Supreme Court New South Wales Medium Neutral Citation: Kang v Australian Broadcasting Corporation [2015] NSWSC 893 Hearing dates: 29 May 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings dismissed Catchwords: PROCEDURE – summary disposal – want of due despatch – purpose of Civil Procedure Act and UCPR – purpose of Practice Note SC CL 4 – where plaintiffs failed to comply with directions of the Court – requirements of dictates of justice Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61 Uniform Civil Procedure Rules 2010 (NSW), r 12.7 Cases Cited: Bi v Mourad [2010] NSWCA 17 Browne v Dunn [1989] VR 845 Category: Procedural and other rulings Parties: Edward Kang (First Plaintiff) Singapore Oil Pte Ltd (Second Plaintiff) CWK M & D Pty Ltd (Third Plaintiff) Australian Broadcasting Corporation (First Defendant) Karl Konrad (Second Defendant) Representation: Counsel: B Goldsmith (Plaintiffs) ATS Dawson (First Defendant) Second Defendant in person Solicitors: Goldsmiths Lawyers (Plaintiffs) Australian Broadcasting Corporation (First Defendant) Second defendant unrepresented File Number(s): 2014/301836 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: These are proceedings for defamation commenced by Mr Edward Kang and two companies against the Australian Broadcasting Corporation and Mr Karl Konrad. The practice note which governs proceedings in the Defamation List provides that if a party fails to comply with a direction of the Court, the party in default may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act 2005 (NSW) or r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW): see cl 21 of SC CL 4. The plaintiffs fell within the terms of that clause on 6 March 2015 when they failed to file an amended statement of claim in accordance with a direction made 6 February 2015. 2. The "show cause" hearing was held on 29 May 2015. This judgment determines the issues raised in that application. 3. The background to the proceedings is as follows. The statement of claim relates to a programme broadcast on ABC television on 14 October 2013. It appears the first complaint in respect of that broadcast was a letter dated 14 August 2014 sent on behalf of the plaintiffs by a solicitor. However, as at the time the proceedings were commenced, that solicitor was no longer acting for the plaintiffs. The statement of claim was filed by Mr Kang personally on 14 October 2014, the last day of the limitation period. 4. Upon the first return of that statement of claim, Mr Kang appeared in person. Neither defendant appeared on that occasion, for the simple reason that the statement of claim had not been served. Mr Kang informed the Court that his legal representatives, whom he named as Mr Hale of senior counsel, Mr Nagle and Mr Kelvin (both solicitors), wished to redraft the statement of claim as it had been drafted by himself (Mr Kang). I directed the plaintiffs to file and serve an amended statement of claim on or before 19 December 2014 and stood the proceedings over to 6 February 2015. 5. On 6 February 2015, there was no appearance for the plaintiffs. The statement of claim was struck out on the application of the defendants. I directed the plaintiffs to file any amended statement of claim by 6 March 2015, saying that if the pleadings were not filed within that time I would call upon "him" (I meant all of the plaintiffs) to show cause as to why the proceedings should not be dismissed. No amended pleadings were served. 6. On 6 March 2015, a solicitor who had recently been retained by the plaintiffs (Mr Goldsmith) contacted the Court with a view to having the proceedings relisted in order to seek an extension of the time for compliance with the order of 6 February, failure to comply with which triggered the show cause requirement. The defendants did not consent to the proceedings being relisted and, accordingly, they were not relisted at that time. When the matter came back before the Court on 10 April 2015, the show cause requirement had been triggered by reason of the failure to serve an amended statement of claim in accordance with the direction of 6 February 2015. 7. I should note that on 6 February 2015, in the absence of the plaintiffs, I directed the defendants to notify the plaintiffs of the orders made that date. The defendant did so, as directed. The evidence establishes that Mr Kang was personally made aware of the direction. In an email sent in reply to correspondence from the defendant, he stated that he would attend to provision of the relevant documents within 28 days. 8. The amended statement of claim was not served until 9 April 2015, the day before the proceedings were due back before the Court pursuant to the show cause requirement. The amended pleading was served on the first defendant only, not on the second defendant, Mr Konrad, an individual who appears for himself. Although Mr Konrad is a resident of Japan, he comes to Australia from time to time. He appeared before the Court on 10 April 2015, evidently having been made aware of the proceedings by those representing the first defendant. 9. Mr Konrad appeared again at the show cause hearing on 29 May 2015. When he appeared on 10 April 2015, he was given a copy of the amended statement of claim by Ms Chou, a solicitor employed by Mr Goldsmith. At the time of handing that document to him, according to Mr Konrad's uncontested affidavit, she said, "We didn't provide you with a copy as we didn't expect you to be here today." In any event Mr Konrad was, in due course, afforded an opportunity to consider that document, since the show cause hearing did not proceed until a later date. Ms Chou explained in an affidavit sworn in the proceedings that she had attempted to locate Mr Konrad via means of an internet search and had been unsuccessful. 10. The explanation put forward in respect to the failure to comply with the direction of the Court of 6 February was set out in an affidavit sworn by Mr Kang personally on 17 April 2015. When that affidavit was read, the Court was informed of an agreement between the parties that there would be no cross-examination of Mr Kang and no constraint upon the defendants in making any submissions on the grounds of Browne v Dunn [1989] VR 845. 11. The explanation offered by Mr Kang placed much of the blame for the delay on the two named lawyers, excluding Mr Hale. 12. The ABC relied on an affidavit in response to that explanation sworn by Mr McAvaney on information and belief based on conversations he had with the two lawyers. That affidavit was objected to on the grounds that it set out material which the lawyers ought not to have disclosed, since it was the subject of legal professional privilege. In my view, however, Mr Kang's blaming the two lawyers for his failure either to appear on 6 February 2015 or serve an amended statement of claim (as previously directed) implicitly waived privilege in those communications. I accept, as submitted by Mr Dawson, who appears for the ABC, that the affidavit is properly confined to the matters in which privilege is implicitly waived and goes no further. 13. A comparison between the material proved on information and belief from the conversations with the two lawyers and Mr Kang's affidavit raises a number of troubling issues as to matters stated by Mr Kang to the Court. On 21 November 2014, Mr Kang said that his lawyers wished to amend the statement of claim because it was poorly written by himself. However, the affidavit of Mr McAvaney establishes that, according to the solicitors, by mid-November they were not acting for him. 14. By 4 December 2014, the solicitors were back in the matter but they did not file a notice of appearance. They provided a draft amended statement of claim to Mr Kang in late January 2015 on terms that he would pay them an agreed sum of money. The relationship soured again when he did not adhere to his side of that agreement. 15. The failure to appear on 6 February 2015 is explained by Mr Kang in paras 7 and 8 of his affidavit as follows: So far as I was aware, either Mr Kelvin, or Mr Nagle, would be attending at Court on behalf of the plaintiffs. I was surprised to subsequently find out that they had not attended at Court or arranged representation. On 6 February 2015, the Court struck out the statement of claim and granted leave to re-plead within 28 days. It also stood the matter over to 10 April 2015. 1. In response to that allegation, the lawyers say that in late January 2015 Mr Nagle had said to Mr Kang, "No more work, Eddie, don't bother emailing or contacting me again. I am not working or appearing for you again." The lawyers say that, contrary to para 7 of Mr Kang's affidavit, Mr Nagle was not instructed by either the plaintiffs or Mr Kelvin to appear at that hearing. 2. Paragraph 9 of Mr Kang's affidavit explains the circumstances of his retaining Goldsmiths, as follows: In view of the failure of Mr Kelvin, or anyone on his behalf, to attend at Court on 6 February 2015, I decided to seek alternative legal representation. I also concluded that it was appropriate for me to retain solicitors experienced in defamation law. I then retained Goldsmiths Lawyers and, on 6 March 2015, they filed a notice of appointment of solicitor. 1. According to the material in Mr McAvaney's affidavit, that also appears to be a less than full and frank account of the circumstances in which Mr Goldsmith was retained. In particular, if the content of that affidavit in respect of the previous issue is accepted, Mr Kang did not decide to seek alternative legal representation due to the failure of the lawyers to appear when he had requested them to, rather he was compelled to do so because they had (by then) refused to undertake any further work for him. 2. The explanation for the delay in filing an amended statement of claim is set out at para 11 of Mr Kang's affidavit. That explains, in some measure, a reason for Mr Kang's inability or disinclination to give his full attention to these proceedings. However, he had a draft amended statement of claim from his lawyers (for which it appears he did not pay) as early as 26 January 2015. Goldsmiths were not retained until 6 March 2015 or shortly before that date. 3. Section 61 of the Civil Procedure Act confers power on the Court to dismiss proceedings if a party fails to comply with a direction. It may be accepted that dismissal of an action is a draconian remedy and it is important to afford procedural fairness before determining any application under that section. It was for that reason that, on 10 April 2015, rather than forcing Ms Chou on in circumstances where she had come to Court without any evidence in support of the show cause requirement, I allowed a further opportunity for evidence to be filed, notwithstanding the fact that my determination to do so visited considerable inconvenience upon Mr Konrad, who had travelled from Japan for the hearing. 4. The exercise of the discretion to dismiss proceedings for breach of a direction must be considered having regard to the mandatory requirements of that part of the Act. Importantly, the considerations under that part include s 56, which imposes a duty on a plaintiff to seek to assist the Court to further the overriding purpose. The Court must also have regard to the dictates of justice, as explained in s 58 of the Act. In that context, "justice" means justice to both parties: see Bi v Mourad [2010] NSWCA 17. In that case, Young AJ stated that those provisions of the Act set up a regime: "that requires the Courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the Court." 1. The other members of the Court, Sackville AJA and Allsop P, expressed similar views, suggesting that the content of the provisions of ss 56 to 60 of the Civil Procedure Act must be the starting point for consideration of the exercise of the discretion under s 61. 2. Mr Goldsmith submitted on the show cause application that there is no evidence in this case of any prejudice to the defendants. The prejudice, in my view, is manifest. There have been wasted appearances, costs incurred (which may or may not be recoverable) and, to Mr Konrad, the undoubted personal inconvenience and vexation of returning to meet a claim moving along slowly, at a pace determined by Mr Kang. 3. The response required in the case of a "reluctant gladiator" referred to by Young AJ in Bi v Mourad must, a fortiori, be the response required in the case of a gladiator who has been less than frank both in seeking directions from the Court and in his explanation for his subsequent failure to comply with those very directions. Mr Goldsmith appears to have acted promptly at first to seek to have the proceedings relisted but, even then, the amended statement of claim was not served for a further month; was served only on one defendant and was served the day before the proceedings were in Court for the show cause hearing. 4. The events I have recited are very concerning and give me no confidence that Mr Kang has any intention of complying with the duty imposed upon him by s 56. His affidavit sets out his determination "moving forward" to adhere to directions of the Court but there is no basis for accepting that assurance. 5. In my view, the dictates of justice require that the proceedings now be dismissed. ********** 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: 15 July 2015