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District Court 12 April 2013

Sleeman v Tuloch Pty Ltd t/as Palms on Oxford

[2013] NSWDC 43

Other
TORT DEFAMATION DEFAMATION CLAIM SET DOWN FOR HEARING

Citation: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43
Court: District Court of New South Wales
Date: 12 April 2013
Judge: Gibson DCJ

Background

The plaintiff brought a defamation claim against five defendants arising from words spoken by a security guard at a Darlinghurst nightclub on 23 December 2011. The security guard told the plaintiff he was "way too drunk" and turned him away at the door. The plaintiff alleged those words conveyed imputations including that he was excessively drunk in a public place and, relying on extrinsic facts, that he was a hypocrite for publicly opposing alcohol consumption while drinking to excess himself.

The original statement of claim named only the corporation operating the nightclub, its sole director, and the venue's licensee. An amended statement of claim, filed late and during court vacation, added the security guard personally and his employer as fourth and fifth defendants without leave. Those defendants were not served within the required period, were not notified that the matter had been set down for hearing, and the limitation period expired before service was effected.

By the time the matter came before Gibson DCJ as trial judge, the plaintiff had repeatedly failed to comply with case management timetables, including orders for filing a reply, serving a list of documents, and providing answers to interrogatories. The hearing date of 5 June 2013 remained on foot throughout.

  • Whether the plaintiff should be granted an extension of time to serve the fourth and fifth defendants, given the expired limitation period and late service of a stale statement of claim
  • Whether the fourth defendant was entitled to summary judgment, including on the basis of the plaintiff's alleged statements in other proceedings
  • Whether the proceedings should be struck out in their entirety for want of prosecution, given the plaintiff's repeated failures to comply with case management orders
  • What costs orders were appropriate, and what further timetable should govern the proceedings before the 5 June 2013 hearing

Decision

The plaintiff ultimately abandoned any claim against the fourth and fifth defendants, rendering the extension of time application moot. The proceedings against those two defendants were dismissed by consent. Given that abandonment, the separate application for summary judgment against the fourth defendant also fell away and was formally dismissed.

On the central question of whether the entire proceedings should be struck out for want of prosecution, Gibson DCJ declined to make that order. Her Honour accepted that the plaintiff had repeatedly failed to comply with timetables and had taken an unrealistic position regarding the fourth and fifth defendants. However, the conduct did not reach the threshold required to justify striking out the proceedings altogether.

The District Court's reasoning drew on the principle that striking out is a remedy of last resort, reserved for cases where the plaintiff's conduct is so egregious that it amounts to the equivalent of a "stop writ." Her Honour found that many of the failures had since been remedied and that there was no reason why the matter could not proceed to hearing on the scheduled date. The application to strike out was nonetheless treated as a step properly taken in the circumstances, and the plaintiff was ordered to bear costs accordingly.

To protect against further delay, the court made three of its compliance orders self-executing: failure to comply with the orders for a further amended statement of claim, a verified list of documents, or verified answers to interrogatories would result in automatic dismissal of the proceedings.

Orders Made

  • Proceedings against the fourth and fifth defendants dismissed by consent
  • Application for summary judgment against the fourth and fifth defendants dismissed
  • Plaintiff to file and serve a further amended statement of claim removing references to the fourth and fifth defendants by 4:00pm 15 April 2013
  • Plaintiff to serve a verified list of documents by 4:00pm 16 April 2013
  • Time for plaintiff to administer interrogatories extended to the hearing date (12 April 2013)
  • Plaintiff to serve verified answers to interrogatories by 4:00pm 16 April 2013
  • Orders for the amended statement of claim, list of documents, and interrogatory answers declared self-executing (non-compliance would result in dismissal)
  • Plaintiff to pay the defendants' costs of the day, including all applications heard, and including the summary disposal application
  • Plaintiff to pay the fourth and fifth defendants' costs of the proceedings against them
  • Parties directed to attend private mediation immediately, no court mediation dates being available before the hearing

Key Takeaways

  • Striking out proceedings for want of prosecution remains a remedy of last resort. The District Court confirmed that repeated non-compliance with timetables, without more, will not ordinarily justify dismissal where the failures have been largely remedied and the hearing date remains achievable.
  • Where a plaintiff abandons claims against newly added defendants who were improperly joined without leave and never properly served, dismissal by consent of those claims, together with a costs order against the plaintiff, is the likely procedural outcome.
  • Self-executing orders represent a calibrated response to persistent non-compliance: they allow the proceedings to continue while placing the plaintiff on notice that further default will result in automatic dismissal without the need for a fresh application.
  • Even where a strike-out application ultimately fails, costs may still follow in the defendants' favour where the application was a reasonable response to the plaintiff's conduct and is intertwined with other successful applications.
  • Adding defendants late in proceedings, without leave and outside the service period, creates compounding procedural difficulties, particularly where the limitation period has also expired before service is effected.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 60 and 61
- Uniform Civil Procedure Rules 2005 (NSW), rr 6.2(4)(b)(i), 42.19 and 42.20

Cases
- Fairey v Fairey (No 2) [2000] NSWCA 173
- Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238
- Fleet v State of New South Wales [2009] NSWSC 75
- Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727
- Hoser v Hartcher [1999] NSWSC 527
- Kim v Lee [2012] NZCA 19; [2012] NZCA 248; [2012] NZCA 256; [2012] NZCA 600
- Kim v New Korea Herald HC [2011] NZHC 1491
- McNamara v Bao San [2010] NSWSC 809
- Obeid v Australian Broadcasting Corporation & Ors (Supreme Court of NSW, Levine J, 10 July 1998)
- Pacanowski v Wakerman [2009] NSWCA 402
- Packer v Meagher [1984] 3 NSWLR 486
- Rivera v State of New South Wales & Anor [2012] NSWSC 1360
- Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
- Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433