Citation: Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation (No. 2) [2016] NSWDC 185
Court: District Court of New South Wales
Date: 25 August 2016
Judge: Gibson DCJ
Background
The plaintiff, a self-represented litigant and an undischarged bankrupt, had commenced six separate defamation proceedings in 2014 and 2015 against a group of media defendants, including two Fairfax entities, the Australian Broadcasting Corporation, and The Age Company. The matters were complex, scheduled as six-week jury trials, and had been set down in two tranches for November 2016 and March 2017.
From the time the trials were listed, the plaintiff repeatedly failed to comply with procedural directions. His non-compliance had already caused the November 2016 trial dates to be vacated and pushed back to March 2017, over his own opposition. The plaintiff had also parted ways with three separate firms of solicitors over the course of the litigation and failed to attend a court-arranged mediation.
On the day of the compliance monitoring hearing, the plaintiff did not appear. His name was called outside the courtroom on two separate occasions, a total of six calls, and no one answered. The defendants applied for dismissal of all six proceedings.
Legal Issues
- Whether the court should proceed with the dismissal application in the absence of the self-represented plaintiff
- Whether six defamation proceedings, which had reached an advanced stage of preparation, should be dismissed for want of prosecution and proper dispatch
- Whether dismissal was warranted in circumstances where no costs sanction was available because the plaintiff was bankrupt
Decision
Gibson DCJ first addressed whether to proceed in the plaintiff's absence. Her Honour noted there is no fixed rule governing a plaintiff's failure to appear on an interlocutory application, and that greater indulgences are generally accorded to self-represented litigants and those with health difficulties. However, the plaintiff had been on notice of the application for some weeks, and his absence without explanation could not be permitted to defeat justice. Her Honour put questions to both counsel present, consistent with the duties described in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365, before proceeding to determine the application.
On the substantive question of dismissal, her Honour found the evidence of delay compelling. Following a judgment delivered on 2 June 2016 in which compliance timetables were reaffirmed, the plaintiff did nothing. Solicitors for the defendants wrote repeatedly without response. The plaintiff's bankruptcy meant no costs order would operate as any meaningful sanction for further delay, leaving dismissal as the only effective remedy.
Her Honour characterised the plaintiff as a "reluctant gladiator," adopting language from the Court of Appeal in Bi v Mourad [2010] NSWCA 17 and Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263, meaning a litigant who commences proceedings but is unwilling or unable to enter the trial arena. She also noted that the plaintiff had previously had a separate action against the ABC struck out for delay, and had failed to attend a court-arranged mediation without adequate explanation.
Although dismissal at an advanced stage of preparation is an exceptional step, her Honour was satisfied these were exceptional circumstances. All six proceedings were dismissed with costs. Liberty to apply on costs was reserved, acknowledging the plaintiff might later offer explanations relevant to the costs question.
Orders Made
- Proceedings dismissed with costs
- Liberty to apply in relation to costs
- Hearing date of 6 March 2017 vacated
Key Takeaways
- The District Court confirmed that a plaintiff's unexplained failure to appear at a hearing of an application to dismiss does not, of itself, prevent the court from proceeding, provided the applicants discharge appropriate duties of candour to the court in the absent party's absence.
- A self-represented litigant's status, and a history of serious illness, attract greater indulgences from the court, but those indulgences do not extend to defeating justice by remaining absent without explanation when on notice of a dismissal application for weeks.
- Where a plaintiff is bankrupt and no costs sanction can operate as a deterrent to further delay, dismissal for want of prosecution may be the only effective remedy available to defendants.
- Reaching an advanced stage of trial preparation does not automatically preclude dismissal; the court weighed that factor against the pattern of repeated non-compliance and the strain the proceedings placed on court resources.
- In applying ss 56 to 62 of the Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the District Court treated the cumulative and ongoing nature of the plaintiff's defaults, including failure to provide discovery, answer correspondence, attend mediation, and appear in court, as collectively warranting the exceptional remedy of dismissal.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), ss 56 to 62
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 29.7
Cases
- Alex v Australian Broadcasting Corporation [2015] NSWDC 78
- Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96
- Bi v Mourad [2010] NSWCA 17
- Deputy Commissioner of Taxation v Alex [2011] FMCA 290
- Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
- Hoser v Hartcher [1999] NSWSC 1060
- Kingdon v Kirk (1887) 37 Ch D 141
- Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
- Stone v Smith (1887) 35 Ch D 188
- Templar v Britton (No 2) [2014] NSWSC 587
- Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263