Supreme Court New South Wales

• Medium Neutral Citation: Norman v Cowell [2014] NSWSC 1575
• Hearing dates: 17 October 2014
• Decision date: 17 October 2014
• Before: McCallum J

Decision

Defence filed 30 July 2014 struck out; first defendant granted leave to file an amended defence within 28 days.

• Catchwords: DEFAMATION - defences - form of pleading
• Legislation Cited: Uniform Civil Procedure Rules
• Category: Interlocutory applications
• Parties: Melanie Adele Norman (plaintiff); Shirley Cowell (defendant)
• Representation: Counsel: Ms Chou (plaintiff); Solicitors: Goldsmith Lawyers (plaintiff); Defendant self-represented.
• File Number(s): 2014/154555
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation commenced by Ms Melanie Norman in respect of a series of cartoons with captions allegedly published by Ms Shirley Cowell on her Facebook page. The proceedings have come before the Court today for determination of a notice of motion filed 17 September 2014 seeking to have the defence struck out and a subpoena set aside.

2 The defence was filed on 30 July 2014. It is in the form of the relevant court form, but attaches two pages of typed response which does not conform to the requirements of pleading a defence. From reading those two pages it is tolerably clear that there are matters Ms Cowell would properly wish to raise in response to the plaintiff's claim, but the present form of the document may be seen at a glance to be embarrassing, in the legal sense of that term. In particular, it does not plead separately to each paragraph of the statement of claim; it does not provide the particulars required under the rules and it does not plead the defences hinted at in proper form.

3 I have urged Ms Cowell to take whatever steps she can to obtain legal advice in the settling of an amended defence. The present defence must be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules.

4 As to the subpoena, Ms Chou, who appears for the plaintiff, argued that it should be set aside. One of the arguments was that the documents should more properly be sought by way of discovery. I do not accept that submission. In my view, in the interests of sparing costs, it is not inappropriate to allow the defendant to seek the production of documents relevant to the issues raised by way of a subpoena to the first plaintiff.

5 I have considered the categories of documents sought. Some plainly would be relevant to a truth defence. However, since the defence in its present form must be struck out, the proper course in my view is to stand over the plaintiff's application in respect of the subpoena until the amended defence is filed. I would indicate that, if a truth defence properly raises issues of the kind outlined by Ms Cowell in argument, there may well be categories of documents she could properly seek. Since she represents herself, no subpoena may be issued without leave. What I propose to do is, in effect, to reconsider the form of the present subpoena once an amended defence has been filed.

6 The third issue foreshadowed to be raised today was a matter raised by me on the last occasion, namely whether the proceedings should be transferred to the District Court. The plaintiff opposes that course. It is an issue which should more properly be determined once Ms Cowell has filed a defence in proper form.

7 Accordingly, the orders I make are:

(1) that the defence filed 30 July 2014 be struck out;

(2) that prayer 2 of the plaintiff's notice of motion be stood over;

(3) that the first defendant have leave to file an amended defence within 28 days;

(4) that the proceedings be stood over before me for directions on 5 December 2014.

8 The first defendant Ms Cowell represents herself. She is not legally qualified. She has only part-time employment. She does not have the funds to retain a lawyer. The issues raised by the plaintiff's action are complex, the proceedings being proceedings in defamation. Ms Cowell has stated her intention to plead defences including a defence of truth on the strength of the contention that the plaintiff operates a dog rescue organisation which Ms Cowell says misuses public funds solicited from the public by Facebook.

9 In all the circumstances, I am satisfied that it is in the interests of the administration of justice for the court to refer Ms Cowell to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in settling an amended defence. The kind of assistance the subject of the referral is assistance in drafting an amended defence. I make that order pursuant to Rule 3.36 of the Uniform Civil Procedure Rules.

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Decision last updated: 10 November 2014