Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214

District Court New South Wales

Medium Neutral Citation: Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214 Hearing dates: 24 September 2015 Date of orders: 24 September 2015 Decision date: 24 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to the defendant to file an Amended Notice of Motion in court (not opposed by the plaintiff). (2) Defendant's application under r 13.4 Uniform Civil Procedure Rules 2005 (NSW) for summary dismissal of proceedings refused. (3) Defendant's application for whole or part dismissal of the plaintiff's Third Further Amended Statement of Claim allowed as set out in the order below (Judge Gibson to give reasons). (4) Direct the plaintiff to rename all of the persons referred to in the statement of claim by their names and not initials. (5) In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out: (a) Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 31, 34, 36, 37, the heading "3.1", 39, 40, 42, 43, 44, 46, 47, 48, 51, 52, 56, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 101, 102, 103; (b) Paragraph 17 (except the first sentence); and, (c) Paragraphs 18, 21, 27 and 32 (as noted in Exhibit ZZ). (6) In relation to the contract claim, the following paragraphs of the Third Further Amended Statement of Claim are struck out with leave to replead: (a) Paragraph 35 (struck out with leave to replead the breaches with precision); and, (b) Particulars of mitigation under the heading "4" and paragraphs 75-82 (struck out on the basis that these particulars must be particularised as mitigation issues in the claim for damages). (7) In relation to the contract claim, the following clarifying words are to be added to the Third Further Amended Statement of Claim: (a) The heading "Particulars" above paragraph 38 is to be headed "Particulars of breach" and the paragraphs numbered (a)-(f) in paragraph 41 are to be headed "Particulars"; and, (b) Paragraph 49 will become particular (g), paragraph 50 will become particular (h), paragraph 53 will become particular (i), paragraph 54 will become particular (j), paragraph 54 will become particular (k), paragraph 58 will become particular (l). (8) In relation to the first matter complained of in the defamation claim: (a) Imputation (c) is struck out for imprecision of form and as failing to differ in substance to imputation (a); (b) Imputation (d) is struck out for imprecision of form and lack of defamatory meaning; and, (c) The "particulars of extrinsic facts" are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Comino (Webb v Bloch (1928) 41 CLR 331). (9) In relation to the second matter complained of in the defamation claim: (a) The words "of their unlawful and harmful termination of the plaintiff's conditional contract of service" is struck out as surplusage in paragraph 126; (b) Paragraph 127 is struck out; (c) Paragraph 128 is struck out with leave to include any such publications in the particulars of publication which will replace the current deficient pleading of "particulars of extrinsic facts" set out in paragraphs 130-132; and, (d) Imputations (a)-(d) struck out as not conveyed; grant leave to the plaintiff to plead such further imputation as she may assert arise from the contents of the matter complained of. (10) In relation to the third matter complained of in the defamation claim: (a) Paragraphs 136 and 138 are struck out; (b) The imputations (a) and (b) in paragraph 139 struck out as deficient in form; and, (c) The "particulars of extrinsic facts" set out in paragraphs 141-143 are struck out with leave to replead in the form of particulars of the liability of the defendant for the publication by Mr Cuic (Webb v Bloch (1928) 41 CLR 331). (11) In relation to the fourth matter complained of in the defamation claim: (a) The fourth matter complained of is struck out with leave to replead the text of the matter complained of as asserted to convey defamatory meanings of and concerning the plaintiff, the imputations arising and the defendant's liability for this "republication". (12) In relation to the claim for damages: (a) Paragraphs 150 to 155 struck out (rolled-up claim for "non-economic loss with aggravated damages" impermissible; (b) Paragraphs 156 to 182 struck out; and, (c) Claim for special damages struck out on the basis that, as currently pleaded, this is a repetition of the claim for special damages for breach of contract; any special damages claim arising from one or more of the publications must be identified with specificity as to which publication and must be in addition to, and not a repetition of, the plaintiff's claim for damages for breach of contract. (13) Note the plaintiff left the courtroom at 12:10pm for the reasons set out in the transcript (plaintiff called three times outside the court when the hearing resumed at 2:20pm – no appearance). (14) Plaintiff to file Fourth Further Amended Statement of Claim in 28 days from the date of receipt of Judge Gibson's reasons for decision. (15) Defendant's request for particulars of the Fourth Further Amended Statement of Claim to be administered 14 days after receipt of the Fourth Further Amended Statement of Claim. (16) Plaintiff's Reply 14 days thereafter. (17) Costs reserved. (18) As the plaintiff is not present, Judge Gibson's Associate will provide a copy of these orders and a copy of Exhibit ZZ to the plaintiff. (19) Order (4) of Judge Gibson's orders of 3 September 2015 directing the parties not to correspond with, or telephone, the Registry, or other members of the court other than for the purpose of filing documents is to continue until further order. (20) Matter stood over to the Defamation List on Thursday 3 December 2015. Catchwords: PRACTICE AND PROCEDURE – litigant in person brings claim for breach of contract and defamation – successive statements of claim fail to plead and particularise the claims with precision – application for summary dismissal – whether claims are hopeless, an abuse of process or disproportionate to the relief claimed – whether proceedings should be struck out or plaintiff granted leave to amend – proceedings not sufficiently hopeless for summary dismissal – leave to amend should be granted - rulings on defendant's objections to pleadings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 28.2 and 29.7 Cases Cited: Agius v State of New South Wales [2001] NSWCA 371 Bleyer v Google Inc (2014) 311 ALR 529 Bott v Carter [2012] NSWCA 89 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Coren v Master Builders Association Pty Ltd [2014] NSWCA 244 Crampton v Nugawela (1996) 41 NSWLR 176 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dank v Rothfield [2015] NSWCA 193 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gmitrovic v Department of Defence [2015] NSWSC 840 Grizonic v Suttor [2008] NSWSC 914 Gunns Ltd v Marr [2005] VSC 251 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 McGuirk v UNSW [2005] NSWSC 1424 McGuirk v UNSW [2010] NSWCA 104 Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145 R v Paine(1910) AC 4 Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Sloutsker v Romanova [2015] EWHC 2053 (QB) Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Walsh v Bennetts (No 2) [2015] WASC 122 Webb v Bloch (1928) 41 CLR 331 YZ v Amazon (No 3) [2015] NSWSC 1130 Category: Procedural and other rulings Parties: Plaintiff: Nancy Michail Defendant: Mount Druitt & Area Community Legal Centre Representation: Counsel: Plaintiff: In person Defendant: Ms N Case