DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter there are cross-applications, by the defendant for the plaintiff’s claim to be dismissed for want of prosecution, and by the plaintiff, for leave to proceed under r 389.  The plaintiff filed a claim and statement of claim in the District Court at Maroochydore on 9 July 2008 seeking damages for defamation.  On 15 September 2008 an order by consent was made transferring the proceeding to the District Court at Hervey Bay.  The action was pursued with a deal of activity until late in 2010, including various amendments to the pleadings on each side, but no step was taken by a party for upwards of two years, until the defendant’s application to dismiss for want of prosecution which was filed on 9 July 2013.  The plaintiff’s application was filed in response.  Both applications came before me for hearing. 

Background

2. [2]
   This proceeding, like a number of other recent defamation actions in this court,^[1] arose out of the parties’ involvement with a Body Corporate for an apartment building.  The defendant and his wife own a unit in a building at Hervey Bay.^[2]  The plaintiff is and was a director of a family company which holds a caretaking agreement with the Body Corporate for that building.^[3]  It appears that the work or most of the work associated with the caretaking was done by the plaintiff personally.  In addition the plaintiff and his wife own three units in the building, which are part of a rental pool.^[4]  The plaintiff pleaded that he is also associated with other bodies corporate in the area.

3. [3]
   Apparently at some time prior to 5 March 2008 there was a problem with the air conditioning in one of the units, as a result of which the air conditioning maintenance contractors needed to replace a control unit. A replacement control unit was not immediately available, and the defendant alleges that the plaintiff removed or authorised the maintenance contractor to remove from another unit in the building the air conditioning control unit in that unit, without the knowledge or consent of the owner of that unit. It does not appear to be disputed that the air conditioning control unit was moved in this way, though the plaintiff asserts that he had the authority of the owner of that unit to move the control unit. The plaintiff also asserts that he had thought that the control unit had been speedily replaced, and had only discovered to the contrary after complaints made by the owner of that unit.

4. [4]
   On 5 March 2008 the defendant sent an email to the members of the committee of the Body Corporate, which the plaintiff alleged defamed him. Nine innuendoes were pleaded, but the sting of the email is that the defendant accused the plaintiff of stealing the control unit. It is apparent from the text of the email that the defendant had a longstanding dissatisfaction with the performance by the plaintiff of his duties as caretaker for the building.

5. [5]
   On 7 March 2008 the defendant sent a second email to the same people, again accusing the plaintiff of stealing the air conditioning device, and pressing the Body Corporate committee to do something about the plaintiff. On 13 April 2008 a third email was sent to the committee, essentially complaining about the fact that nothing had been done about the plaintiff by the committee. This is also alleged to have been defamatory, though it does little more than refer to unidentified behaviour of the plaintiff as being unacceptable. Later on 13 April 2008 there was a fourth email sent to the committee which essentially just complained that the plaintiff was uncooperative as caretaker. The plaintiff claims damages including aggravated damages.

6. [6]
   The chronology of the proceeding was as follows: 

7. [7]
   The plaintiff offered no plausible explanation in his affidavit in support of his application for the delay from October 2010. He deposed to the proposition that at that time all steps necessary to take the proceeding to trial had been completed, although no mediation had occurred between the parties.^[6]  The absence of a mediation was no justification for omitting to sign and forward a request for trial date, particularly when he had not suggested a mediation.  The plaintiffs said that there were three separate solicitors dealing with his case up to 2011, and there were some name changes in the firm, but there was no suggestion that this in some way prevented him from carrying the proceeding forward.^[7]  There was no evidence that any instructions from him were not followed for this reason.

8. [8]
   He said that he was told in mid-2011 that counsel previously briefed for him was ill, but this did not delay the proceedings.^[8]  It certainly provides no explanation for the delay until mid-2011, or the delay after that counsel returned to practice in 2013.  Besides, there are plenty of other counsel at the Bar.  The plaintiff deposed to his wife having been ill with cancer since 2004, and being very ill “between 2010 and 2011”, and advice in May 2012 that the condition had progressed to a more serious one, and that she is continuing to undergo chemotherapy, although he did not state when that started.^[9]  None of this was linked to his failure to pursue the action.  He also complained about the flooding at the beginning of 2011, and about the effects of Cyclone Yasi and Cyclone Oswald.^[10]  These may well have been disruptive for a short time, but they plainly do not account for the extended period of inactivity on his part.

9. [9]
   Finally the plaintiff claimed that after the publication for defamation he suffered as a result a major depressive disorder with anxiety which affected his ability to work, undertake everyday activities and interact in social and business activities.^[11]  There was such a diagnosis in a letter from Dr Rudd dated 12 February 2010, which was said to affect his ability to perform his work and everyday activities.  The plaintiff said that in the last six months he had felt a return of energy and a resolve to pursue the proceedings.^[12]  The matters referred to by Dr Rudd had not interfered with the plaintiff’s capacity to pursue the proceedings up until the latter part of 2010, so this provides no explanation for the change in behaviour from that time. 

10. [10]
    One plausible explanation for the plaintiff having failed to pursue the action is that it appears that, in so far as the defendant was trying to stir up the committee of the body corporate against the plaintiff, his efforts were entirely unsuccessful. According to the defendant’s affidavit, since the time when the emails were sent the body corporate has entered into a new caretaking agreement with the plaintiff’s business, and has also entered into a “letting contract” with the plaintiff or his business, said to have been granted for no consideration by the same committee members to whom the emails were published.^[13]  The defendant said that he and his wife have been ostracised from the affairs of the body corporate and the other owners have nothing to do with them, and that although they still own the unit there he has been generally too anxious even to visit over the last couple of years.^[14]  The proposition that these new agreements had been entered into was not disputed.^[15] 

11. [11]
    In these circumstances, it rather looks as though the proceedings were commenced as a result of concern on the plaintiff’s part that the emails from the defendant might interfere with his position as caretaker of this building, but once it emerged that the committee of the body corporate had not in fact been swayed against him by the defendant’s emails, and they were still prepared to support him by, for example, renewing the caretaking agreement and entering into a further agreement with him or his company, he lost interest in pursuing the litigation.

Authorities

12. [12]
    In Cooper v Hopgood & Ganim [1999] 2 Qd R 113 the Court of Appeal concluded that the exercise of a court’s discretion to dismiss for want of prosecution should not be fettered by rigid rules, but required a decision to be reached on a balance of the relevant circumstances.  Pincus JA, with whom Derrington J agreed generally, at p.118 quoted with approval a passage from the judgment of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 at 412:  “Everything must depend upon the circumstances disclosed in each particular case.  It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory.  It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay.  When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.”

13. [13]
    Some of the factors said to be relevant to the exercise of the discretion were referred to by McPherson JA at p.124: “Matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the possible impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes no account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.”

14. [14]
    In Quinlan v Rothwell [2002] 1 Qd R 647 de Jersey CJ at p.652 said:  “The discretion to dismiss for want of prosecution may these days confidently be exercised, in appropriate cases, with more robustness than would previously have been considered appropriate.”  His Honour went on to refer to r 5 and the implied undertaking it contains to proceed in an expeditious way.  At p.657 Thomas JA said:  “It is a noteworthy feature of recent cases that courts appear more ready than before to infer that substantial delays will substantially reduced the chance of a fair trial.”  His Honour went on to refer to a change in attitude about the extent to which litigation could be allowed to languish.  His Honour also said at p.658:  “The former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended.”  His Honour also cited with approval the passage from the judgment of McPherson JA in Cooper quoted above.  Both their Honours went on to qualify those statements with a warning that the discretion should only be exercised to dismiss for want of prosecution in appropriate cases. 

Analysis of relevant factors

15. [15]
    It is common for applications of this nature to be considered by reference to the framework in the helpful judgment of the Court of Appeal in Tyler v Custom Credit Corporation Ltd [2000] QCA 178, where a number of such factors were identified.  The events alleged in the statement of claim occurred about six years ago.  The proceedings were commenced about four months after the publication of the first email, relatively quickly although that is not unusual in the case of defamation actions, where the limitation period is only 12 months.^[16]  The initial statement of claims relied only on the publication of the first and second emails, on 5 and 7 March 2008.  The amended statement of claim filed 30 March 2009 added or attempted to add causes of action in respect of the publication of the third and fourth emails.  This was close to the expiration of the limitation period in respect of those two occasions.^[17]  I will return to the plaintiff’s prospects of success.

16. [16]
    There has been no disobedience of court orders or directions, although there has been a clear breach by the plaintiff of the implied undertaking in UCPR r 5(3).  The course of litigation falls into two parts; up to the point where activities stopped in October 2010, the litigation was characterised by inefficiency rather than delay, there being much activity devoted to the task of getting the pleadings into proper form, something which ought to have been done by the end of 2008.  Thereafter there was a significant delay, which is attributable to the plaintiff; it was up to the plaintiff to carry the proceeding forward, and there was nothing the defendant had done or omitted to do which was preventing the plaintiff carrying it forward.

17. [17]
    The impecuniosity of the plaintiff has not been responsible for the pace of the litigation; the plaintiff’s depression did not prevent him from starting and for time actively pursing the litigation, and problems with flood or cyclone damage and interference with his business did not explain why progress in the litigation stopped in October 2010. There was no specific evidence that progress stopped at that time because the plaintiff ran out of money, and in circumstances where the defendant’s emails had no adverse affect on the attitude of the committee of the body corporate to the plaintiff, he plainly has not suffered any adverse financial effect in that way as a result of the defendant’s actions.

18. [18]
    The litigation between the parties would be concluded by striking out the plaintiff’s claim, since his claims are now statute barred. The progress of the litigation is apparent from the chronology, and what I have said earlier. There is no suggestion that any part of the delay is to be attributed to the plaintiff’s lawyers at any particular time. Although the plaintiff said that there were some changes in personnel, there is no evidence that these changes impacted upon instructions to take particular steps which had been given before they were made, or otherwise prevented the action from being carried forward. I have already dealt with the question of explanation for the delay.

19. [19]
    On the question of whether the delay resulted in prejudice to the defendant leading to an inability to have a fair trial, the plaintiff was relying on written publications, the proof of which will presumably not be difficult. The defendant’s principal defence is that he was complaining to the committee of the body corporate about something which was true, and this depends on his being able to prove what he says the plaintiff did. The defendant mounted the case that, because of the lapse of time, he had lost track of necessary witnesses, so that a fair trial could no longer be held.

20. [20]
    The defendant said that, as a result of the notice of non party disclosure obtained in November 2008, his solicitors obtained a document which identified the air-conditioning technicians involved in the work as “Neil” and “Tom”.^[18]  After making some further inquiries his solicitor had been able to speak to “Neil”, who told him that he had no recollection of the incident, or of any discussions with either the plaintiff or the defendant.^[19]  The solicitor had also been able to identify “Tom” and had spoken to him, but said that he was not able to recall this particular job either, and although he had some recollection of the plaintiff, he did not recall speaking to him about this particular job. 

21. [21]
    It is true to say that the defendant did not promptly contact these witnesses after the documentation was obtained on non party disclosure, and it may well be that if they had been spoken to and statements taken in late 2008 or early 2009 they would then have had some recollection of the circumstances of what must at the time have been an entirely unexceptional job, and those statements would be of assistance in prompting their recollection of the events now. To some extent therefore it can be said that the unavailability of this evidence is attributable to a failure to gather evidence in a timely way on the part of the defendant’s solicitors. Nevertheless, it does illustrate that people’s memories do fade with time, and it would be unsurprising if these individuals, who had no reason to be concerned about this particular job among many others they had no doubt undertaken, by now in any case had little independent recollection of the circumstances of this incident. That may well have reduced the value of their evidence at trial, even if timely statements had been taken.^[20]  It certainly means that as things stand they would be of little assistance to the defendant at a trial. 

22. [22]
    The defendant also said in July 2013 that he was unsure of the location of various other people including the former owners of the unit in question, the persons who received the emails, and an identified person said to be the former cleaner of various units.^[21]  The solicitor for the plaintiff made some inquiries and was able to locate the former owners of the unit in question.^[22]  She was able to make contact with four of the five individual email recipients, and obtained an address from the electoral roll for the fifth, though she said nothing about the former cleaner.  It is not immediately obvious that the evidence of the recipients of the emails would be of any great significance, though they may well be able to speak about the extent, if at all, the emails were circulated by any of them to anyone else, and indeed to what extent, if at all, their opinion of the plaintiff was in fact influenced by the content of any of the emails.  Depending on what they say, that evidence might assist the plaintiff, or might assist the defendant, in relation to the question of damages.

23. [23]
    It would be unsurprising if after this length of time their recollection of the matter, particularly in relation to any matters of detail which may come up during a trial, would not be all that good. Overall, this is a case where the defendant has suffered some significant prejudice as a result of the delay, though it may be that some of that might have been reduced had there been timely preparation on the part of the defendant’s solicitors. Apart from that, there is the general proposition that, bearing in mind that a not insignificant amount of time has now passed since the events occurred, to the extent that oral evidence is relevant to the matters in issue at the trial the inevitable fading of human memory over that time is likely to cause some prejudice to the proper conduct of the trial. Because the plaintiff’s case is relatively straightforward and relies essentially on the proof of the emails, and his own evidence, any prejudice of this kind is going to fall on the defendant.

24. [24]
    On the subject of prospects of success, on the face of it the first two emails at least are clearly defamatory, and the real issue is whether the defendant has a defence. A substantial defence from the defendant's point of view is that the plaintiff did give instructions to the technicians as a result of which an air conditioning control unit the property of the owners of another unit was moved into one of his own units without the knowledge and approval of the owners of that unit, presumably at a time when the other unit was vacant. Even on the pleaded case that was not stealing because the plaintiff’s intention was just that it be used temporarily, so that there was no intention permanently to deprive the owners of it, but I expect that for practical purposes if the plaintiff had arranged that to be done without the knowledge and approval of the owners of the unit, that would be significant to the outcome, even if only in terms of quantum.

25. [25]
    Counsel for the plaintiff did tell me during the hearing of the application that his instructions were that the plaintiff did have the authority of the owners of the unit, and if that was the case then that is a significant matter. At the very least, it may be that the plaintiff would not have been guilty of stealing because he had an honest claim of right, and hence a defence under s 22. 

26. [26]
    The other significant issue is whether there was qualified privilege. What occurred was in substance a complaint to the committee of the Body Corporate about the behaviour of the plaintiff in respect of his conduct as the caretaker of the building. If the Body Corporate has entered into an agreement under which a particular individual has been appointed caretaker of a block of home units, it would seem to me that if someone has a complaint about the caretaker then that complaint could be appropriately addressed to the members of the committee of the Body Corporate. It may well be that an agreement of this nature requires the approval of the Body Corporate in general meeting, under which circumstances a complaint could well be appropriately addressed to any or all of the owners of lots in the Body Corporate.^[23]

27. [27]
    I have not heard full argument on the matter and it is not appropriate for me, in relation to an application of this nature, to go in much detail into the merits of the proceeding, but it occurs to me that there could well be an argument that there was a defence of qualified privilege in respect of these emails. Conversely, there could well be an argument available to the plaintiff that the intemperance of the language of the emails suggests actual malice which would defeat such a defence. Accordingly the position is more complicated than would appear simply by reference to the fact that the publications were in writing and at least the first two plainly defamatory on their face.^[24]  Overall it can be said that the plaintiff has reasonable prospects of success but that the ultimate outcome is uncertain.

28. [28]
    This is not a case where it could be said that if the matter goes to trial the plaintiff will, or is very likely to, win, and the only real question is as to quantum. The question of quantum is always uncertain in defamation matters. It may emerge that in fact nobody paid much attention to what the defendant said, and it did not hurt the plaintiff’s standing with the Body Corporate. One thing that can be said with confidence is that the plaintiff, not having complied with the requirements of the Personal Injuries Proceedings Act, will not be entitled to claim damages for psychiatric injury allegedly suffered as a result of the defamation.  The further amended statement of claim does not allege psychiatric injury, though it does allege the plaintiff suffers mental anguish, distress and embarrassment:  paragraph 12(b).  It may be difficult to tease out those aspects of the plaintiff’s mental response to the defamation which are part of the psychiatric injury, and not compensable, and those which are within the scope of compensatory damages for defamation.

29. [29]
    The defendant has also deposed to the fact that he suffers from a medical condition which flares up significantly when he is under stress, and that he has been very anxious and stressed because this litigation has been pending against him.^[25]  His wife, who had a pre-existing condition of depression, has also been distressed by the fact that the litigation was hanging over his head.^[26]  He also complains about the adverse effect on his business of the significant weather events in Hervey Bay in recent times.^[27]  As mentioned earlier, the psychological burden which the continuance of drawn out litigation brings to bear on parties who are individuals is a factor which is relevant in considering an application of this nature.

Conclusion

30. [30]
    Overall it seems to me that, although the delay in this matter has not been particularly long, the balance favours dismissing the plaintiff’s action for want of prosecution. There was a significant period when the plaintiff failed to take any steps to carry the proceedings forward in circumstances where no good reasons for his failure to do so has been given, and where it looks like the plaintiff had deliberately chosen not to pursue the proceeding. The plaintiff sought leave to proceed only in response to the defendant’s application. The plaintiff was clearly in breach of his implied undertaking under the rules, for which no justification or excuse has been shown. The passage of time has led to the loss of recollection of events on the part of relevant witnesses, and has as a result impacted adversely on the prospects of a fair trial. Given the circumstances of the action oral evidence and recollection are likely to be much more significant to the defendant's case than the plaintiff’s case, so that the passage of time and the natural frailty of human memory would impact more severely on the defendant than on the plaintiff. In all the circumstances I consider that these are significant matters, and that in combination they outweigh the fact that if the proceeding is dismissed the plaintiff will be unable to pursue his claim.

31. [31]
    For these reasons, on the defendant's application, I order that the plaintiff’s action be dismissed for want of prosecution. The plaintiff’s application is dismissed. I order the plaintiff to pay the defendant's costs of and incidental to the proceeding, including both applications, to be assessed.