Saad v Daily Telegraph [2014] NSWSC 430

Supreme Court New South Wales

Medium Neutral Citation: Saad v Daily Telegraph [2014] NSWSC 430 Hearing dates: 26/02/2014 Decision date: 26 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 that the statement of claim filed on 30 August 2013 be, and hereby is, dismissed. (2) Order the plaintiff to pay the costs of Nationwide News Pty Ltd. Catchwords: PROCEDURE - civil - summary disposal - dismissal - Statement of Claim bad in form - filed outside limitation period - frivolous or vexatious; whether - reasonable cause of action; whether - cause of action untenable; whether - Civil Procedure Act 2005; s 56 - dismissal would be consistent with the just, quick and cheap determination of the real issues in dispute; whether Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: State of New South Wales v Plaintiff A [2012] NSWCA 248 Category: Interlocutory applications Parties: D Saad (P) The Daily Telegraph (D1) Commissioner of Police (D2) Representation: Counsel: G Sargenson (P) No appearance (D) Solicitors: Department Of Finance and Services (P) File Number(s): 2013/263858

EX TEMPORE Judgment 1On 30 August 2013, Mr Danny Saad, as plaintiff acting for himself, commenced proceedings against the Daily Telegraph and the Commissioner of Police. 2On 18 September 2013, Nationwide News, the publisher of the Daily Telegraph, filed a notice of appearance. 3On 17 October 2013 Nationwide News Pty Ltd filed a notice of motion in which it sought an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the proceedings be dismissed on the grounds that the proceedings were frivolous or vexatious, or disclosed no reasonable cause of action. In the alternative, Nationwide News sought an order pursuant to r 14.28 of the UCPR that the Statement of Claim be struck out. 4The second defendant, the Commissioner of Police, has never appeared and there is some question as to whether a Statement of Claim has ever been served on the Commissioner. 5On 23 October 2013, the court made orders requiring the plaintiff to serve the evidence upon which he intended to rely in respect of the Motion of Nationwide News, and to provide any further material that he intended to rely upon, including any further draft pleadings, by 28 November 2013. The proceedings were stood over to 9 December 2013 for the hearing of the Motion by the duty Judge. 6On 9 December 2013, the plaintiff appeared in person and orders were made which mirrored the earlier orders but which required compliance by 13 February 2014. The proceedings were stood over to 19 February 2014 for referral of the Motion to the duty Judge. On 19 February 2014, there was no appearance by the plaintiff when the matter was called before the Registrar on a number of occasions. The Registrar stood the proceedings over to today for referral to the duty Judge. The plaintiff was informed of the Registrar's orders by a letter containing them being sent to his then current address. As well, the defendant, Nationwide News, was ordered to inform the plaintiff of the Court's orders. 7When the matter was called this morning there was no appearance by the plaintiff. As well, on the material before me, the plaintiff has not complied with any of the Court's orders with respect to filing any evidence or providing any further draft pleadings or other material upon which he proposes to rely. I am satisfied from the evidence of Mr Robert Todd that the plaintiff is well aware of the proceedings today. 8Yesterday afternoon at about 3.55pm the Court was sent a facsimile from the Strathfield Medical Centre to which was attached an unsigned medical certificate dated 18 February 2014 apparently with reference to the plaintiff. The operative parts of the medical certificate are as follows: "[The plaintiff] is receiving medical treatment the, 20/2/2014 to the 6/3/2014. He will be unable to attend his usual reporting." 9The nature of the illness from which the plaintiff is said to be suffering is not specified. The nature of the medical treatment which the plaintiff is said to be receiving is not specified. Why he would be unable to attend his usual reporting is unclear, as is the meaning of the phrase "usual reporting". 10This medical certificate being over a week old at the time of its receipt and apparently on its face directed to an entirely different purpose than satisfying the Court the plaintiff is unfit to attend court, does not satisfy me that there is any good reason why the plaintiff is unable to be present today. It is for those reasons that I determine I would proceed with the Notice of Motion of Nationwide News. 11The Statement of Claim filed by the plaintiff is obviously on its face bad in form and must be struck out for that reason alone. However, it appears that the substance of the cause of action that the plaintiff is alleging against Nationwide News, is that between 6 February 2004 and the present time the Daily Telegraph, a newspaper published by Nationwide News, has defamed the character of the plaintiff. He claims, apparently, that as a result of that defamation he has sustained serious harm to his mental state and he wishes to contend that the actions of Nationwide News constituted malice. 12The Statement of Claim does not, as is required by the UCPR, attach to it the publication relied upon, or an extract of the publication, nor does it in any way at all identify the publication. The Statement of Claim does not plead what imputations are said to arise from the publication nor that those imputations are defamatory. In short, although what is described as a proposed Statement of Claim seems to rely upon a cause of action arising in defamation, it does not plead that cause of action properly. 13Annexed to the Statement of Claim is a two-page extract of a decision of the New South Wales Court of Appeal which is reported as State of New South Wales v Plaintiff A [2012] NSWCA 248. This decision of Beazley, Basten and Hoeben JJ was delivered on 9 August 2012. Attached to an extract of the cover sheet are three paragraphs apparently numbered 104, 105 and 110 of the Court's judgment. 14It is not clear to me what the decision of the Court of Appeal is about, because the orders which the Court made are not included in the document attached to the Statement of Claim. What is included is a statement in paragraph 104 of the Court of Appeal's judgment which refers to an incident said to have taken place on 6 February 2004, involving a threat to kill a Judge of the District Court of New South Wales made by telephone to the Attorney General's office. 15The extract attached to the Statement of Claim, which I do not know is necessarily an accurate extract of the Court's judgment, says this: "the evidence of this incident was, curiously, a quotation in the solicitor's affidavit from an article in the Daily Telegraph of Monday 9 February 2004." 16The evidence of the Nationwide News is that between 6 February 2004 and today, there has been no publication at all in the Daily Telegraph which refers to the plaintiff by the name under which he has commenced the proceedings, Danny Saad. 17However, Exhibit B in these proceedings is an article from the Daily Telegraph of Monday 9 February 2004 in which there is a report of a bail hearing which apparently took place on Sunday 8 February 2004 at the Parramatta Bail Court. 18The report in the Daily Telegraph of 9 February 2004 has a headline which records the following "threatening" calls to the Judge and the police. The body of the article reads as follows: "A man bailed on Friday after threatening to kill a District Court judge was yesterday back before the court after allegedly threatening to harm police. Joseph Ayoub, 26, of Hurstville, told Parramatta Bail Court he suffered a severe psychiatric condition and wanted help to get medication. Ayoub was charged on Friday after allegedly making threats to kill Judge Anthony Garling in a phone call to the Attorney General's office. His bail condition was that he not contact any person associated with law enforcement to threaten or intimidate. Police allege Ayoub had contacted Ashfield police on Saturday night threatening self-harm and to 'kill anyone who tried to help'. Registrar Brian Fenn ordered him to go to Cumberland Hospital for psychiatric assessment". 19It seems to me that there is a correlation between that article published with respect to a Mr Joseph Ayoub, and the article referred to, albeit obliquely by the plaintiff Mr Saad in his proceedings. However, it is not immediately apparent to me that Mr Ayoub who is the subject of the article, and Mr Saad who is the plaintiff in this case, are one and the same person. Certainly there is no pleading to that effect. It is also not apparent to me on the face of the article what possible defamatory imputation could arise from what, at least on its face, appears to be a short, apparently accurate, report of a bail hearing at the Parramatta Bail Court. 20More importantly, if the article of 9 February 2004 is the one in fact relied upon by the plaintiff in this case, then the filing of this Statement of Claim took place over eight years after the expiration of the limitation period fixed by s14B of the Limitation Act 1969. The provisions of the Limitation Act which enable extension of a limitation period do not apply to claims for damages in defamation. 21Whilst it is entirely possible that because of a psychiatric condition the plaintiff may be able to establish that the limitation period did not run for some or all of the period since February 2004, the fact is that he has commenced proceedings in this court without a tutor, which suggests that he is not disabled at the time of the commencement of those proceedings. And, as is apparent from the report of the 2012 Court of Appeal judgment, he was not disabled at that time because no guardian ad litem was appointed, and those proceedings were on foot well before May 2012. 22In making any order of the kind which the notice of motion seeks the Court is obliged to have regard to the provisions of the Civil Procedure Act 2005 and in particular s56 which provides that the overriding purpose of the Act and the UCPR is to enable the just, quick and cheap determination of the real issues in dispute in proceedings. 23The defendant's application is for summary judgment. It seeks that the proceedings be dismissed on the grounds that they disclose no reasonable cause of action. On many occasions, the High Court of Australia in a series of well known decisions have made it plain that courts should not exercise a power of summary dismissal unless the circumstances are clear, and the cause of action being relied upon is clearly untenable. The High Court has pointed out that such relief ought be applied sparingly because the nature of summary dismissal is that a party is denied a full hearing. 24I am conscious of these authorities in considering this matter, however, I am satisfied that this is a matter in which the statement of claim should be summarily dismissed pursuant to Rule 13.4 of the UCPR. 25The Statement of Claim does not disclose any reasonable cause of action. It does not approach a pleading setting out any of the elements of a cause of action in defamation, and does not attempt to address all of the necessary facts which need to be proved to establish such a cause of action. As well, on the face of it and without more, the pleading has been filed well outside the period prescribed by the Limitation Act 1969. 26I am satisfied that the claims made by the plaintiff in the Statement of Claim are hopeless and completely untenable. Nationwide News should not be vexed by such a hopeless claim and it is consistent with the overriding purpose of the Civil Procedure Act for this claim to be summarily dismissed. 27I make the following orders: (1)Order pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 that the statement of claim filed on 30 August 2013 be, and hereby is, dismissed. (2)Order the plaintiff to pay the costs of Nationwide News Pty Ltd.