Linnell v Channel Seven Sydney Pty Limited [2015] NSWSC 583

Supreme Court New South Wales

Medium Neutral Citation: Linnell v Channel Seven Sydney Pty Limited [2015] NSWSC 583 Hearing dates: 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules; plaintiff to pay defendants' costs. Catchwords: DEFAMATION – procedure – summary disposal – failure to prosecute action with due despatch – whether dictates of justice require dismissal – where plaintiff's solicitor unable to contact plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61 Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Category: Procedural and other rulings Parties: Michael Linnell (plaintiff) Channel Seven Sydney Pty Ltd (first defendant) David Richardson (second defendant) Representation: Counsel: S Maxwell (plaintiff) M Richardson (defendants)

Solicitors: Sanford Legal (plaintiff) Johnson Winter & Slattery (defendants) File Number(s): 2012/373810 Publication restriction: None

Judgment – ex tempore 1. HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 30 November 2012. The proceedings are before the Court today for determination of the defendants' application for an order that the proceedings be dismissed on the grounds of the plaintiff's repeated failure to comply with directions of the Court or for want of due despatch. 2. The Court has power under s 61(3) of the Civil Procedure Act 2005 (NSW) to dismiss proceedings for failure to comply with a direction of the Court made for the speedy determination of the real issues between the parties. The Court further has power, under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch. Those powers must, of course, be exercised having regard to the dictates of justice. The remedy of dismissal of proceedings is a draconian one and not one to be granted lightly. 3. Practice Note SC CL 4, which governs proceedings in this List, reiterates the power under r 12.7. That is to communicate to practitioners in this List the Court's expectation that a defamation action will be prosecuted with due despatch, as indeed any action should be, in accordance with the Act and the Rules. 4. The defendants' application first came before the Court on 27 March 2015. The application was, on that occasion, supported by a lengthy affidavit sworn 26 March 2015 by Mr Kevin Lynch, the solicitor on the record for the defendants who has day-to-day carriage of the matter on their behalf. On that occasion, owing to the quantity of material exhibited to the affidavit and in light of the draconian remedy sought, I considered it appropriate to afford to the plaintiff an opportunity to consider the content of the affidavit beyond the time available after it had been served. Accordingly, the application was stood over to today. 5. I have considered the contents of Mr Lynch's affidavit. I do not think it is necessary to recite the detail set out in that document. That is because, since the matter was adjourned on the last occasion, the solicitor on the record for the plaintiff, Mr Simon Maxwell, has sworn a further affidavit the contents of which in my view point inexorably to the conclusion that the defendants' application should be granted today. 6. In particular, Mr Maxwell deposes to the fact that, following his appearance before me on 27 March 2015, he wrote to the plaintiff advising him of what had happened in court that day and telling him that his matter was in danger of being struck out for want of prosecution and failure to comply with court timetables. Mr Maxwell asked the plaintiff to contact him urgently. 7. Since sending that letter, Mr Maxwell has attempted to contact the plaintiff by telephone on four separate occasions, but has been unable to speak with him or to leave a message for him. 8. During the hearing of the application today, it emerged that, in fact, Mr Maxwell has had no contact with the plaintiff since the proceedings were sought to be resolved by mediation on 22 September 2014. Accordingly, Mr Maxwell was in some difficulty today, having no instructions as to the defendants' application. He very properly drew the Court's attention to the fact that, if the proceedings are dismissed today, any further action will be out of time. He further expressed his anxious concern that, based on his past attempts to contact the plaintiff and in light of the lack of success of those attempts, he simply does not know whether the plaintiff is aware that the action is liable to be struck out today. 9. I accept the force of Mr Maxwell's concern as to that issue. However, it seems to me to follow inexorably from the material set out in Mr Lynch's affidavit and the complete lack of attention on the part of the plaintiff to his case (including his failure to react to the contact sought to be made with him by his solicitor) that the proceedings must now be dismissed. 10. The plaintiff has wholly failed to fulfil his duty under s 56(3) of the Civil Procedure Act to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. In the meantime, the defendants have been exposed to incurring considerable legal costs. They have continued to take steps in the proceedings, notwithstanding the apparent inattention of the plaintiff to his claim. 11. In my view, the dictates of justice plainly require that the proceedings now be dismissed pursuant to r 12.7. 12. For those reasons, I order that the proceedings be dismissed and that the plaintiff pay the defendants' costs.