Al-Shennag v Woodcock [2013] NSWSC 696 (3 June 2013)

Last Updated: 11 June 2013

Supreme Court New South Wales

Case Title:	Al-Shennag v Woodcock
Medium Neutral Citation:	[2013] NSWSC 696
Hearing Date(s):	8 December 2011, submissions and further evidence closed 22 February 2012
Decision Date:	03 June 2013
Before:	McCallum J
Decision:	Proceedings dismissed
Catchwords:	PROCEDURE - application to have proceedings dismissed for failure to comply with directions and want of due despatch - where plaintiff representing self - numerous ill-conceived interlocutory applications and extensions of timetable
Legislation Cited:	Civil Procedure Act 2005 Defamation Act 1974 Uniform Civil Procedure Rules
Cases Cited:	Al-Shennag v Statewide Roads Ltd [2006] NSWSC 1226 Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 Al-Shennag v Statewide Roads Ltd [2009] HCASL 155 Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760 Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 366 Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412 A-S v Statewide Roads Ltd [2007] NSWSC 1472 Birkett v James [1977] 2 All ER 801; [1978] AC 297 Hoser v Hartcher [1999] NSWSC 527 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Category:	Interlocutory applications
Parties:	Abdullah Al-Shennag (plaintiff) Statewide Roads (first defendant) Bill Woodcock (second defendant)
Representation
- Counsel:	Counsel: M White (defendants)
- Solicitors:	Solicitors: (Plaintiff self-represented) Norton Rose (defendants)
File Number(s):	2005/269387
Publication Restriction:	None

JUDGMENT

1. These are proceedings for defamation commenced by Mr Abdullah Al-Shennag arising out of the publication of a report prepared for Bankstown City Council by Mr Bill Woodcock. Mr Al-Shennag is a civil engineer. At the time Mr Woodcock provided his report to the Council, Mr Al-Shennag was employed by the Council as a senior engineer in its Civic Services Group. Mr Woodcock is also an engineer. He was retained by the Council as an independent expert to assess the engineering conditions imposed on three development applications that had been assessed and processed by Mr Al-Shennag.

2. The proceedings are governed by the Defamation Act 1974 (now repealed).

3. Mr Al-Shennag initially sued two defendants, Mr Woodcock and a company, Statewide Roads Limited. Statewide Roads Limited was the ultimate holding company of the company which employed Mr Woodcock as a consultant specialist engineer. Judgment has been entered in its favour and accordingly Mr Woodcock is the only remaining defendant to the proceedings.

4. Mr Woodcock's report was published (by being provided to the Council in accordance with his retainer) in July 1999. Mr Al-Shennag's employment with the Council was terminated on 12 May 2000. He brought proceedings against the Council in the Industrial Relations Commission of New South Wales for unfair dismissal. Those proceedings were dismissed in December 2000. An application for leave to appeal against that decision was dismissed by the Full Bench of the Commission in August 2002.

5. These proceedings were commenced by statement of claim filed on 28 June 2005, shortly before the expiration of the limitation period for the action (then 6 years). The statement of claim was not served until 11 January 2006, more than 6 months later, by which time it was no longer valid for service unless an order was made extending that period: cf rule 6.2(4) of the Uniform Civil Procedure Rules. It is not clear from the material before me whether such an order was ever made.

6. Mr Woodcock now moves the Court for an order dismissing the proceedings for failure to comply with the Court's directions and for want of due prosecution of the proceedings. In the alternative, Mr Woodcock seeks an order dismissing Mr Al-Shennag's claim for damages for economic loss as an abuse of process. This judgment determines those applications.

7. The application to have the proceedings dismissed for want of prosecution is based on two grounds. First, it is contended that Mr Al-Shennag has failed to comply with orders of the Court made to advance the preparation of the proceedings for hearing. Secondly, it is contended that Mr Al-Shennag has made a series of frivolous, embarrassing and futile applications which have dragged out the proceedings and caused Mr Woodcock to incur unnecessary costs.

8. The application to have Mr Al-Shennag's claim for damages for economic loss dismissed as an abuse of process is based on Mr Al-Shennag's unsuccessful claim for unfair dismissal brought in the Industrial Relations Commission of New South Wales. In particular, it is submitted that, although there is issue estoppel arising from the determination of that claim, the cause of the termination of Mr Al-Shennag's employment was squarely in issue in those proceedings and it would be oppressive to Mr Woodcock to subject him to a re-litigation of that issue.

9. Before considering those matters, it is necessary to explain the stage the proceedings have reached.

Circumstances in which the application is brought

10. As already noted, the proceedings are governed by the now repealed Defamation Act 1974. Pursuant to s 7A of that Act, the functions of judge and jury were divided so as to require the jury to determine whether the matter complained of carried any imputation pleaded by the plaintiff and, if so, whether the imputation was defamatory: s 7A(3) of the Act. The jury also determined any issue as to publication. In respect of any imputation as to which those issues were determined in favour of the plaintiff, the court and not the jury was then to determine whether any defences had been established and the amount of any damages that should be awarded: s 7A(4) of the Act.

11. The pleading on which Mr Al-Shennag's action is to be determined is his amended statement of claim filed 29 May 2007. In accordance with the procedure commonly adopted in proceedings governed by s 7A, Mr Woodcock initially filed a defence to that pleading directed only to the issues reserved for the jury under s 7A(3), reserving his further defence pending the trial of those issues (defence of second defendant filed 9 August 2007).

12. The parties evidently agreed at some point to have the jury issues tried by judge alone. That hearing nonetheless proceeded in effect as a separate trial to determine only those issues.

13. The s 7A(3) trial was held over four days in December 2007 before Walmsley AJ and determined in an ex tempore judgment given on the final day of the hearing: A-S v Statewide Roads Ltd [2007] NSWSC 1472. His Honour found in favour of Statewide Roads on the basis that it was not a publisher of the report: at [29].

14. As to the case against Mr Woodcock, there were several issues to be determined. The first was an issue of identification. The report did not name Mr Al-Shennag, referring to the person who processed the three development applications in question only as "a member of staff" of the Council. In his amended statement of claim, Mr Al-Shennag identified a number of people to whom the report was published who allegedly knew that it was "about the plaintiff". He also pleaded a series of further contentions which amounted, in substance, to reliance upon the grapevine effect.

15. Walmsley AJ found that the report did identify the plaintiff. His Honour said:

30 As to the question of identification, there were no extrinsic facts particularised by the plaintiff, but when he sought to adduce evidence on that issue Mr White, I think very fairly, did not take the point that the matter had not been particularised. There was, as I have noted, the evidence of Mr Woodcock as to his learning the plaintiff was the person about whom his report was written.

31 I infer that the plaintiff was the person the subject of the material complained of. I took Mr White to concede that that was a finding open to me although he, of course, did not concede it. I find the matter complained of was of, and concerning, the plaintiff.

16. It is not clear from that passage of the judgment what evidence there was at the trial as to whether the report was published to any person who knew any extrinsic facts from which he or she was able to identify Mr Al-Shennag as the person whose performance was considered in the report. Mr Woodcock's evidence as to his own state of knowledge was of course not capable of determining that element of the claim.

17. Walmsley AJ further found (at [32]) that Mr Woodcock published the report and that five of the imputations pleaded by Mr Al-Shennag were carried by the report and were defamatory of him (at [44] to [48]). As to a sixth imputation relied upon by Mr Al-Shennag, his Honour found that the imputation was not conveyed in the natural and ordinary meaning of the words of the matter complained of. An attempt by Mr Al-Shennag to rely upon that imputation as a true innuendo (which had not been pleaded) was rejected (at [49] to [54] of the judgment).

18. The amended statement of claim also complained of a seventh imputation (imputation (g)). However, it was acknowledged on the face of the pleading that imputation (g) had been added without leave. That imputation was struck out by Nicholas J on 10 July 2007. I mention that background only because the pleading has never been amended to reflect his Honour's ruling.

19. The five imputations found to have been conveyed and to be defamatory were:

(a) that the plaintiff is an incompetent engineer;

(b) that the plaintiff by reason of his lack of knowledge and ability as an engineer does not deserve to remain as an employee of the Council;

(c) that the plaintiff is a silly engineer;

(d) that the plaintiff's work and actions as an engineer tend to bring a bad name to all professional engineers;

(e) that the plaintiff is useless for any employment as an engineer.

20. Walmsley AJ entered a verdict for Mr Al-Shennag against Mr Woodcock in respect of those five imputations. In doing so, his Honour was perhaps distracted by the language of s 7A(3) of the Act, which directs the court (in proceedings tried before a jury) to enter a verdict for the defendant in respect of any imputation found not reasonably capable of being conveyed or of bearing a defamatory meaning.

21. Mr Al-Shennag appealed against those aspects of the decision that had been determined against him. That appeal was dismissed on 12 November 2008: Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 at [83]. A cross-appeal by Mr Woodcock against some of the findings of Walmsley AJ was also dismissed: at [105].

22. In disposing of the appeals, the Court of Appeal noted that, since the proceedings were not tried before a jury, his Honour should not have entered a "verdict" in favour of Mr Al-Shennag in respect of the five successful imputations. The Court took the view that the proper order was:

that there be judgment for [Mr Al-Shennag] against [Mr Woodcock] to the effect that the imputations pleaded in paragraphs 13(a), (b), (c), (d) and (e) of the amended statement of claim filed on 29 May 2007 were conveyed by the matter complained of and were defamatory of [Mr Al-Shennag].

23. The Court set aside the orders of Walmsley AJ on that limited basis and substituted "judgment" in the terms set out above.

24. An alternative analysis of that issue is reflected in the practice in the defamation list of regarding the jury's (or the court's) determination of the s 7A(3) issues as being answers to questions anterior to the entry of any judgment, since it remains to determine whether any defence raised by the defendant has been established before a plaintiff is entitled to have judgment entered in his or her favour. In any event, the operative orders in the present case are those made by the Court of Appeal.

25. Following the determination of the appeals on 12 November 2008, the issues that remained to be determined by the Court in accordance with s 7A(4) of the Act were:

(a) whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and

(b) the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.

26. Mr Al-Shennag initially claimed damages in the amount of $6,244,149 (paragraph 15 of the amended statement of claim; he purports to have revised and updated that claim to $13,382,568 in his reply filed 5 August 2011).

27. In his amended statement of claim, Mr Al-Shennag has provided the following particulars of damage (reproduced here exactly as appearing in the pleading):

Particulars of damage

a. Inability to find employment since being sacked by the Council in May 2000 and resultant loss of almost 7 years of income; this damage being like to continue into the future.

b. Economic loss due to have to pass up a plan for the opportunity (LOP) to get a home loan to buy a family house in the second half of 1999, when his employment and employability as a professional engineer became insecure.

c. The loss of any opportunity to gain employment in a position appropriate to his high qualifications and long experience which might allow him to earn the appropriate and a reasonable income.

d. The loss of any prospect or the chance of developing his career and increasing his work experience, training and income;

e The loss of employer's contributions to his superannuation scheme, potentially up till retirement at age 65 years; plus its investment returns thereon over many years.

f. Distress that has brought him ill-health, pain and suffering, and brought his family suffering, and severely damages his social life.

The plaintiff claims:

A. Compensatory damages in the amount of $6,244,154

Particulars:

i. Economic losses

Item	Description and the type of the economic loss	Period covered	Value($)	Notes
1.	Losing of opportunity due to passing up the plan to buy a house for the family (in the second half 1999) when his employment and employability became insecure as a result of the defendants defamatory actions.	-	$550,000	This is the difference in cost of similar house in 1999 and that in 2007.
2.	Losing of wages between July 1999 and 2007	8 yrs	$989,747	-
3.	Pre-judgment interests on lost wages (99-07) per Sec 94 of the Supreme Court Acct 1970	8 yrs	$93,698	Rates in schedule 5 of UCPR 2005
4.	Employer's contribution to LG's super (12%of wages) between July 2000 and 2007.	7 yrs	$118,769	-
5.	Losing superannuation investment returns between July 2000 and 2007	7 yrs	$58,977	-
6.	Losing of wages between July 2007 and January 2022	21.5 yrs	$3,529,658	Until retirement at age 65 yrs old
7.	Losing Employer's contribution (12% of wages) between July 2007 and January 2022.	21.5 yrs	$423,559	Investment return is not applicable to this period.
8.	Out of pocket costs for some (not all) related miscellaneous items.		$29,746	All costs to be reviewed in the date of judgment. Not all items are included here.

ii. Non Economic loss ($450,000) for his and his family's pain and suffering due to the related distress and loss of usual social activities and happiness.

iii. Pre-judgment Interests under S94 and schedule 5 of the Uniform Civil Procedures Rules (UCPR) of 2005, as applicable in the date of judgment.

28. Mr Woodcock filed his substantive defence on 12 November 2009. By that defence, Mr Woodcock denies that the publication of the report caused any of the damage allegedly suffered by Mr Al-Shennag (paragraph 13); says alternatively that in the event that it is found that the publication of the report caused the damages complained of, he is nonetheless not liable to Mr Al-Shennag for those damages because Mr Al-Shennag failed to take reasonable steps to mitigate his damage (paragraph 14); says that the claim for economic loss caused by the termination of Mr Al-Shennag's employment is an abuse of process (paragraph 15); says that the report and the imputations were published on an occasion of qualified privilege at common law and under s 22 of the Defamation Act 1974 (paragraph 16); says that Mr Al-Shennag consented to the publication of the report to the Council (paragraph 17); relies on the defence of unlikelihood of harm (paragraph 18) and raises a number of matters in mitigation of any damages for which he may be found liable to the plaintiff (paragraph 19).

29. It has since been indicated on Mr Woodcock's behalf that he does not press the defence of unlikelihood of harm.

30. As already noted, Mr Al-Shennag filed a reply to the defence on 5 August 2011. The reply itself runs to some 45 pages. In addition, it contains a series of annexures including an updated summary of damages now claimed in the sum of $13,382,568.

Interlocutory applications

31. Mr Al-Shennag represents himself in the proceedings. Whilst he is evidently a man of considerable intelligence and ability, his lack of formal legal training and his personal interest in, and perspective of, his claim are reflected in his conduct of the proceedings, which have been dogged from the outset by a series of ill-conceived applications brought by Mr Al-Shennag and by his persistent resistance to the ordinary interlocutory procedures of the Court.

32. On 7 June 2006, almost a year after commencing the proceedings, Mr Al-Shennag made an application for orders for preliminary discovery pursuant to r 5.2 of the Uniform Civil Procedure Rules. The application was plainly misconceived. The purpose of the rule is to assist a person who cannot ascertain the identity or whereabouts of a prospective defendant. Nicholas J dismissed Mr Al-Shennag's application on the grounds that the identify of the publishers of the matter complained of was already known to him (ex tempore judgment given 22 June 2006, unpublished). His Honour ordered Mr Al-Shennag to pay the defendants' costs of the motion.

33. On 11 July 2006 Mr Al-Shennag served a proposed amended statement of claim. The proposed amendment was objected to on the grounds that it sought to introduce new claims (against new parties) that were statute-barred. On 5 September 2006, Mr Al-Shennag filed a notice of motion seeking an extension of the time for commencing proceedings against those parties.

34. The proposed amendment was manifestly out of time, the time for bringing proceedings on Mr Al-Shennag's defamation action having expired on 9 July 2005. Simpson J dismissed the application on 17 November 2006: see Al-Shennag v Statewide Roads Ltd [2006] NSWSC 1226. The judgment does not record any order as to costs.

35. On 4 December 2006, following the publication of the decision of Simpson J, Mr Al-Shennag sought an adjournment of a directions hearing scheduled for 5 December 2006 until 1 February 2007. He then filed a holding summons for leave to appeal against her Honour's decision, following which he sought a further adjournment of the directions hearing. In March 2007, he wrote to the Court advising that he was unable to prepare the white folder for the appeal and also to respond to the defendants' further objections to the proposed amended statement of claim within the specified time. So far as the evidence reveals, the matter appears to have been left there.

36. On 22 May 2007 Nicholas J heard argument as to the proposed amended statement of claim. On 29 May 2007 Mr Al-Shennag filed and served an amended statement of claim which included (without leave) an additional imputation (g). As already noted, that imputation was subsequently struck out by Nicholas J on 10 July 2007.

37. As noted above, the s 7A(3) trial was determined by Walmsley AJ on 12 December 2007. Following that decision and before the determination of Mr Al-Shennag's appeal to the Court of Appeal, Mr Al-Shennag made an application in this division seeking to set aside the decision of Walmsley AJ and to amend the pleading by adding new causes of action against Mr Woodcock. In dismissing that application, Nicholas J noted that a similar application to amend had been made during the hearing before Walmsley AJ and refused by his Honour, who noted that "the case was finished" and that it was inappropriate to grant leave to amend as sought. After filing his application for leave to appeal against the decision of Walmsley AJ, Mr Al-Shennag nonetheless brought a second application to amend before Nicholas J.

38. The amendment application sought to invoke the Court's power under s 65(2)(c) of the Civil Procedure Act 2005, which permits a plaintiff, with leave, to add a new cause of action that arises from the same, or substantially the same, facts as those giving rise to an existing cause of action. Nicholas J held (at [20]) that the new material sought to be relied upon "self-evidently" could not be said to have "any relevant connection to the publication of the matter which gave rise to the causes of action in the present proceedings". Separately, his Honour observed (without deciding) that it may be manifestly hopeless to contend that any of the new publications was capable of conveying any of the imputations sought to be pleaded: at [23]. His Honour dismissed the notice of motion and ordered Mr Al-Shennag to pay Mr Woodcock's costs. His Honour also ordered Mr Al-Shennag to pay the expenses of a number of people subpoenaed by him to attend Court for the hearing of the motion.

39. As already noted, the appeals to the Court of Appeal were dismissed on 12 November 2008. On 10 December 2008 Mr Al-Shennag filed an application for special leave to appeal to the High Court against that decision. In that application, he also sought leave to appeal against the order of Nicholas J made 10 July 2007 striking out imputation (g) (even though there had been no appeal to the Court of Appeal against that latter decision). The application for special leave was dismissed by the High Court on 5 August 2009: Al-Shennag v Statewide Roads Ltd [2009] HCASL 155. The application appears to have been determined on the papers. The judgment does not record any order as to costs.

40. In the meantime, following the Court of Appeal's decision dismissing both appeals, the Registrar made a number of procedural directions for the future conduct of the proceedings, including an order granting access to the parties to the file of the Industrial Relations Commission in Mr Al-Shennag's application for unfair dismissal. The Registrar granted first access to those documents to Mr Al-Shennag.

41. On 30 December 2008, Mr Al-Shennag sought an extension of the time for reviewing those documents. However, on 14 January 2009, he filed a notice of motion seeking review of the Registrar's directions. Mr Al-Shennag also sought an order setting aside a subpoena allegedly issued by Mr Woodcock; an order for discovery or production of documents by Mr Woodcock and a stay of the proceedings pending the determination of his application for special leave to appeal to the High Court.

42. That application was dismissed by Hall J on 30 March 2009: Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210. His Honour described the application for review of the Registrar's decision as being "without merit" (at [57]); the application for an order setting aside the alleged subpoena as "wholly misconceived" (at [58]) and otherwise rejected Mr Al-Shennag's contentions. The misconception as to the alleged subpoena was that none had been issued by Mr Woodcock - a request had been made by the Registrar for the production of the documents under rule 33.13 of the Uniform Civil Procedure Rules. His Honour ordered Mr Al-Shennag to pay Mr Woodcock's costs of the application.

43. The matter then came back before the Registrar on 3 April 2009 who again granted first access to the Industrial Relations Commission documents to Mr Al-Shennag until 7 May 2009.

44. On 17 April 2009, a subpoena was issued at the request of Mr Woodcock seeking the production of documents by Bankstown City Council. Mr Al-Shennag sought to have that subpoena quashed as an abuse of process. That application was dismissed by Adams J in an ex tempore judgment delivered on 19 May 2009. His Honour ordered Mr Al-Shennag to pay the costs of the application: at [23].

45. The subpoena was then made returnable on 16 June 2009, when Mr Al-Shennag was granted first access until 14 July 2009. On 6 July 2009, Mr Al-Shennag sought a further 3 months to inspect those documents and a further month to notify the defendant of his objections to access. The extension was opposed by the defendants and a direction ultimately made allowing Mr Al-Shennag first access until 1 September 2009. He sought a further two-week extension and ultimately on 16 September 2009 served two schedules identifying his objections to access to the two sets of documents produced to the Court by the Industrial Relations Commission and the Bankstown City Council.

46. Mr Woodcock was accordingly forced to contest his entitlement for leave to inspect those documents. That application first came before me in November 2009. In order to determine the application, it was necessary for me to inspect at least some of the documents. I directed Mr Al-Shennag to isolate, from among the documents produced, one copy of every document the subject of an objection. He identified 12 categories of documents in 12 separate envelopes. On 3 May 2010, I granted leave to Mr Woodcock to inspect all of the documents with the exception of envelope 10, as to which Mr Woodcock did not press his application, since the documents were identified as "without prejudice" correspondence. Mr Woodcock was accordingly successful in obtaining leave to inspect all of the disputed categories of document. Mr Al-Shennag's opposition to inspection of those documents was, in the main, misconceived: see Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 366 for example at [24], [27], [37], [39], [41] and [53].

47. Mr Al-Shennag also resisted leave being granted to the parties to use the Industrial Relations Commission documents in these proceedings despite seeking leave to use those documents himself. That application was heard in the Industrial Relations Commission over two days on 25 and 28 February 2011 before leave was granted to both parties by Staff J on 21 March 2011.

48. Mr Al-Shennag submits, in opposition to the present application, that a deal of the delay caused by the disputes over inspection of the Bankstown City Council and Industrial Relations Commission documents falls at the feet of Mr Woodcock. In particular, Mr Al-Shennag accuses Mr Woodcock of having wasted time and incurred unnecessary costs investigating a proposed truth defence. I do not accept that submission. The documents were relevant not only to a potential truth defence but also to the issue squarely raised by Mr Al-Shennag's own claim as to whether the termination of his employment was caused by the publication of the matter complained of. The primary source of documents on that issue is the Council and it is an issue that was fully ventilated in the proceedings in the Industrial Relations Commission.

49. Mr Al-Shennag has also made ill-conceived objections to the defences raised by Mr Woodcock. As already noted, Mr Woodcock's substantive defence was filed on 12 November 2009. After receiving the defence, Mr Al-Shennag made a series of requests for further and better particulars. In response to Mr Al-Shennag's third such request, fearing the futility of providing a response in light of the course of earlier correspondence, Mr Woodcock made an application in the defamation list for a ruling as to whether he was required to provide any further particulars. I determined that application on 9 July 2010. Whilst Mr Al-Shennag enjoyed some success in obtaining directions for the provision of a limited number of further particulars, in the main the hearing of the application revealed that many of his requests were completely misconceived and that considerable time and expense must have been wasted by those acting for Mr Woodcock during the course of the correspondence: Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760.

50. Mr Al-Shennag then applied to have Mr Woodcock's defences struck out (in an amended notice of motion filed on 23 September 2010). On 8 December 2010, I dismissed that application: Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412. At [5] of that judgment, I noted that some of the relief sought by Mr Al-Shennag duplicated applications previously agitated by him and determined by me. Leaving aside the duplicated prayers for relief, the substance of the application was for summary judgment under r 13.1 of the Uniform Civil Procedure Rules and, alternatively, an order striking out paragraphs 16 and 17 of the defence. I noted at [9] of the judgment that the application was hopeless, reflecting either ignorance of or misconception as to the principles applicable to such applications.

51. On 3 February 2011 the proceedings came before me for directions. Mr Al-Shennag was ill and did not appear. I made directions in his absence including orders for the serving of affidavit evidence. Mr Al-Shennag subsequently contested those orders. Since he had been absent when they were made, the matter was relisted for 8 March 2011. On 7 March 2011, Mr Al-Shennag served and sent to the Court a document setting out his objections to my judgment of 8 December 2010. On 11 March, Mr Al-Shennag served and sent to the Court a statement of his "response" to my judgment given on 9 July 2010. However, so far as I am aware, leave to appeal has not been sought in respect of either judgment.

52. When the matter came before me on 8 March 2011, I made a series of directions including ordering Mr Al-Shennag to serve all affidavit evidence by 19 August 2011. On 13 July 2011 Mr Al-Shennag wrote to Mr Woodcock's solicitor seeking an extension of the time for compliance with the orders made on 8 March including an order extending the time for serving his evidence until 2 September 2011.

53. On 19 July 2011, I made directions extending the previous timetable by consent. I directed Mr Al-Shennag to file and serve all affidavit evidence by 2 September 2011. The timetable provided for Mr Woodcock to file and serve his affidavit evidence by 30 September 2011; for Mr Al-Shennag to file and serve any affidavit evidence in reply by 14 October 2011 and for the matter to be listed for further directions on 28 October 2011.

54. Mr Al-Shennag did not serve his evidence by 2 September 2011 as directed. In the intervening period, on 18 August 2011, he filed a notice of motion seeking leave to inspect the documents produced by Bankstown City Council over which the Council had claimed client legal privilege. That motion was made returnable on 12 September 2011 before me. Separately, on 23 August 2011, Mr Woodcock filed his motion seeking to have Mr Al-Shennag's claim for economic loss dismissed as an abuse of process.

55. When Mr Al-Shennag's motion came before me on 12 September 2011, he made an application that I disqualify myself from hearing any issues in the proceedings on the grounds of apprehended bias. The application was based on the outcome of the three judgments I had published in the proceedings in 2010. Mr Al-Shennag submitted that the contents of my reasons for decision would have a tendency to represent to any reasonable person that I had prejudged the issues in the proceedings. I dismissed that application. Mr Al-Shennag attempted to renew that application at the outset of the hearing of the present application, having foreshadowed that course only by letter to the Principal Registrar. I declined to entertain the second application.

56. I stood over Mr Al-Shennag's notice of motion for leave to inspect the documents produced by Bankstown City Council over which the Council claimed client legal privilege for hearing on 4 November 2011. On that occasion, Mr Woodcock foreshadowed amending his motion and Mr Al-Shennag foreshadowed filing a further motion himself. I made directions with a view to hearing all three motions, if practicable, on 4 November 2011.

57. Mr Woodcock filed his amended notice of motion on 27 September 2011, adding the claim for dismissal of the proceedings for want of due despatch (the application determined in this judgment).

58. Mr Al-Shennag filed his notice of motion on 30 September 2011. The relief sought in that motion is as follows:

· To Strike out the second defendant's defence based on admission (r17.7UCPR).

1. An order pursuant to r17.7 UCPR, declaring that:

(1) the second defendant's pleaded defence of Qualified privilege both under common law and s22 of the Defamation Act 1974, pleaded in paragraph 16(a-j) in his defence dated 12.11.11 is deemed to be failed and to be struck out based on admissions or implied admissions in these proceedings including in his pleadings, and/or in his reply to interrogatories;

(2) The second defendant's pleaded defence Consent pleaded in paragraph 17 in his defence deemed to be failed and to be Struck out based on his admissions in these proceedings expressly and/or impliedly including in his pleadings, submissions, and in his reply on 2.5.11 to interrogatories that were served to him on 22.03.11 as per the court order on 8.3.11;

(3) The second defendant pleadings in paragraph, 13, and 15 in the defence deemed to be irrelevant and to be struck out based on admissions by the second defendant including in his pleadings, submissions, affidavits of evidence, and /or in his reply on 2.5.11 to the interrogatories that were served to him on 22.3.11 as per the court order on 8.3.11; or alternatively to be struck our; and /or

2. The second defendant's defence in paragraphs 13,14,15,16, and 17 to be struck out pursuant to s61(3)(C), and /or 12(7)(2)UCPR, and /or r22.5)UCPR; and/or

3. The second defendant's defence in paragraphs 13,14,15,16, and 17 is an abuse of the process are to be struck as being vexatious, irrelevant and inapplicable to any questions of law and /or facts to those requires to be heard and decided in these defamation proceedings pursuant to the Defamation Act1974.

· To dismiss the D's NOM, and all issues to be dealt with in the final trial.

4. The second defendant's NOM dated 23.8.11 ,is an abuse of process and tend to pervert the course of justice in these proceedings and to be struck out;

5. The second defendant's Notice Of Motion filed and served on 27.09.11 is an abuse of process and tend to pervert the course of justice in this matter, and to be dismissed with cost.

· An Order the parties to be engaged in mediation process in good faith to negotiate for the purpose to try settle all issues in the matter.

6. An order that the parties to be engaged in good faith to negotiation between them in order to reach to reasonable settlements in respect of all the remaining issues in these proceedings;

7. Should the parties fail to resolve and settle the matter between them within 4 weeks the parties to approach the court to list the matter for further directions including to list the matter to hear ad decide the all reaming issues in final trial before the court;

8. All remaining related issues including in respect of the plaintiff's damages to be heard, argue and decided in the same final trial in these proceedings;

· To answer interrogatories (as per part 22UCPR)

9. As being still relevant to the issues of damages also the second defendant to file andserve his full verified answers without evasion within 10 days in accordance with thecourt order on 8.3.11, and r22.4(b)UCPR for the following numbers of interrogatories

59. Mr Al-Shennag's earlier application for leave to inspect the documents produced by Bankstown City Council did not proceed on 4 November 2011. I heard that application on 30 November 2011. On 8 December 2011, I dismissed the application.

60. As submitted on behalf of Mr Woodcock, that background amply demonstrates that the plaintiff has not availed himself of the opportunities offered by the Court's processes and directions since the conclusion of the s 7A trial before Walmsley AJ to progress the balance of his matter to trial. On the contrary, he has persistently sought to dispute every procedural step, frequently without any proper foundation for doing so.

Power to dismiss proceedings for want of prosecution

61. Mr Woodcock's application to have the proceedings dismissed invokes the power of the court under s 61(3) of the Civil Procedure Act 2005 and, alternatively, the Court's power under r 12.7(1) of the Uniform Civil Procedure Rules.

62. Rule 12.7 provides:

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

63. Section 61 of the Act provides:

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following:

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) It may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b) it may strike out or limit any claim made by a plaintiff,

(c) it may strike out any defence filed by a defendant, and give judgment accordingly,

(d) it may strike out or amend any document filed by the party, either in whole or in part,

(e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f) it may direct the party to pay the whole or part of the costs of another party,

(g) it may make such other order or give such other direction as it considers appropriate.

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

64. Mr Woodcock relied upon the statement of the principles applicable to the exercise of the power to dismiss proceedings for want of prosecution considered by Hayden JA in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. Those principles were summarised in Mr Woodcock's submissions as follows:

(a) the applicant for dismissal is not required to show "inordinate and inexcusable delay" giving rise to a "substantial risk of no fair trial", or "intentional and contumelious" disregard of Court orders by the other party: Micallef at [51];

(b) rather the Court must balance the interests of the parties and decide whether justice demands dismissal: Micallef at [51];

(c) a plaintiff who enlists the judicial arm of the State by invoking legal process and persistently fails to comply with the conditions laid down may be said to abuse the process invoked, and this can constitute contumelious conduct in the absence of an explanation: Micallef at [55];

(d) it is a form of prejudice suffered by a defendant that he or she has to remain active in litigation never brought to finality -each aborted hearing, each fruitless step, each month that passes without the day of decision being fixed adds to the prejudice: Micallef at [59]-[60];

(e) Rule 12.7 of the UCPR (the equivalent provision to that considered in Micallef) contemplates the possible termination of a case without determination of an issue between the parties on the merits. Such termination is not necessarily unreasonable or unjust: Micallef at [63]-[64], [85];

(f) serving evidence or other documents at the last moment will not necessarily cure the prejudice: Micallef at [86];

(g) nor is it unfair that proceedings be dismissed upon the first application for dismissal or without prior warning, especially when the judge has warned that dismissal may occur: Micallef at [88], [89], [91].

65. As noted in Mr Al-Shennag's supplementary submissions at paragraph 17(a), the facts of that case were very different from the present. In particular, the court's discretion in Micallef had specifically been exercised on the basis of a failure to comply with a direction. Whilst that is also a basis for the present application, the application also relies upon the alleged failure to prosecute the proceedings "with due despatch" as in rules. Whereas in Micallef, the plaintiff had been dilatory, the burden of Mr Woodcock's submission is that Mr Al-Shennag's conduct of the litigation is at once overzealous and misdirected.

66. Mr Al-Shennag submitted at paragraph 17(d) of his supplementary submissions that, in the first principle set out above, counsel for Mr Woodcock has misquoted Micallef at [51], Mr Al-Shennag contends (in effect) that Heydon JA was there endorsing the test stated by Lord Diplock in Birkett v James [1977] 2 All ER 801; [1978] AC 297 at 318. I think Mr Al-Shennag's submission reflects a misreading of the decision in that respect.

67. Mr Al-Shennag relied upon the principles summarised by Simpson J in Hoser v Hartcher [1999] NSWSC 527 at [20] to [30]. That is also a useful and in some respects more comprehensive summary of the relevant principles, although it goes without saying that I am bound by the Court of Appeal to the extent of any difference or inconsistency. Her Honour said:

It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:

(1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J;

(2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;

(3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;

(4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.

(5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA;

(6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;

(7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

(8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay;

(9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J;

(10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;

(11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

Evidence relied upon in respect of the present application

68. In support of his application, Mr Woodcock relied principally upon the procedural history recounted above. The defendant's submissions addressing those matters are sparse and belie the complexity of the matters that have been raised for the Court's determination in these proceedings to date. One of the difficulties of determining the present application was the sheer volume of material before the Court, the state of that material and the convoluted course of the interlocutory processes it records.

69. Mr Woodcock further relies upon the affidavits of Marnie McConnell sworn 23 August 2011 and 26 September 2011. Exhibit MM8 to the second affidavit is a chronology of the proceedings, much of the detail of which is included in the material above. Mr Al-Shennag disputes that chronology and has provided a detailed response to it, which I have also considered.

70. Ms McConnell states that the second defendant has incurred over $200,000 in defence costs in the proceedings thus far. He has un-enforced costs orders against Mr Al-Shennag as follows:

(a) the costs of the motion dismissed by Nicholas J on 20 May 2008;

(b) the costs of dismissal of Mr Al-Shennag's appeal against the decision of Walmsley AJ on 28 October 2008;

(c) the costs of the dismissal by Hall J of the review of the orders of Registrar Bradford on 30 March 2009;

(d) the costs of Mr Al-Shennag's application to set aside a subpoena issued to Bankstown City Council dismissed by Adams J on 19 May 2009;

(e) the costs of Mr Al-Shennag's application for summary judgment dismissed by me on 8 December 2010.

71. Against that consideration, Mr Al-Shennag states in his supplementary submissions that he has "unforced (sic) costs orders" against Mr Woodcock. I do not understand how that can be the case, given that Mr Al-Shennag has always been unrepresented. He relies in particular on four occasions. One is the occasion on which Nicholas J granted leave to amend on 22 May 2007. The second is a reference to 10 July 2007, when Nicholas J struck out imputation (g). On each of those occasions, Nicholas J ordered that the costs of the hearing be the defendant's costs in the cause. Those were not orders in favour of Mr Al-Shennag. A third is the costs before Walmsley AJ. Mr Al-Shennag asserts that his costs of the s 7A trial "to be paid by [Mr Woodcock]". However, the judgment records that Walmsley AJ reserved costs. Finally, Mr Al-Shennag refers to the costs of the cross-appeal. The Court of Appeal ordered Mr Woodcock to pay Mr Al-Shennag's disbursements, if any, in respect of the summons for leave to cross-appeal and the cross-appeal. The impact of that order pales by comparison with the costs incurred by Mr Woodcock.

72. Returning to Ms McConnell's affidavit, she states that Mr Woodcock's former employer is insured by a professional indemnity insurance policy, the limit of indemnity of which is "costs inclusive". She states that the limit of indemnity available to Mr Woodcock continues to be eroded by the incurring of ongoing defence costs, although the limit is not identified in the affidavit.

73. Ms McConnell also deposes to the personal impact on Mr Woodcock of the proceedings. Without descending to the detail of that material, it is enough to say that he has understandably suffered a substantial degree of stress and anxiety as a result of the proceedings being on foot since 2005. Mr Al-Shennag has also relied upon a great deal of material going to his own stress, angst and ill-health which he attributes to the publication of Mr Woodcock's report.

74. As already noted, following the service of Mr Woodcock's amended notice of motion the subject of this judgment, Mr Al-Shennag served his notice of motion dated 30 September 2011. I determined that it was appropriate to consider Mr Woodcock's application first. In response to Mr Woodcock's application, Mr Al-Shennag relied on his affidavit no. 10 (by way of explanation, Mr Al-Shennag has throughout the proceedings numbered his affidavits consecutively). That affidavit was affirmed on 13 October 2011.

75. Mr Al-Shennag also relied upon his affidavit no. 9 (affirmed 28 September 2011), although that affidavit appears to have been prepared primarily in support of Mr Al-Shennag's own notice of motion. After the hearing of Mr Woodcock's motion, Mr Al-Shennag filed a supplementary affidavit no. 9 to correct some errors and typing mistakes in the original affidavit no. 9.

76. At the hearing of Mr Woodcock's application, Mr Al-Shennag also handed up his affidavit no. 11. That affidavit had not been served on Mr Woodcock in advance of the hearing and I did not allow Mr Al-Shennag to rely upon it. He then filed the affidavit in the Registry on 30 January 2012.

77. Following the hearing of the motion, Mr Al-Shennag also filed his affidavit no. 12 headed "evidence in chief" (filed on 10 January 2012) and a witness statement prepared by his wife (filed on 22 February 2012), evidently pursuant to the direction made on 19 July 2012 that he file his affidavit evidence in the proceedings by 2 September 2012. As is plain from that chronology, there can be no dispute that Mr Woodcock has established flagrant breach of the directions of the Court on the part of Mr Al-Shennag.

78. Returning to the evidence on the motion, affidavit no. 10 opens with Mr Al-Shennag's customary explanation that the affidavit is not relied upon in substitution for earlier affidavits and that, in order to avoid duplication and to reduce the body of the affidavit and exhibits, he refers to relevant parts of his previous affidavits no. 1, 2, 3, 4, 5, 8 and 9 and the documents annexed and exhibited to those affidavits. Affidavit 10 itself exhibits a bundle of documents of about 280 pages.

79. A number of observations may be made as to the contents of Mr Al-Shennag's affidavit no. 10. First, the affidavit is directed primarily to the substantive issues in the proceedings, not the current motion. Leaving aside introductory matters, the affidavit is divided into three parts. Part 1 (pages 4 to 19) addresses the circumstances in which Mr Woodcock was retained to provide his report; the course of preparation and publication of the report and Mr Al-Shennag's allegations that the report defamed him and caused the termination of his employment. The affidavit also addresses the unfair dismissal proceedings brought in the Industrial Relations Commission.

80. Mr Woodcock's application to have the proceedings dismissed is addressed in part 2 of the affidavit at pages 19 to 20. That part opens by referring to Mr Al-Shennag's outline of submissions filed 17 October 2011 (reproduced at pages 264 to 280 of the exhibit to the affidavit). Part 2 otherwise articulates a request for further time to respond to all of the issues raised by the application to have the claim dismissed and complains that both the submission and the affidavit were prepared in a rush in order to comply with the Court's order.

81. Part 3 of affidavit no. 10 gives Mr Al-Shennag's summary of the course of the proceedings.

82. Notwithstanding Mr Al-Shennag's complaint that he had had insufficient time to meet Mr Woodcock's application, his outline of submissions filed 17 October 2011 (running to some 17 pages of closely typed print) is discursive and prolix, providing considerable detail of the grounds on which he opposes the relief sought. On the morning of the hearing, Mr Al-Shennag supplemented that submission with a supplementary submission of a further 44 pages of closely typed print. At the hearing of Mr Woodcock's application, Mr Al-Shennag stated at 4pm that he still had "lots of things to say". I granted him leave to put in a further written submission, which he did on 1 February 2012.

83. The language of the written submissions is difficult and repetitive. Frequent reference is made to a large amount of extraneous material. As with many of Mr Al-Shennag's documents which I have seen in the course of determining previous applications, the submissions reflect his lack of legal training. That is not a criticism. Rather, it serves to explain that fair consideration of Mr Al-Shennag's prolix submissions requires time, patience and a preparedness to look beyond the inscrutable language of the document. Whilst these remarks do not excuse my own inordinate delay in these proceedings, they serve to explain some of the difficulties.

84. In paragraph 3 of the outline of submission filed 17 October 2011, Mr Al-Shennag notes that he proposes to move the Court to strike out the defences pleaded by Mr Woodcock (as reflected in Mr Al-Shennag's notice of motion filed 30 September 2011). As recorded above, I have already determined a previous application by Mr Al-Shennag to have Mr Woodcock's defence struck out.

85. An important point made in Mr Al-Shennag's submissions is that the relief sought would deprive him of the opportunity to have his claim determined on the merits. Those are not the terms in which that submission is expressed. Mr Al-Shennag accuses Mr Woodcock of making a misleading application with the intention of perverting the course of justice. Whilst I reject that allegation in terms, I would understand Mr Al-Shennag's point to be that the Court should not lightly deprive a plaintiff of his entitlement to have a claim determined on its merits in a contested hearing. That much must plainly be accepted.

86. That is particularly so where, as acknowledged in Mr Woodcock's submissions, Mr Al-Shennag has successfully obtained a judgment in his favour to the effect that imputations (a) to (e) were conveyed by the matter published by Mr Woodcock and that those imputations were defamatory of Mr Al-Shennag. That, of course, is not the end of the matter. Whether the publication of defamatory material gives rise to an entitlement to damages turns on the determination of any defences.

87. Separately, Mr Al-Shennag relies upon a series of discrete reasons for opposing the relief sought. First, noting that he is a self represented litigant who suffers emotionally, physically and financially, Mr Al-Shennag contends that he has always complied with the orders of the Court to the best of his ability and without any intention to cause delay. He says that, if there was ever any short delay, it was due to circumstances beyond his control or caused by unreasonable conduct on the part of Mr Woodcock. Mr Al-Shennag further asserts that he has always kept Mr Woodcock's legal representatives and the Court informed about any possible delay and sought additional time where appropriate. I must also take into account the vast amount of work undertaken by Mr Al-Shennag to date.

88. Next, Mr Al-Shennag asserts that Mr Woodcock has himself contributed to the delay. He relies in particular on the time taken to investigate the potential truth defence and the large quantity of documents obtained to that end. As already noted, however, those documents are also relevant to Mr Al-Shennag's claim for economic loss which it was plainly necessary for the defendant to investigate.

89. Mr Al-Shennag further submits that Mr Woodcock has himself failed to comply with orders of the Court, including refusing to answer Mr Al-Shennag's interrogatories or objecting to answer them "without merit". Mr Al-Shennag asserts that Mr Woodcock's failure to answer interrogatories has obstructed Mr Al-Shennag from serving his evidence in chief. The disputes between the parties as to the adequacy of Mr Woodcock's answers are the subject of Mr Al-Shennag's further notice of motion filed 30 September 2011. It is not possible for me to judge whether there is any force in that contention.

90. Next, Mr Al-Shennag asserts that Mr Woodcock's motion to have the proceedings dismissed itself prevented him from complying with the order to serve his evidence, distracting his attention to defending the present application. I reject that submission. Mr Woodcock's application was made after the second date for compliance with the Court's orders had passed.

91. As to Mr Woodcock's complaint that Mr Al-Shennag has failed to file evidence in support of his claim for economic and non-economic loss, Mr Al-Shennag asserts that his reply filed 5 August 2011 includes all of the particulars he relies upon to prove that claim at the final hearing. As already noted, the reply provides a reviewed and updated summary of damages, claiming compensatory damages in the sum of $13,382,568. It may be seen that Mr Al-Shennag's reliance on that material confuses particulars with evidence. The reply provides no evidence to support the amounts claimed.

92. Mr Al-Shennag asserts that he has already filed or served about 90% of his documentary evidence (about 2000 pages) and that he has always worked very hard and to the best of his ability to comply with the orders of the Court on time in order to bring the matter for final trial as soon as possible.

93. Separately, Mr Al-Shennag asserts that Mr Woodcock has "already admitted or deemed to be admitted about 90% of the facts in respect of the issues of disputes in this proceedings". I do not understand that contention. It is clear on the pleadings that Mr Woodcock raises affirmative defences to the defamatory imputations found conveyed and, further, that he disputes in any event that the publication of his report has caused the loss claimed.

94. Mr Al-Shennag points to other aspects of the conduct of the proceedings on behalf of Mr Woodcock in opposing the relief sought. First, he asserts that Mr Woodcock failed to file and serve his defence for about four years. That is not correct. As already noted, the accepted practice in the defamation list in respect of proceedings governed by the Defamation Act 1974 after the introduction of s7A of that Act was to file a defence addressing only the section 7A(3) issues pending the trial of those issues with a jury. Following the determination of those issues, Mr Al-Shennag appealed to the Court of Appeal and then sought leave to appeal to the High Court. Indeed, as already noted, he himself sought a stay of the proceedings pending the High Court's determination of that application. The defence was filed within a year of the decision of the Court of Appeal. The intervening period appears to have been largely consumed with interlocutory procedures and applications contested by Mr Al-Shennag as outlined above.

95. Mr Al-Shennag also complains that some of the time that passed before Mr Woodcock filed his defence was spent obtaining documents directed to determining whether Mr Woodcock would rely on the defence of truth. Mr Woodcock has not ultimately relied upon that defence. Nonetheless, nothing in the material I have seen suggests that he was not entitled to investigate that issue, which is raised by Mr Al-Shennag's own assertions (presumably to support a claim for aggravated damages) that the imputations are false. As already noted, the material was also relevant to the issue of causation of loss.

96. As to the proposed truth defence, Mr Al-Shennag submits (at paragraph 10 of his outline of submissions filed 17 October 2011) that in order to plead the defence of truth, it was necessary for Mr Woodcock to believe in the truth of the defamatory imputation at the time of his preparing and publishing the report. That is not correct as a statement of the law.

97. A separate contention made by Mr Al-Shennag focuses on the dates on which certain decisions have been handed down in these proceedings. In particular, Mr Al-Shennag complains that my decision following inspection of documents identified by Mr Al-Shennag was handed down on 3 May 2010, the anniversary of the day on which his employment was terminated by the Council. Mr Al-Shennag further notes that my decision ruling on the adequacy of the particulars provided in support of Mr Woodcock's defence was published on 9 July 2010, the anniversary of the publication of the matter complained of. Finally, Mr Al-Shennag asserts that his application to have the defences struck and for summary judgment was dismissed by me on 8 December 2010, the anniversary of the Industrial Relations Commissions' dismissal of his unfair dismissal proceedings, I do not think that the coincidence of those dates has any bearing on the present application.

98. Mr Al-Shennag further complains that Mr Woodcock's service of a subpoena which resulted in the production of 15,000 documents was unreasonable and vexatious and forced him to make applications to challenge and set aside the subpoenas. As already noted, however, Mr Al-Shennag's applications in respect of the subpoena issued at the request of Mr Woodcock have not been successful.

99. Mr Al-Shennag further complains of an alleged inconsistency between Mr Woodcock's denial that the report in fact conveyed the imputations complained of by Mr Al-Shennag and his subsequent answer to an interrogatory to the effect that he intended to convey imputations (a), (c) and (d) and honestly believed in the truth of those imputations. Mr Al-Shennag complains that, in the face of the answer to the interrogatory, it may be seen that Mr Woodcock should have admitted from the outset of the proceedings that the imputations were in fact conveyed. That submission confuses two separate issues in the proceedings. The issue whether the imputations were in fact conveyed is an element of the plaintiff's cause of action. The issue whether the defendant intended to convey the imputations is irrelevant to that issue and arises only in the context of defences to the action.

100. Mr Al-Shennag further submits that there would be no prejudice to Mr Woodcock were the proceedings to continue. He points to a number of matters including the fact that the matter complained of related only to three specific development sites as to which all relevant information may be expected now to be available to Mr Woodcock; the likely limited number of witnesses; the fact that Mr Woodcock remains employed whereas Mr Al-Shennag has lost his employment and his health; and the fact that Mr Woodcock is insured. That submission overlooks the prejudice, acknowledged in the authorities, of remaining an active litigant in a slow-moving claim.

101. Mr Al-Shennag's supplementary submission dated 8 December 2011 responds separately to each paragraph of Mr Woodcock's seven page (and only) outline of submissions dated 26 September 2011. The supplementary submission is largely repetitive of matters addressed in relatively more succinct terms in the original submission. It makes a series of florid and unfounded accusations against Mr Woodcock and his legal representatives, which I reject.

102. As outlined above, the principal basis for Mr Woodcock's application to have the proceedings dismissed is the series of ill-conceived interlocutory applications made by Mr Al-Shennag, which have contributed so substantially to delay and cost in the proceedings (outlined at paragraph 8 of his submissions).

103. In his supplementary submission, Mr Al-Shennag responds to those matters by referring to his affidavit no. 11 (affirmed 7 December 2011). As already noted, that affidavit was handed up at the hearing of the present application not having been served on Mr Woodcock. In that circumstance, I indicated that Mr Al-Shennag could not be permitted to rely on it. However, it may be seen that the parts of the affidavit referred to in Mr Al-Shennag's supplementary submissions are more in the nature of further submission than evidence in any event. For abundance of caution, I have accordingly considered what Mr Al-Shennag has said in affidavit no. 11 as if those matters were put by way of submission in response to the matters raised in paragraph 8 of Mr Woodcock's submissions. Whilst that material gives some insight into Mr Al-Shennag's different perception of the ill-conceived applications relied upon by Mr Woodcock, it does not provide any satisfactory explanation of those matters.

104. Mr Al-Shennag's further reply submission re-agitates objections to the affidavits of Marnie McConnell. Those submissions have not persuaded me that I should not rely upon that evidence for the purposes addressed in this judgment.

105. In his reply, Mr Al-Shennag states that he will have all of his evidence on within weeks. As noted above, he has in fact filed a further affidavit of his own headed "evidence in chief" and an affidavit of his wife. Whether that is all the affidavit evidence upon which he would rely (including as to his claim for economic loss) is not clear. What is clear, however, is that the parties are not ready to approach the list clerk. Mr Al-Shennag has two further notices of motion waiting in the wings seeking extensive further interlocutory relief including the addition of a new party.

Consideration

106. In my assessment, the history of the proceedings set out above establishes not only that Mr Al-Shennag has failed to prosecute his action with due despatch but that he is incapable of doing so. As already noted, it is not a case of his being dilatory but rather of his persisting, with rather too much zeal, in taking a difficult and obstructive approach, the adverse impact of which is exacerbated by his lack of legal training and his intense personal involvement in the case. He has permitted himself to pursue that approach at the expense of compliance with orders of the court; due focus on the real issues in dispute; timely preparation of the matter for hearing; efficient use of court time and resolution of the claim in a cost-effective manner.

107. As stated in Micallef at [51], the impact of those considerations must be balanced against Mr Al-Shennag's interest in having his claim determined in a final hearing, with a view to deciding whether justice demands dismissal of the proceeding. The consideration that a litigant should ordinarily be allowed to have a claim determined on its merits has weighed heavily with me in my consideration of this application, especially where, as a result of the quirky s 7A procedure, partial success has already been achieved. Due weight must be given to the fact that Mr Al-Shennag has been successful in obtaining rulings in his favour to the effect that the report conveyed the five imputations set out above and that those imputations are defamatory of him.

108. That result must not, however, be mistaken for an entitlement to an award of damages. In particular, Mr Woodcock has pleaded a defence of qualified privilege at common law which appears to find some support in Mr Al-Shennag's own evidence relied upon in support of the present application, at least in so far as he acknowledges that it was agreed between him and the Council that an independent engineer should be appointed to investigate and report in respect of issues of dispute between Mr Al-Shennag and another employee of the Council (affidavit no.10 at paragraph 39). Without purporting to undertake any final or comprehensive determination of all of the issues that would arise at a final hearing, it may at least be said that there would appear to be a strong basis for the defendant's contention that the report was published on an occasion of qualified privilege. As stated by Simpson J in Hoser v Hartcher at [29], the prospects of success in the proceedings are relevant.

109. Further, the claim for economic loss in the amount of now over $13 million based on the contention that it was the publication of Mr Woodcock's report, and no other aspect of the disputes with his employer addressed in the affidavit, that rendered Mr Al-Shennag unable to attend meetings with his employer when requested (resulting in his dismissal) would appear to be ambitious, to say the least.

110. The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties.

111. In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act.

112. For those reasons, in my view Mr Woodcock is entitled to the primary relief sought. In that circumstance, it is not necessary to consider the alternative contention that the claim for economic loss amounts to an abuse of process. Pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules, I order that the proceedings be dismissed with costs.

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