District Court New South Wales Medium Neutral Citation: Gomez v Olsen [2014] NSWDC 220 Hearing dates: 8 August 2014 Decision date: 08 August 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant called threes time outside Court 13D at 2:05pm, no appearance. (2) Notice of Motion for default judgment dismissed with no order as to costs. (3) Pursuant to r 1.12 Uniform Civil Procedure Rules 2005 (NSW), extend time for service upon the defendant of the statement of claim, which document must attach the matter complained of (Exhibit D) in this application. Such document to be personally served on the defendant by 5 September 2014. (4) Matter stood over to the Defamation List on Friday 12 September 2014 for further orders, including a referral to mediation. (5) A copy of these orders is to be sent to [defendant's email address] and [defendant's home address]. Catchwords: TORT - defamation - plaintiff's Notice of Motion for default judgment in defamation proceedings set down for hearing despite defence being filed - application for entry of judgment and for the proceedings to be listed for assessment of damages dismissed - whether default judgment available in defamation proceedings - case management issues arising from applications for default or summary judgment where the defendant is an unrepresented litigant Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 1.12 Cases Cited: Altarama Ltd v Forsyth [1981] 1 NSWLR 188 Cumberland v Clark (1996) 39 NSWLR 514 French v Triple M Melbourne Pty Ltd [2006] VSC 36 Graham v Powell (No 3) [2014] NSWSC 1 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Dr Joseph Gomez Defendant: Graham Olsen Representation: Plaintiff: Mrs L Barnett Defendant: No appearance Plaintiff: Mahony Law Defendant: No appearance File Number(s): 2014/89529 Publication restriction: None Judgment 1The plaintiff, a medical practitioner, brought proceedings for defamation by way of statement of claim filed on 25 March 2014 for publication of "the words set out in Schedule "A" to this Statement of Claim". The imputations pleaded were: (a)That Dr Gomez is a thief; (b)That Dr Gomez is an untrustworthy person who rips off tradesmen; (c)That Dr Gomez refused to pay invoices issued by tradesmen when he was obliged to do so; (d)That Dr Gomez dishonestly claims that the work performed by tradesmen he had hired was not carried out according to instructions to avoid paying those tradesmen's invoices. 2The publications in question were stated to have been put in local letterboxes and "posted in public places" (paragraph 3 of the statement of claim). A claim for special damages is foreshadowed in paragraph 7, as well as claims for compelled publication in paragraph 5. The damages sought by the plaintiff, in light of the ambit of publication and the damage allegedly caused, are clearly likely to be substantial. Mrs Barnett foreshadowed a claim for total loss of business by the plaintiff, who had intended to set up a surgery practice in his home. 3On the first return date, 2 May 2014, Bozic SC DCJ made the following orders: "Defendant only recently served. Matter is stood over to 16.5.14. Plaintiff to notify the defendant of the above dated." 4The statement of claim was not personally served on the defendant, and counsel for the plaintiff wisely took the course of advising her instructing solicitor to serve it again. The affidavit of service of Geoffrey Conlon sworn 20 June 2014 attaches a copy of the statement of claim which was served on the defendant on 18 June 2014. It is clear that this document, as well as the statement of claim served on or about 2 May 2014, do not attach the matter complained of. The statement of claim in the court file similarly does not attach the matter complained of. This omission does not seem to have been appreciated when the matter was before the court. 5On 7 May 2014, a Defence was filed by the defendant. That defence is couched in somewhat elliptical language and states: "I have no knowledge of the allegations contained herein or of the distribution of the public notice". 6This notice contains the handwritten notation from the registry "Defamation 16/5", from which I infer that the document was not only received in the registry on the date of filing but placed in the file and noted with the return date for the benefit of the court. 7Although the defence had been filed, the plaintiff was unaware of this. This is most likely because the defendant filed the defence (this being the step set out as being necessary in the section "How to respond" at the end of the statement of claim) but did not serve it. 8The fact that a defence was not only in the file, but recorded on JusticeLink, was also not picked up when the matter was next in court on 16 May 2014, when Bozic SC DCJ made the following orders: "1. The defendant is to file and serve his defence on or before 6.6.14. 2. In the event that no defence is filed, the plaintiff is to file and serve a notice of motion seeking default judgment, together with evidence in support of the application on or before 20.6.14. 3. The proceedings be listed for hearing of the plaintiff's notice of motion on 27.6.14. 4. The plaintiff is to notify the defendant of these orders. 5. Liberty to apply on 3 days notice." 9The affidavit of service of 20 June 2014 recited that the plaintiff had been personally served with the statement of claim on 18 June 2014. The statement of claim would have been stale at this time, and the matter complained of was still not attached, as the affidavit of service of 20 June 2014 demonstrates. In addition, the defendant had in fact filed a defence. These issues were not appreciated when the matter was next in court on 27 June 2014. Elkaim SC DCJ made the following orders: "1. The defendant is to file and serve his Defence on or before 18 July 2014. 2. In the event that no Defence is filed, the plaintiff is to file and serve any Notice of Motion seeking default judgment, together with evidence in support of the application, on or before 1 August 2014. 3. The proceedings be listed for hearing of the plaintiff's Notice of Motion on 8 August 2014. 4. The plaintiff is to notify the defendant of these orders. 5. Liberty to apply on 3 days notice." 10On 4 August 2014, the plaintiff filed a notice of motion seeking default judgment against the defendant. This is the application which is before me today. 11Mrs Barnett very properly conceded that, in circumstances where the defendant had not been served with the matter complained of, and had in fact filed a defence, she could not move for summary judgment. The defendant is, however, put on notice, that such an application (or an application for an early hearing date on the issue of publication) will be made on the next occasion, after a statement of claim attaching the matter complained of is served on the defendant, and that if he continues to remain away from the court and not to participate in these proceedings, he does so at risk of the very substantial claim for damages that Mrs Barnett warned will be made on behalf of the plaintiff. 12While I have dismissed the Notice of Motion for default judgment, by reason of the defence filed, I have made timetable orders for further service of the statement of claim, this time attaching the matter complained of. These orders, which have been emailed to the defendant today, include a return date of 12 September 2014. 13On 12 September, a hearing date in the defamation list may be allocated for a suitable time later this year, or the parties may be sent to mediation, or other orders for the future speedy conduct of these proceedings will be made. If the defendant continues to fail to attend, he does so at his peril, as orders, including orders of a summary nature, may be made in his absence. Case management issues 14There are two case management issues relevantly arising from these events. Firstly, this is one of several matters (all defamation proceedings) where I have observed a litigant in person has filed, but failed to serve, a defence. While no explanation is forthcoming in these proceedings, an explanation I have previously heard is that the section "How to respond" at the end of the statement of claim stated that a defendant who intends to dispute the claim should do so "by filing a defence and making a cross-claim", which suggests that all the defendant has to do is to file the document and the court will attend to the rest. Some consideration should be given to a clearer explanation for the benefit of litigants in person, who make up a substantial proportion of the defendants in defamation proceedings. 15Secondly, while I have no concerns about the propriety of these proceedings, the high percentage of defamation actions where default or summary judgment is sought on the first or second return date seems surprising, particularly given the traditional reluctance of courts to enter default judgments in defamation proceedings at all: French v Triple M Melbourne Pty Ltd [2006] VSC 36, citing Altarama Ltd v Forsyth [1981] 1 NSWLR 188. In Graham v Powell (No 3) [2014] NSWSC 185 at [6], Beech-Jones J warned of the "risk of oppression" in entering default (and presumably also summary) judgment against a litigant in person unfamiliar with the complexities of defamation law. It is not a practice commonly found in other claims for damages such as misleading or deceptive conduct, or personal injury. Defamation insurance is rare, the cost of defending a defamation action is substantial, and more than one judge has noted the devastating impact of such proceedings on defendants, even where the cost of defending the case is not an issue: Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 377 - 378 per Hunt J; Cumberland v Clark (1996) 39 NSWLR 514 at 529 per Levine J. Orders (1)Defendant called threes time outside Court 13D at 2:05pm, no appearance. (2)Notice of Motion for default judgment dismissed with no order as to costs. (3)Pursuant to r 1.12 Uniform Civil Procedure Rules 2005 (NSW), extend time for service upon the defendant of the statement of claim, which document must attach the matter complained of (Exhibit D) in this application. Such document to be personally served on the defendant by 5 September 2014. (4)Matter stood over to the Defamation List on Friday 12 September 2014 for further orders, including a referral to mediation. (5)A copy of these orders is to be sent to [defendant's email address] and [defendant's home address]. ********** 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: 11 December 2014