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  4. Craven v Globe Valley Pty Ltd - [2018] QDC 198

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Craven v Globe Valley Pty Ltd[2018] QDC 198

Craven v Globe Valley Pty Ltd[2018] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Craven v Globe Valley Pty Ltd & Ors [2018] QDC 198

PARTIES:

gordan james craven (Plaintiff)

V

GLOBE VALLEY PTY LTD (First Defendant)

AND

PETER ROSS HEGARTY (Second Defendant)

AND

DEBORAH HEGARTY (Third Defendant)

AND

SEBASTIAN JAMES HEGARTY (Fourth Defendant)

AND

THOMAS ROSS HEGARTY (Fifth Defendant)

AND

SHELI BOWMAN (Sixth Defendant)

FILE NO/S:

228/18

DIVISION:

Civil

PROCEEDING:

Application 

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 September 2018 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2018

JUDGE:

Porter QC DCJ

ORDER:

  1. The proceedings against the first to third defendants be dismissed;
  2. The hearing of the application by the plaintiff filed 14 September 2018 be vacated;
  3. The plaintiff pay the first to third defendants’ costs of these proceedings, including reserved costs and the costs of the application filed 12 September 2018 on a standard basis;
  4. Order 3 be stayed until 26 October 2018;
  5. The application filed 12 September 2018, in respect of relief sought by the fourth and fifth defendants, be dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISMISSAL OF PROCEEDINGS – where an order for security for costs for the first to third defendant has been made – where the plaintiff has not complied with this order – where the defendant applies for dismissal of proceedings against the first to fifth defendants – where the plaintiff applies for the strike out of the security for costs order – whether special circumstances exist – whether the proceedings should be dismissed.

Cases

Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 35 ALR 625

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2008] QSC 266

Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd & Anor [2017] QDC 280

Craven v Globe Valley Pty Ltd & Ors [2018] QDC 155

Goodman v Lorenzen [2000] QCA 11

H & R Management v Bickford [2010] QSC 144

Neylon v Bluegrass Developments Pty Ltd [2002] QCA 2

Legislation

Uniform Civil Procedure Rules 1999 (Qld) rr 658, 668, 674, 675

COUNSEL

G Craven for the plaintiff (appearing in person)

N Ferrett for the first, second, third, fourth and fifth defendants

No appearance for the sixth defendant

SOLICITORS:

Archibald & Brown Lawyers for the first, second, third, fourth and fifth defendants

Introduction

  1. [1]
    This is an application by the defendants for the dismissal of the claims against them. The first to third defendants rely on rule 674(c) Uniform Civil Procedure Rules 1999 (Qld) (UCPR) that permits the court to dismiss all or part of the proceedings when an order for security has been made and not complied with. That rule provides:

674  Stay or dismissal

If the court orders the plaintiff to give security for costs—

  1. (a)
    the time set by these rules or by an order of the court for another party to take a step in the proceeding does not run until the security is given; and
  1. (b)
    if security is not given under the order—the proceeding is stayed so far as it concerns steps to be taken by the plaintiff; and
  1. (c)
    the court may, on the defendant’s application, dismiss all or part of the proceeding.
  1. [2]
    The first to third defendants rely on an order for security for costs made by Judge Williamson on 10 August 2018 in favour of the first to third defendants. It is not contentious that that order has not been complied with.
  1. [3]
    The fourth and fifth defendants were not parties to the application that gave rise to that order. They rather seek dismissal under rule 658 UCPR which provides:

658  General

  1. (1)
    The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.
  1. (2)
    The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.
  1. [4]
    The fourth and fifth defendants sought dismissal under that rule on the basis that if they sought security, it was inevitable that such an application would ultimately result in the proceedings being dismissed.
  1. [5]
    The plaintiff, Mr Craven, appears in person. He has an application returnable on 2 October next Tuesday brought under rule 675 of the UCPR. That rule provides:

675  Setting aside or varying order

The court may set aside or vary an order made under this chapter in special circumstances.

  1. [6]
    That application is to set aside his Honour’s order for security for costs in favour of the first and third defendants. I asked Mr Craven at the commencement of the hearing of the application whether he was, notwithstanding the hearing date for that application, content to proceed with the defendants’ applications today. I explained to him that to resist those applications he would have to persuade me he had a sufficient prospect of succeeding on his application under rule 675 to answer their applications. He informed me he had been able to prepare his material on that application for filing today. I received five affidavits in that respect. Mr Craven proceeded with the hearing of the defendants’ applications in those circumstances.

Background

  1. [7]
    These applications are the latest step in a regrettable history of litigation involving the plaintiff, Mr Craven, and the Hegarty family, and companies associated with them. Earlier proceedings arose out of concerns harboured by Mr Craven about the operation of certain online florist businesses by the Hegartys or companies associated with them or, as I say, contended to be associated with them by Mr Craven. The history of the dealings between the parties in that regard is set out in the reasons for judgment of Judge Williamson[1] as follows (footnotes omitted):
  1. [3]
    The Applicants are involved in the floristry industry. Two of the Applicants (the Second and Third Defendants) are associated with a company known as Ready Flowers Pty Ltd. In March 2009, Mr Craven commenced proceedings against this company and a second defendant, Mr Owen, in the Federal Magistrates Court. In that proceeding, Mr Craven purported to sue in the capacity of “an average consumer” and alleged both defendants had breached State and Federal consumer protection laws.
  1. [4]
    The issue to be determined in the proceedings involved an examination as to whether the defendants had engaged in misleading and deceptive conduct for the purposes of section 20 of the Australian Consumer Law.
  1. [5]
    The proceeding commenced by Mr Craven in the Federal Magistrates Court did not enjoy success. It was dismissed by order of 10 March 2015. The true extent to which the proceeding was unsuccessful is revealed once it is appreciated that Mr Craven:
  1. (a)
    unsuccessfully raised for determination a preliminary point with respect to the operation of an estoppel;
  1. (b)
    unsuccessfully sought leave to appeal against the ruling on the preliminary point in circumstances where the application for leave was described as lacking bona fides;
  1. (c)
    did not comply with the order of the Federal Court of 5 December 2013 requiring him to pay Ready Flowers’ costs of and incidental to the application for leave to appeal;
  1. (d)
    did not comply with a bankruptcy notice for which the debt was an amount of $30,578.45 for the costs payable pursuant to the order of 5 December 2013;
  1. (e)
    unsuccessfully made an application to the Federal Court for an extension of time to comply with a bankruptcy notice issued in relation to the costs payable under the order of 5 December 2013;
  1. (f)
    appealed against the order of 2 May 2014 dismissing the application for an extension of time to comply with the bankruptcy notice;
  1. (g)
    did not comply with the self-executing order of 18 June 2014 of Rangiah J providing that his appeal against the order of 2 May 2014 would be dismissed if security for costs in the amount of $10,000 was not provided by him;
  1. (h)
    unsuccessfully resisted an application by Ready Flowers Pty Ltd for its costs of the appeal against the order of 2 May 2014 and the application for security for costs; and
  1. (i)
    unsuccessfully resisted an application for a sequestration order based on the costs orders made by the Federal Court.
  1. [6]
    The affidavit material reveals that Mr Craven is subject to a number of costs orders which remain unsatisfied. The orders were identified in correspondence dated 5 March 2018 from the Applicants’ solicitor to Mr Craven. The correspondence states:

“3.  You have been engaged in a long standing dispute with the Hegarty family, including our clients Peter and Deborah Hegarty, of varying a (sic) nature since March 2009. In doing so, you have brought 5 seperate (sic) pieces of litigation over that time, all of which have failed. As a result of the said failed litigation, you were made subject to the following costs orders which remain unsatisfied:

  1. (a)
    Costs order made on 5 March 2013 (Greenwood J) in the Federal Court of Australia; which order was assessed at $30,578.45;
  1. (b)
    Costs order made on 2 May 2014 (Dowsett J) in the Federal Court of Australia; which order was assessed at $19,014.25;
  1. (c)
    Costs order made on 14 August 2014 (Rangiah J) in the Federal Court of Australia; which order was assessed at $29,164.25.
  1. (d)
    Costs order made on 5 March 2015 (Logan J) in the Federal Court of Australia; which order was never assessed, having been made immediately prior to the order making you a bankrupt.
  1. (e)
    Costs order made on 10 March 2015 (Jarrett J) in the Federal Circuit Court of Australia; which order was assessed at $86,014.40, which award was post-bankruptcy and remains unpaid to its benefactor, Ready Flowers Pty Ltd (In Liquidation).”
  1. [7]
    The order of 10 March 2015 dismissing the proceedings commenced in the Federal Magistrates Court did not mark the end of legal proceedings as between Mr Craven and Ready Flowers Pty Ltd. In February 2016, Ready Flowers Pty Ltd and the Second Defendant, Peter Hegarty, commenced an Originating Application in the Supreme Court of Queensland against Mr Craven for defamation15. An injunction was sought to prevent Mr Craven from publishing defamatory statements about them on the internet. The proceeding was transferred to this Court for determination. On 22 April 2016, his Honour Judge Butler SC granted an interlocutory injunction restraining Mr Craven from publishing “Any matter of and concerning” Ready Flowers Pty Ltd and the Second Defendant that imputes or implies, inter alia, that they are or were involved in “rip-off” conduct. The costs of the interlocutory hearing were reserved.
  1. [8]
    That summary, with respect, appears an accurate one based on my own review of the material. In short his Honour summarises:
  1. (a)
    Mr Craven’s failed proceedings seeking to vindicate allegations of misleading and deceptive conduct against a company associated with the second and third defendants;
  1. (b)
    the extensive litigation arising from bankruptcy proceedings, which resulted in Mr Craven being named bankrupt on cost orders made in those proceedings; and
  1. (c)
    The numerous cost orders arising out of all of that litigation which remain unpaid.
  1. [9]
    None of those circumstances have changed.
  1. [10]
    His Honour then turns to summarising the proceedings in this court. There are proceedings by Ready Flowers and the second defendant as plaintiff for defamation against Mr Craven, which resulted in an interlocutory order restraining Mr Craven from making certain statements. Then there are the current proceedings. The current proceedings are summarised in his Honour’s reasons as follows:
  1. [8]
    As I have already said, Mr Craven commenced proceedings in this Court in January 2018 for damages and injunctive relief for defamation. The proceedings focus on three internet sites where it is alleged defamatory statements were published. The internet sites are known as zFlowers.com, zflowers.com.au and blog.zflowers.com. The Plaintiff alleges that the internet sites published, by way of two blogs, and a press release, “offending material” that falsely accuse him of:
  1. (a)
    being an internet troll;
  1. (b)
    being a cyber-bully;
  1. (c)
    being a serial cyber stalker;
  1. (d)
    being mistaken in his claims about a website, zflowers.com;
  1. (e)
    engaging in cyber-bullying, stalking and vilification;
  1. (f)
    suffering a misconception as to how international businesses operate;
  1. (g)
    attacking and publicly humiliating companies and public figures;
  1. (h)
    making an extortionate demand for $60,000 to settle the case;
  1. (i)
    making an extortionate demand for $60,000 to settle the case;
  1. (j)
    pursuing a misguided crusade against zFlowers.com; and
  1. (k)
    refusing to comment when he had not been approached for comment.
  1. [9]
    Mr Craven alleges that the First Defendant, Globe Valley Pty Ltd, is responsible for publishing the offending material. This is pleaded on the premise that it is responsible for, and maintains, the internet sites where the alleged offending material was published.
  1. [10]
    As to the Second Defendant, Peter Hegarty, it is alleged that he is a director of Globe Valley Pty Ltd and, as a consequence, had control of that company. Further, Mr Craven alleges that Peter Hegarty:
  1. (a)
    consented, approved or acquiesced to all publications on the zflowers.com zflowers.com.au internet sites as well as the associated blog websites;
  1. (b)
    contributed to and controlled the offending material the subject of the Claim and Statement of Claim; and
  1. (c)
    as a director and contributor, was involved in publishing the offending material.
  1. [11]
    Similar allegations are made by Mr Craven about the Third Defendant, Deborah Hegarty, save that he does not assert that she was involved in contributing to, controlling, or publishing the press release that is alleged to be defamatory.
  1. [12]
    On 5 March 2018, a Notice of Intention to Defend and Defence were filed on behalf of the Applicants. The Defence calls in aid s 12AA of the Limitation of Actions Act 1974 (Qld) in relation to publications occurring more than 12 months before the commencement of the proceeding. Further, it is expressly denied that the Applicants uploaded, or otherwise authorised or made available for publication, any of the alleged offending material.
  1. [11]
    I adopt his Honour’s summary. In short, Mr Craven is suing for defamation against the defendants arising out of publications on various internet sites which, he alleges, made statements referable to him generally relating to the past litigation and his conduct online, inter alia, as “an internet troll.” He pleads the defendants are liable for defamatory matter. The crux of the defence is that the proceedings are statute-barred and that the defendants did not publish, or cause to be published, the material.
  1. [12]
    The first to third defendant sought security for costs in these proceedings. That application was heard before Judge Williamson of this court, as I’ve said, on 28 March 2018. On 10 August 2018 his Honour gave written reasons and ordered security, in the amount of $10 000, to be paid within 14 days. He made that order despite the fact that Mr Craven, the plaintiff, was a natural person. His Honour made the order on the basis of the matters summarised at [47] to [48] of his reasons:
  1. [47]
    I have accepted that an order for security for costs will stifle the litigation. This will occur in circumstances where the Applicants do not contend that the claim lacks all basis. They concede for the purposes of this application that terms such as “internet troll” are arguably defamatory. This is a weighty consideration that mitigates against granting the relief sought.
  1. [48]
    The weighty consideration is however overcome by a number of features that have persuaded me that the justice of the case requires an order for security for costs. Those features are consistent with the submissions made on behalf of the Applicants and are as follows, namely:
  1. (a)
    the litigation represents a continuing crusade by Mr Craven against the Hegarty family justified by his view that he is well known for exposing misconduct in the online floristry industry. The conduct of litigation as a crusade is, in my view, tantamount to conducting litigation that is not genuine, or is fairly described as vexatious in the sense discussed by Deane J in Oceanic Sun Line Shipping Company (Supra);
  1. (b)
    there is a substantial number of unpaid costs orders against Mr Craven, some of which were the product of litigation that was wholly unsuccessful, and in one instance, was said to lack bona fides. This factor, coupled with his inability to pay costs (if ordered) in this proceeding is a strong indicator that the justice of the case requires the making an order for security for costs; and
  1. (c)
    whilst it may be assumed that Mr Craven’s claim has some basis and the litigation will be stifled by an order for security for costs, that does not protect him from providing security for costs where, as here, the litigation has the hallmarks of being conducted in a way that is vexatious, or is not genuine.
  1. [13]
    There are two key matters that were raised by his Honour at [48](a) and [48](b) that require further discussion. His Honour’s observation at [48](a) has to be understood in the context of the reasons at [28] to [32]:
  1. [28]
    First, it is submitted that the claim has been brought by Mr Craven to harass rather than in good faith. It is submitted that the claim is not concerned with alleged defamation, but rather Mr Craven’s ongoing crusade against the Hegarty family. The crusade is said to be evidenced by Mr Craven’s conduct who:
  1. (a)
    is recycling allegations from the earlier proceedings on the internet;
  1. (b)
    is using this proceeding as a basis for publishing criticism of the Applicants on the internet; and
  1. (c)
    has obvious contempt for the injunction ordered against him by Judge Butler SC.
  1. [29]
    Having regard to the background set out above in paragraphs [3] to [19], I accept the submission that this proceeding is intended to maintain Mr Craven’s crusade against the Hegarty family. By his own admission, the crusade commenced in the Federal Magistrates Court on the footing that Mr Craven was acting in the public interest as a service to consumers to expose poor conduct in the online floristry industry. The litigation was wholly unsuccessful. The degree to which the litigation was unsuccessful cannot be understated.
  1. [30]
    Notwithstanding the lack of success in the earlier litigation, Mr Craven has maintained his crusade by publishing material on internet sites about Ready Flowers and two of the Applicants, Peter and Deborah Hegarty. The material published is far from complimentary. It is inflammatory and indicative, in my view, of an unsuccessful litigant who is seeking to justify his conduct of litigation on the misapprehension that he is acting in the public interest and providing an unpaid service to consumers.
  1. [31]
    There is little to suggest that the Court could have comfort the crusade commenced by Mr Craven will come to end. There are three matters which satisfy me that there is a genuine risk that the crusade will continue and impact on the mode of litigation adopted by Mr Craven.
  1. [32]
    In the first, instance, the Statement of Claim maintains Mr Craven’s view that he is acting in the public interest to expose misconduct in the online floristry industry. Paragraph 1(d) of his Statement of Claim states:

“1.  At all times material to this proceeding, the Plaintiff was and is a person:

…

  1. (d)
    well known within the Australian florist community for exposing and publishing misconduct in the online florist industry, that includes entities:
  1. (i)
    publishing substantial numbers of fake positive online reviews;
  1. (ii)
    removing substantial numbers of negative online reviews;
  1. (iii)
    non delivery of product within an agreed time, or at all;
  1. (iv)
    delivering product not as described and of inferior quality or value;
  1. (v)
    failing to refund consumers within a reasonable time, or at all;
  1. (vi)
    non payment of monies due to florist creditors;
  1. (vii)
    causing substantial consumer and florist dissatisfaction;
  1. (viii)
    having a serial lack of regard for consumer’s rights;
  1. (ix)
    causing numerous negative television, radio and newspaper articles;
  1. (x)
    causing a Senator’s consumer alert warning in the Australian Senate;
  1. (xi)
    causing tens of hundreds of complaints to online product reviews;
  1. (xii)
    causing multiple consumers and business complaints to government consumer protection authorities.”
  1. [14]
    His Honour then turned to consider the situation in the future, and at [31] his Honour observed there was little to suggest that the court could have comfort the crusade commenced by Mr Craven could come to an end. He identified three matters in that regard. The first is allegations about Mr Craven’s activism in paragraph 1(d) of the statement of claim. The second is Mr Craven’s running commentary on line about the proceedings, recycling allegations from the unsuccessful litigation and making allegations that the Hegarty family are dishonest. And the third was a concession made in the course of oral argument. I’ll come back to those matters, as they loom large in the issues that would be raised on the hearing of his application under rule 675.
  1. [15]
    The second key point was identified in  [48](b) of the reasons: that there is substantial unpaid cost orders from the previous proceedings, including proceedings which had been said in some cases to lack bona fides, coupled with an inability to pay those costs. His Honour expands on the circumstances that led to that observation as follows (footnotes omitted):
  1. [37]
    The second point advanced by the Applicants involves emphasising Mr Craven’s status as a recently discharged bankrupt, who is unlikely to meet any costs orders made against him. Further, they emphasise there are current outstanding costs orders against Mr Craven and there is no suggestion that he intends to settle those orders. I accept that Mr Craven is subject to unpaid costs orders.
  1. [38]
    Mr Craven’s plan to discharge the unpaid costs orders is contingent upon success in this proceeding. The proposal to settle the outstanding costs order was described at paragraph 2(f) of Mr Craven’s affidavit sworn 27 March 2018 in this way:

“I am unable to provide any Security For Costs, and being ordered to do so would frustrate my rights to litigate, and stifle my Claims against the first 3 defendants for:

…

  1. (f)
    [it will] hamper extinguishing the remaining Costs order against me referred to at sub-paragraph 6(c) of the Affidavit of Leslie Edward Moore sworn 19 March 2018. This Costs Order was not included in my bankruptcy. Should I be successful in receiving damages in this proceeding, $86,014.40 of those damages could then be paid to the Ready Flowers Ltd Liquidator and put to satisfying the unpaid debts to florists by Ready Flowers referred to at sub-paragraphs 7(d) and 7(d)(i) below…”

(emphasis added)

  1. [39]
    Mr Craven’s proposal to settle unpaid costs orders is unrealistic. Further, this aspect of his sworn affidavit serves to reinforce that an underlying reason for the litigation includes Mr Craven’s view that the relief he seeks in this proceeding will also benefit other florists. He suggests that the damages he obtains in this proceeding may well satisfy debts owed by Ready Flowers Pty Ltd to unnamed florists.
  1. [40]
    The outstanding costs orders against Mr Craven were not made in this proceeding. Nor is Mr Craven required to pay costs to any of the defendants to this proceeding. This does not however mean the unpaid costs orders are irrelevant. In this regard, Mr Ferrett emphasised the following passage in Green v CGU Insurance Ltd where Hodgson JA said:

“Cases in which security for costs might be ordered against an actual person… outside those provided for in r 42.21 of the UCPR include cases where (in addition to proof that there is reason to believe the plaintiff will be unable to pay the defendant’s costs) the plaintiff has …not paid previous costs orders (especially if those costs orders were in favour of the defendant) and/or brings a weak case to harass the defendant and/or brings a case for the benefit of others…”

  1. [41]
    It was submitted that this decision lends support to the proposition that it is relevant to take into account in an application for security for costs that a plaintiff, who is unlikely to be able to pay the defendant’s costs, has not paid previous costs orders. This is said to be a relevant consideration, even if the costs orders were made in different litigation and in favour of different defendants.
  1. [42]
    I accept this submission. The importance of this factor is ultimately a question of weight, rather than relevance.
  1. [16]
    Having dealt with those two key points in the course of his Honour’s reasons, he then considered Mr Craven’s submissions. He set out Mr Craven’s submissions at paragraph 43 (footnotes omitted):
  1. [43]
    Mr Craven confirmed that he relied on ten grounds in opposition to the application for security for costs 21. The grounds can be stated as follows:
  1. (a)
    the impetus for the proceeding was the apparent vendetta against Mr Craven evident in the defamatory publications and the number of times the material was published (alleged to be 115 million times);
  1. (b)
    Mr Craven does not have the financial means to pay security for costs which will stifle the proceedings and his right to litigate in circumstances where:
  1. (i)
    he had warned the Applicants he would commence these proceedings;
  1. (ii)
    he has a very strong case;
  1. (iii)
    he has a massive amount of evidence and he should be entitled to present that to the Court;
  1. (iv)
    the Second defendant does not have clean hands;
  1. (v)
    there are no existing costs orders hanging over his head from this proceeding;
  1. (vi)
    he is free to publish material on the internet, and it is all true;
  1. (vii)
    he was not declared a vexatious litigant by the Federal Court; and
  1. (viii)
    he intends to settle outstanding costs orders against him, this is however contingent on achieving success in this proceeding.
  1. [17]
    His Honour analysed those matters at [44] to [45] where he observed:
  1. [44]
    I accept that Mr Craven has established the submissions stated in paragraph [43](b)(i), (v) and (vii) above. I also accept the submission that an order for security for costs will stifle this proceeding. It is uncontroversial that Mr Craven has no financial means to satisfy costs orders if made. Further, Mr Craven indicated that he does not have the financial means to pay the amount of $10,000 for security for costs of the proceedings. He also said that the security for costs would not be provided just on principle.
  1. [45]
    As to the balance of Mr Craven’s submissions opposing the order for security for costs:
  1. (a)
    I do not accept that the impetus for the proceeding was an apparent vendetta against him. The impetus was his desire to continue a crusade in circumstances where he regards himself as a person well known for exposing misconduct in the online floristry industry;
  1. (b)
    it was asserted by Mr Craven that he has a strong case, but this was not developed, or established, having regard to the evidence. For example, there was no evidence before me to establish the foundation for the argument that the Applicants were responsible, or acquiesced in, the publication of the alleged offending material. Accordingly, I am unable to make any finding as to the strength of Mr Craven’s case;
  1. (c)
    the reference to a “massive body of evidence” is, in my view, more troubling than it is of assistance to Mr Craven. It suggests that the litigation to be conducted will involve substantial material. The Applicants will be required to consider and respond to this material to defend the proceeding. The Applicants will incur costs considering and responding to the material. Having regard to the nature of the evidence Mr Craven has put before the Court for this application, there is a genuine risk that the “massive amount of evidence” that may be led at trial is confusing, irrelevant and lacking in probative value. The evidence with respect to the number of times the alleged offending material was published on the internet is a good example of this;
  1. (d)
    it is unfair to submit that Peter Hegarty does not have “clean hands” for the purposes of determining this application. This submission is no more than an assertion and Mr Craven has not established on the evidence that it is a submission open to him. A perusal of the reasons for judgment in Craven v Ready Flowers Pty Ltd & Anor [2015] FCCA reveals that Mr Craven has a track record of making allegations that a party has acted dishonestly and failed to lead evidence to support that allegation;
  1. (e)
    I accept that Mr Craven is free to publish material on the internet, subject of course to the injunction granted by Judge Butler SC. I am not however prepared to accept that the matters published by Mr Craven on the internet about Peter and Deborah Hegarty are true. There is no evidentiary basis to so find and it would, in any event, be irrelevant to the determination of the application before me; and
  1. (f)
    I have already dealt with MrCraven’s proposal to satisfy outstanding costs orders. The proposal is unrealistic.
  1. [18]
    It can be seen that his Honour, accepted as discretionary considerations favouring not ordering security, Mr Craven’s proposition that he had warned the applicants the he would commence the proceedings, that there was no cost orders in the existing proceedings that were unpaid, and that he had not been declared a vexatious litigant. His Honour considered the other matters raised by Mr Craven and did not think any of them led to a conclusion against ordering security: I’ll come back to some of these presently.
  1. [19]
    As I have observed, his Honour ordered costs of $10,000 as security. It is trite that the amount of security to be ordered by a court is in the court’s discretion, it’s not necessarily intended to amount to a full, or even substantial, indemnity. In this case, however, the amount of $10,000 is said to be, and is plainly, a very modest amount given the costs likely to be incurred in conduct of litigation revealed by the statement of claim. His Honour required payment in 14 days. It is not in dispute that the security was not paid, and will not be paid, and cannot be paid.
  1. [20]
    I now turn to these applications. The defendants’ application was filed once the period for providing security and the appeal period had expired; Mr Craven’s application was filed a couple of days after the defendants’ application: I draw no inference about that circumstance.
  1. [21]
    The issues that arise today are these:
  1. (a)
    First, do Mr Craven’s affidavits and material show special circumstances which justify setting aside the security for costs order;
  1. (b)
    Second, if not, the proceedings against the first to third defendants be dismissed under rule 674(c);
  1. (c)
    Third, should the order in favour of the fourth and fifth defendants under rule 658 be made.
  1. [22]
    Most of the material and submissions in the hearing were dedicated to the first issue, the special circumstances application.

Prospects of the special circumstances application

  1. [23]
    The main barrier to the first to third defendants succeeding on their application is the special circumstances application: the question is whether that application has sufficient prospect of success to justify refusal of the exercise of discretion conferred under rule 674(c) to dismiss the proceedings following failure to pay the security ordered by Williamson DCJ.
  1. [24]
    I am in a very good position to determine the merits of the special circumstances application listed for next Tuesday, having read all the material Mr Craven relies upon on that application, or reviewed all the material relied upon in that application, and having heard Mr Craven address each part of that material.
  1. [25]
    Before I consider the merits of that application, I should make some observations about the approach to rule 675. In Goodman v Lorenzen [2000] QCA 11, relied upon by Mr Craven, the Court of Appeal was considering an application for leave to appeal against an order made in the District Court striking out proceedings after failure to failure to pay security. McPherson JA, with whom the other judges agreed, observed:
  1. [6]
    The stage has now been reached where it is possible to consider the appeal now before us. As regards the plaintiff's application to set aside the order for security made on 27 May 1998, his Honour, in referring to it in his reasons delivered in December 1998, said that, except on an appeal against it, there was no power to set aside or vary that order. That was, in law, not altogether correct. The order in question was interlocutory in character, and interlocutory orders are, at least to some extent and in some circumstances, susceptible of variation either by the judge who made them or otherwise without necessity for an appeal. What is, however, generally required as a prerequisite to varying or setting aside such an order is new material providing evidence of additional relevant facts, which have arisen or been discovered since the earlier application or order was made, that require a different order from that originally made, or would have done so at the time when that order was made. See ex p Edwards [1989] 1 Qd R 139, 142. Without material of that kind, a further such application would, as Taylor J described it in Hall v Nominal Defendant (1966) 117 CLR 423, 440-441, ordinarily prove quite "fruitless".
  1. [26]
    As his Honour explains, that is the general position where a party seeks to re-agitate a matter decided in an interlocutory application. In that circumstance it is necessary to show some new matter or some change of circumstance which arose or was discovered after the first hearing.
  1. [27]
    Rule 675, however, is not in those terms. It requires the demonstration of special circumstances; if that is demonstrated, a discretion to set aside or vary the order is enlivened.
  1. [28]
    That phrase has not been authoritatively determined, however it was observed by Davies JA in Neylon v Bluegrass Developments Pty Ltd [2002] QCA 2 that there was an analogy between rule 675 and rule 668. That rule relevantly provides:

668  Matters arising after order

  1. (1)
    This rule applies if—
  1. (a)
    facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
  1. (b)
    facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
  1. (2)
    On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
  1. (3)
    Without limiting subrule (2), the court may do one or more of the following—
  1. (a)
    direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
  1. (b)
    set aside or vary the order;
  1. (c)
    make an order directing entry of satisfaction of the judgment to be made.
  1. [29]
    It can be seen that the analogy with rule 675 is only a broad one, but his Honour’s observations are consistent with the general thrust of the observations in Goodman v Lorenzen. The position in Goodman and contemplated in Neylon also echoes observations made in the High Court in Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 35 ALR 625, at 629.40 to 630.10, where the majority observed:

We mention these matters in order to clarify and confine the matters which are an issue between the parties. Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party for an undertaking, at least in absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust. … Of course, the changed circumstances must be established by evidence….

  1. [30]
    Cases on rule 675 are concerned generally with the circumstances where the litigation, which was the subject of a previous order, has changed since the order to such a degree that the sum of security is no longer, on any view of it, appropriate. That occurred in Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd & Anor [2017] QDC 280 and Aqwell Pty Ltd v BJC Drilling Services Pty Ltd[2008] QSC 266.
  1. [31]
    A more direct analysis of rule 675 appears in Justice Daubney’s decision in H & R Management v Bickford [2010] QSC 144, where his Honour observed:

I do not doubt for one minute that Ms Briley genuinely adheres to those views; but that is not the test which I am required to apply for the purposes of determining whether or not the orders for security for costs made by Justice Wilson and Justice Philippides ought be set aside or varied.

There are, of course, two sides to the coin with which we are presently concerned. The fundamental reason why security for costs orders are made is because of an apprehension that a plaintiff, if unsuccessful in an action, will not have the wherewithal resources to meet the successful defendant's costs in the proceedings; indeed, so much is clear from the terms of section 1335 of the Corporations Act.

Just is there is a public interest in aggrieved plaintiffs having their cases heard and determined by the Courts, so too there is a public interest in ensuring that the Court process is not misused in anyway by impecunious plaintiffs bringing proceedings against defendants without there being any concern on the part of impecunious plaintiffs as to the financial consequences that flow from their conduct.

It is unnecessary for me to delve further into the philosophy underlying orders for security for costs because, as I have said, the orders with which I am presently concerned were, in the case of Justice Philippides order, made by consent by the parties and in the case of Justice Wilson's order, made after her Honour heard a contested hearing in relation to that application.

It is clearly not appropriate for me on today's application to embark on some sort of quasi-appeal against the circumstances under which either of those orders were made or to revisit or permit re-argument of matters which were, or should have been, ventilated in those hearings.

[Emphasis added]

  1. [32]
    What amounts to special circumstances will, of course, always depend on the circumstances of each particular case. However:
  1. (a)
    I agree with his Honour’s statement that the rule does not ordinarily contemplate as special circumstances matters which would properly be the subject of an appeal of an order. There is a detailed law and practice regulating appeals of interlocutory orders and rule 675, in my view, ordinarily is not intended to permit a party to circumvent that process; and
  1. (b)
    I agree with his Honour’s observation that the rule does not ordinarily contemplate as special circumstances matters which could have been raised at the hearing or further arguments on matters which were raised at the hearing.
  1. [33]
    It can be seen that the latter point echoes the approaches in the other cases to which I have referred: however, each case must be judged on its merits. It is not possible to identify in advance what will amount to special circumstances, except they must be circumstances out of the ordinary case.

Mr Craven’s special circumstances

  1. [34]
    I now turn to the matters raised by Mr Craven as special circumstances justifying setting aside his Honour’s order of security for costs. These matters are articulated in six detailed and carefully prepared affidavits, labelled Affidavits 1 to 6. Those affidavits generally raise two categories of matters:
  1. (a)
    The first category are matters of evidence and submission which go to addressing the factors relied upon by his Honour in ordering security which do not involve facts occurring since the hearing, though some were assembled after the hearing by Mr Craven; and
  1. (b)
    The second category is evidence relied upon to show that he has abandoned any crusade against the Hegartys. This relates to events which have happened since the hearing before his Honour.

First category matters

  1. [35]
    It’s convenient to deal with the matters in the first category first. These can be summarised as follows.
  1. [36]
    In Affidavit 2 Mr Craven seeks to challenge his Honour’s finding that there was insufficient evidence that the defendants were responsible for the publication of offending material. He does that by reference to evidence which was either before his Honour or further evidence which it appears could have been obtained prior to the hearing if the effort had been made. This material does not sustain the conclusion of special circumstances. The former material is truly a matter for appeal, where the contention is that on the material before his Honour, his Honour erred. The second category of material is material which could have been put before the court on the hearing.
  1. [37]
    In Affidavit 3 Mr Craven leads further evidence in support of his submission to his Honour that he brought the proceedings after asking the defendants to desist from defaming him. It appears to me that this material was available at the time of the hearing on 28th March, or could have been obtained with reasonable diligence. In any event, his Honour took that matter into account in his reasons in Mr Craven’s favour in [44] of his Honour’s reasons. This material does not give rise to special circumstances.
  1. [38]
    In Affidavit 4 Mr Craven contends he was taken unaware that the defendants would contend he was on a crusade until he received submissions the day before the hearing. Even if the characterisation of his conduct towards the Hegartys as vexatious and a crusade was only raised in the submissions at the hearing:
  1. (a)
    The letter from the plaintiff sent on 5 March 2018 setting out the basis of the claim for security raised as an issue Mr Craven’s conduct towards the Hegartys.
  1. (b)
    Further, the matter was raised the day before her hearing, and addressed, it seems, by Mr Craven on the hearing (see his submission to his Honour about the question of vexation addressed by his Honour at [43](b) of the reasons).
  1. (c)
    If it was his view he had been taken by surprise it was open to him to seek an adjournment or for leave to make further submissions on the issue.
  1. [39]
    I do not think the circumstances that he now wishes he had more fully developed his argument on that point is capable of comprising special circumstances.
  1. [40]
    Further, the flavour of this submission in this regard was that he was not given natural justice on the hearing. As a proposition, I find that very doubtful for the reasons I have given in paragraph [38] above. Further, while he is a litigant-in-person, it is evident he has had some considerable experience in litigation (as is made abundantly clear in his Affidavit 4 at paragraph 6). His personal experience is relevant in assessing what is required to do justice between him and a represented party. I do not consider there’s a reasonable argument that he was denied natural justice. But even if that were an arguable proposition, that, it seems to me, is properly a matter for appeal and no appeal has been brought.
  1. [41]
    I should observe at this point that Mr Craven has submitted that he did not bring an appeal because he thought he could not lead new evidence in the appeal. To the extent such evidence was available and could have been put before the trial judge, that is generally correct. Leave will not usually be given to lead evidence on appeal which could have been obtained with reasonable diligence. That position on appeals reflects, however, the considerations favouring finality of litigation which in my view inform the correct approach to rule 675.
  1. [42]
    As to his submission that he did not appeal because he thought that new evidence could not be led, it might well be the case that the appeal opportunity slipped because of a lack of legal knowledge of Mr Craven. However, the Court must balance the rights of a litigant-in-person against the rights of the other party to have the matter conducted fairly according to the rules. I do not consider the possibility that Mr Craven misunderstood the scope of his rights in appeal, and therefore wrongly did not appeal, as a factor supporting the conclusion that there are special circumstances justifying setting aside the security for costs order.
  1. [43]
    In Affidavit 5, Mr Craven seeks to address his Honour’s conclusion that Mr Craven foreshadowed a massive amount of evidence which would be, in his Honour’s view, “confusing, irrelevant and lacking in probative value.” Mr Craven appears to have reflected on his statement to his Honour, and in Affidavit 5 he attempts to show by evidence how he could and would run a narrower case than that. This is an attempt, in my view, to run a different argument from the one favoured at the hearing with a view to obtaining a different outcome. I do not accept this as a matter which can comprise a special circumstance justifying setting aside the orders in this case; it is an attempt to have a second bite at the cherry after a previous forensic approach has failed.
  1. [44]
    Affidavit 5 also seeks to challenge his Honour’s rejection in [45](a) of the proposition that the impetus that the plaintiff’s defamation proceedings was the vendetta being pursued by the Hegartys against him. Mr Craven simply attempts to appeal the correctness of that finding, generally, by disputing it on oath and by referring to new material which could have been put before the court on that point at the previous hearing. This is no more than restating the proposition already rejected using evidence which could have been put before the court. I do not accept this a matter which comprises special circumstances justifying setting aside the orders in this case.
  1. [45]
    The exception to this in Affidavit 5 is his allegation of computer hacking. This is certainly an allegation, if correct, of something that happened since the hearing, but it is not probative, in my view, even if it was made out, of a vendetta by the defendants against him.
  1. [46]
    In my view, for the reasons that I have given, none of the matters traversed in this part of my reasons, alone or together, comprise special circumstances.

Second category matters: the alleged change of heart

  1. [47]
    I now turn to the second category of evidence, the evidence relied upon by Mr Craven of his own conduct since the last hearing which he says leads to his conclusion that he is not bringing these proceedings as part of a crusade against the Hegartys which is vexatious in nature.
  1. [48]
    In this case, the events sworn to do post-date the hearing before Williamson DCJ. These events are:
  1. (a)
    First, Mr Craven has removed from the pleading those matters which his Honour considered indicated an intention to continue his crusade against the Hegartys. Those were the matters identified in paragraph 1(d) of the statement of claim which stated that Mr Craven was well-known in the florist community for exposing misconduct in the online florist industry. Those allegations have been deleted by amendment.
  1. (b)
    Second, Mr Craven has taken down his blogs which recycled complaints about the Hegartys relevant to the earlier failed litigation and which had continued negative comment about the Hegartys.
  1. (c)
    Third, Mr Craven has sought to apologise for his conduct in that regard. I refer to paragraph 8 of Affidavit 6 which seems to be the high point of that apology, where he says this:

The purposes of my websites, now removed

  1. 8.
    The purpose of my website conduct being initially included in the Statement of Claim, was an attempt to illustrate my belief that the Ready Flowers website being replaced by the zFlowers website provides a consumer service that robs and cheats consumers based on evidence that is exhibited to my affidavit sworn 27 March 2018 and at paragraph 5 above.
  1. 8.1
    The purpose of that was to attack the credibility and honesty of zFlowers and the Defendants in the Court Proceedings, which would allow me to issue Non Party Disclosure Notices regarding consumer complaints to the ACCC and Consumer Affairs Western Australia so as to gather further evidence.
  1. 8.2
    I now realise that it was a mistake to do this, as it may not have been relevant to the substantive defamation proceeding. However as a litigant-in-person I remain unsure of this.
  1. 8.3
    To the extent I was wrong, I apologise to the court.
  1. [49]
    The question is whether these matters, alone or together amount to special circumstances enlivening my discretion to set aside the security for costs order. In my view, for the following reasons they do not.
  1. [50]
    First, these steps can be characterised, in my view, as simply another example of a changing litigious tactic: the case was advanced and argued before his Honour in one way, and that having been shown to be ineffective, Mr Craven now seeks to advance it another way. As I have said, such reconsideration of the forensic approach to an unsuccessful hearing does not ordinarily comprise special circumstances and does not meet that required in this case. There has already been one hearing, rule 675 is not an invitation to try again using a different approach.
  1. [51]
    Second, I am not sufficiently persuaded that his Honour’s conclusion that the defamation proceedings were motivated by a crusade against the Hegartys is shown by the material filed now to be no longer be correct. Mr Craven has taken down the offending material and amended his pleading, this is true, however it is evident from his statements from the bar table he still considers himself a consumer activist in the florist community and values the support he receives for that work.
  1. [52]
    I am not persuaded that he is driven now, on reflection, solely by a wish to vindicate his reputation; or at least I am not persuaded to a contrary view from his Honour’s. This is particularly so bearing in mind the circumstances of the previous litigation and previous conduct in relation to the Hegartys, and Mr Craven’s apparent determination in this application to lead yet further evidence to show that his case against the Hegartys, though defeated in court, was justified. That material appears in Affidavit 4 at paragraph 9. I also consider the tenor of this form of apology at paragraph 8, which I have set out, is unsatisfactory, and does not fill me with confidence that he is not on a crusade against the Hegartys: merely that he now realises that it was irrelevant to allege those things in these proceedings.
  1. [53]
    Third, Mr Craven’s evidence that he realises a crusade against the Hegartys in not an appropriate motivation for this litigation or an appropriate course generally, is of course subject to change at his whim should the order for security of cost to be discharged. If that occurred, this would give rise to a situation of great injustice to the Hegartys. I would need a high degree of assurance that no such change is in prospect to be satisfied on his material that his change of approach demonstrates a permanent change of heart. I am simply unable to be satisfied of that.
  1. [54]
    Further, even if I was persuaded that Mr Craven was motivated now solely by desire to vindicate his reputation, and that this matter comprised special circumstances, that is, a change from the circumstance identified by his Honour, I would not set aside the existing orders in the exercise of my discretion in any event. The facts of the outstanding costs orders and the certainty that the costs of these proceedings will not be paid, which were relied upon by his Honour, remain. In the particular circumstances of this case, taken with the other matters relied his Honour, which were not challenged in this hearing, that would justify the very modest order for security which was made.
  1. [55]
    For the above reasons, I conclude that Mr Craven’s application to set aside the security for costs order under rule 675 has no real prospect of success.

Application under Rule 674(c)

  1. [56]
    Having reached that conclusion, I now turn to the application of the first to third defendants to dismiss the proceedings under rule 674(c). The power to dismiss has, in the past, been described as being in the nature of dismissal for want of prosecution: see Goodman at [11]. However, Goodman is not authority on rule 674(c).
  1. [57]
    The rule confers a broad discretion. In this case it is not contentious that the security cannot be paid on any realistic basis. Bearing in mind rule 5, it seems to me there’s no good point to the proceedings remaining on foot once the conclusion is reached that the rule 675 application has no real prospect of succeeding. In those circumstances, I order that the proceedings against the first to third defendants be dismissed.

The Fourth and Fifth Defendants

  1. [58]
    Mr Ferrett did not seek dismissal on behalf of the fourth and fifth defendants pursuant to rule 674(c), so I express no opinion on whether the scope of that power extends to the defendants who are not beneficiaries of an unmet order for security.
  1. [59]
    Rather, Mr Ferrett relied on rule 658, which I have already mentioned. His argument was not that I could dismiss the proceedings as an abuse of process. Rather, he contended I should infer that an application for security by the fourth and fifth defendants would meet the same fate and have the same consequences as the application decided by Judge Williamson.
  1. [60]
    Even if that inference could justify an order under rule 658, I am not persuaded to reach that inference on this occasion. On another application, Mr Craven would be able to raise all the matters which he raised before me, but which could not be relied upon as such because of the scope of rule 675. The application could proceed in quite a different matter. The inference which is urged on me by Mr Ferret is speculative at best. It cannot justify the serious step of dismissing the proceedings on a summary basis.

…

  1. [61]
    In the circumstances, my orders are:
  1. The proceedings against the first to third defendants be dismissed;
  1. The hearing of the application by the plaintiff filed 14 September 2018 be vacated;
  1. The plaintiff pay the first to third defendants’ costs of these proceedings, including reserved costs and the costs of the application filed 12 September 2018 on a standard basis;
  1. Order 3 be stayed until 26 October 2018;
  1. The application filed 12 September 2018, in respect of relief sought by the fourth and fifth defendants, be dismissed.

Footnotes

[1] Craven v Globe Valley Pty Ltd & Ors [2018] QDC 155.

Close

Editorial Notes

  • Published Case Name:

    Craven v Globe Valley Pty Ltd & Ors

  • Shortened Case Name:

    Craven v Globe Valley Pty Ltd

  • MNC:

    [2018] QDC 198

  • Court:

    QDC

  • Judge(s):

    Porter DCJ

  • Date:

    27 Sep 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QDC 15510 Aug 2018First to third defendants' application for security for costs granted: Williamson QC DCJ.
Primary Judgment[2018] QDC 19827 Sep 2018Plaintiff's application to set aside security for costs order refused; defendants' application to dismiss plaintiff's proceedings against them allowed (for the first to third defendants) and refused (for the fourth to fifth defendants): Porter QC DCJ.
QCA Interlocutory Judgment[2018] QCA 32827 Nov 2018Application for security for costs granted: Gotterson JA.

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 35 ALR 625
2 citations
Jump To
Cite 1 - (1981) 35 ALR 625
Cite 2 - (1981) 35 ALR 625
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2008] QSC 266
2 citations
Jump To
Cite 1 - [2008] QSC 266
Cite 2 - [2008] QSC 266
Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd [2017] QDC 280
2 citations
Jump To
Cite 1 - [2017] QDC 280
Cite 2 - [2017] QDC 280
Craven v Globe Valley Pty. Ltd. [2018] QDC 155
2 citations
Jump To
Cite 1 - [2018] QDC 155
Cite 2 - [2018] QDC 155
Edwards, Ex parte[1989] 1 Qd R 139; [1988] QSC 195
1 citation
Jump To
Cite 1 - [1989] 1 Qd R 139
Goodman v Lorenzen [2000] QCA 11
2 citations
Jump To
Cite 1 - [2000] QCA 11
Cite 2 - [2000] QCA 11
H & R Management Consulting Pty Ltd v Bickford [2010] QSC 144
2 citations
Jump To
Cite 1 - [2010] QSC 144
Cite 2 - [2010] QSC 144
Hall v Nominal Defendant (1966) 117 C.L.R 423
1 citation
Jump To
Cite 1 - (1966) 117 C.L.R 423
Neylon v Bluegrass Developments Pty Ltd [2002] QCA 2
2 citations
Jump To
Cite 1 - [2002] QCA 2
Cite 2 - [2002] QCA 2

Cases Citing

Case NameFull CitationFrequency
Business & Personal Solutions Pty Ltd v Witherspoon (No 2) [2022] QSC 147 2 citations
Craven v Commercial & Process Services Australia Pty Ltd [2020] QDC 122 citations
Craven v Globe Valley Pty Ltd [2019] QDC 281 citation
1

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