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[2008] QSC 143
Supreme Court of Queensland
2008-05-22
Chesterman J
Original judgment source is linked above.
[1] The plaintiff is a valuer by profession. In March 1988 he prepared a written valuation of two parcels of land located to the south of Coffs Harbour in New South Wales. One parcel, having an area of 594 hectares, was described as having potential for development into a 'major integrated resort' and was designated 'tourist land' in the valuation. The second parcel had an area of about 408 hectares and was designated 'forest land' (together "the Bonville land"). In May 1987
APM Forests Pty Ltd had sole the Bonville land to Bonville Hardwoods Ltd ('Bonville') for a price of $4,724,000.
[2] The plaintiff valued the tourist land 'as is', with its then current local authority zoning and development restrictions, at $17,000,000. With rezoning to allow resort development it was valued at $27,000,000. The forest land was valued separately at $8,772,000.
[3] On 16 and 17 October 1990 the Australian Broadcasting Corporation ('ABC') telecast in New South Wales and Queensland respectively a current affairs program part of which was an account of dealings with the Bonville land by Bonville. The company was controlled by Mr Robert Johnson. The thrust of the report was that the New South Wales Investment Corporation which had lent Bonville some $4,000,000 to assist it to obtain development approval and develop the Bonville land for residential, commercial and industrial purposes, forgave the loan and extinguished the debt in return for the issue of shares in Bonville. Its decision in that regard was based on the plaintiff's valuation of the land, showing it had substantial worth. The transaction increased Mr Johnson's personal wealth by more than $1,000,000. The loan moneys, converted to shares, had been public money, or taxpayers' money.
[4] In 1990 the first defendant was the president of the Australian Institute of Valuers and Land Administrators Inc, now called the Australian Property Institute, the second defendant. The role of the Institute was to represent the professional interests of valuers. In his capacity as president Mr Rothwell was interviewed by the journalist who compiled the television report on the transaction I have just described. It was, I think it fair to say, critical of the plaintiff's valuation. It should also be said that Mr Rothwell's participation in the program was minor. He said:
'I find no support for the $17 million nor particularly is there any information which would lead me to understand why the value has gone from the purchase price of $4.7 million for 1,400 hectares to $17 million for 551 hectares.
It is extraordinary it seems to me for a disparity purchase price in the valuation not to be referred to and explained. ...
One would think (reference to the purchase price was deliberately avoided).
The valuation itself has caused considerable distress amongst members of this Institute practising in that area and who are very familiar with that property. So much so in fact that they forwarded it to the Institute with a plea that we do something about it. In this instance we will most certainly be forwarding it to the Real Estate Services Council which has statutory responsibility for disciplining valuers ...'.
[5] The plaintiff commenced proceedings against the defendants claiming damages for defamation on 22 October 1990. Three days earlier he had commenced proceedings against the ABC but that action did not proceed. It has been struck out or discontinued.
[6] In his action against the defendants the plaintiff alleges, in his fourth further amended statement of claim filed on 8 June 2004, that the words spoken by
[7] The plaintiff claimed that he had been injured in his reputation to an extent requiring vindication, and injured in his profession and trade, causing economic loss. The loss was particularised in the sum of $323,202 'in income profit which he would have earned if it was not for the publications ... calculated by comparing income reasonably expected and actual income.' The loss was tabulated as follows:
[8] In addition the plaintiff claimed $500,000 as compensatory damage to:
(ii) compensate him for the distress and embarrassment caused ... by the defamation;
(iii) reflect the extent of the publication and that the defamation may be spread and to convince a person to whom the defamation was published or republished of the baselessness of it.'
As well the plaintiff claimed a further sum of $50,000 as aggravated damages and another sum of $50,000 for exemplary damages.
[9] Notwithstanding the substantial claim, amounting to almost $1,000,000 for loss of reputation and income, the plaintiff's efforts to recover the lost income and to vindicate his shattered reputation have been extraordinarily dilatory. It is now almost 18 years since the publication and commencement of proceedings. The progress of the action, if such it may be called, is set out in the affidavit of
Kathryn Finlayson filed on 1 February 2008 (paras 6-71):
On 22 October 1990, the plaintiff filed his writ of summons for this proceeding in this Court.
On 27 March 1992, the plaintiff delivered an amended statement of claim.
On or about 18 August 1994, the defendants applied to strike out the plaintiff's statement of claim.
On 24 August 1994, Justice Moynihan ordered that the amended statement of claim be struck out.
On 29 September 1994 and again on 19 October 1994, the plaintiff delivered an amended amended statement of claim.
On 15 November 1994, by order of Justice Dowsett of 20 October 1994, the plaintiff delivered a further amended amended statement of claim.
On 5 September 1995, the defendants delivered a defence.
On or about 19 November 1996, Minter Ellison requested Further and Better Particulars from the plaintiff.
On 19 March 1997, Minter Ellison filed and served a Summons with a return date of 9 April 1997.
On 9 April 1997, Mr Justice Helman made the following orders:
(a) that leave be granted to the defendants to deliver Interrogatories within 14 days;
(b) that the plaintiff provide full particulars of certain matters relating to his damages claim within 28 days; and
(c) that the plaintiff answer the defendants' Interrogatories within 28 days form the date of delivery of those Interrogatories.
(a) that the plaintiff provide Answers to Interrogatories within 28 days, failing which the plaintiff must show cause why his claim ought not be struck out; and
(b) that the plaintiff provide Further and Better Particulars as set out in Mr Justice Helman's order of 9 April 1007 [sic] within 28 days, failing which the plaintiff must show cause why his claim ought not be struck out;
(c) that the matter be adjourned to a date to be fixed; and
(d) that the plaintiff pay the defendants' costs of and incidental to the application.
On 27 June 1997, the plaintiff served Further and Better Particulars as well as his Answers to Interrogatories on Minter Ellison.
On 4 February 1998, the plaintiff filed a reply.
On 10 February 1998, the defendants requested Particulars of the Reply.
On 16 February 1998, the defendants requested additional Particulars of the Reply.
On 9 July 1998, the plaintiff provided Particulars.
On 11 May 1999, a Notice of Trial was filed. The Certificate of Readiness for Trial was filed on 20 May 1999.
On 4 February 2000, the defendants made application for certain orders relating to the conduct of the matter.
On 9 February 2000, Justice Shepherdson made a number of orders by consent including that:
(a) the Plaintiff have leave to further amend his Amended Amended Statement of Claim and such further pleadings be filed and served by 23 February 2003;
(b) the Defendants file and serve any Amended Defence by 8 March 2000;
(c) the Plaintiff file and serve any Amended Reply by 22 March 2000; and
(d) the further pleadings of the Plaintiff referred to at (a) and (c) are to specifically plead:
(i) any issue to which the valuation reports, copies of which are included in exhibit AJS5 to the affidavit of Andrew James Shute filed on 4 February 2000 in action number S1316 of 1991 are alleged by the Plaintiff to be relevant; and
(ii) the facts relied upon, if any, upon which any inference is to be drawn as to the alleged condition of mind of the Defendants including knowledge, and in particular:
B. did not care whether the material was true or not.
"I have taken instructions on all matters of complaint of lack of proper disclosure and it is my belief that the List (to be supplemented as herein explained) will comply with the Plaintiff's disclosure obligation."
"I am instructed that to the best of my client's knowledge and belief all the documents in his possession or control that are directly relevant to allegations in issue in the pleadings have now been disclosed".
Relevant correspondence and events following the First Strike Out Application
On 1 August 2001, the plaintiff's solicitors served a request for Trial Date upon Minter Ellison.
On 25 March 2002, the plaintiff delivered a further Supplementary List of Documents. The Supplementary List included 106 computer disks containing valuations and working papers and relevant documents which had not previously been disclosed.
On 6 December 2002, Minter Ellison wrote a rule 444 letter to the plaintiff's solicitors requiring full and proper disclosure within 14 days. The letter asserted that the plaintiff still had not complied with his disclosure obligations in that he had not disclosed all documents in his possession, power or control which were directly relevant to the allegations in issue in the pleadings. The letter identified eight categories in respect of which the defendants believed the plaintiff should provide disclosure.
On 12 December 2002, the plaintiff's solicitors wrote to Minter Ellison advising they had only recently been referred the letter of 6 December by their city agents and that they would seek instructions in respect of the eight categories identified. The plaintiff's solicitors stated that they required time to review the file and sought an extension of time within which to respond.
On 13 December 2002, Minter Ellison confirmed that it would allow the plaintiff's solicitors an extension of time.
On 9 January 2003, the plaintiff filed a Notice of Change of Solicitors.
By facsimile on 13 January 2003, the plaintiff's new solicitors requested copies of the plaintiff's List of Documents and any amendments to that List.
By email on 14 January 2003, Minter Ellison provided copies of the Lists of Documents as requested.
By email on 17 January 2003, the plaintiff's solicitor confirmed that it would provide a Supplementary List of Documents on 20 January 2003.
On 23 January 2003, the plaintiff delivered an 143 page Further Amended Supplementary List of Documents which purported to be a "complete List of documents in the Plaintiff's possession which relate to these proceedings". There were 5960 documents listed. A substantial number of these had not previously been disclosed.
On 25 February 2003, the plaintiff made further disclosure of one letter from a Mr Stephen Robertson to Mr Brian Quinlan dated 23 November 1990. This letter had not previously been disclosed.
On 28 March 2003, Minter Ellison requested copies of certain disclosed documents and a copy of the workbook Register Summary referred to in the affidavit of Nikola Velcic sworn on 22 August 2000.
By facsimile on 26 November 2003, the plaintiff served a Notice to Admit Facts.
By facsimile on 11 December 2003, the defendants served a Response to the Plaintiff's Notice to Admit Facts.
On 2 April 2004, the plaintiff filed and served a third further amended statement of claim.
By letter dated 5 May 2004, Minter Ellison informed the plaintiff that parts of the further amended statement of claim did not comply with Parts 2, 3 and 4 of Chapter 6 of the Uniform Civil Procedure Rules 1999 (Qld).
By facsimile on 11 May 2004, the plaintiff's solicitors responded to the letter of 5 May 2004.
By facsimile on 19 May 2004, Minter Ellison wrote to the plaintiff's solicitors regarding an amended statement of claim.
By facsimile on 20 May 2004, the plaintiff's solicitors confirmed that it had briefed counsel to settle the fourth amended statement of claim.
By letter dated 3 June 2004, the plaintiff's solicitors informed Minter Ellison that the fourth amended statement of claim would be settled and delivered by the end of the week.
On 8 June 2004, the plaintiff filed and served a fourth further amended statement of claim.
By letter dated 19 July 2004, the plaintiff's solicitors wrote to Minter Ellison regarding the filing of the amended defence.
By letter dated 2 August 2004, the plaintiff's solicitors wrote to Minter Ellison regarding the filing of the amended defence.
By letter dated 13 September 2004, the plaintiff's solicitors wrote to Minter Ellison regarding the amended defence.
By letter dated 12 April 2005, the plaintiff's solicitors wrote to Minter Ellison regarding the filing of the amended defence.
On 29 April 2005, the defendants filed and served a further amended defence.
On 3 March 2006, the plaintiff filed and served the amended reply to the Further Amended Defence of the first and Second Defendants.
On 7 March 2006, the plaintiff's solicitors wrote to Minter Ellison regarding participation in a mediation.
On 27 April 2006, the plaintiff's solicitors informed Minter Ellison that the plaintiff had four further documents by way of disclosure. Two of these further documents had not previously been disclosed in any of the Lists of Documents served on behalf of the plaintiff. The plaintiff's solicitors also requested suitable dates and times for inspection of the defendants' documents.
By letter dated 15 May 2006, the plaintiff's solicitors requested a response to their letter of 27 April 2006.
On 1 June 2006, the plaintiff served the defendants with a copy of a notice on non-party disclosure issued to the Australian Broadcasting Corporation.
By letter dated 2 June 2006, Minter Ellison wrote to the plaintiff's solicitors stating that the defendants declined to participate in mediation and requesting that the plaintiff's solicitors identify which documents they would like to inspect by reference to the lists of documents. Minter Ellison also raised issues in relation to the plaintiff's disclosure and suggested the application of Practice Direction 8 of 2004.
Minter Ellison has not received a response to the above letter.'
[10] As the chronology recounts the late Mr Justice R R Douglas struck out the plaintiff's action on 30 August 2000. On 11 May 2001 the Court of Appeal overturned the judgment and allowed the action to proceed. The Chief Justice said:
'There is in this case, where there is apparently a reliable record of the subject interview, a significant lack of sworn material raising any particular suggested deficiency in the recollections of potential witnesses. ... This court could not ... now dismiss the proceedings in reliance on the aggregate effect of the only other arguable substantial consideration ... where the circumstances and the substance of the broadcast are apparently well set down or ascertainable, there is no complaint of other ... prejudice, and the matter is substantially ready for trial.'
'The pleadings are complete and apparently in a state ready for trial. ... the appellant had apparently complied with the latest order for disclosure, and no finding was made of default in performance of the order ... made on 22 August.'
[11] On 21 December 2007 the defendants again applied for an order that the action be dismissed for want of prosecution under the Court's inherent jurisdiction or alternatively for non-compliance with UCPR 5(3). On 12 February 2008 the matter was adjourned to the Civil List because of the anticipated length of the hearing. The last step taken in the action was on 3 March 2006 when the plaintiff delivered an amended reply to the further amended defence of the defendants. More than two years have now elapsed since that step. When that fact was pointed out during argument, together with the fact that the plaintiff has not sought leave to proceed despite not having taken a step for more than two years the plaintiff's counsel orally sought leave, and I directed the plaintiff to file his application for leave to proceed so that there would be a proper record of the application.
[12] Two aspects of the amended reply filed on 3 March 2006 ("reply") should be mentioned. The first is that in response to a denial that the plaintiff had lost income the reply alleged (4(g)(ii)):
'The plaintiff was an experienced, qualified and competent valuer who prior to the publication ... was retained as a panel valuer for numerous banks and financial institutions which retainers were terminated because of the publication of the imputations.'
[13] The second was that the reply responded to allegations in the further amended defence that the publication was made in good faith. The defendants had raised defences pursuant to s 14 (fair comment), 15 (truth) and 16 (qualified privilege) of the Defamation Act 1889 since at least their amended defence filed on
26 April 2000. The reply alleged, for the first time, that the publications were not made in good faith because the defendant was actuated by ill will or some other improper motive in making the publication. A number of particulars are given in para 4(b) of the reply. The particulars include the following:
'1. The first defendant as agent for the second defendant was partly actuated by a desire to embarrass the plaintiff who was a member of a rival professional organisation.
[14] As well the reply alleged for the first time that the defendants knew that the published imputations were untrue, or did not care whether they were or not. Particulars included:
The first defendant had not formed an opinion that the land was worth less than $17,000,000.
The first defendant had not formed an opinion as to the value of the land.
There was no basis for any opinion that the plaintiff had deliberately omitted the most recent sale price of the land.
The first defendant knew that the valuation was not prepared 'for bank purposes'.
The first defendant knew that the plaintiff had valued the land on the basis that there were reasonable expectations that 'the zoning alterations would be made'.
The first defendant knew that there was a basis for the plaintiff's valuation, being his analysis of 'numerous sales'.
The first defendant knew of the sale of 'Kings Forest Estate' land having a density unit value of $2,720.
The first defendant knew that the plaintiff was instructed to make 'many assumptions which make the valuation a hypothetical valuation on assumed data'.
The first defendant knew that the valuation was not a current valuation and therefore the previous sale of the subject land had little or no relevance to the valuation as it would confer market value under a different set of circumstances.
On 16 October 1990 the first defendant knew that the valuation was not to reflect the plaintiff's opinion of the current market value of the land.
The first defendant knew that there was nothing in the valuation which was a breach of the code of ethics adopted by the Australian Property Institute.
[15] Mr Rothwell has sworn two affidavits in which he deposes that he has no clear recollection of his state of knowledge at the time he spoke to the ABC reporter and will have difficulty in refuting the allegations made in the reply, for the first time, 16 years after the publication and the commencement of proceedings.
'In ... 1990 there was considerable public criticism of the valuation profession in the media. There were allegations of poor valuation practice and criticisms of the role of the valuation profession in relation to collapses in the property market. I regarded it as part of my responsibility to ... defend the valuation profession from unjustified criticism and to respond to inquiries made of me as president of the (second defendant) in order to maintain public confidence in the profession.
I was approached by the ABC requesting an interview in relation to the Bonville Beach valuation.
I ... recall that the actual interview took something like 30 minutes but that very little of the content was subsequently used. I cannot recall the specific questions that I was asked ...
'I recollect in general terms the circumstances of my interview ... although I have little independent recollection of my comments. I find the process of attempting to recollect the specific details and order of these events difficult.
I wish to reiterate the difficulty that I have more than 17 years after the interview ... in recollecting specific details of what I knew or thought at the time ... . I simply cannot recall what details I knew or did not know about the density unit value of the Kings Forest land ... or the basis upon which the plaintiff arrived at the density value that he adopted in his report. I do not recall that these were matters that I was asked to consider by the ABC and I find it impossible to recall what consideration, if any, I gave to these matters ... prior to the interview. I find the process of attempting to recollect details of these matters very difficult. I am concerned that my inability to accurately and independently recall these kind of details will be used to cast me as an evasive or unreliable witness ... if this matter is allowed to proceed to trial.
Although I reject the suggestion that I was improperly motivated I find it difficult to recall specific details surrounding the interview. For instance, I do not recall any complaints regarding the plaintiff made by individual members of (the second defendant) or the nature of any such complaints.'
[18] The first defendant also complains about the effect of the proceedings on his personal and professional life. He explained that the proceedings over more than 17 years have had, and continue to have, 'an ongoing impact upon (his) personal and business affairs.' Mr Rothwell is called upon at irregular intervals to recall information and to address matters relevant to the proceedings 'on an urgent basis'. He finds it both disruptive and inconvenient. The first defendant is a director of public companies and charities. In that capacity he is regularly asked to provide information relevant to the renewal of insurance premiums. He must disclose the plaintiff's action against him. Although he does not say so explicitly I infer that the outstanding claim is a source of embarrassment.
[19] Mr Rothwell was not cross-examined on his affidavit. The plaintiff was, at considerable length. If the plaintiff should behave when testifying at a trial as he did when cross-examined on his affidavits, the tribunal of fact will, I apprehend, form a most unfavourable impression of him. He appeared before me a most unattractive witness. His demeanour was redolent of evasion, aggression and invention. Perhaps for that reason his counsel intimated in submissions that the plaintiff would abandon his chosen mode of trial, by jury, and instead have his action tried by a judge. That suggestion poses its own difficulties for the plaintiff as I will explain later.
[20] The cross-examination revealed a number of oddities in the plaintiff's valuation. For a start there is not one word in it which explains or justifies the assertion in the summary that the Bonville land in its state at the time of the valuation was worth $17,000,000. I repeat, nothing at all is said in support of this opinion. The valuation opinion was expressed a little over a year after the land had been sold for about a quarter of that figure.
[21] Secondly the plaintiff arrived at his valuation of $27,000,000 on the basis that when developed the 'tourist land' would produce some 9,840 residential units which could be sold for a profit. This number was multiplied by a figure of $2,745, the 'valuation unit' of the raw land component for each unit. Mr Quinlan said in evidence that the sale of most relevance to his analysis which enabled him to fix upon the figure of $2,745 was the sale of land described as 'Kings Forest'. Extraordinarily there is no reference to that sale anywhere in the valuation, although there are references to other sales. Nor is there any indication in the valuation which provides a clue as to how Mr Quinlan thought that there might be 9,840 units for sale when the land was developed. The figure of $27,000,000 also appears to have no foundation laid for it in the valuation.
[22] Thirdly the Bonville land was much inferior (as Mr Quinlan conceded in cross-examination) to two roughly comparable sites on the Gold Coast sold in 1987 for the purposes of tourist development. Those two sites were the Hope Island Resort and the Royal Pines Resort. Those two parcels had more sympathetic zoning for development than the Bonville land. They sold for a price approximating $60,000 per hectare. The value put by Mr Quinlan on the Bonville land was about $100,000, per hectare. Mr Quinlan did not refer to the Gold Coast sales.
[23] The plaintiff's valuation of the Bonville land is a cross-examiner's delight, as
Mr Applegarth SC enthusiastically demonstrated. It is seriously flawed, remarkable for its omissions and oversights, and pregnant with possibilities for discomfiting its author.
[24] This is not to say, of course, that these factors themselves establish that what
Mr Rothwell said in the telecast was fair comment, or true and in the public interest, or spoken on an occasion of qualified privilege, for the purposes of the
Defamation Act 1889. But in an action the gravamen of which is that the plaintiff was defamed because it was said of him that he was an incompetent valuer who had prepared a flawed valuation and omitted any explanation of the basis for his opinion, the factors are extremely damaging. Whether or not they establish any of the defences, which have technical aspects, they cast grave doubt upon the plaintiff's assertion that he was a valuer of good repute whose reputation was seriously tarnished by reason of the defendants' public criticism.
[25] As Keane JA pointed in Page v The Central Queensland University (2006) QCA 478 at 24:
'... the court will be reluctant to deny a litigant with an arguable case at the opportunity for a fair trial of his ... claim ...'
The reluctance is less where the claim is shown to be doubtful or proof of it beset with difficulties. It is not possible, nor desirable, to reach any conclusion as to the probable outcome of the claim, should it proceed to trial. Nevertheless the apparent strength, or weakness of a claim is a factor in the balancing exercise called for in the determination of an application to strike out an action for want of prosecution. In those cases where the claim is, as I think this one is, doubtful, the factor assumes significance.
[26] How do things stand seven years after the Court of Appeal reinstated the action? The first answer is that disclosure is still not complete. On 12 December 2002 the plaintiff's then solicitors intimated to the defendants' solicitors that they would seek instructions from the plaintiff with respect to a particularised complaint that documents referred to in the plaintiff's forensic accountant's report had not been disclosed. A further substantial list of documents was delivered in January 2003. Notwithstanding this list further omissions of disclosure have been identified and communicated to the plaintiff's solicitors. They have not been rectified. A document called a 'Workbook Register Summary' has been referred to in an affidavit prepared by the plaintiff's former solicitor and appears in a list of documents served on 25 August 2000. It is described as '20 pages listing names of clients for whom work was done between February 1989 to June 1999 ... fees charged ...'. Although it has obvious relevance to quantum the defendant and his solicitors have refused to produce it for inspection despite several requests. As well the plaintiff's bank statements for the financial year ended June 1989 have not been disclosed though those for the previous year and the subsequent year have been. Significantly no documents relevant to the allegation in para 4(g)(ii) of the reply have been disclosed. It would be extraordinary if there were no documents in existence evidencing the appointment of the plaintiff to the panel of valuers 'for numerous banks and institutions', or his removal from those panels because of the ABC publication. That allegation and its consequent loss are clearly matters of importance to the plaintiff's case. Documents directly relevant to it should have been disclosed.
[27] The second answer is that despite the passage of 17 years and the delivery of seven statements of claim, the current pleading does not provide proper particulars of the alleged loss of income. The tabulation I have set out in para 7 represents the entirety of the pleading on this point. UCPR 155(2) provides:
'... A party claiming general damages must include the following particulars ... -
(b) The exact circumstances in which the loss or damage was suffered;
(c) The basis on which the amount claimed has been worked out or estimated.'
Subrule (4) provides that a party must plead specifically 'any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.'
[28] The third answer is that the plaintiff has not yet produced a forensic accountant's report quantifying his lost income. Such a report may have gone a considerable way towards overcoming the deficiencies in the pleading, though not in disclosure. Messrs Hall Chadwick, a firm of chartered accountants which no longer exists, was retained to produce a report and apparently did so in draft. No final report, I was told, has been delivered. Mr Quinlan deposed that on 2 May 2006 his then solicitor advised that a 'fresh' expert's report should be obtained though it would be 'expensive ... and take time to prepare.' Mr Solomon who was retained to prepare it died before completing the work. Another accounting firm is in possession of the file. In oral evidence Mr Quinlan said that he had requested those accountants to prepare a quantum report but it has not come despite the passage of almost a year. The new report was needed Mr Quinlan deposed 'because of potential problems with the Hall Chadwick report.'
[29] The fourth answer is that the plaintiff has suffered serious ill health which has prevented him in engaging in full time employment, has financial difficulties and will struggle to fund his action. On 19 June 2006 the plaintiff was advised that the trial would run for about four weeks and his former solicitors required a sum in excess of $200,000 to prepare for and conduct the trial. Mr Quinlan has changed solicitors and is in dispute with the former solicitors with respect to their fees. They have claimed a lien over his documents. This he partly blames for his inability to produce documents required for inspection. He was, he said, hopeful of reaching accommodation with those solicitors, but no detail was given as to what that might entail, and when it might be achieved.
[30] The plaintiff earned only $200,000 in the three years 2005, 2006 and 2007 from which he had to pay substantial mortgage payments on his home and an investment unit. He now claims that he is in better health and can earn upwards of $200,000 per year but he is 73 years of age and may experience difficulty returning to demanding professional practice. On the figures provided he will have to appropriate a whole year's pre-tax income to fund his action, leaving nothing for living expenses and mortgage repayments. He is unable to borrow funds because his two properties are mortgaged to the fullest extent.
[31] The position may be summarised thus: almost 18 years after the action was commenced the statement of claim is deficient, disclosure is inadequate, no forensic accounting report has been produced, the plaintiff's ability to fund the action to trial is in serious doubt and the merits of his case are questionable.
[32] Should the action be allowed to proceed or should it be struck out? The answer may be found in a consideration of the plaintiff's own late application for leave to proceed. In Dunseath v Febriway Pty Ltd (2001) QCA 104 McPherson JA (with whom McMurdo P and Byrne J agreed) remarked that if an action cannot go on without leave, and no application for leave is made or foreshadowed, an action should be struck out for want of prosecution on the ground, apparently, that the absence of such an application showed that the plaintiff did not intend to proceed with his action at all or with any kind of expedition.
[33] Mr Favell who appeared for the plaintiff, explained that no earlier application for leave to proceed had been made because of the pendency of the defendants' application brought in December 2007 and adjourned to the Civil List in February 2008. This explanation is inadequate. The second anniversary of the delivery of the reply was 3 March 2008. It must have been obvious that the two years would expire before the defendants' application could be determined. At any time before
3 March 2008 the plaintiff could have taken a further step; amending to rectify his defective pleading, or disclosing the omitted documents, or delivering his accountant's report. Any such step would have protected his right to prosecute the action and made the defendants' application more difficult. Instead the plaintiff allowed the time limit to expire and showed no interest in obtaining leave to proceed until the defendants' counsel made it clear he relied upon that failure as a ground in itself justifying the dismissal of the action.
[34] In my opinion I should draw the inference, and I do, that the plaintiff is a reluctant litigant who does not intend to prosecute, and will not prosecute, his action with any expedition, or at all. The extreme delays which have characterised this case, and the extraordinary passage of time, almost two decades, during which it has been on foot, are ample justification for the inference.
[35] Apart from its unsatisfactory provenance the plaintiff's application is unmeritorious. The plaintiff seeks the indulgence of the court and a favourable exercise of discretion. But it is by no means clear what action the court is asked to allow to proceed, if leave were given to continue it. I mentioned that the plaintiff contemplated changing the mode of trial. His present intention is to abandon trial by jury but no application to change the mode of trial has been made.
[36] UCPR 472 provides that a plaintiff may elect trial by jury in his Statement of Claim. UCPR 474 provides the court may order a trial without a jury in two circumstances: that the trial will require a prolonged examination of documents, or will involve technical or scientific issues which cannot conveniently be determined by a jury. There is no other source of power in the rules for changing the mode of trial. There are authorities to the effect that a party cannot, by amending his pleading, make a new election as to the mode of trial: General Credits Limited v Whiting 1970 QWN; 32 Ladbrolli Pty Ltd v Lloyd's Bank NZI Ltd (unreported White M
9 November 1990). No doubt the general power of the court to give directions (UCPR 367(1) and (2)) would allow the making of an order to change the mode of trial where both parties agreed to the change. Where one party opposes an alteration to the mode of trial I apprehend that UCPR 474 is the only basis the making of an order to dispense with a jury. The defendants, having observed Mr Quinlan's demeanour as a witness, may not agree to trial by judge alone. The action may or may not proceed before a jury.
[37] Then it was indicated that the plaintiff may give up his claim for loss arising from the termination of his retainers as valuer for a number of banks. This is apparently in response to the failure to disclose any relevant documents and Mr Quinlan's inability in cross-examination to provide any detail of the lost retainers. So the action which the plaintiff wishes the Court to grant leave to continue is one which may or may not include that important component of the claim.
[38] Next is the point that a very substantial sum is sought for damages for lost reputation and injured feelings. The sum was said to be necessary as a salve and as a vindication of the plaintiff's reputation. But damages simply cannot have those effects after the passage of 18 years. Quite apart from the obvious inference that the plaintiff's feelings were not hurt, or that he was indifferent to the hurt, which arises because of his lack of interest in pursuing the action to trial, there is the point that an award of damages so long after the event will not serve to repair the plaintiff's reputation, which will have been restored, or diminished, by subsequent events.
[39] Mr Favell intimated that the plaintiff may not be called as a witness at any trial of the action to avoid the chance of his appearing unfavourably to the tribunal of fact. The tactic is unlikely to deliver a substantial award of damages. Why should the tribunal infer hurt or loss of reputation when the plaintiff is not prepared to speak to them? As well the defendants, who have pleaded truth, will be able to adduce evidence from expert valuers of the serious inadequacies of the plaintiff's valuation. Whether or not the plaintiff gives evidence the prospects of obtaining a substantial award of general damages are not conspicuous. The claim for special damages cannot presently proceed without amendment and further disclosure.
[40] Nor does the plaintiff support his application by providing any basis for thinking that he will in the immediate future address the shortcomings in his action. Nothing is said about when the forensic accountant's report might be available, or when disclosure will be properly given, or when particulars of the special loss will be provided. These omissions remain in 2008 with respect to a cause of action that accrued in 1990.
[41] The last point to make is one I have already mentioned. The prospects of success for the plaintiff are far from bright, and even if a defamation be proved and survives the pleaded defences, the plaintiff is likely to present a dismal appearance and attract a small award of damages.
[42] For these reasons I would refuse the plaintiff leave to proceed. That decision effectively brings the action to an end and is itself a reason for striking it out. There are additional reasons for that course.
[43] The first is that the delay, particularly the delay in alleging malice for the first time in March 2006, has put the defendants at a considerable disadvantage and prejudiced their chances of meeting the allegations. There is no reason not to accept Mr Rothwell's testimony that he cannot now recall his state of mind, what he knew and believed, when interviewed by the ABC. No-one could. It is a feat beyond the capacity of human memory. It is not fair that the defendants should be asked to resist a claim that Mr Rothwell acted maliciously, or from ill will, made 16 years after the defamation without any prior warning that the charge would be made so that materials for the defence could be stored up. The unfairness is of the plaintiff's making. His delays, indolence and procrastination have put it beyond the capacity of the defendants to make a fair defence.
[44] It is apt to recall the often quoted remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552:
'The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive even "cruel", to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.'
Although those remarks were made in a case involving an application for leave to commence an action out of time they are equally apposite to an application to strike out for want of prosecution, or for leave to proceed.
[45] The remarks of Justice Keane in Page are apposite in this regard also. His Honour said:
'The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.'
[46] There is also the point that the continuation of the action is causing the first defendant a degree of inconvenience, and I think embarrassment, and disruption to the conduct of his own affairs. In this regard it is appropriate to recall the remarks of McPherson JA in Cooper v Hopgood and Ganim 1999 2 Qd R 115 at 124:
'... ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.'
[47] The enormous delays which have characterised this litigation are itself a reason for striking it out. The action is not ready for trial after 18 years. By its nature the litigation called for a quick resolution. It was to vindicate a professional reputation stung by malicious and inaccurate criticism. It is inexcusable that it should take so long and progress so little. The pace at which it has not progressed is redolent of the plaintiff's reluctance to prosecute it. As well the evidence indicates a financial inability to prosecute it.
[48] The plaintiff narrowly escaped having his action terminated in 2000 when Douglas J struck it out. The Court of Appeal revived it on the basis of evidence which was thought to show that the action was ready for trial and could soon be heard and that there was no prejudice to the defendant by allowing that course. That evidence now appears to have been erroneous. Certainly subsequent events have falsified it. There is now clear evidence of prejudice and equally clear evidence that the action remains unprepared.
[49] The plaintiff's escape ought to have persuaded him to get his action on for trial. The appeal succeeded on the basis of assertions made on his behalf that he was ready for trial. Judgment in his favour was given on 11 May 2001. It is true that on 1 August 2001 his solicitors served a request for trial dates upon the defendants' solicitors but they did not sign and return it, and he did not seek an order that the action be set down for trial notwithstanding that failure. I presume it was because he knew the action was not, in fact, ready. On 25 March 2002 he delivered a further supplementary List of Documents. This was itself deficient as was pointed out by the defendant's solicitors in December 2002. More documents were disclosed in January and February 2003. A request in March 2003 for the production of the workbook register summary went unanswered. A year later, in April 2004, the plaintiff filed his sixth Statement of Claim. The defendants' solicitors pointed out that that pleading did not comply with the rules and on 8 June 2004 the seventh Statement of Claim was delivered. An Amended Defence was not delivered until 12 April 2005. The plaintiff seemed to have done nothing to require an earlier pleading. He took a further year to deliver his amended Reply.
[50] On 2 June 2006 the defendants' solicitors wrote to the plaintiff's solicitors refusing to participate in a mediation. The letter went on:
'... we note that your client has done very little to progress this matter since commencing the action more than 15 and a half years ago. In particular, since the Court of Appeal's decision ... the only real step taken (other than some amendments to pleadings) was the delivery by your client of a List of Documents on January 2003 .... If this matter is to proceed to trial, it is likely that we will need to review your client's documents in more detail. Our client will also need to undertake a number of other steps that are likely to result in substantial cost to it. Not unreasonably in the circumstances, our client is reluctant to incur such costs unless this matter is genuinely headed for trial. Should your client wish to proceed to trial, we believe it may be appropriate for consideration to be given to the application of Practice Direction 8 of 2004 in relation to your client's documents.
It would be appreciated if you could advise us of your client's instructions in this regard.'
There was no response. The defendant brought their application to dismiss the action 18 months later.
[51] In my opinion the passage of time since May 2001 and the lack of activity by the plaintiff to progress the action are themselves a sufficient ground for dismissing the action. The plaintiff's inactivity is a flagrant breach of the implied undertaking imposed by UCPR (5)(3) to conduct his claim expeditiously. His conduct is consistent only with a refusal to take his obligations in that regard seriously and a profound reluctance to confront his opponent in a trial.
[52] The application was brought pursuant to the court's inherent power to strike out an action for want of prosecution, and for non-compliance with UCPR 5(3). The evidence establishes that the plaintiff is in breach of a number of the rules: UCPR 155 in relation to the deficiencies in pleading particulars of loss; UCPR 211(2) in relation to deficiencies in disclosure and UCPR 214(1)(b) in relation to the failure to produce the work register summary for inspection. The defendants do not however, rely upon UCPR 280 for the order they seek.
[53] The dismissal of an action for want of prosecution involves an exercise of discretion. A proceeding will only be dismissed if the interests of justice so require. The discretion is to be exercised having regard to the balancing of relevant factors which include delay, reasons for it, prejudice to the defendant and prospects of a fair trial, among others. See Cooper at 119 and Quinlan at 657. In this case not only do the interests of justice require the action be brought to an end but it will be an act of mercy to all parties to terminate the proceedings. There is, as I have indicated, gross unexplained delays, clear prejudice to the defendants, little prospect of a trial in the near future, if ever, and a claim of doubtful worth.
[54] I refuse the plaintiff's application for leave to proceed. I order that the action be struck out.
Quinlan
Rothwell & Anor [2008] QSC 143
(1996) 186 CLR 541