District Court New South Wales Medium Neutral Citation: Elliott v Tomkins (No. 3) [2014] NSWDC 68 Hearing dates: 26 May 2014 Decision date: 26 May 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff called outside Court 13D three times at 9:36am - no appearance. (2) Defendant's application for summary dismissal of the statement of claim with costs, stood over part-heard to today, is granted, and orders made as follows: (a) Judgment for the defendant. (b) Plaintiff pay defendant's costs of the proceedings on a party/party basis (other than the costs covered by my orders of 9 April 2014). Catchwords: TORT - defamation - plaintiff fails to comply with self-executing order to file amended statement of claim - application by defendant for summary judgment granted Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 Defamation Act 1974 (NSW), ss 3(d), 9 and 48 Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Part 15 Div 4 Cases Cited: Cumberland v Clark (1996) 39 NSWLR 514 Dennis v Australian Broadcasting Corp [2008] NSWCA 37 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Elliott v Tomkins [2014] NSWDC 55 Elliott v Tomkins (No. 2) [2014] NSWDC 56 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Sporting Shooters Association of Australia (NSW) Inc v Judge [2013] NSWSC 1783 Sporting Shooters Association of Australia (NSW) Inc v Judge (No 2) [2013] NSWSC 1821 Strang Aniokaka Ltd v Lihir Gold Ltd (No 2) [2010] FCA 1065 Texts Cited: New South Wales Law Reform Commission, Defamation, Report No. 11 (1971) Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) Category: Interlocutory applications Parties: Plaintiff: David Dean Elliott Defendant: Kevin Tomkins Representation: Plaintiff: No appearance Defendant: Mr J Ross (solicitor) Plaintiff: No appearance Defendant: Goldsmiths Lawyers File Number(s): 2013/252889 Publication restriction: None Judgment 1This is an application by the defendant to strike out the plaintiff's claim for defamation arising from six Internet publications published between 21 and 23 August 2012. The subject matter consists of a negative Ebay review and subsequent discussion of the products purchased by the defendant from a business named "Achilles Archery & Outdoors" on the Australian Bowhunting Forum website. 2The plaintiff was not named in five of the six publications. A letter signed "David Elliott" appears as part of the fourth matter complained of, but the statement of claim provided no particulars of identification for any of the publications (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188), or of their publication in Australia. The only reference to publication is to "the global Internet accessibility" of the Internet. Publication occurs in the place where the publication is downloaded, and must be pleaded on this basis: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [25]-[28] and [44]. 3The defendant, at that time a litigant in person, filed a defence attempting to plead justification, but the pleadings failed to conform with Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 14 Division 4. The plaintiff brought an application for summary judgment and assessment of damages, which was listed for hearing to 30 January 2014. On 30 January 2014 the defendant (appearing by telephone link from Western Australia) outlined the difficulties he had encountered in retaining a solicitor, and sought an extension of time to file a defence in proper form, which was granted. 4On 28 February 2014, Mr Goldsmith appeared for the defendant, but said that an amended defence could not be filed because of the deficiencies in the statement of claim. He tendered correspondence to the solicitors for the plaintiff in which he had set out his requests for particulars of identification and publication to be provided, as well as information about the connecting factors with New South Wales (the plaintiff being resident in Queensland), and foreshadowing an application for summary dismissal if the failure to provide proper particulars was not remedied. 5The proceedings were stood over to 28 March 2014, and then to 9 April 2014. The particulars of identification and place of publication were not provided. On 9 April 2014, after hearing argument, I made the following orders: (1)Extend the time for the filing of a Further Amended Statement of Claim to Wednesday 14 May 2014 conditional upon the plaintiff paying the defendant's costs of and incidental to 28 February 2014, 28 March 2014 and today on an indemnity basis, assessable forthwith. (2)Order (1) is self-executing in nature. (3)The notice of motion stood over part heard to Monday 26 May 2014 at 9:30am before Gibson DCJ. 6As was the case with the previous orders (see Elliott v Tomkins [2014] NSWDC 55 and Elliott v Tomkins (No. 2) [2014] NSWDC 56) the plaintiff failed to comply, and the defendant has renewed his application for the proceedings to be dismissed with costs. 7When the proceedings came before me today, there was no appearance on the part of the plaintiff. A Notice of Intention to File Notice of Ceasing to Act (filed 28 April 2014) and a Notice of Ceasing to Act (filed 13 May 2014) had been filed. The particulars the defendant sought remain outstanding despite the self-executing order. 8The fact that a self-executing order has been made does not necessarily result in an order for judgment in the proceedings in favour of the opposing party: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 per Hunt J at 134-135. However, the repeated failures of the plaintiff to provide the particulars of identification, which are "of vital importance to a defendant in almost every defamation action" (Lazarus v Deutsche Lufthansa AG, supra, at 192), mean that the plaintiff must therefore "suffer the loss of his action" (Lazarus v Deutsche Lufthansa AG, supra, at 194). Particulars of the place of publication are just as important, as the defence to the action must be pleaded in accordance with the law of the place of the tort: Strang Aniokaka Ltd v Lihir Gold Ltd (No 2) [2010] FCA 1065 at [88], citing Dow Jones & Co Inc v Gutnick, supra, at [40] - [44]. 9While summary judgment applications should not be granted other than in the clearest of cases, the plaintiff's repeated failure to provide such essential requirements makes the further conduct of this litigation impossible. In such circumstances, the defendant is entitled to the relief sought. 10Claims for defamation are easy to commence, and difficult to defend. More than any other cause of action, claims for defamation have long been regarded as giving rise to the potential for abuse of process, and these concerns are reflected in the legislative framework in which such claims are brought. The repealed Defamation Act 1974 (NSW) contained a series of provisions designed to avoid protracted litigation (ss 3(d) and 9(3)), multiple proceedings (ss 9(3) and 48) and other potentially oppressive claims (s 9(6)(b)). The New South Wales Law Reform Commission, Defamation, Report No. 11 (1971)), when drafting this legislation, set out in detail the need to prevent misuse of this cause of action. The intention of the current, as well as the repealed, legislation, has been to ensure that the complexity and expense of defamation proceedings should be subject to scrutiny by the court, as the Court of Appeal noted in Dennis v Australian Broadcasting Corp [2008] NSWCA 37. The Defamation Act 2005 (NSW), when read in conjunction with ss 56-62 Civil Procedure Act 2005 (NSW) and Part 15 Div 4 UCPR, requires parties to plead and particularise their claims and defences with precision, as specialist lists for defamation are available in both the Supreme Court and District Court. 11It has been an increasingly common feature of defamation actions over the past decade that the defendant is a litigant in person (see Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) at [60,590]). Courts must exercise care that pleading errors and difficulties are resolved as early as possible in the litigation, which can create case management problems where one or more of the parties is a litigant in person, for the reasons explained by McCallum J in Sporting Shooters Association of Australia (NSW) Inc v Judge [2013] NSWSC 1783 and Sporting Shooters Association of Australia (NSW) Inc v Judge (No 2) [2013] NSWSC 1821. However, where a party is legally represented, the court is entitled to expect that the pleadings and particulars will be supplied when ordered. 12In practical terms, the provision of the particulars of identification and publication sought by the defendant was a straightforward request for simple particulars of information of the kind that were essential to the plaintiff's claim. The reasons for the plaintiff's failure to provide such particulars, particularly given the foreshadowed application to amend the claim to bring a claim for special damages (which would require the disclosure of the identity of the parties refusing to deal with the plaintiff, and their geographical location), remain unexplained. 13The defendant in these proceedings was at a particular disadvantage when the plaintiff brought his application to strike out the defence. He works in a remote part of Western Australia, and locating a solicitor sufficiently conversant with defamation proceedings to represent him in New South Wales was not an easy task, he told the court on 30 January, when the plaintiff was seeking summary judgment against him. What would have occurred if he had not been able to locate a solicitor who was familiar with defamation law and could raise the defects in the plaintiff's claim is difficult to determine. The degree to which courts can assist litigants in person in such circumstances is an issue of controversy, as McCallum J's two judgments in the Sporting Shooters proceedings underline. 14The distress caused to ordinary members of the community who find themselves at the receiving end of proceedings for defamation (as opposed to experienced media defendants) has been the subject of comment both by Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 377 - 8 and Levine J in Cumberland v Clark (1996) 39 NSWLR 514 at 529. Hunt J, referring to a defamation claim brought against a police officer by a person he had been about to arrest, stated: "Anyone who has had to act for personal defendants (even where any damages to be awarded are to be paid by their employers) will recognise the impact which the defamation proceedings against them personally make upon such defendants." 15These considerations are even more relevant today, where parties with no prior experience of defamation law, rather than experienced media defendants, increasingly find themselves before the court in complex and expensive litigation. 16I accordingly enter judgment for the defendant. The plaintiff is to pay the defendant's costs of the proceedings in accordance with order (2)(b). Orders (1)Plaintiff called outside Court 13D three times at 9:36am - no appearance. (2)Defendant's application for summary dismissal of the statement of claim with costs, stood over part-heard to today, is granted, and orders made as follows: (a)Judgment for the defendant. (b)Plaintiff pay defendant's costs of the proceedings on a party/party basis (other than the costs covered by my orders of 9 April 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: 18 June 2014