Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145

District Court New South Wales

Medium Neutral Citation: Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145 Hearing dates: 18 June 2015 Date of orders: 18 June 2015 Decision date: 18 June 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff to file and serve a Second Further Amended Statement of Claim by 16 July 2015. (2) Matter stood over for further directions in the Defamation List on Thursday 30 July 2015 at 9:00am. Catchwords: TORT - statement of claim for breach of contract, defamation and other causes of action - defendant foreshadows summary dismissal application and lists a series of asserted pleading and particularisation errors - plaintiff granted leave to replead Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.30(3) Texts Cited: P Taylor, Dr E Elms, M Meek SC, The Hon Justice G Bellew , Ritchies Uniform Civil Procedure NSW (LexisNexis) Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis) Category: Procedural and other rulings Parties: Plaintiff: Nancy Michail Defendant: Mount Druitt & Area Community Legal Centre Representation: Counsel: Plaintiff: Ms N Michail (Solicitor – in person) Defendant: Mr A Moore (Solicitor)

Solicitors: Plaintiff: In person Defendant: Clayton Utz File Number(s): 2015/53739 Publication restriction: None

Judgment

Introduction 1. This judgment is a short outline of the issues concerning the plea of defamation in these proceedings, and is intended to summarise, in a somewhat informal way, the points I made when discussing these problems in court with the plaintiff on 18 June 2015. The purpose is to assist the plaintiff, who is distressed by the events leading up to the bringing of this claim, as well as by a recent bereavement. 2. These proceedings unfortunately did not get off to a good start, and this is not necessarily the fault of the plaintiff. They were commenced, incorrectly, by Summons filed in the Parramatta registry on 20 February 2015, when they should have been commenced by statement of claim. A statement of claim was subsequently prepared, and is stamped "received on 5 March 2015", the date of the callover before the Registrar, who made orders for the plaintiff to file that document. The Registrar's orders refer to the filing of a "defence" but the parties have explained that this is an error. 3. As these proceedings were commenced in Parramatta and not in the Sydney Registry Defamation List, they are one of a series of claims where case management has been delayed, through no fault of the parties, by the lack of procedures for defamation proceedings in that court. This is why the proceedings were transferred to Sydney. While these delays have made the plaintiff suspicious that the defendant is engaging in misconduct, the problem is in fact court-related, in that it results from case management changes made by the court in relation to defamation matters. 4. When the matter came before me for directions on 16 April 2015 the plaintiff, who had filed an amended statement of claim on 11 March 2015, sought orders for the defendant to file a defence immediately. I explained to the plaintiff that the statement of claim contained a series of pleading errors which would make the filing of a defence unrealistic at this stage. For example the pleading set out only part of the 9 February 2015 email from the defendant to the plaintiff which was stated to be the matter complained of, and did not identify any imputations; there was even less information about the other publications. 5. I accordingly invited the plaintiff to redraft her claim to set out the full text of all publications upon which she intends to sue, followed by the imputations pleaded and, where relevant, the particulars of the publication of any such defamatory matters to third parties.