Scott-Irving v Minter [2008] NSWSC 1078

New South Wales Supreme Court

CITATION : Scott-Irving v Minter [2008] NSWSC 1078

HEARING DATE(S) : 13 October 2008

JUDGMENT DATE : 15 October 2008

JUDGMENT OF : Malpass AsJ

DECISION : Plaintiff's Notice of Motion dismissed; plaintiff to pay the costs of the Notice of Motion.

CATCHWORDS : COMMON LAW - application to set aside dismissal order - discretionary considerations

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

Stewart Gordon Scott-Irving (Plaintiff) Desiree Minter (First defendant) Anna de Carvalho (Second defendant) PARTIES : Fran Dupen (Third defendant) Stuart Smythe (Fourth defendant) Kevin Watt (Fifth defendant) Louise Thomas (Sixth defendant) Jane Fallson-Ree (Seventh defendant)

FILE NUMBER(S) : SC 20227/06

SOLICITORS : Plaintiff in person Wotton + Kearney (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 15 October 2008

20227/06 Stewart Gordon Scott-Irving v Desiree Minter & Ors

JUDGMENT 1 HIS HONOUR: These proceedings arise out of what happened at an annual general meeting of the Manning River Steiner School on 2 April 2005. It appears that two documents ("the documents") were present at the meeting (a Faculty of Teachers Report – 2005 and Fran Dupen's resignation statement). The plaintiff contends that the contents of the documents were not only highly critical of, inter alia, himself but also defamatory and that they have been disseminated in the wider community. 2 On 15 June 2006, he filed a Statement of Claim in this Court. It provides an address for service (in, Wallabi Point NSW 2430). It named seven defendants. It is his allegation that those persons were responsible for the documents "drafting, non-withdrawal/ non-correction or publication". 3 The plaintiff has not been legally represented and his Statement of Claim appears to have been prepared without legal assistance. A casual glance at the document quickly reveals that it falls well short of complying with the pleading rules (inter alia, it fails to disclose a reasonable cause of action). Further, the Court has been informed that any defamation claim has been brought outside the limitation period. 4 The relief claimed in the Statement of Claim encompasses a number of matters (inter alia, the recovery of all copies of the documents, an apology and a monetary claim for both economic and non-economic loss). 5 Prior to 15 November 2007, the proceedings had been before the Court on a number of occasions. I will mention certain of them. 6 There was a status conference before Registrar Howe on 26 July 2006. The question of deficiencies of the Statement of Claim was raised and Registrar Howe, inter alia, ordered the filing of an Amended Statement of Claim by 18 August 2006. On or about 21 August 2006, an unsealed Amended Statement of Claim came to the attention of the solicitor for the defendants. Although a copy of that document forms part of the Court file, it has not been filed in court in any technical sense. The document gives the same address for service. This document does not resolve the pleading deficiencies of the filed Statement of Claim. The proceedings came again before Registrar Howe on 13 September 2006. On that occasion, the plaintiff made known that he wanted to make an application for pro-bono assistance. 7 The matter came before Sully J on 9 October 2006. On that occasion, it was stood over generally to enable the plaintiff to prepare his pro-bono application. Thereafter, his attempts to obtain legal assistance proved to be unsuccessful (his last application for legal aid was refused on 15 November 2006). 8 An interregnum of about twelve months took place without there being any apparent activity in the prosecution of the matter. 9 The matter came to be listed on 25 October 2007 before Registrar Bradford in his Common Law list. The plaintiff did not appear on that occasion. An application made on behalf of the defendants for dismissal saw the proceedings being adjourned for a directions hearing on 15 November 2007. 10 The Court file reveals that the matter may have been listed on 15 October 2007 at the request of the plaintiff. It contains the following communication from him: "Please be advised that I wish to resume the above Defamation case at the earliest possible convenience … with the exception of 23 October 2007. Please also be advised that my current email address is as above and not as earlier sscott-irving@bigpond.com. Phone message to: 02 6553 .... Respectfully Stewart Scott-Irving" 11 The Court file reveals that the plaintiff was given a notice of listing for 15 November 2007. It was addressed to the address for service given by the plaintiff in his Statement of Claim. It advised, inter alia, as follows: "If there is no attendance by or on behalf of the plaintiff on the adjourned date, the Court may dismiss the proceedings." 12 On 15 November 2007, the plaintiff again failed to appear. Registrar Bradford dismissed the proceedings purportedly pursuant to r 13.6 of the Uniform Civil Procedure Rules. The order was entered on that day. 13 The contents of the file suggest that the notice of listing was not returned to the Court and that the plaintiff did not follow up his resumption request. 14 The dismissal order was followed by a further period of inaction (until about June 2008). 15 The court file reveals that on 3 June 2008 a document making a requisition was sent to the plaintiff (a request was made for him to sign his document). It was addressed to the address for service provided in the Statement of Claim. Presumably, it related to the Notice of Motion that he was seeking to file. The document was received by the plaintiff. He returned the document to the Court with written endorsements on the face of it. The writing was directed to the attention of the counter manager and provided what was referred to as his new address at Old Bar. 16 On 17 June 2008, the plaintiff filed a Notice of Motion. The Notice of Motion claims the following relief: "1. A. Seeking a re-opening of the identified case. 2. B. Seeking the Court determined HEARING DATE to be set as expeditiously as possible." 17 This Notice of Motion has been before the Court on a number of occasions. It came to be listed for hearing on 13 October 2008 and a hearing took place on that day. The plaintiff appeared in person. The defendants were represented by Mr Simon (a solicitor). 18 The only material placed before the Court by the plaintiff was his short affidavit. It was sworn on 13 June 2008. It contains the following: "2 I seek to have the delayed case 20227/06 re-opened after being unsuccessful in having Legal Aid and the Bar Association provide Pro Bono services for Defamation purposes.