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 1HER 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. 2In 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. 3The 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. 4Without descending into too much detail, as recorded in my previous judgment, these proceedings arise broadly out of a dispute between the plaintiff and the sixth defendant, who were previously in a relationship and have a child. An allegation culminating in a criminal charge against the plaintiff has been made that she abducted the child in circumstances where she held certain concerns about its safety. 5The plaintiff has informed me today that, between 14 October 2013 (some four days prior to the publication of my judgment) and 20 November 2014, she was standing trial for that charge in the District Court. Today she has informed me that she was found guilty of the charge by a jury; that she remains to be sentenced; that she proposes to bring an appeal against the conviction based on the contention that the Judge wrongly excluded relevant evidence and that, separately, she has also had to return to the Family Court for the determination of the proceedings between her and the sixth defendant in that Court. There have, as the plaintiff has informed me, been two further weeks of hearing in the Family Court; one in December last year and one in February this year. 6It goes without saying that any independent observer would readily acknowledge the strain that each of those proceedings and the underlying events must have placed on both the plaintiff and the sixth defendant. That is a relevant factor in considering the plaintiff's failure to produce an amended pleading. 7A separate consideration in determining whether the plaintiff should have a further opportunity to amend the pleading is the fact that she has not at any point been able to obtain legal representation to assist her in settling a pleading. 8It is plain at a glance that the underlying claim could be pleaded relatively easily by a lawyer with some expertise in defamation. The action arises out of the publication of an electronic book. As recorded in my earlier judgment there may be complications as to the precise form of the pleadings arising from the issues relating to electronic publication and the various different involvements of the several defendants to the claim. In particular, I note that the sixth defendant, who is the plaintiff's former partner and the father of the child, has always maintained that he is not the author of the book and has played no part in its publication. That is an issue that would require some attention. I apprehend from my reading of the original statement of claim that the plaintiff would wish to argue that one can infer from parts of the content of the book that he nonetheless has played a sufficient role in the provision of information which led to its publication to make himself liable for at least some of the imputations conveyed. 9There can be no doubt that a respectable pleading could be put together alleging that the book conveys defamatory imputations. Plainly, the principal issue that would arise in the proceedings, were they allowed to proceed, would be whether the defamation is defensible. 10For all of those reasons I consider it would be premature to foreclose the plaintiff's pursuit of a defamation action at this stage, notwithstanding the fact that she has, as Mr Maher submitted on behalf of the third, fourth and fifth defendants, had a number of previous indulgences in bringing her claim into good order. 11Having regard to the information set out in correspondence provided by the plaintiff today, I am satisfied that it is appropriate to give her a referral under the court's pro bono scheme for assistance in settling an amended statement of claim. 12In reaching that conclusion, I have had regard to the matters set out in rule 7.36 of the Uniform Civil Procedure Rules. The material the plaintiff has provided today satisfies me that she does not have the means to obtain legal assistance herself; that that precludes her from having the capacity to obtain legal assistance outside the scheme; that the nature and complexity of the proceedings is such as to benefit from a barrister settling an amended pleading and, as I have said, my consideration that plainly there has been a publication and it is one which is at least capable of conveying imputations defamatory of the plaintiff, the critical issue as to which advice might be obtained being whether it is defensible. 13I would wish to warn the plaintiff, since she is present today, that if she does not diligently prosecute any opportunity for pro bono assistance referred today and produce an amended statement of claim within a further period of eight weeks, that the proceedings will almost certainly be dismissed for want of due dispatch. 14Pursuant to rule 7.36 of the Uniform Civil Procedure Rules I refer the plaintiff 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. I direct the plaintiff to serve an amended statement of claim within seven weeks from today. I will stand the proceedings over to the defamation list on 2 June 2014. ********** 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. Decision last updated: 24 June 2014