ v Amazon (No 3) [2015] NSWSC 1130. As a reading of that judgment will reveal, the plaintiff had a measure of success in the determination of those objections. That, however, is not her perception. Being unhappy with the barrister's draft, she had (at the time argument in respect of those objections was heard) propounded a further draft evidently prepared by herself, referred to by the parties as the “July draft” but was also unhappy with that version of the pleading. She wished to have a further opportunity to propound a further draft.
For the reasons recorded in my judgment, I refused that further opportunity and instead gave rulings by reference to the June draft, also allowing some inclusion of the part of the July draft identified by the plaintiff as being important to her. Upon the publication of my judgment, the plaintiff was directed to file a further amended pleading in accordance with my reasons…

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 4)

Details

AGLC: YZ v Amazon (No 4) [2015] NSWSC 1346
Case: [2015] NSWSC 1346
Decision Date: 21 September 2015

CaseChat Overview and Summary

The case of YZ v Amazon (No 4) involved the plaintiff, YZ, seeking to sue Amazon for defamation. The plaintiff brought an application to amend the statement of claim and a subsequent application for a stay of the previous order. The application for a stay was made in order to allow the plaintiff to appeal to the High Court for special leave. The plaintiff had already had multiple opportunities to amend the statement of claim, and the defendants argued that the plaintiff had suffered prejudice due to the delay and the cost of responding to the amended claims.

The court was required to determine whether the plaintiff should be granted leave to amend the statement of claim and whether there were any grounds for staying the previous order. The central legal issue was whether the plaintiff had acted reasonably and with due expedition in seeking to amend the statement of claim, and whether the defendants had suffered prejudice as a result of the delay.

In considering the application, the court noted that the plaintiff had already had several opportunities to amend the statement of claim, and that the delay in bringing the application had caused significant prejudice to the defendants. The court held that the plaintiff had not acted reasonably and with due expedition, and that the prejudice suffered by the defendants outweighed any potential benefit to the plaintiff in allowing the amendment. The court also found that the application for a stay was an abuse of process, as the plaintiff had not demonstrated a reasonable prospect of success in the appeal to the High Court. Accordingly, the application to amend the statement of claim was dismissed and the application for a stay was refused.

Orders