Williams v Noosa and District Landcare Group Incorporated
[2007] QDC 147
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- Unreported Judgment
- Williams v Noosa and District Landcare Group Incorporated[2007] QDC 147
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Williams v Noosa and District Landcare Group Incorporated[2007] QDC 147
Williams v Noosa and District Landcare Group Incorporated[2007] QDC 147
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Noosa and District Landcare Group Incorporated [2007] QDC 147 |
PARTIES: | JACQUELINE WILLIAMS Applicant/plaintiff V NOOSA AND DISTRICT LANDCARE GROUP INCORPORATED Respondent/defendant |
FILE NO/S: | BD 128/2003 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland, Brisbane |
DELIVERED ON: | 11 July 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 July 2007 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE – DELAY – LEAVE TO PROCEED – defamation action – delay of over three years – whether plaintiff should have leave to proceed – relevant factors UCPR r 389(2) Cases considered: Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 Grahame Cavanough v Commonwealth of Australia [2000] QSC 068 Hayne v Nyste (unreported, Supreme Court of Queensland, Williams J, 17 October 1995) Kaats v Caelers [1966] Qd R 482 Knapman v Oceanic Beaches Pty Ltd [2007] QSC 088 Natissia Piazza v Geary [2003] QDC 419 Raabe v Brisbane North Regional Health Authority [2000] QSC 257 Smiley v Watson [2002] 1 Qd R 560 Tyler v Custom Credit Corp Pty Ltd [2000] QCA 178 |
COUNSEL: | J Williams self-represented applicant/plaintiff D P de Jersey of Counsel for respondent/defendant |
SOLICITORS: | J Williams self-represented applicant/plaintiff Thynne & Macartney for respondent/defendant |
- [1]The plaintiff began an action against the defendant for damages for defamation on 17 January 2003. The defendant contends that the last obvious step taken in the action was the plaintiff’s delivery of some further and better particulars on 11 May 2004. While Ms Williams maintains steps have been taken since then, she has nevertheless applied for leave to proceed under UCPR r 389(2), which provides:
If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
- [2]In Tyler v Custom Credit Corp Pty Ltd [2000] QCA 178 Atkinson J identified a number of factors relevant to applications of this kind (albeit non-exclusive and varying in weight from case to case, and amenable to being supplemented when circumstances required). Her Honour’s list included:
- (1)How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- (2)How long ago the litigation was commenced or causes of action were added;
- (3)What prospects the plaintiff has of success in the action;
- (4)Whether or not there has been any disobedience of court orders or directions;
- (5)Whether or not the litigation has been characterised by periods of delay;
- (6)Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation, and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- (9)How far the litigation has progressed;
- (10)Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisors;
- (11)Whether there is a satisfactory explanation for the delay;
- (12)Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
- [3]The exercise to be undertaken in determining these applications was described in Hayne v Nyste (unreported, Supreme Court of Queensland, 17 October 1995) by Williams J[1]:
… The proper approach to such an application is to identify the relevant factors, assess the weight to be given to each, and then to determine whether, on balance, there was good reason for accepting the particular proceedings from the general prohibition imposed by the rule. In deciding that question the circumstances that a defendant was likely to suffer prejudice as a result of the delay was always relevant, and one matter the court has always to consider is whether there has been such inordinate and inexcusable delay as would give rise to substantial risk of prejudice to the defendant.
- [4]There was some initial delay in the matter in the period up to the delivery of particulars on 11 May 2004, but it cannot fairly be described as inordinate or inexcusable[2]. The publication which prompted the plaintiff’s action occurred in late May 2002. She commenced her proceedings on 17 January 2003. A defence was filed on 24 February 2003, and a reply on 11 March. The plaintiff’s solicitors delivered a list of documents on 28 May, and the defendant’s a similar list on 28 July 2003. The defendant requested further particulars of the statement of claim on 1 August 2003 and on 13 April 2004 sent a letter under UCPR r 444, demanding those particulars. They were ultimately delivered on 11 May 2004.
- [5]Ms Williams has asserted, in two affidavits filed in support of this application and in lengthy written submissions she provided to the court, that subsequent events including her belief that her former solicitors were acting to supplement her initial disclosure, her efforts to obtain documents through FOI applications, and her attempts to arrange a mediation of the matter since May 2004 constituted ‘steps’ under the rule. The difficulty she faces is, however, that these were not events which ‘… carry the action forward’[3]; as Holmes J[4] said in Raabe v Brisbane North Regional Health Authority [2000] QSC 257 because they do not have the ‘… necessary quality of constituting an advance in the action’. Those phrases identify an important element of a ‘step’ for the purposes of the rule – the advancement of the proceeding itself. (As other cases show, a number of not uncommon events in the course of litigation, even some involving the court itself, may not qualify as a step in a proceeding: e.g., making an application in which no order is made[5]; filing a notice of change of solicitors[6]; the taking of steps associated with the withdrawal of solicitors on the record[7]; or, seeking non-party disclosure[8].)
- [6]Here the evidence shows that, whatever instructions the plaintiff may have given her former solicitors about supplementary disclosure, only one list of documents was ever received by the defendant and it was received in May 2003. The attempt at mediation involved correspondence with a government body but, again, there is no evidence that any approach was made to the defendant’s solicitors to organise, or participate in a mediation process. The plaintiff’s FOI application in 2005 is what McPherson JA described in Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594 as ‘… an act done in the recesses of the solicitor’s office’ – meaning, of course, that while the act might do something to advance one party’s case, it did nothing (in the words of the rule) ‘in’ the proceeding proper. All these things fall short, then, of qualifying as ‘steps’.
- [7]It follows that major delay in the matter has occurred since the last observable step in May 2004 when the plaintiff’s further particulars were delivered. Counsel for the respondent, Mr de Jersey, fairly but firmly emphasised the nature of the onus resting upon an applicant for leave under this rule to explain the delay. Ms Williams’ explanation is, with respect, diffuse and a little confusing. It is tolerably apparent, however, that one element of it involves some kind of falling out with her former solicitors. She has subsequently been involved in prolonged correspondence about them with the Queensland Legal Services Commission it seems, in an effort to resolve this dispute. Notwithstanding those events she has not, however, been able to obtain their file, over which they are apparently exercising a lien.
- [8]Her written submissions to the court were not, of course, sworn but they appear in parts to ‘pull together’ information appearing variously in her affidavits, albeit with something less than precision. There is, however, sufficient sworn information, contained within correspondence between the plaintiff and the Legal Services Commission, to conclude that from some time in 2004 until 2006 she was in conflict with those solicitors about their alleged failure to follow instructions, to provide an itemised account, or to communicate adequately with her.
- [9]She has also been involved in proceedings in the Federal Magistrates Court against her former partner, and in the Queensland Industrial Relations Commission (QIRC) about the circumstances in which her employment with the Queensland Government, in a way which involved active contact with the defendant’s members, was terminated. In addition, it seems, she has been involved in activities concerning another Government employee and the Criminal Misconduct Commission. She says, and I accept, that all of this has been distracting, injurious to her health and productive of financial hardship – one result of which is that she can no longer afford legal representation.
- [10]It is unclear whether or not any responsibility for the delay since May 2004 can be wholly or partly sheeted home to her original solicitors, or another legal practitioner who acted on her behalf for a time in 2006. In any event it is clear that this is not a case like Knapman v Oceanic Beaches Pty Ltd [2007] QSC 088 where the primary explanation for the delay was the failure of the plaintiff himself, over many years, to keep in touch with his solicitors and give them instructions. Ms Williams affidavits are sufficient to show she has, on the contrary, been quite active in attempting to pursue her claim against the defendant but, again intending no disrespect, in ways which reflect her want of legal experience or training and, also, the financial difficulties and distractions which have apparently beset her in recent years. The only fair criticism of her to be extracted from all of the evidence is a want of focus, and knowledge of the legal steps necessary to advance her claim. Unlike Knapman and a number of other cases in the jurisdiction the circumstances here are not redolent, then, of disinterest, or carelessness, or deliberate or contumelious conduct on the part of the plaintiff herself.
- [11]Mr de Jersey traversed those particular factors from Tyler v Custom Credit[9] which, as he fairly argued, are relevant here. The statement of claim is drawn in an unusual way and claims damages for ‘personal injury’, but with no particulars. The claim itself is, he submitted, an adventurous one and, certainly, the circumstances are a little unusual. The defendant is a voluntary association of individuals promoting the sustainable use of natural resources. In May 2002 it sent a letter to the Minister for Natural Resources and Mines[10] suggesting that the plaintiff was not an appropriate candidate for appointment by the Minister to a position within the Department. At the time the letter was sent the plaintiff was, herself, a member of the respondent association. Notwithstanding the letter the Minister, at a later date, appointed the plaintiff to the position and the plaintiff herself renewed her membership with the association.
- [12]While, at first blush, these facts might make it difficult for the plaintiff to show actual injury to her reputation, it is suggested by some of her material that she has suffered subsequent vocational difficulties which may – it is impossible to do anything other than speculate – sound in damages. The less than precise description of events and circumstances since the alleged defamatory act in her material makes it difficult to reach a concluded view about her prospects of success. It does leave the impression that her chances might, without too much difficulty, be enhanced by means of competent legal advice and, on balance, are better described as difficult rather than adventurous, hazardous, or poor.
- [13]Ms Williams’ proceedings in the QIRC appear, as Mr de Jersey pointed out, to relate in part to the matter said to found this action and the duplication is, he submitted, an abuse of process giving rise to a power in this Court to stay the current action. The remedies are, however, quite different; other, additional relief is sought in the Commission; and, the current position of the proceedings there is unclear. It is germane to the discretion arising in this application that the plaintiff may be able to find comparable (albeit different) relief in another place, but not determinative.
- [14]Emphasis was also laid in the defendant’s case on an assertion that it will suffer significant prejudice if the plaintiff is given leave to proceed. Although it was said the composition of the defendant’s management committee has changed, Ms Williams was able to produce searches which show some continuity of personnel. The identity of the Minister, to whom the allegedly defamatory letter was sent, has also changed but it is difficult to see how that gives rise to any actual prejudice. Nothing in the pleadings otherwise suggests significant factual disputes and tends to confirm that the true issues will be in relatively small compass: whether the letter carries the defamatory imputations alleged by the plaintiff; whether or not it was sent in circumstances attracting the qualified privilege raised by the defendant; and, whether or not the plaintiff has suffered any actual damage.
- [15]There are some other factors in the list contained in Tyler v Custom Credit[11], referred to by Mr de Jersey, which are relevant. I accept that no part of the delay is attributable to the defendant. As earlier remarked, it is simply unclear whether any delay should be sheeted home to the plaintiff’s various legal representatives but, even if the contrary is assumed, the plaintiff has advanced a plausible explanation for the delay which has occurred. The delay springs from a combination of impecuniosity, some apparent confusion about the right method of advancing this action, other significant pressures upon her, and a shortage of money. It is also relevant that there does not seem to be much more to be done before the matter may be listed for trial.
- [16]In summary, delay since the last step is attributable to the plaintiff personally, but in the special circumstance that she has, largely, been acting for herself and plainly lacks legal knowledge and resources to properly advance her action. No specific prejudice has been shown and her claim does not appear to be unarguable, or devoid of prospects of success. The delay, while now quite lengthy, has been explained by the lay, self-representing plaintiff in terms which show she has attempted, albeit perhaps misguidedly, to keep the action alive. This is not a case in which the delay could fairly be described as having a tendency to bring the legal system into disrepute, or to measurably decrease the chance of there being a fair and just result[12]. The circumstances also compel the conclusion that it has not been of such proportions as to create injustice to the defendants, if the matter is allowed to proceed. In the event, the important elements here are the absence of prejudice and the applicant’s own efforts to keep the action alive; and because both tell generally in her favour, the discretion should properly and fairly be exercised so as to allow her to continue the action.
- [17]The nature of the application makes it inevitable that she must, however, pay the defendant’s costs of and incidental to it, assessed on the standard basis. I will hear further submissions about the step/s which should be taken to advance the action and the orders which will effect that.
Footnotes
[1] As his Honour then was
[2] In the sense identified in Grahame Cavanough v Commonwealth of Australia [2000] QSC 068
[3] Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, per McPherson SPJ (as his Honour then was) at 594
[4] As her Honour then was
[5] Natissia Piazza v Geary [2003] QDC 419
[6] Kaats v Caelers [1966] Qd R 482
[7] Natissia Piazza v Geary, supra, n 5
[8] Smiley v Watson [2002] 1 Qd R 560
[9] [2000] QCA 178
[10] As it was then known
[11] Supra
[12] Tyler v Custom Credit, supra, n9, at [3] per Atkinson J