Supreme Court New South Wales Medium Neutral Citation: Stephen Dank v Nine Network Australia Pty Limited [2016] NSWSC 1572 Hearing dates: 13 October 2016 Date of orders: 13 October 2016 Decision date: 13 October 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) Proceedings numbers 2013/92772 and 2013/92779 between Stephen Dank and Nine Network Australia Pty Limited be dismissed forthwith. (2) The plaintiff shall pay the defendant's costs of and incidental to each proceedings. (3) These orders can be entered forthwith. Catchwords: DEFAMATION – non-appearance of plaintiff – orders under s 61 of the Civil Procedure Act 2005 to provide essential material that had not for some period been served in accordance with previous directions – notice of dismissal pursuant to s 63 of the Civil Procedure Act 2005 – summary dismissal effected. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Sullivan v Department of Transport (1978) 20 ALR 323 Category: Procedural and other rulings Parties: Stephen Dank (Plaintiff /Respondent) Nine Network Australia Pty Limited (Defendant/ Applicant) Representation: Counsel: No appearance (Plaintiff/Respondent) Mr M Richardson (Defendant/ Applicant) Solicitors: No appearance (Plaintiff/Respondent) Mark O'Brien Legal (Defendant/Applicant) File Number(s): 2013/92772; 2013/92779 EX TEMPORE Judgment (UNREVISED) 1. HIS HONOUR: Before the Court are two proceedings dealing with an action for damages in defamation by one Stephen Dank, each of them against Nine Network Australia Pty Limited. The two matters are numbered 2013/92772 and 2013/92779. The application before the Court presently is that the Court dismiss the proceedings either pursuant to s 61 of the Civil Procedure Act 2005 ("the Act") or pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (if they be different). 2. On 6 October 2016, the matter was before the Court and the applicant on the motion, the defendant in the proceedings, provided short minutes, the effect of which was a self-executing order for the proceedings to be dismissed. 3. Notice of that motion had been served on the plaintiff and his solicitors or legal representatives. The Court as presently constituted refused to make a self-executing order because of issues the Court raised with the manner in which self-executing orders operate. Instead, the Court made orders pursuant to s 61 of the Act 4. The defendant, being the applicant on the motion, expressed, at the time the orders were made, that a failure to deal with the orders in a timely fashion, being the service of a verified list of documents and answers to interrogatories, would result in a further application being made for the dismissal of the proceedings pursuant to the terms of s 61(3) of the Act. 5. The circumstances before the Court are these: the plaintiff sues the defendant in relation to two broadcasts, hence the two sets of proceedings. On 6 August 2015, the plaintiff's then solicitors drafted categories of documents for discovery and a draft notice to answer interrogatories. 6. On 15 October 2015, the plaintiff's then solicitors advised the defendant's then solicitors that the plaintiff had no objection to the defendant's proposed interrogatories or to the categories of discovery. 7. On 7 December 2015, the defendant's solicitors sent a letter to the plaintiff's then solicitors in or to the effect that the defendant sought, in relation to each of the proceedings, the discovery and interrogatories already notified and agreed in one of the proceedings, as earlier stated. 8. On 11 December 2015, a draft minute of order was made that the discovery supplied by the parties in file matter 2013/92779 against Nine Network and various individuals and the parties' answers to interrogatories in those proceedings be available to the parties to use in the other set of proceedings. 9. On 19 August 2016, short minutes were issued by the Court in each of the two proceedings in circumstances where the plaintiff appeared in person in the Court. Those orders were in or to the effect that the parties serve their verified lists of documents in accordance with the categories of documents, as agreed to by the parties on 2 September, and that the parties serve verified answers to interrogatories, as agreed to by the parties on 2 September 2016. 10. On 9 September 2016, the defendant's solicitors wrote to the plaintiff. In that letter it was noted that neither the plaintiff's list of documents nor his verified answer to interrogatories had been served by 2 September 2016 or at all and it was requested that the documents be served within seven days. The defendant has served its lists of documents and verified answers to the interrogatories served upon it. 11. On 19 September 2016, the defendant's solicitors wrote to the plaintiff noting that the list of documents and verified answers to interrogatories had not yet been served and advising that unless it was served by 4 pm 21 September 2016 the defendant would seek to have the matter re-listed in order to seek "appropriate orders". 12. On 23 September 2016, both of the proceedings were mentioned for directions before the Court as presently constituted. The plaintiff did not appear. The Court made orders that time be extended for the service of the documents in question to 4 pm on 4 October 2016. On 23 September, that is the date of the issuing of the orders in the absence of the plaintiff, the defendant's solicitors wrote again to the plaintiff advising him as to the orders made. 13. The matter came again before the Court on 7 October 2016 pursuant to the earlier mentioned motion and orders were made by the Court that the plaintiff serve his verified list of documents and answers to interrogatories by 4 pm Tuesday 11 October 2016. 14. That order was expressly made pursuant to the terms of s 61 of the Act. Further, the Court ordered that the proceedings or any orders or further orders in relation to non-compliance with the above order or possible non-compliance with the above order be listed today. 15. Costs orders were made on 7 October 2016 (i.e. the date on which those last mentioned orders were issued). The solicitor for the defendant sent to the plaintiff, both by email and express post, copies of a letter which detailed the orders that had been made and which made it clear that the defendant would be seeking that the proceedings be dismissed in the event of non-compliance. 16. As at today's date, the plaintiff has not served his verified list of documents and answers to interrogatories as previously ordered by the Court in the proceedings, nor given any explanation of his default. 17. I should mention that Exhibit A to these proceedings is a set of emails described already in the transcript, which I do not describe again. In each case, the email exchange makes clear that the email was sent to the personal email address of the plaintiff and that email correspondence commences relevantly in terms of the exhibit on 4 October 2016. 18. The last of the emails in the exhibit is from Mr Dank and from the email address to which I have previously referred. Emails were also received by my Chambers from Mr Dank seeking confirmation of today's listing and after such was provided, stating words to the effect that he had only received such information about the listing. 19. I am not sure whether that means only just now. In the latest of those emails to Mr Dank from my Chambers, Mr Dank stated: "Good afternoon, my solicitor will respond in due course. Regards". 20. The situation before the Court is the following. The plaintiff does not appear this afternoon. The plaintiff did not appear on the last occasion and the plaintiff did not appear on the occasion before that. The plaintiff has not complied with orders of the Court. Each such order granted the plaintiff an indulgence. The plaintiff is yet to file his list of documents or the answer to interrogatories. 21. The practice note issued in relation to defamation proceedings stresses the importance of the parties, in particular the plaintiff, complying with both the practice note and directions of the Court and at cl 21 of the practice note, being Practice Note Supreme Court Common Law 4 issued by the Chief Justice on 5 September 2014, "A plaintiff who fails to comply with the practice note or a direction of the Court may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act or r 12.7 of the Uniform Civil Procedure Rules." 22. That is the basis upon which the defendant moves in these proceedings. The reason on the last occasion that the Court made orders under s 61 was that prima facie there seemed to be a failure to prosecute the matter in accordance with the proper procedure and the requirements, in s 56 of the Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I took that into account as a factor to which it is necessary to give effect in dealing with the discretion reposed in the Court under s 61. 23. Notwithstanding the knowledge of the plaintiff as to the conduct of the proceedings this afternoon, he has given no reason as to why there is no appearance. 24. Further, notwithstanding the service both by email and by letter on the plaintiff and his solicitors at the particular time, there has been no reason given as to why there has been non-compliance with the orders expressed. 25. The last few orders by necessity were notified only to the plaintiff, because the plaintiff has ceased to be represented. Section 61 gives the Court the discretion by order to make directions as it thinks fit for the speedy determination of the real issues between the parties to proceedings; that is the basis upon which it was necessary for the Court to make the orders for the provision of the list of documents and the answers to interrogatories that had been served and to which categories there was agreement as there was to the questions in the interrogatories. There was no objection, yet no answer has been received in the time, being a period of months, during which such directions have been in force and time has been extended. 26. Section 61(3) of the Act gives the Court the powers, in circumstances where a party, to whom a direction under s 61 has been made, has failed to comply with a direction to take any one of a number of steps. The first of them is to dismiss the proceedings, whether generally or in relation to a particular cause of action, or to strike out or limit a claim and other steps. 27. The rules of procedural fairness have been described in a number of ways. They include the rule by which each party is entitled to a reasonable opportunity to prepare and to present its case including testing the case that is put against it. 28. In these proceedings that means the defendant must have a reasonable opportunity to prepare and to present its case. It has by reason of the default of the plaintiff not yet had such an opportunity. 29. Further procedural fairness requires a court to give a party a reasonable opportunity to prepare and to present the case that the party desires. It does not impose a duty on the Court to ensure that a party uses that opportunity to its best advantage: Sullivan v Department of Transport (1978) 20 ALR 323 at 343. 30. In this case, the plaintiff has been given more than adequate opportunity to comply with orders of the Court, the compliance with which is necessary in order for the matter to proceed. 31. The non-compliance of the plaintiff is a breach of the plaintiff's duty under s 56 of the Act. Further it prevents the defendant in each case from complying with its obligations under s 56 of the Act and lastly it prevents the Court from complying with its duty under s 56 of the Act. 32. In those circumstances it seems to me the plaintiff has quite deliberately disengaged from the process of litigation in these proceedings and I make orders under s 61(3) of the Act that the proceedings, that is each of them, the number of which has been cited before, be dismissed generally. 33. The Court makes the following orders: 1. Proceedings numbers 2013/92772 and 2013/92779 between Stephen Dank and Nine Network Australia Pty Limited be dismissed forthwith. 2. The plaintiff shall pay the defendant's costs of and incidental to each proceedings. 3. These orders can be entered forthwith. ********** 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: 07 November 2016