Citation: McBride v John Fairfax Group Pty Ltd & Anor [2004] NSWSC 181
Court: Supreme Court of New South Wales, Common Law Division (Defamation List)
Date: 19 March 2004
Judge(s): Levine J
Background
The plaintiff, a medical practitioner, commenced defamation proceedings in 1989 against a media publisher and a journalist following an article published on 12 August 1989. A statement of claim was filed within five days of publication, and an amended statement of claim was filed shortly after. The defendants never filed a defence.
The proceedings then lay largely dormant for over a decade. During that period, the plaintiff was consumed by Medical Tribunal proceedings in which his name was ultimately removed from the Medical Register in 1993, followed by unsuccessful appeals to the New South Wales Court of Appeal and the High Court. His name was not restored to the register until March 1998. He also suffered significant financial losses during this time and underwent coronary surgery.
In parallel, the plaintiff was pursuing separate defamation proceedings against the Australian Broadcasting Corporation arising from a 1988 broadcast. Those proceedings were actively litigated from 1998 onwards and ultimately settled in mid-2002. Shortly after that settlement, the plaintiff moved to restore the present Fairfax proceedings to the active list by filing a Notice of Motion in December 2002. The defendants responded in March 2003 with their own motion seeking to have the proceedings struck out for want of prosecution.
Legal Issues
- Whether the plaintiff's prolonged delay in prosecuting the defamation claim warranted dismissal for want of prosecution
- Whether the defendants had suffered, or were likely to suffer, prejudice as a result of the delay
- Whether the plaintiff had provided a sufficient explanation for the extended period of inactivity
Decision
Levine J declined to dismiss the proceedings. His Honour found that the plaintiff's explanation for the delay, while not without complexity and some confusion in the evidence, was substantially grounded in the extraordinary demands placed on him by the Medical Tribunal proceedings. Those proceedings lasted 198 hearing days, required the plaintiff's continuous presence, and consumed his financial and personal resources throughout the early 1990s.
The court noted that the defendants themselves had not taken any steps to progress the matter during the relevant period. The defendants also did not seek to rely on any delay occurring after December 2002, acknowledging that the plaintiff's inactivity in 2003 was attributable to ill health.
On the question of prejudice, the defendants were not found to have established the kind of actual or likely prejudice that would justify the drastic step of striking out the proceedings. The court was also influenced by the precedent from the related ABC proceedings, where Levine J had similarly refused dismissal in 1998, and those proceedings had ultimately proceeded to settlement.
The plaintiff's conduct in the period 1998 to 2002, during which he actively pursued the ABC matter while taking no steps in the Fairfax proceedings, was the most difficult aspect of his case. However, this did not ultimately tip the balance in favour of dismissal, particularly given the absence of demonstrated prejudice to the defendants.
Orders Made
- The defendants' Notice of Motion filed 21 March 2003 seeking dismissal for want of prosecution was dismissed
- The proceedings were restored to the active list in accordance with the plaintiff's Notice of Motion filed 19 December 2002
- The defendants were ordered to pay the plaintiff's costs of both Notices of Motion
- The matter was listed in the Registrar's 9am list on Friday 26 March 2004
Key Takeaways
- Dismissal for want of prosecution is a serious remedy, and the Supreme Court declined to grant it where the plaintiff's delay was substantially explained by participation in protracted parallel proceedings that consumed his time, health, and financial resources over many years.
- A defendant's own failure to take any steps to advance proceedings during the relevant delay period is a relevant consideration in resisting a dismissal application.
- Where prejudice to the defendants from delay is not established or demonstrated, courts are reluctant to terminate proceedings that have been on foot for many years.
- Levine J's earlier refusal to dismiss the related ABC proceedings in 1998 provided a useful point of comparison, confirming a consistent approach to delay in the context of this plaintiff's broader litigation history.
- The period between the settlement of related proceedings and the filing of a motion to restore the present matter was relatively short (approximately six months), and this weighed in favour of allowing the proceedings to continue.
Legislation and Cases Referenced
Cases:
- Birkett v James (1978) AC 297
- Micallef v ICI Australia Operations Pty Ltd [2001] ACL Rep 325 NSW 308
- Stollznow v Calvert [1980] 2 NSWLR 749
- McBride v Australian Broadcasting Corporation (Levine J, 6 November 1998, unreported) (the 1998 decision in the related ABC proceedings)
- McBride v Australian Broadcasting Corporation [2000] NSWSC 747
- McBride v Australian Broadcasting Corporation [2001] NSWCA 322
Legislation: No legislation was cited in the provided text.