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. 3 My delay in resuming was further caused by changing personal circumstances, the care of my terminally ill (now deceased mother) and my continuing financial hardship. 4 I would appreciate the setting of a hearing date as expeditiously as possible." 19 The affidavit gives his address as being in Old Bar NSW 2430. 20 The defendants rely on an affidavit sworn by Mr Simon on 25 August 2008. It is an affidavit of some length with a number of annexures. 21 The affidavit material relied on by the plaintiff is miniscule and unhelpful. If there was any utility in setting aside the dismissal order, the material relied on by the plaintiff would fall abysmally short of explaining away past inaction and delay. 22 What appears in his affidavit was supplemented by oral submission from the bar table. This material was not provided on oath and cannot be regarded as evidence on which the Court can rely. The oral submissions made considerable mention of problems of a personal and financial nature. In my view, even if this material had been put before the Court by way of evidence it would not have adequately explained the past inaction and delay. 23 However, the defendants' material shows a somewhat different picture. It presents the plaintiff as having been active in the Federal political scene (standing as an independent for the Federal seat of Lyne and campaigning between January and November of 2007). It also presents him as being in employment with both the Greater Taree City Council and the Federal Department of Education, Science & Training. 24 Whilst neither deponent has been cross examined, the plaintiff was not in a position and did not dispute his political activity. He merely sought in oral submissions from the bar table to play down what was done by him on the political scene. 25 I shall now briefly mention just some of the other things that were said by the plaintiff from the bar table. He continues to live at Old Bar. He did not notify the Court of a change of address for service prior to June 2008. He does not have the means to prosecute the proceedings if they were reinstated. Any prosecution would have to take place without legal assistance. He asserts that he was unaware of the dismissal of the proceedings until after the filing of his Notice of Motion. 26 Whist the plaintiff has not identified the basis upon which he seeks relief, it would seem that r 36.16 of the Uniform Civil Procedure Rules 2005 may be an avenue open to him. These provisions give the Court a discretionary power to set aside a judgment or order. The discretion is exercised having regard to the relevant circumstances of the particular case before the Court and so that the dictates of justice are best served. The onus is borne by the party seeking relief. 27 The Court will not grant such relief unless the applicant has a viable cause of action. It will not foster a futile exercise. In the circumstances of this case, it would be futile to set aside the dismissal order. 28 There seems to be no dispute that the limitation period expired prior to the filing of the Statement of Claim. The position taken by the plaintiff is that there were reasons why he came to be out of time. The problem for the plaintiff is that there is no entitlement for an extension of the limitation period. Further, the limited material available to the court does not enable it to form any view as to whether or not the documents contained material that was arguably defamatory. 29 Leaving that matter aside, there are the problems with the Statement of Claim itself. Even if he had a viable cause of action, there seems to be no prospect that the pleading problems could ever be overcome. 30 There has been lengthy inaction. If a plaintiff brings proceedings in this Court it is his responsibility to ensure that the proceedings are diligently prosecuted. He has failed to adequately explain why that has not been done. This delay has to be a cause of at least presumptive prejudice. 31 In my view, the plaintiff has failed to discharge the onus borne by him to demonstrate an entitlement to the setting aside of the dismissal order. Accordingly, his Notice of Motion must fail. 32 The plaintiff's Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.