WA Being Sued - Defamation Act 2005

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Clara J

Well-Known Member
12 September 2014
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As you now have official documents you do need legal assistance.

If I was in your position I'd be posting an apology, keeping it up for 24 hrs as per their demand and telling the lawyer their demand has been met. I'd also be saying in writing to the lawyer that 'I continue to reserve all my rights and the posting of the apology is not admission of wrong-doing.'. I'd also be saying that I will be seeking the recovery of all costs I incur from this time onwards in dealing with this matter and asking for the case to withdrawn from court. I'd also be mentioning something about getting court papers before the 28 day period had expired.

I think there is a legal clause that better says you're not admitting to the act/wrong-doing but I don't know what it is. Legal advice now can potentially save you time and money later. As stated above in another post, the truth of what you originally said is a complete defence. Based on what you have said, I think your case is a strong case if it does go to court. But do get assistance from someone who can look at all your papers/posts/correspondence to give you better advice.

All the best, let us know how you go.
Rod I can not thank you enough.

We have an appointment to see a lawyer on Friday and I've printed off every shard of evidence to support our case. At the end of the day I said what I felt was an honest opinion on the basis of the service my boyfriend and I had received. I will make a note of all your suggestions and take them with me to the lawyer. I'm open to suggestions of an apology if you have any, my frustration is still too raw to even configure one.

Thank you again :)
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi Clara,

The person who serves (i.e. hands) you the document does not need to give his details. However, the document itself must have who filed the writ, their address or the address of their legal representative, the date of issue, a date for when to appear in court, the court and court reference number (usually: XXX/2014), signature of the court and stamp. Without these things, the writ is not valid.

The writ itself does not need to have any information about the claim. This comes in a statement of claim, which could be served simultaneously with the writ, or afterwards. The writ requires proper service and means that you should be on the lookout for later documents. Later documents may be sent to you by registered post.
 
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Clara J

Well-Known Member
12 September 2014
33
1
124
Hi Sarah

Thanks for that. The Writ didn't have a date that I should appear in court, it said I had to go to the court to file for attendance but it wasn't signed or dated by anyone. The dude was really shady and refused to give me his name when I asked. He then threw the Writ at me. I took his license plate number down to which he responded "do you want to take a picture?" How arrogant.

The thing that's puzzling me the most is that the date of the concern notice from the lawyer was 11th September, giving us 28 days to make amends. The date of the Writ was 24th September. That's within the 28 days... Needless to say it was the day after Consumer Protection contacted him with regards to a complaint I filed to them.
 

Sarah J

Well-Known Member
16 July 2014
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250
2,389
Melbourne, Victoria
Hi Clara,

When the guy served, if it was a proper service of court documents summoning you to court, he should have said "this is a legal document" or something to the effect to alert you of the importance of the document. However, oftentimes, the person delivering the document is not from the company but some third-party hired by the company, therefore, not necessarily representative of the company you're dealing with. Most of them are quite defensive because they are often abused by the recipients during this process. Needless to say, it is not a pleasant job.

To document may not have a court date allocated, but it does need to be stamped by the court or signed by the Registrar of the court. It is confusing that they did not give you the full 28 days to settle the matter. However, given that you (appear to) have been served, I would get someone from your local community legal centre to verify that it is a proper writ and then respond to the writ as soon as possible (and definitely within the time frame) 1) acknowledging service; and 2) notice to defend/contest. There are proper court forms to fill in for 1) acknowledgement; and 2) notice to contest.

What court is it at?
 

Clara J

Well-Known Member
12 September 2014
33
1
124
It's Perth Court in the city. The documents are legit, I called the court. I'm going to see the lawyer tomorrow and then I'll go and fill in the necessary documents at the court.

The whole situation is confusing. He's one hot headed man that's for sure. Everyone I've spoken to has said the same thing. I've got a lever arch file of paperwork and it's all contradicting what he says on the legal documents. It's so blown out of proportion and half of what he says isn't even true.
 

Rod

Lawyer
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27 May 2014
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Also tell your lawyer you want to file for reimbursement of your costs if you win the case. The lawyer will tell you at what stage of the court proceedings you do that.
 

Clara J

Well-Known Member
12 September 2014
33
1
124
Hi Rod

The lawyer has told us that's the case. He's quoted us approximately $4,000 to proceed to the next stage which hopefully should bring us up to court. He says he thinks we have a case but it's certainly apparent the accountant is showing us who's boss. I'm now trying to get as much evidence as I can to show the private facebook page is there for the purpose of airing complaints to warn other Brits here in Perth. I'm also getting the case records from the complaint I lodged with Consumer Protection to see if that sheds some light on his attitude and professional manner. I'll also file a complaint to the Board of Chartered Accountants.

Do you think the fees seem reasonable? I don't want it to become a money pit but since the accountant has pushed this hard this fast, I'm trapped.

Thanks
Steph
 

Rod

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Always hard to tell with lawyer fees as to what is reasonable :)

$4k seems high for a simple defamation case, but he is the one reviewing the paperwork. Make sure it is to scale because the court will only award fees at a 'scale rate' so anything in excess of the court rate is not recoverable.
 

Clara J

Well-Known Member
12 September 2014
33
1
124
By "to scale" do you mean in line with?

I'm sure the accountants fees are higher as his lawyer is in Sydney so they'll have to pay to transfer the case.

He said that the $4k should see us either up to court or through court. I've tried to organise my paperwork in such a way that will minimise the lawyers time.

Unfortunately as the date of the Writ was within the 28 days of the concerns notice and since I didn't receive it within a reasonable time frame (writ was dated 25th September, I received it on 7th October) it's left us no time at all. The lawyer has suggested to make the appearance and a defence and then go to caught to ask for more time. It's almost like he's trying to trap me.
 

Rod

Lawyer
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27 May 2014
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By "to scale" do you mean in line with?
I'm unclear as to the correct terminology, suggest you ask the court house. I did find something on the VIC magistrates website about fees, it may be possible the WA district court has something similar.

It costs you more in fees to defer the case. If you are ready now, go straight to a contested hearing. If not ready, request a deferral.