Ferrier v Nationwide News Pty Limited [2015] NSWSC 370

Supreme Court New South Wales

Medium Neutral Citation: Ferrier v Nationwide News Pty Limited [2015] NSWSC 370 Hearing dates: 27 March 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Before: McCallum J Decision: Plaintiff directed to file and serve an amended statement of claim by close of business on 10 April 2015, failing which this action will be automatically dismissed; Time within which the originating process is valid for service on the second defendant is extended to 24 April 2015; Proceedings stood over to 15 May 2015 for directions and the determination of any further first listing issues raised by the first defendant, and any first listing issues raised by the second defendant. Catchwords: DEFAMATION – procedure – application for dismissal per r 12.7 of UCPR – where statement of claim has not been served on second defendant – where plaintiff self-represented Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Category: Procedural and other rulings Parties: Mark James Ferrier (Plaintiff) Nationwide News Pty Ltd (First Defendant) Adam Shand (Second Defendant) Representation: Counsel: Plaintiff self-represented L Barnett (First Defendant)

Solicitors: Macpherson & Kelley Lawyers Pty Ltd (First Defendant) File Number(s): 2014/283791 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by statement of claim filed on 26 September 2014. The plaintiff is Mr Mark Ferrier, described in the matter complained of as the son of Mr Ian Ferrier, a well‑known Australian insolvency practitioner. 2. The matter complained of attributes to Mr Mark Ferrier a series of fraudulent acts for which the article says he was arrested by the Fraud Squad in Western Australia. The matter complained of alleges that the fraud involved some $500,000 worth of profit from "a yearlong fraud spree". The matter complained of is plainly defamatory, subject to any defences that might be raised. 3. The plaintiff has, however, not been diligent in the prosecution of the action, and accordingly, the first defendant, Nationwide News Pty Ltd, has today very properly brought forward an application of the kind contemplated by the practice note that governs this list to have the proceedings dismissed under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The application is supported by the affidavit of John-Paul Cashen, sworn 19 March 2015. Mr Cashen's affidavit sets out, in careful detail, a series of delays on the part of Mr Ferrier in the prosecution of his action as against Nationwide News. As against the second defendant, Mr Adam Shand, under whose by-line the matter complained of was published, the plaintiff has not yet been successful in serving the statement of claim. 5. The application, although in my view properly brought, poses the difficulty that it is plain on a consideration of the material that, as I have already noted, subject to any defences, the matter complained of is defamatory. The existing statement of claim appears to have been drawn by an experienced defamation practitioner, but one can see at a glance that there is a measure of duplication in some of the imputations. On that basis, a lawyer previously representing Mr Ferrier conceded that the pleading warranted what was termed in argument "a second look". 6. That said, to accede to the application today of visiting upon Mr Ferrier the Draconian remedy of having the proceedings dismissed altogether would, in my view, not accord with the dictates of justice at this stage. Where the proceedings have stalled is in Mr Ferrier's inability to retain solicitors owing to his own financial difficulties. That has had the result that objections which might properly be taken to the existing pleading have not been brought forward in a timely way. 7. In all the circumstances, I consider the appropriate remedy is to give Mr Ferrier one last chance, as requested by him at the outset of argument, but to make a peremptory order which will have the result that if he does not comply with a further opportunity to file an amended statement of claim as his previous lawyers foreshadowed he would, then the proceedings will be dismissed. 8. In fixing further directions, I have regard to the desirability of bringing the second defendant, whom Mr Ferrier has now located, before the Court, so that any further objections to the amended pleading can be dealt with in the presence of both defendants in the proceedings. 9. For those reasons, the orders of the Court today are: 1. I direct the plaintiff to file and serve an amended statement of claim by close of business on 10 April 2015, failing which this action will be automatically dismissed. 2. I extend the time within which the originating process is valid for service on the second defendant to 24 April 2015. 3. I stand the proceedings over to 15 May 2015 for directions and the determination of any further first listing issues raised by the first defendant, and any first listing issues raised by the second defendant.