Sporting Shooters Association v Judge [2013] NSWSC 1783

Supreme Court New South Wales

Medium Neutral Citation: Sporting Shooters Association v Judge [2013] NSWSC 1783 Hearing dates: 8 October 2013 Decision date: 11 October 2013 Before: McCallum J Decision: Defence filed 2 September 2013 struck out; defendant directed to file a defence to the amended statement of claim within two months. Catchwords: DEFAMATION - pleadings Cases Cited: Palace Films v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 Category: Interlocutory applications Parties: Sporting Shooters Association of Australia (NSW) Inc (first plaintiff) Sporting Shooters Association of Australia (NSW) Armidale Branch Inc (second plaintiff) Sporting Shooters Association of Australia (NSW) Coffs Harbour Branch Inc (third plaintiff) Keith Edward Judge (defendant) Representation: R Lee (solicitor for the plaintiff) K Judge (self represented, via audio link) Solicitors: Schweizer Kobras (plaintiff) File Number(s): 2012/334394 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation. The three plaintiffs in the proceedings are the State Sporting Shooters Association of Australia and two of its member branches, the Armidale branch and the Coffs Harbour branch. There are no individual plaintiffs in the proceedings. The defendant to the proceedings is Mr Keith Judge, who is a member of the Tamworth branch of the Sporting Shooters Association. Mr Judge is unrepresented. 2The matter complained of consists of an email with a number of attachments. It is alleged in the statement of claim that the email was published by being sent to a number of entities identified in paragraph 18 of the amended statement of claim, most of which appear to be generic email addresses for other branches of the Sporting Shooters Association of Australia. The content of the email and the attachments reveal that it was material evidently sent in the lead up to the State Annual General Meeting in 2012. 3The proceedings first came before me earlier this year to hear the plaintiff's notice of motion dated 1 February 2013, which sought orders striking out the defence. The defendant did not appear when that motion first came before me, for medical reasons, supported by a medical certificate. Whilst the issue brought forward on that occasion was the form of the defence filed by him, I formed the view that there were deficiencies in the statement of claim. I did not consider it appropriate to proceed to consider the plaintiffs' notice of motion until their own pleadings were brought into good order. For the reasons published on 4 April 2013, I granted the plaintiffs leave to amend. 4An amended statement of claim was filed on 2 May 2013. The defendant was ordered several times to file and serve a defence to that amended pleading but failed to do so. On 5 August 2013, I struck out the defence he had filed in response to the original statement of claim (for reasons published that date). I determined, however, to give Mr Judge "one further opportunity to respond to the amended pleading". I warned him on that occasion of the risk that, if he failed to file a defence to the amended pleading, the plaintiffs may enter default judgment against him. 5A defence was filed on 2 September 2013. Unfortunately, that document suffers from many of the vices of the earlier defence. It is plainly embarrassing, in the legal sense, and liable to be struck out. 6I would make a number of specific observations in respect of that document. 7First, it reveals that Mr Judge persists in maintaining, purportedly by way of defence, that in publishing the matters complained of he was acting with the authority and support of the Tamworth Branch of the Sporting Shooters Association. As I explained to Mr Judge when he appeared on Tuesday last, that is not a basis on which he himself can defend the claim brought against him as an individual. 8Secondly, the pleading is otherwise expressed in difficult, often Delphic language. It is impossible to understand precisely what some of the contentions mean. 9It may be observed, however, that the defence does identify some possible defences to the plaintiffs' claims. As I have already observed, the email was evidently sent in the lead up to an election and, according to the amended statement of claim, appears to have been confined in its distribution to other member branches. In that context, the defence asserts that it was in the public interest for the material to be published, plainly a layman's expression of what a lawyer would characterise as the defence of qualified privilege. 10Separately, the defence asserts in a number of places that the material published represented Mr Judge's honest opinions, also a defence which a lawyer would be able to craft into a pleadable response to the claim. 11Finally, whilst it is difficult to discern from the language of the defence itself, there appears to be an attempt by Mr Judge in that document to assert that at least some of the imputations are true. My apprehension in that respect was confirmed by Mr Judge in submissions on Tuesday when he asserted that what he had written was true and provable by documents held by him. 12Accordingly, whilst the defence is undoubtedly liable to be struck out in its present form, a difficult question arises as to what should happen next. Mr Lee submitted that there should be no further opportunity for the defendant to plead a defence to the claim. It certainly may be accepted that the defendant has had a number of indulgences granted in that respect. I would regard the relevant period to be considered in that context as being only from 2 May 2013 when the amended statement of claim was filed. Even so, since that date the defendant has failed to comply with a number of orders for the filing of a defence and, following the order I will make today, will have had two defences struck out. 13Those are certainly compelling considerations to support Mr Lee's submission that there should not be a further opportunity to plead a defence to the claim. I am required, however, in considering what further orders should be made for the conduct of the proceedings to have regard not only to my obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings but, in doing so, to follow the dictates of justice. 14That is often a difficult task in the case of a litigant in person who is not legally trained. The overriding duty of a trial judge to ensure that the trial is fair. The Court of Appeal has observed that this is so a fortiori where a litigant in person is involved: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [39] per Young JA; Beazley JA and Handley AJA agreeing at [1] and [80]. Young JA there cited the decision in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138, where Kirby P (with whom Sheller JA agreed) said: "Courts ... must be specially vigilant that they perform their functions correctly, including in cases presented by a litigant in person. Concealed in the lay rhetoric and inefficient presentation may be a just case." 15If the defendant has no further opportunity to plead a defence to the claim, the plaintiffs will be entitled to default judgment and to proceed to an assessment of damages. The damages could be substantial and there would, of course, be an attendant order that the defendant pay the plaintiffs' legal costs. He is an individual who has told me on a number of occasions that he can barely afford to retain a lawyer for the purpose of a short conference, let alone meet a substantial verdict. 16Since the hearing on Tuesday I have in that context taken the opportunity to give close consideration to the amended statement of claim, just as I considered the statement of claim on the earlier occasion on which the plaintiffs moved to have the defence struck out. It is apparent to me that there remain some difficulties with the pleading of that claim, notwithstanding the opportunity I gave for it to be amended. Further, it is clear at a glance that there are a number of potential defences to the claim. In saying so, I emphasise that I have not prejudged any of these issues but simply note what may be available to be considered by the defendant were he properly advised. 17First, it is clear enough that there will be an issue as to whether some of the imputations are conveyed, some being pleaded as true innuendoes based on extrinsic facts. There is still not in the pleading any publication or identification of persons to whom it is alleged the matters complained of were published who knew the extrinsic facts. 18It remains the case, as I observed in respect of the original pleading, that some of the imputations arguably do not distil any specific act or condition attributed to the plaintiffs by the matters complained of. One of the imputations attributes the condition of dishonesty to a plaintiff which, as I have observed, is an incorporated association. My views as to whether that is a proper imputation in the case of a corporate plaintiff were expressed in my decision in Palace Films v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136. 19Further, as already noted, the nature of the publication cries out for the possibility of a defence of qualified privilege and, according to what Mr Judge has told the Court, there may also be available defences of honest opinion and substantial truth. 20In all the circumstances, I do not think it would accord with the dictates of justice to strike out the existing defence and not to allow the defendant any further opportunity to plead a defence to the claim so that the matter would proceed so as to allow the plaintiffs to enter judgment by default. That is particularly so where the default is not due to a failure on the part of the defendant to engage at all with the legal process but, rather, an inability, due to his not being legally trained, to plead what may well be proper defences available to the plaintiffs' claims. To allow that course at this stage would, in my view, suffer the use of the tort of defamation potentially as an instrument of unfairness against an unrepresented litigant. 21Accordingly, what I propose to do now is to hear Mr Judge as to his eligibility for a referral for pro bono assistance under the court supervised scheme. 22[discussion as to pro bono referral] 23I am satisfied that it is in the interests of the administration of justice to refer Mr Judge to the Registrar for referral to a barrister or solicitor on the pro bono panel or who might otherwise come forward for legal assistance. My reasons for reaching that conclusion are comprehended within the reasons I have just published for striking out the defence. 24The orders are: (1)That the defence filed 2 September 2013 be struck out. (2)That the defendant file a defence to the amended statement of claim within two months. (3)I refer Mr Judge to the Registrar for a referral to a barrister or solicitor for legal assistance in the first instance for the purpose of settling a defence to the amended statement of claim. 25And, Mr Judge, I am afraid, as occurred on the last occasion, I will have to order you to pay the costs of the second notice of motion. 26DEFENDANT: I can understand that. 27HER HONOUR: (4)I order the defendant to pay the plaintiff's costs of the determination of the plaintiffs' notice of motion this week. (5)I direct the plaintiffs to provide to the defendant within seven days the documents responding to the call for minutes made by Mr Judge on Tuesday. (6)I stand the matter over to the defamation list on 2 December 2013.