Robinson v Laws & Anor

[1] MOYNIHAN J: On 12 July 1995 the plaintiff sued the defendants for defamation as a consequence of statements made by the first defendant broadcast on radio in Queensland and New South Wales by the second defendant on five occasions around that date.[1]

[2] Subsequently there were 10 further instances of defamatory broadcasts between 19 September 1995 and 13 May 1996 and the statement of claim was amended to include all 15 broadcasts. It was later decided to proceed in relation to six of the occasions.

[3] The defendants filed a defence on 3 September 1996, and put defamation and damages in issue and pleaded truth and public benefit, contextual truth and qualified protection.

[4] The action has not been tried and on 19 March 2007 the defendants applied to have it struck out for want of prosecution on the basis that there has been no step in the action for in excess of three years and the defendants are prejudiced in their ability to properly defend the action by the delay in prosecuting it. The plaintiff in response seeks leave to proceed pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR), 389.

[5] The court may dismiss a proceeding if two years have passed since the last step in the action was taken[2] and has of course an inherent jurisdiction to dismiss proceedings for want of prosecution if the circumstances justify it. A plaintiff who has not taken a step in a proceeding for two years cannot take a further step without leave.

[6] Since the UCPR came into force on 1 July 1999 parties to litigation are subject to an implied undertaking to the court and other parties to proceed in an expeditious way.[3]

[7] The plaintiff contends that the defendant's prosecution of the assessment of a bill of costs by filing an application for assessment on 29 January 2004 followed by an assessment on 4 October 2004 constituted a step in the action. There is merit in this submission.

[8] The Supreme Court of Queensland Act 1991 (Qld), schedule 2 defines 'proceedings' in terms of a proceeding in a court whether or not between parties and includes 'an incidental proceeding in the course of, or in connection with, a proceeding': see also Australian Broadcasting Commission v Industrial Court of South Australia & Anor;[4] Hospital Products Ltd v United States Surgical Corporation & Ors.[5]

[9] In my view the assessment of 4 October 2004 was a step in the action.

[10] A useful collection of the generally relevant factors to be taken into account in a striking out application is to be found in Cooper v Hopgood & Ganim;[6] see also Tyler v Custom Credit Corporation Limited & Ors.[7]

[11] The considerations relevant to theses applications are:

(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

(2) how long ago the litigation was commenced or causes of action were added;

(3) what prospects the plaintiff has of success in the action;

(4) whether or not there has been disobedience of court orders or directions;

(5) whether or not the litigation has been characterised by periods of delay;

(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;

(9) how far the litigation has progressed;

(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain that delay by his or her legal advisors;

(11) whether there is a satisfactory explanation for the delay; and

(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

[12] The 'proper approach' in the circumstances is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether on balance there is good reason for making the order: Dempsey v Dauber;[8] Cummins v Davis.[9]

[13] An important consideration is whether the delay between the events giving rise to the cause of action and the date of the trial is likely to affect the fairness of the trial: see for example Hoy & Anor v Honan & Anor.[10]

Delay and the explanation for delay (para 9 points 1, 2, 5, 6, 7, 9, 10 and 11)

[14] The chronology, schedule 1, is not exhaustive and is not intended to resolve contentious factual issues. It however provides a useful sequence of events relevant to the resolution of the applications.

[15] The initial causes of action arose in mid 1995 and the writ was issued promptly on 12 July 1995. A statement of claim was delivered on 6 September 1995 and amended on 20 September 1995. After particulars were requested and supplied the defence was delivered on 3 September 1996.

[16] The subsequent course of the action is dealt with in some detail in the chronology, schedule 1. The more salient events are dealt with in the following paragraphs.

[17] On 20 September 1995 the statement of claim was amended to take into account further alleged defamatory publications and after particulars were requested and supplied an amended defence was delivered on 19 December 1996. After further particulars were sought and supplied on 30 June 1997 the plaintiff delivered a reply.

[18] The plaintiff made disclosure on 15 January 1998. There were further interlocutory steps relating to particulars and disclosure until the plaintiff tendered a certificate of readiness for trial on 24 March 1998.

[19] On 30 April 1998 the plaintiff's application to have the matter placed on the callover list for allocation of a trial date was adjourned and on 28 June 1998 the defendant's application for referral to mediation was dismissed.

[20] On 10 November 1998 the defendant's application for further disclosure was dismissed and it was ordered that the case be placed on the callover list. On 5 February 1999 the plaintiff entered the action for trial and gave notice of trial. The action was not ready to proceed as the subsequent course of events shows.

[21] There was further 'skirmishing' about the pleadings culminating in the plaintiff's appeal against the dismissal of an application to strike out an amended defence which was allowed on 6 April 2001.

[22] On 19 March 2002 the plaintiff's appeal having been allowed by the Court of Appeal, the defendant's application for special leave to appeal to the High Court was refused. There was then an unsuccessful application by the plaintiff to strike out the further amended defence and particulars which was dismissed on 3 September 2003. On 4 October 2004 the defendant's costs of the plaintiff's unsuccessful application of 3 September 2003 were assessed, they were paid in November 2004.

[23] In summary up to the end of 2004, there was periods of delay, each party contributed to this as they were entitled, in what I have has earlier described as procedural skirmishes.

[24] It appears that some time about September 2004 the plaintiff approached a solicitor, Mr Jongkind who was acting for the directors of the Bidjara Aboriginal Housing & Land Company in respect of the appointment of a receiver. The plaintiff was associated with that company and he asked Mr Jongkind whether he was prepared to act for him in a number of civil and criminal matters.

[25] Among these matters with which Mr Jongkind was involved was the plaintiff's trial for criminal offences commencing in the District Court in Brisbane on 29 November 2004. Another matter was a defamation action brought by a Colin James Thompson in the District Court in Brisbane against the plaintiff. Mr Jongkind's firm acted for the plaintiff in these proceedings which ended on 6 December 2004.

[26] Mr Jongkind, deposes, and he is no doubt correct, that if the plaintiff was convicted of criminal charges, it was relevant to defamation actions brought by the plaintiff and placed practical obstacles in the way of prosecuting various civil actions in which the plaintiff was involved.

[27] Mr Jongkind entered into an arrangement with the solicitors for the various defendants sued by the plaintiff for the actions to be put in abeyance until the criminal proceedings were finalised and that no objection was raised with respect to this proposal.

[28] Mr Jongkind deposes that he does not recall being asked to take any step in relation to these particular proceedings and he did not advise that any be taken including as to any obligation to take a step in the action pursuant to the UCPR.

[29] Mr Jongkind deposes that it is possible that the plaintiff[11] assumed that the current proceedings were dealt with in the same arrangement.[12]

[30] On 7 July 2005 the plaintiff collected his files from Mr Jongkind's firm which was no longer in a position to act for him. In early 2006 the plaintiff approached his current solicitor, Daniel James Creevey of the firm Clewett Corser & Drummond who was acting for him in respect of criminal proceedings, to act on a speculative basis in this case. Mr Creevey was not prepared to act on that basis at the time but allowed the plaintiff to deposit his files with the firm for safekeeping.

[31] In an affidavit sworn on 18 April 2007 Mr Creevey deposes he has recently reviewed the position, was prepared to act on a speculative basis and had taken steps to obtain a complete set of pleadings and other material so as to be able to progress the action.

[32] By way of summary, the events giving rise to the cause of action took place 12 years ago. This is not a case where there is a gap between the cause of action arising and the institution and the early prosecution of the proceedings.

[33] The action was commenced and a statement of claim delivered within two months of the institution of proceedings which were instituted shortly after the first offending broadcast. Subsequently amendments to the statement of claim were made promptly.

[34] Up to and in early 2004 the plaintiff actively prosecuted the action. During this period there were a number of hard fought applications in an area of the law where the pleading requirements are technical. Both parties adopted a rigorous approach to pleading and procedural issues.

[35] Amended defences to amended statements of claim were proceeded by skirmishing in respect of particulars and other considerations. I do not suggest the defendants were not entitled to pursue this course but it was a contributor to delay.

[36] The plaintiff pressed on a number of occasions from early 1999 to have the action tried. This did not eventuate for reasons apparent from what I have said and the chronology.

[37] From 2004 the delay in the plaintiff's prosecuting the action is explicable in terms of his impecuniosity, his involvement in other litigation, criminal and civil, the necessity for him to find other solicitors and his probable misunderstanding that there was an agreement not to progress this action until other actions and charges were disposed of.

[38] The defendants were content to stand by but are now critical of the plaintiff's decision to defer the prosecution of this action to deal with criminal charges and other actions. In my view the position the plaintiff took as to the pursuing of this action was, in all the circumstances, reasonable.

[39] The considerations canvassed in my view, for the purpose of this application, satisfactorily explain the delay in bringing the action to trial.

Other considerations (para 10 points 3, 4, 8 and 12)

[41] The plaintiff has a prima facie case of defamation in respect of a number of publications. The defendants raise defences which are clearly open on the face of the statement of claim but it is difficult at this stage to express any view as to the likelihood of their being successful. Put shortly the plaintiff appears to have a strong prima facie case and it is difficult to assess the prospects of the defendants' success in meeting the claim.

[42] In the event of the plaintiff's action being struck out, litigation between the parties would be concluded because of the expiration of the limitation period.

[43] There has been no disobedience of consequence to court orders or directions.

[44] The action should be close to being ready for trial. It has been heavily pleaded and there is a reply filed and steps have been taken in respect of party and party and third party disclosure.

[45] The remaining issue for consideration is whether the delay has prejudiced a fair trial. As I have said this is an important, potentially decisive consideration.

[46] The defendants refer to the death of Niall Edward Phillip Schiemer on 14 October 2002 as constituting a prejudice. Mr Schiemer was referred to in broadcasts that the plaintiff alleges to be defamatory which occurred on 12 July 1995 and 19 September 1995. The publications relating to him are only a part of the publications giving rise to the causes of action.

[47] The second basis of prejudice is said to be the deterioration and the failing memories of witnesses likely to be called on the defendant's behalf because of the effluxion of time c.f. Brisbane South Regional Health Authority v Taylor.[13]

[48] Although it is deposed on the defendant's behalf that Mr Schiemer's death prejudices the defendant's ability to properly defend the action[14] the basis of the assertion is not developed.

[49] There is no evidence of particular prejudice as a consequence of the death of Mr Schiemer and there is no evidence of disadvantage other than the general adverse effects of delay.

[50] The action was instituted promptly after the causes of action arose and the initial exchange of pleadings took place relatively close to the publication. The alleged defamatory broadcasts were recorded so that there is no question of failing memory in respect of those matters.

[51] The defendants had early and particularised notice of the plaintiff's case and gave instructions which are reflected in the defences filed. The plaintiff, it is apparent, at least up to early 2004, made it clear that he was intent on the action going to trial.

[52] Put shortly, the defendants had ample opportunity to obtain and preserve evidence c.f. Hoy & Anor v Honan & Anor.[15]

[53] The considerations being those which I have canvassed, the defendant's application to strike the proceedings out for want of prosecution is dismissed and the plaintiff should have leave to proceed.

[54] It is imperative that this action be brought to a conclusion. I direct that the parties agree a timetable to bring the action to trial promptly. If they cannot agree I will hear submissions as to the directions and as to costs.

Five radio broadcasts published by the second defendant in relation to defamation.

Writ of Summons issued - plaintiff commences action for defamation in relation to five radio broadcasts

10 further broadcasts defamatory of the plaintiff occurred

Defendants' request for further and better particulars of the statement of claim forwarded to the plaintiff's solicitors

Plaintiff's particulars of the statement of claim delivered

Defence of the first and second defendants delivered

Plaintiff's amended statement of claim served in relation to all 15 broadcasts - later reduced to six

Leave not formally sought under the rules of court to deliver amended statement of claim

Defendants' request for particulars of the amendment statement of claim delivered

Plaintiff's particulars of the amended statement of claim delivered

First and second defendants amended defence delivered

Plaintiff's request for further and better particulars of the amended defence

Defendants further and better particulars of the amended defence delivered

Defendants deliver a request for further and better particulars of the reply

Defendants requested copies of plaintiff's discovered documents

Plaintiff provided photocopies of discovered documents

Plaintiff tendered certificate of readiness for trial

Plaintiff brings application for the matter to be set for trial or placed on the callover list - matter adjourned to a date to be fixed with the option of either party bringing the action on as long as they provide two days notice to the other party.

Defendants apply for orders that the matter be referred to mediation - application was dismissed with costs in the cause.

Plaintiff applies to the court for orders dispensing with the certificate of readiness for trial - 10 November 1998 order that the matter be set down in the callover list for trial with no order as to costs.

Defendants apply to the court for orders that the defendants provide further and better disclosure - 10 November 1998 by consent application dismissed with no order as to costs.

Plaintiff files entry of cause for trial and notice of trial

Defendants file various writs of non party disclosure

Defendants apply to the court for leave to amend their defence - 30 August 1999 order that defendants deliver their amended defence within 14 days; the plaintiff deliver an amended reply, if any, within 7 days of receipt of amended defence; the parties make further discovery of any documents made relevant by the amendments within 7 days of the close of pleadings; to be reviewed again on 24 September 1999; costs in the cause.

Plaintiff sought and received leave of the court to file amended statement of claim

Plaintiff delivers further amended statement of claim

Plaintiff issues a series of writs of non party disclosure

Defence of the first and second defendants to the plaintiff's further amended statement of claim delivered

Plaintiff made application to strike out the amended defence

Plaintiff's application to strike out amended defence dismissed with costs

Plaintiff files notice of appeal re orders made re application to strike out the defendants' pleading

Plaintiff's appeal allowed and defendant given leave to re-plead

On plaintiff's appeal being allowed, defendants apply to the High Court for special leave to appeal against the decision of the Court of Appeal - refused

Mr Niall Edward Phillip Schiemer died - defamatory broadcasts in relation to Mr Schiemer occurred on 12 July 1995 and 19 September 1995

Plaintiff applied again to have the defendants' further amended defence and particulars struck out

Phillippides J dismisses plaintiff's application with an order that the plaintiff pay the defendants' costs

Mr Jongkind received instructions from directors of Bidjara Aboriginal Housing & Land Company re the appointment of a receiver and manager - there were numerous applications

Defendant files application for an assessment of costs

Plaintiff approaches Mr Jongkind to ascertain whether he was prepared to act for him re other matters including defamation matters

Senior Deputy Registrar McNamara handed down decision in relation to application for assessment of costs

Plaintiff paid costs to the defendant in the sum of $27,034.47 pursuant to the order.

Mr Jongkind, plaintiff's former solicitor acted for him. He did not advise plaintiff to take any steps in the Laws and 2UE matter between opening the file - he did not bring the two year time limit to the plaintiff's attention whilst he acted for him

Plaintiff to be tried in the District Court re indictable charges

Plaintiff a party to a defamation action in the District Court brought by Colin James Thompson (Mr Jongkind acted for the plaintiff)

Criminal trial commenced - ran for one week - plaintiff acquitted by jury re criminal charges

Mr Jongkind wrote to plaintiff advising that he could no longer act for Bidjara Aboriginal Housing & land Co Ltd

Plaintiff collects files from his former solicitor including defamation action against Laws and 2UE.

Three applications heard re Bidjara Aboriginal Housing & Land Co Ltd - plaintiff instructs Mr Jongkind to act for directors

Plaintiff brings file to his solicitor acting for him in current criminal proceedings, Mr Creevey to act on a speculative basis

Mr Creevey declined to act for the plaintiff on that basis until the plaintiff renewed his request re the defendants' current application

Defendants file application that the plaintiff's action be struck out for want of prosecution and that the plaintiff pay the defendant's costs of the application to be assessed - current application heard on 19 April 2007.

Plaintiff files application that leave be granted for the plaintiff to take a step in the proceeding and costs of the application be reserved.

[1] The court file shows a writ filed on 12 July 1995, an entry of appearance on 20 July 1995 and a defence on 3 September 1005. The file does not record the filing of a statement of claim but it is clear the defendants pleaded to one and that it was subsequently amended.

[2] Supreme Court of Queensland Act 1991 (Qld), s85.

[3] Uniform Civil Procedure Rules 1999 (Qld), 5(3).

[4] [1985] HCA 71; (1985) 62 ALR 512.

[5] [1993] HCA 82; (1993) 116 ALR 218.

[6] [1999]2 Qd R 113, 124 (Macpherson J).

[7] [2000] QCA 178, 2 (Atkinson J).

[8] (1990) 1 Qd R 418, 420.

[9] [2000] QSC 158, 11.

[10] [1997] QCA 250.

[11] In effect the plaintiff says he did and this is understandable in the circumstances.

[12] Although Mr Jongkind did not advise him to that effect.

[13] (1996) 186 CLR 451, 551-552 (McHugh J).

[14] See affidavit of Mark Ian Jones, court file document 125.

[15] [1997] QCA 250.