TLL Investment Pty Ltd v Body Corporate for the Grange Community Titles Scheme 30993 & Ors [2022] QSC 87

• [1] This is an application under r 188 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") that the second defendant be granted leave to withdraw admissions in 13 nominated subparagraphs of the Further Amended Defence of the second defendant ("third defence") filed on 21 October 2019. The leave is sought to the extent of the amended text of 13 corresponding subparagraphs of the Second Further Amended Defence of the second defendant ("fourth defence") filed on 4 November 2021. That defence was filed without leave to withdraw the relevant admissions.
• [2] The application is opposed by the plaintiff.

• [3] The relevant questions can be summarised by reference to one example that reflects all but three of the relevant proposed withdrawals of admissions.
• [4] Paragraph 6 of the Third Further Amended Statement of Claim ("statement of claim") alleges that on 14 June 2017 the second defendant published a document in the form attached as Schedule "B" to each of the resident and investor owners of the lots within The Grange Community Titles Scheme 30993. By sub-paragraph 6(ba) the plaintiff alleges the document was sent by the second defendant as chairman of the committee of the first defendant.
• [5] Paragraph 5(a)[1] of the third defence admitted that on 14 June 2017 the second defendant sent the document to some of the owners including the third to eighth defendants.
• [6] Paragraph 6(a)(i) of the fourth defence would deny that the second defendant sent the document because he "did not".
• [7] Schedule B took the form of a memorandum addressed to all the owners of The Grange dated 14 June 2017 as follows:

The unsolicited phone calls that have been made to you are not on my behalf and are not from a "concerned owner". They are from a telemarketer employed by TLL Investments Pty Ltd and their regard for the truth is non-existent.

• The Body Corporate Committee is not paid at all. The security has all but completely rid The Grange of theft, violence, drunken parties and domestic violence.
• We no longer pay out big chunks of money - your money - to fix malicious damage or graffiti.
• If the security was cancelled it would save you all of $1.46 per week. However the repair bills would skyrocket.
• Your personal information and phone numbers have been acquired by TLL and are being used illegally by TLL. This is a massive breach of privacy act and you should contact the Office of Fair Trading and complain. I'm sure the Body Corporate Commissioner's Office would also be most concerned.

How anyone could vote to support such deceit, dishonesty and disgraceful behaviour is beyond me. It's your vote - condemn these actions by voting YES.

Please note that if you have already voted for TLL's agenda, condemn their action and withdraw your vote by emailing the Secretary at bodycorp.thegrange@gmail.com

Thank you for your interest and continued support. My committee and I continue to do our best for the benefit of all owners of property at The Grange."

• [8] Schedule B made a number of additional statements, all represented to be by the second defendant. Those statements appeared over his name and a form of signature that represented it was his signature. As well, at the foot of the document was a section headed "contact the body corporate" identifying the second defendant's telephone number and email address, namely "thegrangechairman@yahoo.com.au", as well as the Secretary's email address, namely "bodycorp.thegrange@gmail.com".

• [9] The grounds to withdraw the admission in the third defence are set out in the second defendant's affidavit. He says that whilst he was Chair of the Body Corporate he did not use or otherwise have access to a laptop or desktop computer in the course of performing his duties. He did have access to a mobile telephone, for the cost of which he was reimbursed by the Body Corporate. He says he allowed other committee members to access or use the phone when they asked. He used the phone to access the email account "thegrangechairman@yahoo.com.au". That was the account he used in the performance of his duties as Chair. He did not have access to or use the email account "bodycorp.thegrange@gmail.com".
• [10] He says that when he was Chair of the Body Corporate the only way for him to read or send electronic communications such as emails was from the account "thegrangechairman@yahoo.com.au" by using the mobile phone. He says he was not able to use the phone to draft or send emails that were lengthy or had complex formatting features. He says the emails he sent from the account "thegrangechairman@yahoo.com.au" were sent from the phone and were typically brief and lacked complex formatting features.
• [11] As to the admission of paragraph 6 of the statement of claim in paragraph 5(a) of the third defence and the like admission in earlier defences he says that:

(a) from about May 2018 to about September 2018, he was represented by Macpherson Kelley who also represented the third to eighth defendants. They prepared and filed the defence of the second to eighth defendants on 3 May 2018 ("first defence");

(b) from September 2018 to August 2019, he was self-represented;

(c) from August 2019 to December 2020, he was represented by Moray & Agnew who prepared and filed the Amended Defence of the second defendant on 9 August 2019 and the third defence filed on 21 October 2019; and

(d) from December 2020 to July 2021, he was self-represented.

• [12] The second defendant says that he could not have drafted Schedule B from the mobile phone as it involved complex formatting features such as dot points.
• [13] That is not a complete explanation of a basis for denial by the second defendant that he sent the document. Although the second defendant says he could not have drafted the correspondence, he does not say that he did not read Schedule B and sign it or send it or authorise it to be signed or sent. How it came to bear a signature representing to be his signature is not explained. Among the documents comprising Schedule A to Schedule X attached to the statement of claim, which are alleged to contain defamatory matter, there are seven documents, Schedules B, C, D, E, K, T and W, that bear what appears to be the identical form of signature as that on Schedule B. That suggests there may have been an electronically copied form of the second defendant's signature that was applied to those documents. Of the remaining schedules, five others, Schedules P, R, S, U and V, bear a form of signature representing to be that of the second defendant that are not identical to the signature on Schedule B.
• [14] With three exceptions, that description of the evidence relating to the admission in paragraph 5(a) of the third defence is the same in substance as the explanation for the withdrawal of the admission in each of the other paragraphs identified in the application.
• [15] Two of the exceptions are Schedule A and Schedule O to the statement of claim that the second defendant says were sent from the address "bodycorp.thegrange@gmail.com". He says that he could not have published those documents because he never used or accessed that account. But given that account was the account of the Secretary of the Committee and the documents represent that they are from the second defendant as Chair to owners, the fact that they may have been sent from an email account kept and operated by the Secretary does not mean that the second defendant was not involved in and did not authorise their publication.
• [16] The third exception is Schedule M. It is an email sent from the account "thegrangechairman@yahoo.com.au" to "thegrangeqld@optusnet.com.au" with copies to one of the other defendants and another person. The second defendant says that he does not recall drafting or publishing the email. He does not explain how it was sent from his email account, leaving the possible inference that somebody else may have sent it by accessing his account.

• [17] The second defendant submitted that the first question on this application is whether the subject matter of the admission is truly contested.[2] The question is informed by how and why the admission came to be made, evidence surrounding the issue as to whether there is likely to be a real genuine dispute about it, delay in making the application and prejudice to the respondent.
• [18] The second defendant submitted that the evidence demonstrated that there is a real genuine dispute about publications of the documents by the second defendant. That is said to be based on his limited access to computing devices being the mobile telephone as well as his evidence as to his inability to draft some of the documents on the mobile phone.
• [19] There is, however, a false assumption from which the second defendant's affidavit and submissions proceeded. It is that the second defendant will have published a document containing alleged defamatory matter only if he drafted and sent it. That is not so as a matter of fact and law.
• [20] The point is summarised thus:

"Any person who is in any degree accessory to the publication of a defamation, 'and by any means whatsoever conduce' to the publication, may be considered a principal in the act of publication."[3]

• [21] Webb v Bloch[4] is an example of a case where a chair of a committee who had authorised the preparation of and approved the circulation of a communication to members of a group was held to have published the defamatory matter contained in it.[5]
• [22] In the present case, it would be enough for publication if the second defendant sent a document signed by him to the owners even if it was drafted by others. It would also be enough for publication if he was involved by assenting to its term by signing it or agreeing to it being sent under his name when it had been drafted by others. In the absence of denials by the second defendant that he knew, or authorised the sending, of the documents that represented they were under his hand and were sent by him or on his behalf, it is not clear that there is a real genuine dispute about publication in the proceeding.
• [23] In those circumstances, the additional point made by the second defendant that he did not have an email list of lot owners or residences and therefore could not sent "mass emails" may also be beside the point.

• [24] It is relevant to inquire how it came to be that the admissions of the second defendant sending the relevant documents came to be made in the first, second and third defences.[6] There is no direct explanation by the second defendant how that came about except that he says that he was not asked by Macpherson Kelley or Moray & Agnew which of the pleaded communications he had in fact "drafted and sent". However, the question on the pleading in the statement of claim is not whether the second defendant both drafted and sent Schedule B or other like documents. The allegation in the pleading is that he sent them. There is no allegation that he drafted the documents, although having regard to their contents, that may be a possible inference.
• [25] There is no evidence from a relevant solicitor from either Macpherson Kelley or Moray & Agnew as to how the admissions came to be made.
• [26] The second defendant submitted that the first time the pleas admitting publication were discussed with him was when he attended a conference with his current lawyers, Grace Lawyers, who were appointed in August 2021 and who conferred with him about the admissions in October 2021. The second defendant said he did not understand why the relevant admissions were made because they were not correct. The second defendant submitted that it was not clear how the admissions came to be made. In my view there is reason to be cautious before accepting the contention that the second defendant had not previously given instructions from which the relevant admissions were rightly made.

• [27] As to delay in making the application to withdraw admissions,[7] the second defendant submitted that there was no real delay once it became apparent to the second defendant and his current lawyers that the admissions had been made. However, to put the point in that fashion obscures the long period of delay through three prior iterations of the defence, in circumstances where the lawyers who were acting for the second defendant at that time have not given evidence about what instructions were taken for those defences on the subject matter of the admissions sought to be withdrawn. Delay is significant conceptually because of the "effect of delay on the quality of justice"[8] that is statutorily recognised in the duty of the parties to a proceeding in this court to "proceed in an expeditious way"[9] that is in turn is informed by the purpose of the rules of court "to facilitate the just and expeditious of the real issues... at a minimum of expense".[10]

• [28] As to prejudice,[11] the second defendant submitted that the prejudice to the plaintiff is minor because the admissions only concern the subject of publication and their withdrawal will only require further disclosure and amendments to the plaintiff's reply to the defence. That is not so, having regard to the form of the relevant documents including Schedule B. The second defendant may have published the documents by being involved in their preparation including by assenting to them and agreeing to them being sent under his name rather than just physically sending them.
• [29] These are factual matters which will necessarily have to be explored if the admissions as to physically sending the documents are withdrawn. Depending on the results of the inquiries there would be another round of pleadings and significant delay in this already three year old case that concerns some publications made as long ago as 19 March 2017.
• [30] In addition to those points, there is another risk of prejudice to the plaintiff in permitting withdrawal of the admissions. For the hearing of this application, the plaintiff required the second defendant for cross examination upon his affidavit. That might have been appropriate given some of the points set out above that have not been explained by the second defendant. The application to cross-examine was resisted and ultimately not persisted in by the plaintiff because of medical evidence as to the second defendant's unfitness to appear in Court.
• [31] The evidence as to his medical condition included a statement by his regular treating general practitioner as to the deterioration in the second defendant's condition due to illness. She described him as going from a witty highly intelligent engineer she had known for over nine years to someone who now struggles to follow a train of thought, frequently becomes confused mid-conversation and is unable to remember what he was trying to say. That suggests a significant cognitive decline.
• [32] Had the second defendant physically denied sending Schedule B and the like documents in his first defence, as ought to have been done on his present instructions to his current lawyers, the plaintiff might have obtained evidence from the second defendant by way or disclosure[12] or interrogation[13] that could have assisted in proof of the issue of publication of the relevant documents by the second defendant. Because of his cognitive decline, it must be possible that the responses he might now give will be less useful than they would have been at an earlier time.

• [34] In the circumstances the application should be refused, for four principal reasons.
• [35] First, to raise a factual issue about whether the second defendant "sent" the relevant documents would only shift the focus to whether his involvement, other than through physically sending them, constituted him a principal in their publication. There is no evidence that suggests that the second defendant was not involved in the publication of the documents in a way that would make him responsible as a publisher. In the particular circumstances of this case, having regard to the nature and terms of the publications representing themselves to be his communications, evidence of that kind was required to show there is a genuine dispute about publication.
• [36] Second, in the circumstances of this case, there is not sufficient evidence explaining how the admissions came to be made in the first defence and remained unchanged through later defences, particularly where two prior firms of solicitors have been involved in those defences and no affidavit is provided by the relevant lawyers (and no suggestion made that such an affidavit could not be obtained).
• [37] Third, the delay in this proceeding and in making this application to date is significant and will be extended by the necessary further rounds of pleadings and interlocutory steps that will be required to ascertain the facts relating to the second defendant's role in the publications of the relevant documents.
• [38] Fourth, there is prejudice to the plaintiff in having to engage in those additional interlocutory steps, including their cost and the risk that the second defendant's cognitive state now may produce less evidence on which the plaintiff may be able to prove the facts relating to the second defendant's involvement in the publication of the relevant documents.

[1] Although the application does not refer to paragraph 5(a) of the third defence, that paragraph is picked up by the later reference in the application to paragraph 6(a)(i) of the fourth defence.

[2] Hanson Construction Materials Pty Ltd v Davey [2010] QCA 246; (2010) 79 ACSR 668, 675-676 [15]-[22].

[3] Patrick George, Defamation Law in Australia (LexisNexis, 3rd edition, 2017) [7.8].

[4] Webb v Bloch [1928] HCA 50; (1929) 41 CLR 331, 343, 359 and 364-365.

[5] See also the recent analysis of the nature of publication by Professor David Rolph: David Rolph, "The concept of publication in defamation law" (2021) 27 Torts Law Journal 1.

[6] Hanson Construction Materials Pty Ltd v Davey [2010] QCA 246; (2010) 79 ACSR 668, 674-675 [12]-[14].

[7] Hanson Construction Materials Pty Ltd v Davey [2010] QSC 34 [16].

[8] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 552.

[9] Uniform Civil Procedure Rules 1999 (Qld) r 5.

[10] Uniform Civil Procedure Rules 1999 (Qld) r 5.

[11] Hanson Construction Materials Pty Ltd v Davey [2010] QSC 34 [16].

[12] Uniform Civil Procedure Rules 1999 (Qld) r 214.

[13] Uniform Civil Procedure Rules 1999 (Qld) rr 229 and 230.