- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Toogood & Anor v Cassowary Coast Regional Council  QSC 90
STEVEN PAUL TOOGOOD
CASSOWARY COAST REGIONAL COUNCIL
BS No 2012 of 19
Supreme Court at Brisbane
13 March 2019 (ex tempore)
4 March 2019
CIVIL PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS –GENERALLY – Where undertaking given to the court not to file further proceedings without leave – Whether undertaking ought to be varied – Whether leave ought to be granted permitting applicants to file further proceedings
Alford v Ebbage  1 Qd R 343.
Gott v Toogood & Anor  QCA 8.
Shaw v The Attorney-General  VSCA 63.
S Toogood (in person) for the Applicant
D Fraser for the Respondent
Connolly Suthers for the Respondent
The context for the present application
On 29 November 2018, Steven and Julianne Toogood appeared in the Supreme Court before his Honour Justice Applegarth as respondents to an application by the Cassowary Coast Regional Council under section 5 of the Vexatious Proceedings Act 2005, which I will refer to hereafter as “the VPA”.
By application, the Council sought orders under section 6 of the VPA, staying three proceedings in QCAT brought by the Toogoods, and prohibiting them from instituting any proceedings against several named persons, including the mayor of the region, the chief executive officer of the Council, Mr James Gott, and other Councillors.
The matter appeared in the list of applications as a “directions” hearing. Although that designation was not accurate, the Toogoods were misled by it and were not prepared to respond to the substance of the applications that day.
To, in effect, pause matters between the parties until the proceedings under the VPA could be heard and determined, his Honour sought and obtained from the Toogoods an undertaking that they would not file any further proceedings in a Court or Tribunal without the prior leave of a judge of the Supreme Court or the District Court. His Honour made further orders that day, with a view to facilitating the ultimate determination of the proceedings under the VPA.
The present application
The Toogoods have applied to this Court for a variation of the undertaking given to the Court on 29 November 2018 or, in the alternative, leave to file certain proceedings.
More particularly, the variation sought is one which would exempt from the undertaking (i) criminal proceedings in which the Toogoods are named as defendants and (ii) defamation proceedings in which they are named as defendants.
The leave they seek, in the alternative, is leave to appeal interlocutory decisions of two judges of the District Court in the defamation proceedings.
They no longer seek orders staying either of the criminal or civil proceedings.
The parties are embroiled in litigation on several fronts. The trouble started, it seems, when the Cassowary Coast Regional Council succeeded against Mrs Toogood for unpaid rates. Not long thereafter, the Toogoods made a complaint to the mayor about the conduct of the deputy mayor in his private capacity on a dating site or sites.
In making their complaint, the Toogoods provided to the mayor an envelope containing documents, including photographs of the deputy mayor, said by the
Toogoods to prove his misconduct. The mayor wrote the Toogoods’ name on the envelope along with other particulars. The mayor provided the envelope, containing the documents, to the deputy mayor. It seems that, because the envelope bore their names, the deputy mayor became aware that the Toogoods were the source of the documents. The deputy mayor emailed Mr Toogood, whom he did not know, and told him that he was devastated and could not understand why Mr Toogood was out to destroy him.
The Toogoods’ complaint about the deputy mayor was investigated by the CEO of the Council, Mr Gott. The deputy mayor was found not to have committed misconduct. The Toogoods were not satisfied with the outcome of the CEO’s investigation. They made complaints by email correspondence to various Councillors, Council staff and others about it, which were critical of the CEO and which included serious allegations about the deputy mayor.
The Toogoods’ conduct in sending the emails had consequences for them.
Criminal and Civil Proceedings
On 14 June 2017, the deputy mayor made a complaint to the police about them and, ultimately, on 10 September 2018 an indictment was provided to the District Court at Innisfail, charging the Toogoods with stalking.
On 31 July 2017, Mr Gott brought an action against the Toogoods in defamation, which is currently before the District Court.
In his defamation claim Mr Gott asserted that the Toogoods’ communications, by way of email correspondence and in the course of a telephone call with Wayne Kimberley, a Councillor, on 29 May 2017, conveyed multiple defamatory imputations including that Mr Gott was a liar and corrupt and that he would support people who engaged in inappropriate sexual activity with boys.
In the Toogoods’ defence of the claim, they asserted, in effect – and among many other things – that no defamation claim was available in respect of things they said during the telephone conversation with Councillor Kimberley because it was recorded in breach of the privacy legislation and, therefore, a criminal offence. In their counterclaim, they asserted that Mr Gott defamed them and they sought to add additional defendants. In his reply and answer to the defence, Mr Gott sought that certain parts of the defence and the whole of the counterclaim be struck out.
Applications in the Defamation Proceedings
To use his Honour Judge Coker’s word, the defamation proceedings “spawned” applications for numerous orders on the part of both parties. I hasten to add that Mr Gott’s applications have been measured in quantity and content. The Toogoods’ applications have not been measured in quantity or content. I will refer to these interlocutory proceedings in some detail because the Toogoods wish to appeal decisions made in respect of two of them.
In the defamation proceedings, in addition to their defence and counterclaim, the Toogoods filed an application on 23 October 2017 seeking the following:
- the striking out of the statement of claim;
- leave to amend the defence;
- leave to withdraw deemed admissions;
- the referral of the plaintiff, that is Mr Gott, to the Crime and Corruption Commission;
- the referral of the plaintiff’s solicitors to the Legal Services Commission;
- the transfer of proceedings; and
They filed a second application on 23 October 2017, seeking –
- to strike out a certain application of the plaintiff’s;
- to amend their counterclaim;
- to add parties; and
- to stay enforcement proceedings in the Magistrates Court.
On 2 November 2017, his Honour Judge Lynham heard the Toogoods’ applications – or most of them – together with two applications by the plaintiff, Mr Gott, concerning the Toogoods’ pleadings.
His Honour delivered his reasons on 26 April 2018.
In respect of the applications made by Mr Gott, his Honour struck out substantial parts of the Toogoods defence. And his Honour deemed them to have made certain admissions.
He adjourned, for further submissions, arguments about certain paragraphs of the defence, namely, paragraphs 6, 8 and 9, and he struck out the whole of the Toogoods’ counterclaim. He ordered costs in favour of Mr Gott.
He dismissed the Toogoods’ application to strike out the statement of claim. He dismissed their application to refer the plaintiff’s solicitors to the Legal Services Commission. He dismissed some of the Toogoods’ other applications and he adjourned others for further arguments. His Honour made another costs order in favour of Mr Gott.
The Toogoods are objecting to the costs orders made and have filed documents outlining their objections, alleging, I note – among many other things – that the costs were grossly excessive and that the engagement of a barrister and QC was designed to intimidate them: and stating that the solicitors and the plaintiff had been referred to the Crime and Corruption Commission for overcharging in proceedings in the Magistrates Court – proceedings which I will mention in a moment.
After receiving his Honour Judge Lynham’s decision, the Toogoods filed – as I count them – six other applications in the defamation proceedings, namely –
- an application, filed on 15 June 2018, adducing new evidence or seeking to;
seeking judgment in their favour and seeking a finding that the plaintiff, Mr Gott, be found guilty of contempt;
- an application filed on 4 July 2018, seeking an order that the plaintiff’s solicitors stop acting for him and lifting a stay of non-party disclosure;
- an application filed on 10 July 2018 seeking, among other orders, orders for disclosure and a stay of the proceedings;
- a finding that the plaintiff had been guilty of contempt of Court and a finding that the plaintiff’s solicitor had committed contempt of Court and his referral to the Legal Services Commission;
- an application filed 8 October 2018, seeking an extension of time within which to comply with the orders made by his Honour Judge Lynham; and
- applications for non-party disclosure, filed and served on 12 and 15 June 2018.
The three applications filed by the Toogoods in June and July 2018 were substantially heard by his Honour Judge Lynham on 26 September 2018 and by his Honour Judge Coker on 18 October 2018.
The Toogoods were unsuccessful – or largely unsuccessful – in those applications also.
Before discussing the outcome of those hearings, I will discuss an aspect of the evidence which has prompted many of the applications brought by the Toogoods in the District Court and, as will emerge, in QCAT.
The Recorded Telephone Conversation
As I understand things, at the time the Toogoods filed their defence to the defamation action, they were aware – having been provided with a police statement to this effect – that police had arranged for their conversation with Councillor Kimberley on 29 May 2017 to be recorded in the course of police obtaining evidence in the prosecution of them for stalking.
They were also aware, or at least suspected – I assume on the basis of a police statement – that Mr Kimberley had concurrently recorded the conversation on his iPad.
At least until October 2018, the Toogoods had not been provided with a copy of Mr Kimberley’s recording. However, it is reasonable to assume that, because the prosecution intended to rely upon the recording in the criminal prosecution, a copy of the recording – or at least, a transcript of it – which was in the possession of the police was provided to the Toogoods in the ordinary course of disclosure in criminal matters.
The Toogoods are convinced that the recording has been obtained in breach of the privacy legislation and is, therefore, inadmissible in the defamation proceedings. I am not sure of their position as to its admissibility in the criminal proceedings but I suspect that it is similar.
I will now mention the QCAT proceedings.
The Toogoods commenced three proceedings in QCAT concerning the recording of the telephone conversation of 29 May 2017 and another invasion of privacy complaint.
QCAT proceeding 52-17 concerns the mayor providing to the deputy mayor the envelope containing the documents said to prove misconduct by the deputy mayor, which had the Toogoods’ name on it.
The Information Commissioner has accepted that the envelope bearing the Toogoods’ name is a document containing private information which was in control of the Council, and accepted that there is an argument that it was used in a way irrelevant to the purpose for which the information was provided, in breach of the Invasion of Privacy Act.
The Information Commissioner or the Office of the Information Commissioner referred that complaint to QCAT.
In addition to the invasion of privacy complaint itself, the Toogoods have applied to QCAT for certain things in separate applications, including, but not only: (i) a “finding” that Mr Gott committed perjury and his referral to the Crime and Corruption Commission; (ii) a “finding” that the mayor committed perjury and his referral to the Crime and Corruption Commission; (iii) disclosure directions; (iv) the referral of the Mayor to the Queensland Police Service; and (v) the referral of Mr Gott to the Queensland Police Service.
The applications are supported – and I use that word neutrally – by voluminous submissions. For example, the Toogoods prepared a 61-page table in support of their application for disclosure.
Member Traves of QCAT heard the various applications on the papers and delivered her reasons on 21 September 2018. With the exception of the application for disclosure, which was partially successful, the applications were struck out as embarrassing. Ultimately, Member Traves ordered disclosure of documents which were relevant to the proceedings.
QCAT proceeding 33-18 was commenced by Ms Toogood. In it she seeks damages for alleged breaches of the Invasion of Privacy Act on the part of the Council, Mr Gott and Mr Kimberley. This proceeding concerns the telephone call. She has made associated applications, including applications for disclosure.
QCAT proceeding 34-18 was commenced by Mr Toogood, seeking damages for alleged breaches of the Invasion of Privacy Act on the part of Council, Mr Gott and Councillor Kimberley. This proceeding also concerns the telephone call. Mr Toogood made associated applications in similar, if not identical, terms to those made by his wife.
A compulsory conference was held, on 6 November 2018, in respect of those three proceedings, which failed to resolve matters between the parties and relevant directions were made about the further conduct of the proceedings. However, before the conference was held, the Toogoods filed proceedings in QCAT for findings that Councillor Kimberley, the Council, Mr Gott’s solicitor and others were guilty of contempt. Those applications are pending and certain directions about them have been made.
Magistrates and Federal Court Proceedings
For completeness, I will mention two other proceedings in which the parties are involved. One in the Magistrates Court and the other in the Federal Court.
In 2016 in the Magistrates Court, the Council sought unpaid rates from Ms Toogood. In defence of the claim for unpaid rates, Ms Toogood asserted, among other things, that the Council was engaged in harassment, defamation, anti-competitive conduct, cartel conduct and unconscionable conduct.
Ultimately, the Council succeeded in its application for the payment of rates. The Magistrate ordered that Mrs Toogood pay the Council’s cost on an indemnity basis. Mrs Toogood objected to 100 per cent of the costs claimed, and some of the costs claimed were reduced upon assessment. Mrs Toogood sought a review of the assessment, which was unsuccessful.
Other material before me reveals that there are matters pending in the bankruptcy jurisdiction. Material filed by Mrs Toogood in those proceedings asserts fraud on the part of the Council in relation to the costs order.
In addition to material prepared by the Toogoods for the purposes of litigation, they have corresponded with others, including Court Registry staff, in ways which the Council submits are scandalous and vexatious.
It was against the background of all of that litigation that the Council brought its application under the VPA and that brings me back to the various interlocutory applications made by the Toogoods in the District Court.
The decision of his Honour Judge Lynham 26 April 2018
I will not recite in detail all of the applications heard by his Honour which are the subject of his Honour’s decision on 26 April 2018. As I have noted, the Toogoods were generally unsuccessful in resisting the applications made by the plaintiff and in their own applications.
I note the following about his Honour’s decision: (i) First, it concerned mostly matters of pleading specific to the case and no broad point of principle.
(ii) Second, his Honour’s approach to the applications was, in my view, orthodox and in line with the principles revealed in the several relevant authorities to which he referred.
In more detail, in respect of the application by the plaintiffs to strike out certain paragraphs of the Toogoods’ defence, in my respectful view, his Honour correctly applied the relevant rules and principles, and carefully considered each of the paragraphs of the defence said to be vulnerable to strike out. For example, his Honour struck out as irrelevant that part of the Toogoods’ defence which disclosed no defence, but instead asserted that the plaintiff had potentially committed criminal offences, in response to an assertion in the claim that the Toogoods had sent certain emails.
His Honour found no reasonable defence in the contention that the plaintiff had failed to issue a concerns notice under the Defamation Act 2005.
His Honour rejected the submissions that section 200 of the Local Government Act 2009, which concerned the misuse of information by local government employees, applied as a defence to the claim for defamation on a sound basis.
His Honour’s approach to the application to strike out paragraph 19 of the defence requires a little more attention. The Toogoods asserted in paragraph 19 of their defence that the evidence of the telephone call said to contain defamatory imputations was inadmissible in the defamation proceedings, because it had been obtained “through criminal actions”, contrary to section 43 of the Invasion of Privacy Act 1971.
In addition to section 43 of that Act, his Honour considered section 45 which concerns the publication, or communication of a conversation, which has been recorded by a party to a private conversation.
In paragraph 39 and following of his decision, his Honour dealt with the Toogoods’ argument that the conversation said to contain defamatory statements, that is, the conversation with Mr Kimberley, was inadmissible because it had been obtained in breach of the privacy legislation.
His Honour observed that it had not been asserted by Mr Gott in his statement of claim that the conversation was recorded. His Honour also observed that while the Toogoods asserted that their conversation with Mr Kimberley had been recorded, there was no admissible evidence of that fact before him.
On the basis that there was no admissible evidence before him that the conversation was recorded, his Honour concluded that there could be no breach of the privacy legislation.
Importantly, though, his Honour went on to consider the matter as if the conversation was recorded. That is apparent from paragraph 47 of the reasons, which commence with the phrase “But even if I am wrong about that”, that is, wrong about the conversation being recorded.
On the basis that the conversation was recorded, his Honour concluded that section 45(2) of the Information Privacy Act applied and that the Toogoods could not succeed because the use of the recording fell within the exception created by that section. I refer to paragraphs 47 and 48 of his decision, which is attached to the affidavit of Mr Toogood in these proceedings.
On the strength of that conclusion, his Honour struck out paragraph 19 of the Toogood’s defence.
As an aside, in my view, the exemption in section 45(2)(d) of the Invasion of Privacy Act applied to Mr Kimberley’s publication of the conversation to Mr Gott and section 45(2)(b) applied clearly to Mr Kimberley’s prospective evidence of it at the hearing of the defamation matter.
Later, in his reasons at paragraph 139, his Honour said, quote:
Even if the defendants are able to establish that there have been breaches of any of the statutory provisions relied upon in respect of the emails and telephone call, I nevertheless agree with the plaintiff’s submission that this does not provide a basis to strike out any part of the statement of claim. Rather, this is a matter of evidence to be dealt with at the trial of the action.
Later still, in his reasons, at 152, in the context of considering the Toogood’s application for disclosure of the recording of their conversation with Mr Kimberley, his Honour said:
The plaintiff has consistently asserted that the conversation alleged in paragraph 12 of the statement of claim was not recorded electronically or otherwise. As pleaded, paragraph 12 makes no mention of a recording or a document from which it might be inferred the conversation was recorded in some fashion. Whilst the defendants maintain that there is evidence that the conversation alleged in paragraph 12 of the statement of claim was recorded by Mr Kimberley…I am far from convinced as to the veracity of that evidence. In light of the plaintiff’s clear and express denials as to the existence of any such recording, there is no basis upon which the Court can make an order for disclosure.
After his Honour’s decision, the Toogoods’ assertion that Mr Kimberley recorded the telephone conversation was confirmed.
They were provided with a copy of the recording on 10 October 2018 in accordance with the direction by his Honour that it be provided to them.
For the moment, that is all I will say about that aspect of the application to strike out that part of the defence.
As to the balance of the paragraphs, which were the subject of the application to strike them out, his Honour considered them, in my respectful view, in a careful and thorough way. For example, his Honour dealt with the defences of contextual truth under the Defamation Act, and concluded, having regard to relevant authority and the
legislation, that the defendants failed to plead the facts, matters and circumstances relevant to such a defence and that such a defence had a tendency to prejudice or delay a fair trial of the action.
His Honour struck out the purported defence of fair reporting on a sound basis and did not strike out the defence of qualified privilege, reflecting, in my view, an appropriately fair approach to the application.
His Honour struck out the purported defence of honest opinion, and adjourned arguments about the defence in paragraphs 8 and 9, about which the Toogoods had not provided submissions, to a later date.
His Honour dealt with the arguments about deemed admissions and striking out the counterclaim appropriately.
His Honour dealt with other aspects of the counterclaim which alleged defamation on the part of the applicant in a thorough and careful way before striking it out in its entirety. As to the other applications by the Toogoods, his Honour dealt with them in detail and, in my respectful view, appropriately, on the basis of the material before him.
With respect to the Toogood’s application for disclosure, his Honour refused that part of the disclosure application insofar as it concerned the recorded conversation on the basis that he was not satisfied on the evidence that the conversation was recorded.
His Honour considered that part of the disclosure application which sought disclosure of 564 pages of documents on the proper basis, including the need to ensure the direct relevance of the documents to an issue in the proceedings. His Honour concluded reasonably, in my view, that this aspect of the request for disclosure amounted to a fishing expedition.
His Honour refused the application to transfer the proceedings, again, on an appropriate basis, and dealt with other aspects of the Toogoods’ application in a careful and methodical way, applying the correct principles.
Speaking generally then, his Honour’s reasons are thorough and careful, with appropriate references throughout to authority and relevant legislation.
Decision of his Honour Judge Lynham on 26 September 2018
The parties were again before his Honour on 26 September 2018.
His Honour’s reasons for the orders made on this date are attached to the affidavit of Greg Humphries which was filed by leave.
Those reasons revealed that his Honour was dealing with three applications made by the Toogoods, namely: (i) an order that the plaintiff and his solicitors depose to an affidavit which detailed their involvement in the recording of the relevant conversation of 29 May 2017; (ii) for a finding of contempt on the basis of the
plaintiff’s “misleading” the Court over the phone conversation of 29 May 2017; and (iii) for an order referring the plaintiff’s solicitor to the Legal Services Commission.
His Honour found that there was no basis for any of those orders. In elaborating upon that conclusion, his Honour said, at five that:
There was no basis at all upon which the Court could make a finding that either the plaintiff or his solicitor was in contempt of Court by reason that they either misled the Court in respect to the recording of the phone conversation of 29 May 2017 or for any other reason.
His Honour did not accept that either the plaintiff or his solicitor had made, or allowed to be made, any submissions to the Court to contemplate referring the plaintiff’s solicitor to the Legal Services Commission.
His Honour found the arguments made by the applicants for the making of such orders spurious and without substance. His Honour set the matter down for trial for three days commencing 4 March 2019, although those trial dates have been vacated as discussed below.
His Honour adjourned another application by the plaintiff, filed 9 August 2018, until the 18th of October 2018.
His Honour made orders for the delivery of a copy of the recording of the Toogoods’ conversation with Councillor Kimberley to the Toogoods. His Honour adjourned two other applications by the Toogoods until 18 October 2018, and made other orders including orders reserving costs.
Hearing before his Honour Judge Coker on 18 October 2018
The matters adjourned until 18 October 2018 were heard by his Honour Judge Coker. The reasons for decision of his Honour Judge Coker are also exhibited to the affidavit of Mr Toogood. His Honour explained in his reasons that, in addition to the applications which his Honour Judge Lynham adjourned until 18 October 2018, were further applications by the Toogoods and Mr Gott.
Among other things, those further applications concerned the parties not complying with the orders made by his Honour Judge Lynham.
His Honour Judge Coker was very concerned and frustrated about the litigation spawned by the original defamation claim, and the delay it was having on the hearing and resolution of the defamation claim.
His Honour said at 16 that:
No matter what orders appear to have been made to provide some assistance to the defendants who are self-represented, they have set out to obtain other information and, as a result of those actions, to, in fact, delay the determination of these proceedings.
His Honour referred at 18 to the Toogoods –
Obvious lack of appreciation of the consequences of the determinations that have been made” and their “: Determination to seek and rely upon every previous argument that has been heard, including those which have already been the subject of orders.
One of the matters to be considered by his Honour Judge Coker was the costs order to be made arising out of the Toogoods bringing, and then withdrawing at the last minute, an application seeking that the plaintiff be found guilty of contempt on the basis of his failing to provide a copy of the recording which is already the subject of a court order (I assume to disclose it).
The application which was withdrawn was filed 15 June 2018. Mr Gott sought costs on an indemnity basis.
In support of the argument that costs ought to be paid by the Toogoods to Mr Gott on an indemnity basis was evidence in the form of correspondence between the Office of the Information Commissioner and Mr Gott in his capacity as CEO. That correspondence revealed that Mr Toogood had provided to that office a copy of the recording of the conversation between him, and his wife and Councillor Kimberley on 29 May 2017.
Mr Toogood had obviously provided that copy to the office of the Information Commissioner before 10 April 2018, that is, the date of the correspondence referring to it. And the Office of the Information Commissioner had noted that it was consistent with the contents of the plaintiff’s statement of claim.
His Honour said at 27, that the relevance of that statement by the Information Commissioner could not be underestimated:
It laid waste to any suggestion that there had been a failure of disclosure on the part of the plaintiff to the defendants of any recording of the communications between Councillor Kimberley and the defendants on the 19th of May 2017. More particularly, however, it made abundantly clear that the defendants had in their possession and control a recording of that conversation prior to the date of the letter passing between the Office of the Information Commissioner and Mr Gott, the 10th of April 2018.
That was notwithstanding the fact that the various applications that had been filed subsequent in time still made reference to disclosure of a recording that was already held by them.
At paragraph 28, his Honour said:
It gives rise to very real concerns and they are emphasised in the submissions made on the part of the plaintiff as to whether there are, in fact, such serious breaches of the obligations and responsibilities which arise with regard to the proper conduct of these proceedings.
His Honour indicated in paragraph 29 that the only proper costs order was costs on an indemnity basis.
The next application his Honour dealt with was, somehow – it is not revealed in the material before me, how – related to the contention that the plaintiff, through his legal representatives, had falsely informed the Court that the telephone conversation was not recorded. That was an application filed on 4 July 2018.
His Honour Judge Coker noted that, while his Honour Judge Lynham understood that the conversation was not recorded, there was nothing to suggest that the plaintiff’s legal representatives had behaved improperly in that regard. In other words, his Honour accepted that there was no basis for a suggestion that the Court was informed by the plaintiff’s lawyers that the conversation was not recorded – see paragraph 32 – regardless of his Honour Judge Lynham impression of things.
His Honour Judge Coker was also required to deal with an application filed on 10 July 2018, which concerned matters which had been a subject of previous argument and, often, previous rulings, particularly with regard to disclosure.
His Honour concluded that those applications – that is, the applications filed on 4 July 2018 and 10 July 2018 – were an abuse of process, seeking to litigate matters which were the subject of litigation.
His Honour said, at paragraph 35:
I cannot agree otherwise, then, that the applications that were filed on the 4th and 10th of July 2018 are other than as an abuse of process seeking to re-litigate those matters that have already been the subject of litigation – and perhaps, more significantly still, having sought to re-litigate matters when it is clear that orders that are sought are orders which would be contrary to that which would properly be expected – in light of the fact that the documentation that has been sought to be produced is known to and held by the defendants, and, more significantly still, that the recording sought to be produced – and which has been the subject of repeated arguments – was, in fact, already held at a time well prior to those applications being filed.
Accordingly and without hesitation, I intend to dismiss the applications of the 4th and 10th of July 2018, and in the circumstances, to order, in respect of each, that the defendants pay the plaintiff’s costs on an indemnity basis.
His Honour also had to deal with the costs argument about the plaintiff’s application seeking trial dates, notwithstanding that a request for a trial date had not been signed by the defendant. An order was made setting the matter down for trial without, it seems, a costs order.
The defendants argued, in effect, that they could not sign the request for trial date because there had not been disclosure. The applicant plaintiff argued that resisting the application on that basis was futile and ill-considered, and costs were sought on the indemnity basis. His Honour was prepared to make such an order.
His Honour, finally, had to deal with the Toogood’s application, filed 8 October 2018 and the plaintiff’s application, filed 11 October 2018.
His Honour found that the defendant’s application was infused with abuse of process, in that it sought an order for costs for the plaintiff’s failure to provide disclosure – in accordance with his Honour Judge Lynham’ order of 26 September 2018 – when there was evidence that documents had been provided in accordance with it, and when the Toogood’s held the entirety of the email chain and a copy of the recording of the conversation – that is, the evidence critical to the defamation action – before the order for disclosure was made.
His Honour granted the defendants further time to amend their defence, which time they said they needed because there had not been disclosure: an argument his Honour described as “fallacious in the extreme”. Nevertheless, he dealt with it by way of a self-executing order.
In the course of his reasons, his Honour referred to egregious failures on the part of the Toogoods in relation to the proceedings.
It must be noted that his Honour was concerned only with matters of procedure and costs in this interlocutory hearing, and that his decisions were specific to the matter before him and involved no broad statements of principle.
There have been other decisions delivered in other interlocutory applications in the defamation matter.
On 29 January 2019, his Honour Judge Lynham dismissed the Toogood’s application for the relief sought in paragraphs 19, 20 and 21 of the Toogood’s application, filed on 10 July 2018.
On 30 January 2019, his Honour Judge Coker struck out the two goods further amended defence.
While there is no application relating to those proceedings before me, their outcomes are relevant to the application before me and I will mention them briefly.
On 29 January 2019, his Honour Judge Lynham dismissed the application by the Toogoods for orders that (i) the Plaintiff and his solicitor depose an affidavit setting out their involvement in the recording of the phone conversation of 29 May 2017, (ii) that the Plaintiff was in contempt of Court because he deliberately misled the Court about the phone conversation, and (iii) that the Plaintiff’s solicitor be referred to the Legal Services Commission or be found in contempt because he misled the Court about the telephone conversation.
His Honour dismissed each of those applications.
His Honour said, at 4, that there was no basis whatsoever for making any of the orders sought. The Toogoods did not deny the telephone conversation or its content, therefore, the involvement of the Plaintiff or his solicitor in the recording of the conversation was of no obvious relevance to any matter in dispute. His Honour found, in paragraph 5, that there was no basis at all upon which the Court could make a finding that either the Plaintiff or his solicitor was in contempt of Court by reason either that they misled the Court about the recording of the telephone conversation or for any other reason. His Honour said:
In particular, I do not accept that either the Plaintiff or the Plaintiff’s solicitor has made or allowed to be made any submissions to the Court concerning the recording or use of the phone conversation which were misleading, let alone deliberately misleading. Likewise, there is no basis whatsoever for the Court to contemplate referring the Plaintiff’s solicitor to the Legal Services Commission. The arguments made by the Applicants for the making of such orders are, in my view, spurious and without substance. There has been nothing in the conduct of either the Plaintiff, or the Plaintiff’s solicitor, either at the hearing of the earlier interlocutory application or otherwise, which could warrant making orders of the kind sought by the Applicant.
His Honour reserved costs.
On 30 January 2019, his Honour Judge Coker dealt with Mr Gott’s application to strike out the Toogoods’ further amended defence. The further amended defence was 262 pages long. It was submitted that the Defence had the tendency to prejudice or delay the fair trial of the proceedings. His Honour observed that the further amended defence was voluminous in the extreme and that it included pleadings which had already been the subject of determination and, as I understand it, struck out. Parts of it were, in his Honour’s view, unintelligible. Other parts of it raised matters which did not provide a defence.
His Honour dealt with matters of procedure, including the absence of a rule 444 letter and concluded, at 30, that he was satisfied “beyond any shadow of a doubt” that the pleading contained within the further amended defence flew in the face of the requirements of the rules. His Honour struck it out with cost reserved.
His Honour also dealt with an application by the Plaintiff that the trial be heard by Judge alone, rather than by a jury, and concluded for several reasons which I will not detail here, that it should be.
Judge Coker Recuses Himself and De-Lists the Defamation Trial
There has been one further relevant development in the defamation proceedings.
On 29 February 2019, his Honour Judge Coker brought the defamation matter on for mention. His Honour explained that he was recusing himself from the trial and gave his reasons for doing so. He de-listed the trial which was due to commence on 4 March 2019.
That brings me back to the present application.
The background and other litigation, which I have spent some time on, reveals the nature and extent of the litigation conducted by the Toogoods to date. It reveals the nature and extent of the subject matter of the matters before the District Court judges, Judges Lynham and Coker. Those matters are relevant to the issues before me, particularly the question of leave.
As I have explained, the Applicant applies for a variation of the undertaking and, in the alternative, leave to file certain proceedings which concern the defamation proceedings. I will deal first with the application for a variation of the undertaking.
In bringing his application for a variation of the undertaking, Mr Toogood relies, to a significant extent, on the submissions made in the course of the hearing before the Honourable Justice Applegarth, which led to the Toogoods giving their undertakings.
Mr Toogood made arguments about what his Honour Justice Applegarth had in mind as to the purpose of the undertaking and contended, in effect, that his Honour did not intend it to apply to the criminal proceedings or the defamation proceedings.
In their written submissions, seeking relief from the undertaking insofar as it concerned the defamation proceedings, the Toogoods make many arguments which tend to just complain about the application under the VPA.
They also argue, in effect, that they have only brought a limited number of proceedings against Mr Gott and the Council, but that ignores, of course, the many interlocutory proceedings they have brought in the defamation claim.
They argue that neither the Office of the Information Commissioner nor QCAT had a problem with their proceedings. They make certain allegations about the Council and Mr Gott.
In determining the application to vary the undertaking, I am guided by the decision of the Honourable Justice Morrison of the Court of Appeal in Gott v Toogood & Anor  QCA 8.
In that matter, his Honour struck out the applicants’ recent application for leave to appeal out of time, and for leave to appeal, against one of the interlocutory decisions of the District Court to which I referred, because leave to bring such an application had not been obtained in accordance with the undertaking.
The applicants argued before Justice Morrison that his Honour ought to have regard to the transcript of the hearing before Justice Applegarth and argued that, were his Honour to do so, then his Honour would appreciate that Justice Applegarth intended to exempt him from the undertaking for the purposes of the application for leave to appeal.
Responding to that argument, his Honour Justice Morrison said:
The order stands to be construed primarily on its face as a self-contained document.
The proper construction of an order would not normally be affected by what is said in the course of the hearing leading to that order. The proposition that resort should be had to the transcript in order to construe an order was rejected by the Full Court of the Federal Court in Siminton v Australian Prudential Regulation Authority  FCAFC 90 at -.
Applying that principle, and construing the undertaking on its face, it applies to the filing of further proceedings in the defamation matter.
Indeed, having regard to the transcript of proceedings and the context in which the undertaking was given, the further proceedings in obvious contemplation when the undertaking was sought and given were proceedings before QCAT in relation to privacy and other complaints, and further proceedings, including interlocutory proceedings, in the defamation claim.
It was plainly intended – and the undertaking gives effect on its face to the intention – that the Toogoods would require the leave of the Supreme or District Court before they made an application before the District Court in the defamation proceedings or before they brought an appeal to the Court of Appeal in relation to the defamation proceedings.
I refer to, but will not repeat, the discussion about the submissions made to his Honour Justice Applegarth before the undertaking was given, in the decision of his Honour Justice Morrison. I note further his Honour Justice Morrison’s conclusion that the Toogoods were not under any misapprehension as to the effect of the undertaking. I respectfully agree with his Honour about that, having considered the transcript of proceedings myself.
In my view, even if the undertaking did not fall to be considered on its face only, it conforms to that which was intended by the Court when the undertaking was given.
As to whether relief from it ought to be granted by way of the variation sought, insofar as it concerns the defamation proceedings, I have considered the relevant principle, which is, in essence, that an undertaking may be varied when its being continued would be unjust: see Alford v Ebbage  1 Qd R 343.
To vary the undertaking in the way sought would, in my view, completely undermine the purpose of the undertaking, which was to achieve, in his Honour’s words, a “ceasefire” between the parties until the proceeding under the VPA was determined.
Adjourning the VPA proceeding because of the inaccurate way in which it was described in the Court’s law list deprived the Council of the opportunity to have the VPA application heard last year even though they were not at fault. His Honour was
concerned to ensure that the Toogoods’ conduct, which the Council hoped to bring to an end when it brought its VPA application, would not continue during the adjournment of that application.
To vary the undertaking by exempting from it further proceedings in the defamation claim would be wholly contrary to its purpose. Nevertheless, if it were unjust to continue it, then it could be varied.
In their written submissions, the Toogoods’ arguments about why the undertaking should be varied included an argument that the proceedings under the VPA were themselves an abuse of process. They argued that the proceedings that they had instituted have been limited to the counterclaim in the defamation action and the proceedings in QCAT but, as I have already noted, that ignores the many interlocutory proceedings brought by the Toogoods in the defamation action.
They rely on the fact that the Information Commissioner accepted their complaints and referred them to QCAT as support for their argument that, in effect – and these are my words – that they would only bring proceedings responsibly.
They relied upon the alleged conduct of the Council and Mr Gott in further support of their application for a variation.
Among their arguments, the only ones suggestive of injustice are those concerning the criminal proceedings, which I will deal with in a moment. In that context, the Toogoods claim that they are unable to bring an application for disclosure in the criminal proceedings because of the undertaking.
Concentrating on the defamation proceedings, in my view, the nature and content of the many interlocutory proceedings brought by the Toogoods in the defamation proceedings to date, and the observations of the learned District Court Judges about them, provide ample reasons for not varying the undertaking so as to permit the bringing by the Toogoods of further interlocutory applications in the defamation proceedings.
To date, the Toogoods have been almost wholly unsuccessful in their interlocutory applications in the defamation proceedings and that is not surprising, having regard to the arguments they make.
I am not persuaded by the Applicants’ arguments that relief from the undertaking to permit them to file proceedings in the defamation matter ought to be given. Indeed, I consider that there would be a risk of injustice to the Council and further unnecessary and fruitless delays, which are detrimental to the interests of justice as a whole, were I to vary the undertaking as requested in relation to the defamation proceedings.
For completeness, I note that any subpoenas which the Toogoods wish to have issued in the defamation proceedings may still be issued and, further, they may argue matters of evidence at trial.
As to varying the undertaking to exempt the criminal proceedings from it, I do not consider that the undertaking applies to the bringing of pre-trial applications in the criminal proceedings, nor to the issuing of subpoenas for the purposes of the Toogood’s defence to the charge. There is no need, therefore, to vary it.
That brings me to the alternative applications for leave, to bring applications for leave to appeal.
The applications for leave to bring applications for leave to appeal
I do not find that the Council, through its Queen’s Counsel, suggested that it would consent to the granting of leave by this Court to the Toogoods to bring a particular application for leave to appeal to the Court of Appeal.
Such consent was said to have been indicated in the course of the hearing before his Honour, Justice Morrison, of Mr Gott’s application to strike out the Toogood’s application for leave to appeal, because the leave of this Court was not sought first in accordance with the undertaking. All that Queen’s Counsel indicated was that it would not oppose the bringing of this application for leave, which it expected to proceed ex parte, as is the case for similar applications for leave under the VPA. I will not say anything more about that.
The appropriate test for the grant of leave in these circumstances is akin to the test in the VPA, that is, I must consider whether leave is sought to file proceedings that are vexatious. The onus is on the Toogoods to satisfy me that the applications for leave which they wish to make are not an abuse of process. The use of that expression, “vexatious”, does not necessarily reflect on the motives of the applicants. A hopeless proceeding, or one without legal merit, wastes the Court’s time, however much an applicant is convinced of its merits, or that it has been wronged.
As was said in Shaw v The Attorney-General, in a slightly different context, the Courts must be able to place a limit on those who would otherwise take up an unreasonable amount of available Court time. That is the case no matter how well-meaning an applicant. It follows that, relevant to the question whether leave ought to be granted, are the answers to the questions (i) whether the proceedings, in respect of which leave is sought, are a means by which the respondents to them will be vexed, (ii) whether they are conducted in such a way as to harass or annoy, (iii) whether they are being conducted in such a way as to delay proceedings, (iv) whether they seek to achieve another wrongful purpose, and (v) whether they have reasonable prospects of success.
In reaching conclusions about the consequences of the proceedings, that is, whether they will vex, or harass, or delay, etcetera, the test is objective, not subjective. In other words, it does not matter if the Toogoods are acting with the best of intentions or the purest of motives. It is the effect of those proceedings which is relevant.
I note, as the Council pointed out, that in the proposed appeals, the Toogoods seek a stay of the defamation proceedings, which will, of course, delay them. Indeed,
whether such an order was sought or not, the appeals would likely have the consequence of delaying the defamation proceedings further.
Through no fault of the parties, the defamation trial did not go ahead on 4 March 2019. The proceedings concern conduct from 2017. The plaintiff is not in good health, and regardless, it is in the interest of all the parties, and the justice system as a whole, that the proceedings be determined as soon as possible.
As to their prospects of success, the appeals which the Toogoods wish to argue concern interlocutory applications in the District Court. The leave of the Court of Appeal is required to bring such an appeal. See section 118 of the District Court Act.
Further, some of the appeals are out of time, and a separate grant of leave is required to appeal in those circumstances. When an appeal is out of time, speaking generally, leave will be granted if the delay is satisfactorily explained, and the appeal which a party seeks to bring has reasonable prospects of success. I agree with the submissions of the Council that, even in the case in which it is said that a fraud has been committed, there has been no explanation or satisfactory explanation for the delay from 18 October 2018 when the recording disclosed.
Also, the Toogoods wish to appeal about matters of practice and procedure, and leave to appeal is rarely granted in such cases.
Further, where leave is sought in relation to a decision which depends on the exercise of discretion of a Judge of the District Court, considerations relevant to the granting of leave are whether an important point of law or question of general importance is involved, or whether leave is necessary to correct an injustice and there is a reasonable argument that there is an error to be corrected. Matters of that sort are not
Mr Toogood suggested several times that there was something in the fact that Justice Morrison did not dispose of his application for leave to appeal on its merits.
He submitted, in effect, that if his application for leave to appeal had no prospects, his Honour, Justice Morrison, would have stuck it out there and then. Mr Toogood is wrong to read anything into that fact. His Honour was not asked to strike out the application for an extension of time, or leave to appeal, on its merits. His Honour was simply asked to strike out the application because it was brought in breach of the undertaking. That is the only thing he considered.
The Toogoods assert that the primary Judges erred in a multiplicity of ways, but essentially they argued that the primary Judges erred because they did not find in the Toogoods’ favour. The Toogoods do not point to a specific error. Their grounds are mostly argumentative. They are dominated by complaints about fraud, and about Mr Gott and his lawyers misleading the Courts.
I will now consider the proposed applications in more detail.
The proposed application for leave to appeal against the decision of his Honour, Judge Lynham on 26 April 2018
The Toogoods have provided to this Court their application for an extension of time and application for leave to appeal the decision of his Honour Judge Lynham, of 26 April 2018.
At the heart of the application for leave is the assertion by the Toogoods that his Honour proceeded on the basis that there had been no recording of the conversation of 29 May 2017. The Toogoods assert, that there was, in effect, a fraud on the Court.
His Honour has made a finding that there was no such fraud. That finding was a reasonable one, and his Honour was in the best position to make it. In those circumstances, the Court of Appeal is extremely unlikely to interfere with it. It cannot, therefore, be said that his Honour’s reasons were affected by fraud. His Honour found no fraud, and that is apparent from his later decision.
Also, in the applications for leave, the Toogoods assert that his Honour was deliberately misled, but his Honour also rejected such an assertion, and to so reject that assertion was reasonable, in my view. His Honour was in the best place to make that determination, and the Court of Appeal is extremely unlikely to interfere with it.
Further, his Honour appreciated that there was an issue about whether the conversation was recorded or not, and with respect to the application to strike out the paragraphs of the Toogood’s defence which relied upon the assertion that the recording had been unlawfully obtained, his Honour proceeded on the basis that such a recording did exist.
Nor can it be suggested that evidence that the conversation was recorded was so material that it would have had an important impact on the outcome of the case. This is because, as I have already mentioned, as to striking out the relevant part of the defence, his Honour proceeded as if the conversation was recorded, and as to disclosure of the recording, disclosure has now been made.
An appeal proceeding is not a vehicle by which the Toogoods may achieve punishment of the plaintiff of some sort for not making disclosure before he was ordered to.
The Toogoods have provided to the Court their notice of appeal, which contains the grounds upon which they wish to argue this decision of his Honour, Judge Lynham’s. They assert an error of law, but in fact, rely on an error of fact, namely that the conversation was not recorded. They also seek to rely upon legislation they referred to in their outlines of argument, which they placed before his Honour, Judge Lynham. His Honour did not refer to all of that legislation in his reasons for decision, but the Toogoods’ arguments about that legislation are misconceived.
The Toogoods assert that his Honour erred in many of his conclusions and decisions, including his conclusion that the telephone conversation was not recorded, but that
error was brought to his Honour’s attention and his Honour has dealt with it. Their arguments about costs also assert fraud, which as I have noted his Honour did not find.
I refuse to grant the Toogood’s leave to appeal against the decision of his Honour, Judge Lynham, delivered 26 April 2018, as referred to in paragraphs 2 and 3 of the originating application.
I refuse leave for reasons which include that the Toogoods are unlikely to obtain the leave for the Court of Appeal in any event, because of the hurdles which face them in an application for leave against an interlocutory decision, on practice and procedure by the District Court, as well as an application for an extension of time. Those hurdles include the need to persuade the Court of Appeal that the matters they wish to argue raise important questions of law of public importance, and the need to persuade the Court that they are likely to succeed in their arguments.
The Toogoods have little chance of being able to overcome those hurdles, having regard to the nature of the proceedings from which they wish to appeal; the fact that the basis for some of their arguments is contrary to his Honour’s findings of fact; and that the issue about which they complain the loudest has been resolved for the purposes of the defamation proceeding.
Further, I find that whatever the Toogoods’ intention, applications for leave to appeal, which have negligible prospects of success, will unnecessarily delay the proceedings and vex the respondent to them.
The proposed application for leave to appeal against the decision of his Honour, Judge Coker on 19 December 2018:
The Toogoods have provided to the Court their proposed application for leave to appeal against this decision. They allege that his Honour made errors of fact and law, but it seems only in the sense that his Honour did not find in their favour. They do not complain about error in the sense of the misapplication of principle or similar. The appeal seems to have been brought, not because there has been an error in an appealable sense, but because they are dissatisfied with the outcome.
They complain about the findings his Honour made about their conduct. They complain about his Honour’s consideration of their arguments, and allege that his Honour failed to give adequate reasons for dismissing the non-party notices.
They allege errors in what seem to be all of his Honour’s conclusions and findings which are adverse to them.
Many of their complaints are about his Honour’s comments about them.
Many of their complaints are simply complaints that his Honour did not view the evidence in their favour.
They also allege a denial of natural justice.
The grounds contained in the proposed notice of appeal repeat the statements contained in the proposed application for leave to appeal, and add to them references to legislation, which was relied upon by the Toogoods in their outline of argument.
For the same reasons I relied upon to refuse leave to the Toogoods to bring an application for leave to appeal against the decision of his Honour, Judge Lynham, I refuse leave in the case of the decision of his Honour, Judge Coker also, which is referred to in paragraph 4 of the originating application.
I note that a day or two after the hearing of this matter concluded, Mr Toogood sent to the Court further submissions and evidence. The respondent opposed the Court’s receipt of that material. I have not taken it into account for reasons which include the importance of finality to the efficient functioning of the justice system.
The efficient disposal of matters would be impossible were the parties free to supplement (unilaterally), after a hearing, the evidence or the submissions made at the hearing.
An application for leave in this context is ordinarily brought ex parte. The reason the Council appeared to respond to it was because his Honour Judge Coker, directed that the application be served upon them. However, the respondents were required to respond to the application for variation. In those circumstances, unless a party wishes to argue to the contrary, costs will follow the event. The applicants are to pay the respondent’s costs of the application.
If a party wishes to argue to the contrary, then they may do so by written submissions of no more than two pages to be sent to my Associate by email by 4 pm tomorrow.
That concludes my reasons.
Thank you, Madam Bailiff.
- Published Case Name:
Toogood & Anor v Cassowary Coast Regional Council
- Shortened Case Name:
Toogood & Anor v Cassowary Coast Regional Council
 QSC 90
13 Mar 2019
No Litigation History