Supreme Court New South Wales Medium Neutral Citation: Ferrier v Australian Broadcasting Corporation [2015] NSWSC 989 Hearing dates: 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Common Law Before: McCallum J Decision: Service of the statement of claim filed 26 September 2014 set aside. Catchwords: PROCEDURE – civil – pleadings – statement of claim – service – application to set aside service of statement of claim – where plaintiff contends statement of claim was personally served – where no evidence supports contention that statement of claim was served Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.11 Category: Procedural and other rulings Parties: Mark James Ferrier (Plaintiff) Australian Broadcasting Corporation (Defendant) Representation: Counsel: Plaintiff in person L Barnett (Defendant) Solicitors: Plaintiff unrepresented Australian Broadcasting Corporation (Defendant) File Number(s): 2014/283802 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation commenced by statement of claim, filed 26 September 2014. The application before the Court today is the defendant's application to have service of that pleading set aside pursuant r 12.11(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). 2. The statement of claim records a solicitor on the record, being Mr Kalantzis of Kalantzis Lawyers. However, Mr Kalantzis ceased to act on 4 November 2014. 3. The proceedings were before the Court for the first return on 31 October 2014. On that occasion, Mr Kalantzis appeared and, according to the record of proceedings, informed the Registrar that the statement of claim had not yet been served. Orders were made allowing an amended statement of claim to be filed and served by 14 November 2014. 4. As already recorded, it was in the intervening period that Mr Kalantzis ceased to act. 5. The proceedings next came before the Court on three occasions when there was no appearance for the plaintiff, namely, 5 December 2014, 6 February 2015 and 10 April 2015. 6. On the last of those occasions, the record of proceedings notes that Mr Ferrier was to be informed that if he did not appear on the next adjourned date (being 24 April 2015) the proceedings would be dismissed. 7. Shortly before 24 April 2015, according to the evidence before me, Mr Ferrier contacted the Australian Broadcasting Corporation to inform them that the matter would be in Court that day. However, there remained an issue as to whether the defendant had ever been served with any originating process. 8. The relevant detail of the communications is set out in an affidavit of Grant McAvaney affirmed 18 May 2015. On 22 April 2015, the ABC informed Mr Ferrier that he had not sent a copy of the statement of claim. Mr Ferrier responded by saying that he "did ages ago in Karratha". 9. On 24 April 2015, orders were made by consent directing the plaintiff to file and serve any notice of motion and to file and serve any evidence in support of the defendant's present application and any motion of his, each on or before 8 May 2015. Mr Ferrier was reminded of those directions in correspondence on 30 April 2015. 10. Mr Ferrier served no evidence in response to those directions. In oral submissions, he repeated the contention that the statement of claim was served by leaving it at the radio station at Karratha. 11. From the bar table today, Mr Ferrier has given a lengthy account of what he says occurred in respect of the service of the statement of claim. The account given by him entails a number of anomalies which are difficult to reconcile with the proposition that the statement of claim was ever handed to a person at Karratha, as he contends. One difficulty is that he says the statement of claim was served by him at Karratha, prompted by an email from my Associate in February 2015. However, the terms of that contention appear to relate, rather, to an email my Associate sent on 9 April 2015, after the six-month period within which the statement of claim was valid for service. 12. In any event, the short point is that, having been given an opportunity to do so, Mr Ferrier has not put on any evidence to resist the orders sought today and has put forward no convincing explanation as to why the orders sought by the ABC should not be granted. 13. Accordingly, I make orders 1, 2 and 3 in the notice of motion filed 24 April 2015. ********** Amendments 23 July 2015 - Typographical errors. 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 July 2015