District Court New South Wales Medium Neutral Citation: White v Sparks [2015] NSWDC 53 Hearing dates: 23 April 2015 Date of orders: 23 April 2015 Decision date: 23 April 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to s 61(3) Civil Procedure Act 2005 (NSW) and r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. (2) No order as to costs. Catchwords: TORT – defamation – plaintiff fails to serve statement of claim and to show cause why proceedings should not be dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 61(3) Uniform Civil Procedure Rules 2005 (NSW), rr r 6.2(4)(b)(i), 12.7(1) and 14.30 Cases Cited: Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 National Parks and Wildife Service v Pierson (2002) 55 NSWLR 315 PW v MS [2014] WASC 202 Re Application by Bar-Mordecai [2014] NSWSC 1202 Slipetz v Trudeau [2013] MBQB 111 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 Category: Principal judgment Parties: Plaintiff: Jasmin White Defendant: Laura Sparks Representation: Counsel: Plaintiff: Mr K Smark SC File Number(s): 2014/296018 Publication restriction: None Judgment 1. The plaintiff commenced these proceedings for defamation by statement of claim filed on 9 October 2014. The sole defendant is a journalist employed by Channel Seven's Today Tonight programme. 2. There are substantial failures to comply with r 14.30 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") in the statement of claim. The dates and circumstances of each of the matters complained of are not identified with clarity; the texts of the matters complained of have not been attached to the statement of claim, no imputations are pleaded, and the number of publications sued upon and the period over which they were published are difficult to estimate. Doing the best I can, these publications appear to fall into four categories: 1. Between May and June 2010, the defendant contacted four persons employed by the plaintiff at the time in her dental registry for the purpose of interviews. 2. On 10 May and 15 June 2010, Channel Seven's Today Tonight television show allegations that the plaintiff was "a fraud" and "making millions of dollars of false/fraudulent claims into the Medicare and other health care systems" (statement of claim, paragraph 3). The defendant participated in that programme in some capacity. 3. These broadcasts were available on YouTube until the end of August 2010, on Media Monitors until September 2010 and additionally sent in a web link emailed to the Australian Dental Association branches in September 2010 (although by whom is unclear). 4. There was a further broadcast on Tuesday 8 October 2013 which, according to the statement of claim, was made after the plaintiff commenced defamation proceedings in this court against two of her former employees for their statements to Ms Sparks, and Ms Sparks and a camera crew attended outside the District Court. Those broadcasts remained on the YouTube site and Today Tonight website until January 2014. 1. There do not appear to have been any fresh publications since Tuesday 8 October 2013. Thus the only publication within the limitation period as at the time when the statement of claim was formally filed would be the YouTube publication in (d) above. 2. As the above chronology makes clear, these are not the first defamation proceedings commenced in relation to these matters. The plaintiff also commenced proceedings on 11 June 2013 (proceedings 2013/177859) against two of her former employees. According to JusticeLink, the first return date for the plaintiff's proceedings against her former employees was 12 July 2013. According to the statement of claim filed in these proceedings, Ms Stark, "attacked" the plaintiff in front of the District Court when she attended the court's Defamation List on an unspecified date in September 2013, and it was in these circumstances that the broadcast of Tuesday 8 October 2013, one of the publications the subject of these proceedings, came to be broadcast. Those proceedings were apparently dismissed by a judge conducting the defamation list, on the application of the defendants, on the basis that the plaintiff subsequently failed to prosecute them (no judgment is available). 3. The circumstances in which the 8 October 2013 claim was filed out of time and the proceedings became stale are unfortunate. The plaintiff commenced these proceedings by sending copies of the statement of claim to the court for filing under cover of a letter dated 2 October 2014. The court did not attend to filing this document until 9 October 2014, one day after the limitation period for the 8 October 2013 publication had expired. However, that was not the only problem with the filing of this pleading. Regrettably, due to an oversight by the District Court Registry, the statements of claim were not returned to the plaintiff so that she could effect service, nor was the plaintiff notified of the first return date of 7 November 2014. 4. On 7 November 2014, these proceedings were listed, as a first return date, before McLoughlin SC DCJ. There was no appearance for the plaintiff and his Honour made the following orders: "Stood over to the Defamation List 28th November 2014 Request the Registrar write to the Plaintiff advising that if there is no appearance on the next occasion the matter may be Struck-out" 1. Prior to the defamation list callover on 28 November 2014, I read the documents in the file, found the sealed copies had never been returned to the plaintiff for service and realised she had not been notified of the return date. The plaintiff's request for help with the filing of the claim was set out in the statement of claim at paragraphs 9 and 15. This included a recital of the plaintiff being involved in a fatal car accident in the course of which she suffered serious injuries. She also explained her problems in her letter of 2 October 2014 as follows: "I am the plaintiff for this court case matter and due to my financial hardship I am self representing in this court case matter and I live in Lightning Ridge which is about 800KM from the court registry. So I am express posting to you all the original documents and a copy of all the documents for you to file and stamp the documents and send me back the copy in the self addressed envelope included so that I can serve the same on the other party. I thank you in advance for the act of your kindness for filing and stamping my court documents and for posting me the copies so that I can serve the same on the defendant." 1. While the court had filed these documents, all copies were still in the file, and clearly had not been returned to the plaintiff, nor had she been notified of the first return date. I was also not satisfied that the court had notified Dr White of McLoughlin SC DCJ's orders. In those circumstances, I arranged for the plaintiff to be notified of the return date and for her to appear by telephone link so that I could determine how the matter should proceed. 2. The orders I made on 28 November 2014 were as follows: 1. Note the plaintiff was not told of the 7 November 2014 return date, or sent copies of the Statement of Claim for service, hence her non-appearance on 7 November 2014; inspection of the file confirms no correspondence was sent from the Court. 2. Extend time for service of the statement of claim to Friday 19 December 2014. 3. Direct the Court to provide sealed copies of the Statement of Claim forthwith. 4. Refer the plaintiff to the NSW Bar Association for advice and assistance in the redrafting of the Statement of Claim and the future conduct of these proceedings, if appropriate. 5. Judge Gibson to provide the NSW Bar Association with the Statement of Claim. 6. Matter stood over for further directions to Friday 19 December 2014. 1. As the plaintiff attended court by telephone link, the orders I made on 28 November 2014 were not only read to her but also explained, as well as being emailed to her by my associate. I encouraged the plaintiff to seek legal assistance from the NSW Bar Association because of the pleadings defects and limitation period problems. A copy of the statement of claim was provided to the NSW Bar Association by my associate. 2. When the matter next came before me on 19 December 2014, the statement of claim had still not been served and I made the following orders: 1. Note that the plaintiff has not yet served the statement of claim and extend time for service to Wednesday 18 February 2015. 2. Matter stood over for further directions on Thursday 19 February 2015 at 2:00pm. 3. Registry is to notify the plaintiff of these orders and that no further extensions of time will be granted without good cause. 1. On 19 February 2015 the plaintiff appeared by telephone again. I granted her a further extension of time for service of the statement to Thursday 19 March 2015. As the plaintiff told me she was having trouble obtaining pro bono assistance from the NSW Bar Association (due to the vacation period and other difficulties), I arranged for enquiries to be made on the NSW Bar Associate Pro Bono Scheme. The NSW Bar Association Pro Bono Scheme retained Mr Smark SC, who has provided her with advice and assistance since that time. He has appeared before me this morning and I am indebted to him for his careful and helpful submissions on the plaintiff's behalf. 2. On 19 March 2015, Mr Smark SC appeared by telephone link. He advised that an Amended Statement of Claim had been prepared, and orders were made as follows: 1. Extend time for service of any statement of claim in these proceedings to 9 April 2015. 2. Extend time for the plaintiff to amend the statement of claim to 9 April 2015. 3. Matter stood over for further directions on Thursday 16 April 2015 at 9:30am. 4. Plaintiff is to notify the defendant of this return date. 1. When the matter came before me on 16 April 2015, Ms Guo of counsel appeared for the plaintiff. Ms Guo sought a further extension of time for the plaintiff to serve the statement of claim. Ms Guo did her best to explain why the amended statement of claim had been served, but the principal difficulty seems to have been that the plaintiff was not returning email or telephone messages. As a result, the time for service of the statement of claim had now expired. The orders I made were as follows: 1. Matter stood over to the Defamation List on Thursday 23 April 2015 at 9:30am, but decline to extend time for service further, noting the statement of claim is now both out of time and stale, and require the plaintiff to show cause why the proceedings should not be dismissed. 2. Note Dr White is to be advised that her Statement of Claim will be struck out in the event of failure to show cause. The proceedings before me today 1. Mr Smark SC appeared for the plaintiff in his capacity as the provider of pro bono legal advice following the plaintiff's consultation of the NSW Bar Association's pro bono scheme. He acknowledged the difficulties of representing the plaintiff, as she had not returned his telephone calls or replied to his emails, although she had, in an earlier correspondence, indicated that her health problems now included eyesight problems for which she was considering consulting a medical practitioner. 2. As a barrister, Mr Smark SC is not permitted to file documents. He may be able to file an amended pleading in court, but even if he had instructions to do so, such a step would be futile if the plaintiff continued to fail to serve the defendant. The reasons for the plaintiff continuing to fail to proceed with the filing and service of the amended pleading, in circumstances where Mr Smark SC has carefully explained these steps to her, are unknown. 3. This puts the court, as well as Mr Smark SC, in a difficult position. While courts must assist persons who are effectively litigants in person, especially if they are in poor health, there is a fine line between assisting a litigant in person who does not understand the relevant procedures and actually running the case for them. Unfortunately, it now appears that these proceedings have crossed that line, in that the plaintiff is not prepared to move forward with the claim and to arrange for the filing and service of the amended statement of claim (or, if she preferred her own pleading, to serve the statement of claim she herself prepared, as I carefully preserved her right to do so if that was her wish). 4. The obligations of courts and pro bono advisers to assist litigants in person need to be seen in the context of the adversary system. Litigants in person are increasingly common in defamation proceedings, and there have been many recent judgments in common law jurisdictions (such as Slipetz v Trudeau [2013] MBQB 111) and PW v MS [2014] WASC 202) where the court has sought to accommodate the needs of the litigant in person with the requirement for fairness to other litigants, noting the limited resources of the court. Some courts, such as the Queensland Supreme Court, have special lists for actions involving litigants in person; other courts, such as the Family Court of Australia, have special protocols and case management rules; other courts, such as the Federal Court, have referral systems as well as the "docket" system to ensure that case management errors do not occur in such cases. Courts are increasingly having to play a greater role in case management as a result. For courts which do not have special procedures for dealing with problems arising from the increasing number of litigants in person, heavy burdens are placed on registry and court staff to be vigilant and proactive. However, those obligations are not restricted to the litigant in person; they must be extended to the other parties in the litigation, and indeed to the resources of the court itself. 5. This brings me to the issue for determination, namely the court's motion for the plaintiff to show cause why these proceedings should not be summarily dismissed. The relevant statutory provisions 1. Rule 12.7(1) UCPR provides: "(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." 1. Section 61(3) Civil Procedure Act 2005 (NSW) provides: "(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate." 1. The interaction of these provisions is explained by Bergin CJ in Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 at [35]-[37]: "[35] If a party to whom such a direction has been given fails to comply with the direction the Court may, inter alia, dismiss the proceedings: s 61(3)(a) CPA. Similarly if a party fails to prosecute a case with due dispatch, the court may dismiss the proceedings: UCPR 12.7. [36] Practice Note DC (Civil) No 1 Case Management in the General List was issued on 28 August 2009. It notes that the court aims to have cases completed within 12 months of commencement and that parties should expect to be allocated a trial date within 12 months of the commencement of proceedings and "plan to meet this time standard" (1.1; 1.2). The Practice Note refers to UCPR 15.12 and the obligation on plaintiffs in personal injury cases to serve particulars and supporting documentation on the defendant with the Statement of Claim or "as soon as practicable after the service" of it (2.3). The Practice Note requires the defendant to start preparing for trial based on the matters alleged in the Statement of Claim and the rule 15.12 particulars (2.4). It also notes the court's expectation that in personal injury cases plaintiffs "will have served complete rule 15.12 or 15.13 particulars and primary medical reports and have qualified the experts who will prepare reports, including any liability or economic loss expert" (3.4). [37] The Practice Note records that the court will generally order that final particulars under r 15.12 be filed and served before the Status Conference (8.8). It also records that cases "in which parties have failed to comply with court orders will be referred to the Civil List Judge at an early time" (11.2); and that where there has been non-compliance, the court may list the case for, relevantly, the plaintiff to show cause why the case should not be dismissed "for want of prosecution" (11.3)." 1. The court's power to require a party to show cause why proceedings should not be struck out for want of prosecution is one of long standing (National Parks and Wildife Service v Pierson (2002) 55 NSWLR 315 at [9]; for a recent example, see Re Application by Bar-Mordecai [2014] NSWSC 1202 at [5]). Where such an application is brought, evidence is commonly led in the form of an affidavit by a plaintiff. 2. The plaintiff has had plenty of notice of the likelihood of such an action. While I refrained from making the orders foreshadowed by McLoughlin SC DCJ when the matter first came before me, the plaintiff was put on notice by my orders of 19 December 2014 that no further extensions would be granted without cause if there was further delay. 3. Courts have increasing taken a firm line in relation to failure to conduct proceedings with dispatch where parties have been represented. This is particularly the case in defamation proceedings, as recent decisions of the NSW Court of Appeal demonstrate. 4. In Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244, a plaintiff's failure to answer a request for particulars for four months resulted in the proceedings being struck out, even though there was no prior history of delay or adverse costs orders, and the request for particulars was not part of a timetable. (Mr Coren was representing himself, but he had been a legal practitioner for many years). Similarly, in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288, a plaintiff who had commenced proceedings promptly and have been given leave to administer special interrogatories but whose legal representatives failed to file the necessary documentation suffered the loss of the whole claim in relation to the relevant defendant. 5. There are substantial problems with the claim in its present form. While I am prepared to infer that there may be some subject matter which falls within the limitation period prior to the filing of the statement of claim, most of the publications referred to in the statement of claim fall well outside not only the one year but three year limitation period. The time for service of the defendant expired on 9 April 2015. In that regard, the plaintiff was seeking an extension of time for service of the statement of claim (UCPR r 6.2(4)(b)(i)) in circumstances where the claim is both statute barred and stale. 6. In relation to the relevance of the limitation period, Young JA explained in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 at [20](4): "The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37]–[39]; cited with approval in Kirk, at 410 [98]–[99]." 1. His Honour went on to explain further in [27]-[28]: "[27] Her Honour later found (at [325]) that the SPL, after weighing the advantages and disadvantages of the courses of action open to him, "chose to delay the service of the originating process and to keep it confidential". Her Honour inferred (at [325]) that: there was perceived to be a tactical advantage in keeping [the respondents] in the dark as to the claims it was then intended to bring against them. [28] The primary Judge rejected (at [148]) a suggestion made by the SPL that the respondents should have asked the SPL for a copy of the statement of claim. The PBL respondents had unsuccessfully sought a copy from the court and the SPL (via reports to creditors) had stated that the claim would be kept confidential. In these circumstances: no criticism can … be made of the [respondents] in failing to ask the SPL for it … [I]t was a matter for the SPL, if he wished to minimise the chance that extensions of time would be set aside, to make a copy available (on a confidential basis if thought necessary) to the [respondents] rather than waiting for them to ask for it." 1. I have not been provided with the statement of claim in its amended form, and how these problems have been resolved is unknown to me. 2. In addition to the plaintiff failing to provide me (or to Mr Smark SC) with any material of assistance in relation to the show cause application, I note, having regard to the check list in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd at [20] that: 1. No attempts have been made at service; 2. The delay in question appears to be both lengthy and deliberate; 3. No notification has been given to the defendant; and 4. There is a prior history of the plaintiff having other proceedings for defamation struck out due to her inactivity. 1. Accordingly, even if I did not summarily dismiss the claim, this is not a case where a further extension of time for service of the statement of claim should be granted. 2. No party should have his or her claim struck out without full and proper warning. However, the plaintiff has not only received warnings from this court, but suffered the loss of her first defamation action, by reason of failure to conduct the proceedings diligently. Additionally, she has had the benefit of pro bono advice from one of the most eminent senior counsel in defamation law, namely Mr Smark SC, as well as from the NSW Bar Association's pro bono scheme. 3. There must come a time when the plaintiff cannot expect any more help, and must act for herself. The plaintiff has failed to show cause and the proceedings must accordingly be dismissed. Costs 1. As no costs have been incurred for the opposing party in relation to the conduct of these proceedings, I make no order as to costs. Orders 1. Pursuant to s 61(3) Civil Procedure Act 2005 (NSW) and r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. 2. No order as to costs. ********** 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: 23 April 2015