Ross v Hallam [2011] QCA 92

[1] MARGARET McMURDO P: The respondent, Craig Hallam, brought an action for damages for defamation against the appellant, Donald Ross, commenced by claim and statement of claim filed in the Supreme Court of Queensland on 20 January 2010. On 28 October 2010, the respondent applied for summary judgment under Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 292. Alternatively, he applied under UCPR r 171 for an order striking out the appellant's defence dated 13 September 2010. On 15 November 2010, a judge of the Trial Division granted the respondent's application and ordered that there be judgment for the respondent against the appellant with damages to be assessed by the District Court, together with indemnity costs.

[2] The appellant appeals from those orders contending:

• that the trial judge erred in failing to properly apply UCPR r 292.

• that the trial judge erred in finding the appellant had no real prospect of success and that there was no need for a trial of the proceeding.

• that the trial judge should have found that the appellant's filed defence:

• pleaded a lawful excuse of the publication by way of a defence of qualified privilege;

• demonstrated that the appellant had a real prospect of successfully defending all the respondent's claim and there was a need for a trial of the claim.

[3] It is significant that the appellant was not legally represented during the proceedings before the primary judge. It is also significant that he was represented by senior counsel instructed by a solicitor in this appeal. This Court gave leave to the appellant, without objection from the respondent, to file further evidence by way of an affidavit from the appellant.[1] He swore that, although he had previously represented himself in the action including in two interlocutory hearings before different trial judges, after filing this appeal he realised he needed legal representation. He was now legally represented. If this Court allowed his appeal and gave him leave to amend his defence, he would continue to engage lawyers both to amend his pleaded defence and throughout his defence of the action.

[4] Before returning to consider the grounds of appeal, it is necessary to set out something of the history of the conduct of this action and of the judge's reasons for the orders under appeal.

[5] The respondent in his statement of claim described himself as a professional arboriculturist and the managing director of Enspec Pty Ltd, an arboriculture and environmental consultancy business which he established in 1999. He contended that on or about 29 April 2009 the appellant sent to a large number of specified recipients an email which included the following words:

"(a) "Do you see that three arborists, Tom, Fletcher and Hallam, by acting in criminally collusive concert on 3 May 2005 may have destabilized the political system in Queensland';

(b) "Sean, could you please consider the following undenied facts: ...

(i) 6. On 2 June 2006, Enspec's Mr Craig Hallam falsified the BCC and therefore government certificate claiming a tree he had never seen had a safe useful expected life of 100 plus years but the tree could fail at any time. Hallam never denies this criminal act ...;

(ii) 8. On 22 May 2007, Needham covered up crimes of Mr Hallam ... ."

[6] He also claimed that on or about 29 April 2009 the appellant sent to a large number of specified recipients an email which included the following words:

"(a) "Can our dishonourable & dishonest Former Helmsman, Beattie, actually forgive Hallam's Criminal Acts";

(c) "Can you not understand that the Victorian, Mr Craig Hallam, is a crook whose crimes are being covered by Australia's most dishonest journalists ?";

(d) "Worlds worst arboricultural Practice by dishonest Arborist Mr Craig Hallam in New Farm Park";

(e) "Sir, please consider the following facts: 1. Arborist Mr Craig Hallam lied about his site inspection of a tree on 15 December 2004";

(f) "On 21 June 2006, Arborist Hallam falsified his certificate";

(g) "... the mendacious and audacious Victorian arborist, Mr Craig Hallam"."

[7] He claimed the appellant's publication of those words in the two emails were defamatory. He sought general compensatory damages of $250,000, aggravated compensatory damages of $100,000, interest and costs. The respondent's claim that the appellant defamed him was, on its face, persuasive. In the absence of a defence, the appellant was at risk of having judgment entered against him for a significant sum.

[8] The self-represented appellant filed a notice of intention to defend on 5 February 2010. That defence was struck out by a judge of the Trial Division on 6 May 2010 on the respondent's application. There was no appeal from that order. The appellant filed a second defence on 16 June 2010; a third defence on 16 July 2010 and a fourth defence on 13 September 2010.

[9] The appellant now concedes, rightly, that his defence of 13 September 2010 did not comply with the UCPR and was largely incomprehensible, as the primary judge found. The appellant submits, however, that the judge should not have entered judgment against him but instead should have struck out his defence with costs, although not with indemnity costs, and allowed him to re-plead his defence.

[10] The judge in his reasons expressed his concern that the appellant was not focused on defending the defamation action brought against him. The appellant stated more than once in his submissions to the judge that he was concerned about whether arborist practice in Australia should be reformed. The appellant also made claims of a conspiracy involving the respondent, the respondent's lawyers, the Brisbane City Council, the Crime and Misconduct Commission, the Ombudsman, the former Premier and the current Premier. The appellant made clear that his current defence expressed the manner in which he wished to defend the respondent's action. The appellant had no real prospect of successfully defending the respondent's claim in this way. It followed that there was no need for a trial of the claim. It was therefore appropriate to enter judgment for the respondent as the appellant had not demonstrated that he could establish a defence; and nor had he satisfied the judge that there was any prospect he would, if given further time, be able to provide any defence which complied with the UCPR.

[11] As to costs, the judge noted that the appellant had subjected the respondent to a number of incompetent defences. The appellant continued to use court proceedings as an opportunity to ventilate his own theories about the appropriate way to assess tree safety. That was not the role of courts. The question for determination was whether or not the appellant had defamed the respondent. It was therefore appropriate to order that the appellant pay costs on an indemnity basis.

[12] The appellant's counsel in this appeal contended that the judge did not give proper assistance, as required by law, to the self-represented appellant to ensure fairness in the hearing the subject of this appeal, citing cases including Neil v Nott;[2] Abram v Bank of New Zealand;[3] Jeray v Blue Mountains City Council (No 2);[4] Panagiotopoulos v Rajendram;[5] and Tomasevic v Travaglini.[6]

[13] As Allsop P recognised in Jeray, different judges will take different approaches to different self-represented litigants. The judicial task of ensuring fairness to all parties where one party is self-represented, can be difficult. Judges must be cautious that, in ensuring fairness to self-represented litigants, they do not cause unfairness to represented litigants. Balancing these tensions can be challenging. I am not persuaded that the primary judge was unfair to the appellant in these proceedings. His Honour encouraged him to put forward his best case and tried to assist him to focus on the real issues. The appellant persistently refused to avail himself of those opportunities. His Honour's frustration at the appellant's recurrent failure to file a competent defence, and his Honour's concern that the appellant was not using the court process legitimately, was understandable in the circumstances. But a perusal of the transcript of the proceedings below makes it clear enough that the appellant was attempting to articulate, albeit ineffectively, that he had a defence to the respondent's defamation claim, namely truth and perhaps fair comment. That said, there can be no doubt that the respondent was entitled to succeed in his application on the material before the primary judge, at least in having the appellant's defence of 13 September 2010 struck out with costs.

[14] The further evidence filed in this Court demonstrates that since his Honour's orders, the position has changed materially. Belatedly, the appellant has had the good sense to realise the seriousness of the action brought against him and has obtained legal advice. He is now represented by senior counsel instructed by a solicitor. Unfortunately, his lawyers, even at this eleventh hour, have not sought to file and serve a competent defence to the respondent's claim. Counsel explained that he had been briefed only recently. His contention that the preparation of the defence will be complex and time-consuming seems entirely plausible. The appellant has sworn to his intention to remain legally represented throughout the current litigation. It follows that it is likely that, if given leave to re-plead, a defence will be filed which at last will be both responsive to the appellant's statement of claim and compliant with the UCPR.

[15] If this Court were not to allow the appeal, the appellant would be denied the opportunity to defend an action commenced against him, only in January last year, seeking damages of $350,000 together with interest and costs. The further evidence placed before this Court means that the interests of justice now require that the appeal be allowed and the orders of the primary judge set aside. Instead, the appellant's latest defence should be struck out.

[16] The appellant must, as he accepts, pay the respondent's costs of the appeal and of the proceedings below, all of which was brought about by his grossly unsatisfactory conduct of the litigation against him. The only question is whether these costs should be on the standard or indemnity basis. Misguided as was the appellant's conduct whilst self-represented, I am not persuaded that he was doing anything other than his incompetent best to defend the defamation action brought against him. The present situation differs from that where a plaintiff commences an inherently flawed action and aggressively and incompetently prosecutes it, forcing a hapless defendant to unnecessarily incur significant costs. I am not persuaded that the appellant's conduct in defending this action yet requires costs to be awarded against him on anything other than the standard basis. I propose the following orders.

3. The appellant defendant's defence dated 13 September 2010 is struck out.

4. The appellant defendant is to file any amended defence within 28 days of the date of the delivery of these reasons.

5. The appellant defendant is to pay the respondent plaintiff's costs of the appeal and the proceeding below.

6. In default of the appellant defendant complying with order 4, without any further order, judgment is to be entered for the respondent plaintiff in his proceeding commenced by claim and statement of claim filed 20 January 2010, with damages to be assessed by the District Court, together with costs.

[17] CHESTERMAN JA: The circumstances giving rise to this appeal are fully set out in the reasons of the President with which I respectfully agree. I agree, also, with the orders proposed save with respect to the costs of the proceedings in the Trial Division.

[18] When the appeal was heard the appellant was between the stirrup and the ground. Mercy he sought and mercy he has found, but the indulgence extended to him should not be at the respondent's expense.

[19] The respondent's prosecution of his action for defamation was frustrated by the appellant's wilful and persistent failures to plead an intelligible defence. Twice the respondent was put to the expense of applying for orders that the document the appellant proffered as a defence be struck out.

[20] In du Boulay v Worrell and Others [2009] QCA 63 Muir JA described the appropriate course when dealing with an inept pleading by a litigant in person. His Honour said:

"[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice." (footnote omitted)

[21] The effect of the authorities and the relevant rules was aptly summarised by Applegarth J in Mbuzi v Hall [2010] QSC 359. His Honour said:

[25] A self-represented litigant, like any other litigant, impliedly undertakes to the Court and to the other parties to proceed in any expeditious way.[7] The purpose of the rules of civil procedure is to "facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense".[8] The just resolution of the real issues in civil proceedings may on occasions require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid "undue delay, expense and technicality".[9] The proper scope for assistance depends on the particular litigant and the nature of the case.[10] The judge cannot become an adviser to the self-represented litigant, for the role of the judge is fundamentally different to that of a legal adviser. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.[11]"

[22] Althaus v Australian Meat Holdings Pty Ltd [2009] QCA 221 affords an example in which the Court of Appeal endorsed the dismissal of an action brought by litigants in person by reason of their serial failure to articulate their case in an intelligible pleading. The same considerations apply to a defence. If a litigant in person cannot persuade the court that he is able to and will plead his case in a manner that complies with the requirements of the Uniform Civil Procedure Rules judgment will be given against him.

[23] The appellant gave the primary judge no reason to think that he would ever comply with the rules and produce a document recognisable as a defence which raised arguable grounds of resisting the plaintiff's apparently strong case of defamation. It is accepted that the primary judge correctly struck out the appellant's fourth attempt to defend the action. The indulgence extended by this Court to permit the appellant a fifth attempt is not given because of any error made by the primary judge.

[24] The indulgence is granted on the ground, which some might think flimsy, that his senior counsel said he believed that a defence might be found. It is significant that no affidavit was produced deposing to the existence of facts that might support a defence, and no draft defence was produced for the perusal of the court or the respondent. The imputations made by the appellant against the respondent in his emails were of a most serious and damaging kind, and were expressed in extravagant terms. A defence of truth or fair comment against accusations of criminal misconduct, collusion and conspiracy may be difficult to make out.

[25] The point of these observations is to show that the respondent has, on the face of things, a good case the prosecution of which has been delayed and frustrated by the appellant's disregard of the rules and refusal to comply with the basic requirements of a litigant. The cases show that his lack of legal representation is irrelevant to the respondent's right to proceed with his cause of action to vindicate his reputation. The respondent has been obstructed and vexed by the appellant's misconduct.

[26] In the circumstances the order that the appellant pay the respondent's costs of the action on the indemnity basis was well within a proper exercise of discretion. The appellant did not seek leave to appeal against that order. The judgment against him is to be set aside only because of the very late and inadequately based plea by senior counsel that the appellant be given one more chance to avoid the imposition of a substantial award of damages. The basis for this court's order does not alter the circumstances before the primary judge, or show any error in his Honour's appreciation of those circumstances.

[27] That being so there is no ground for interfering with the order for costs made by the primary judge. The appellant's promise to litigate responsibly in the future does not eradicate his past transgressions, which were properly visited with an order that he pay indemnity costs.

[28] I agree with orders 1 to 4 proposed by the President. I would, in addition, order the appellant to pay the respondent's costs of the proceedings to date (save for the costs of appeal) on the indemnity basis. The appellant should pay the respondent's costs of the appeal on the standard basis.

[29] ATKINSON J: I agree with the reasons for judgment of President McMurdo and the orders proposed by her Honour.

[2] [1994] HCA 23; (1994) 121 ALR 148, Brennan, Deane, Toohey, Gaudron and McHugh JJ, 150; [1994] HCA 23.

[3] [1996] ATPR 41-507, 42-341, 42-347, Hill, Tamberlin and Sundberg JJ; [1996] FCA 1650.

[4] [2010] NSWCA 367, Allsop P, MacFarlan and Young JJA, [8]-[12].

[5] [2005] NSWCA 58, Pearlman AJA, [33] with Mason P, Hodgson JA agreeing, [1]-[2].

[6] [2007] VSC 337; (2007) 17 VR 100, [138]-[143]; [2007] VSC 337.

[10] Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [141].