Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Macleod v Fraenkel[2019] QDC 203

DISTRICT COURT OF QUEENSLAND

CITATION:

Macleod v Fraenkel [2019] QDC 203

PARTIES:

SIMON SCOTT MACLEOD

(plaintiff/respondent)

v

MARK FRAENKEL

(defendant/applicant)

FILE NO/S:

179 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

11 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

6 September 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Application filed on 10 July 2019 is allowed.
  2. The defendant has leave to withdraw the admissions made in or by the defence filed on 5 November 2018.
  3. The defendant has leave to file an amended defence and counterclaim in the terms of the draft pleading being exhibit MF1 to the affidavit of the defendant filed on 10 July 2019.
  4. The requirement to mark up all amendments contained in the amended defence and counterclaim otherwise required under r. 382(7) of the Uniform Civil Procedure Rules is dispensed with.
  5. Unless either party applies for a different costs order within 14 days of this order, the defendant will pay the plaintiff’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

CIVIL PROCEEDING – CIVIL PROCEDURE – APPLICATION – Application to withdraw admissions in the defence and leave to file an amended pleading – whether express and deemed admissions absent explanation – whether relevant that self-represented defendant failed to appreciate gravity and significance of pleading  – explanation for advent of admissions – explanation for delay in application to withdraw – whether sufficient evidentiary basis for withdrawing admissions to now contest the allegations deemed admitted.

Legislation

Uniform Civil Procedure Rules 1999 (Qld)

Limitation of Actions Act 1974 (Qld)

Cases

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Du Boulay v Worrell [2009] QCA 63

Hanson Construction Materials v Davey [2010] QCA 246

Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126

McGowan v Middleton (1883) 11 QBD 464

McLeish v Faure (1979) 25 ALR 403

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 168 CLR 457

Ridolfi v Rigato Farms [2000] 2 Qd R 455

Salt v. Cooper (1880) 16 Ch. D. 544

Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277

COUNSEL:

S Carius for the Plaintiff/Respondent

M Jonsson QC for the Defendant/Applicant

SOLICITORS:

Axia Litigation for the Plaintiff/Respondent

Miller Bou-Samra Lawyers for the Defendant/Applicant

  1. [1]
    The defendant who is now represented and embarrassed by his pleading applies for leave to withdraw express and deemed admissions in his defence, and leave to file of an amended defence and counterclaim. The plaintiff opposes the application.

Background

  1. [2]
    The plaintiff sues the defendant in defamation by claim and statement of claim file on 5 October 2018.The then unrepresented defendant filed a defence which admitted, by operation of rule 166(5) of the Uniform Civil Procedure Rules 1999 (Qld), almost all the substantive allegations in the proceeding.  Pleadings have closed since the plaintiff filed a reply.
  1. [3]
    Disclosure is complete and the parties have engaged in a settlement conference on 27 February 2019. However, on 26 March 2019, the defendant retained solicitors who foreshadowed the need to file an amended pleading.
  1. [4]
    Accordingly, the defendant now applies for leave to withdraw express and deemed admissions in his defence, and leave to file an amended defence and counterclaim.
  1. [5]
    The defendant does not seek to advance any fresh and positive counterfactual but does seek to challenge and put the plaintiff to proof of various conclusory allegations. Insofar as leave is sought to withdraw express and deemed admissions, the defendant has explained:
  1. He was unrepresented at the time of his defence;
  1. He failed to appreciate the forensic significance of allegations and rules of pleading;
  1. He should properly have put the plaintiff to proof about matters beyond the scope of his knowledge or means of inquiry, including width of publication, identification, ordinary meaning, and true innuendo;
  1. Purported to not admit various allegations without complaint explanation; and
  1. He now has the benefit of legal advice.
  1. [6]
    The plaintiff seeks to hold the defendant to his express and deemed admissions, but accepts that the defendant may amend to add any consistent counterclaim.

Leave to withdraw admissions 

  1. [7]
    Pursuant to r 188 a party may withdraw any admission made in a pleading only with the court’s leave. Leave is required regardless of whether an admission is expressly made, or whether an allegation is taken to be admitted by operation of the rules.
  1. [8]
    Rule 166 regulates express pleading of nonadmissions and denials, and also admissions imposed by operation of rr 166(1) and (5) in these terms (relevant here):
  1. “(1)
    An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—
  1. (a)
    the allegation is denied or stated to be not admitted by the opposite party in a pleading; or
  1. (b)
    rule 168 applies.
  1. (2)
  1. (3)
    A party may plead a nonadmission only if—
  1. (a)
    the party has made inquiries to find out whether the allegation is true or untrue; and
  1. (b)
    the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or nonadmission of the allegation is contained; and
  1. (c)
    the party remains uncertain as to the truth or falsity of the allegation.
  1. (4)
    A party’s denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.
  1. (5)
    If a party’s denial or nonadmission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.
  1. (6)
    A party making a nonadmission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.
  1. (7)
    A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.”
  1. [9]
    Leave to withdraw admissions is not given merely for the asking.[1]  The defendant bears the onus of persuading the court that there is a genuine dispute that, in all the circumstances, he should be permitted to re-enliven.  This is an indulgence granted to a party who is in default in the exercise of the court’s discretion having regard to the following considerations:[2]
  1. Is there an adequate explanation for how the admissions came to be made?
  1. Is there an adequate explanation for any delay in bringing the application to withdraw the admissions?
  1. Is there a sufficient evidentiary basis for contesting the allegations which currently stand admitted?
  1. [10]
    Insofar as the defendant seeks to amend the pleading to withdraw a deemed admission to plead either a nonadmission, or denial, it is incumbent on him to demonstrate that the proposed amended pleading is viable in compliance with rr 166(3) and (4).  It is not enough to support a nonadmission with a bald statement that the defendant does not know whether the allegations are true or false.  He must provide a direct explanation for his belief that the allegation cannot be admitted.  Further, he may only plead an effective denial if he can directly explain his belief that the allegation in question is untrue.  It is it is not enough for that purpose to merely assert that a dispute exists.[3]
  1. [11]
    It is often difficult for an unrepresented litigant to negotiate the procedural rules of court. This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction. However, an unrepresented litigant is as much bound by the rules of court as any other litigant,[4] and all parties are subject of the implied undertaking to the court and to each other to proceed in an expeditious way.[5]  The court will apply the rules with the objective of avoiding undue delay, expense and technicality and is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.[6]  In that way, the rules are the mere handmaiden of justice and the level of persuasive onus ought properly be commensurate with the nature and circumstances of each case.[7]

Issues

  1. [12]
    The determinative issue in the application is whether the defendant demonstrates sufficient evidentiary foundations for withdrawing admissions, and for the explanation supporting proposed nonadmissions or denials.

Evidentiary basis to withdraw of admissions

  1. [13]
    Is there a sufficient evidentiary basis for contesting the allegations, which currently stand admitted?
  1. [14]
    The defendant seeks to withdraw admissions to put in issue the following allegations in the plaintiff’s statement of claim:
  1. Subparagraphs 1(b) and 1(c) going to reputation which the defendant now seeks leave to plead nonadmissions;
  1. Paragraphs 3, 4 and 5 of extrinsic fact to which the defendant now seeks leave to plead nonadmissions;
  1. Paragraphs 6, 10, 14, 18, 22, 26, 30, 34, 38 and 42 going to publication to which the defendant now seeks leave to plead nonadmissions;
  1. Paragraphs 7, 8, 11, 12, 15, 16, 19, 20, 23, 24, 27, 28, 31, 32, 35, 36, 39, 40, 43 and 44 going to imputation to which the defendant now seeks leave to plead denials;
  1. Subparagraphs 9(a), 13(a)-(b), 17(a)-(b), 21(a), 25(a)-(b), 29(a), 33(a)-(b), 37(a), 41(a)-(b) and 45(a)-(b) going to identification to which the defendant now seeks leave to plead nonadmissions;
  1. Subparagraphs 9(b), 13(c), 17(c), 21(b), 25(b)[sic], 29(b), 33(c), 37(b), 41(c) and 45(b) going to defamation to which the defendant now seeks leave to plead denials; and
  1. Paragraphs 46 to 51 going to remedies to which the defendant now seeks leave to plead nonadmissions.

Explanation for pleading

  1. [15]
    The defendant explained and lamented in hindsight, with the benefit of legal advice, that:
  1. He expressly admitted allegations that he should properly have put the plaintiff to proof of, without appreciating their proper forensic significance. 
  1. He purported to plead a nonadmission in response to various allegations, without providing an adequate explanation required by r 166(4),[8] and by default is trapped by the effect of r 166(5).
  1. [16]
    To say his approach to the pleading is unconventional is an understatement. His defence commences in a letter style narrative personally addressed to the plaintiff, followed by a self-styled conversational narrative trying to address each of the allegations of the statement of claim.
  1. [17]
    The circumstances giving rise to the express and deemed admissions are plainly borne out by the then unrepresented defendant’s relative inexperience and ignorance of the complexities and nuances of pleading in a defamation case.
  1. [18]
    This can be best illustrated by his admission of paragraphs 1(b) and 1(c) of the statement of claim, which alleged notoriety of the plaintiff within the Port Douglas community as the owner of an identified business, and as a fan of an identified English sporting club is a matter going to the state of mind of others.  The respective pleadings are as follows:
  1. [19]
    Paragraphs 1(a) and (b) of the Statement of Claim are in these terms:

“1. At all times material to this proceeding, the plaintiff was:

  1. (a)
    a natural person resident in Port Douglas in the State of Queensland.
  1. (b)
    well known person within the Port Douglas Community as the owner   of a business that trades under the name ‘N17 Burger’ (the business) and which operates from the premises located in Port Douglas.”
  1. [20]
    The defence paragraph 1 responded as follows:

“1. In respect to paragraph 1 the defendant admits the allegations if there are any here? I think it is just background.”

  1. [21]
    The perceived imprecision and nature of plaintiff’s allegations was apprehended by the defendant as ‘just background’ as perhaps going to the nebulous state of mind or thinking of others.  Allegations of that kind going to publication can be found in paragraphs 3 and 4 of the statement of claim.  Allegations of that kind going to true innuendo can be found in paragraphs 1(b) and 1(c), as well as in paragraphs 5, 8, 12, 16, 20, 24, 28, 32, 36, 40 and 44 of the statement of claim.  And allegations of that kind going to ordinary and natural meaning can be found in paragraphs 7, 11, 15, 19, 23, 27, 31, 35, 39 and 43 of the statement of claim.  Encompassing, summarising and conclusory assertions can be found in paragraphs 9, 13, 17, 21, 25, 29, 33, 37, 41 and 45 of the statement of claim.  More broadly, the plaintiff’s allegations in paragraphs 5, 8, 9, 12, 13, 16, 17, 20, 21, 24, 25, 28, 29, 32, 33, 36, 37, 40, 41, 44 and 45 seem to be core extrinsic facts going potentially to issues of identification and true innuendo.
  1. [22]
    I am satisfied that the defendant has adequately explained how the admissions came to be made. In short his effort was well meaning but foolhardy.

Explanation for delay applying

  1. [23]
    I am also satisfied about his explanation for delay in bringing this application. His solicitors have acted with due haste and courtesy, including alerting the plaintiff to remedial efforts.
  1. [24]
    He has acted upon his belated legal advice. With the benefit of advice, the defendant seeks to withdraw express and deemed admissions, not to advance any substantially new or different counterfactual, but to better identify and expose the real issues for determination in an existing controversy.

Evidentiary foundation of genuine contest

  1. [25]
    There remains an anterior and overriding issue of whether the defendant has shown a sufficient evidentiary foundation for contesting the allegations.[9] 
  1. [26]
    The defendant’s draft pleading envisages nonadmissions in respect of the statement of claim paragraphs 1(b) & (c), 3 to 6, 9(a), 10, 13(a) & (b), 14, 17(a) & (b), 18, 21(a), 22, 25(a) & (b), 26, 19(a), 33(a) & (b), 30, 34, 37(a), 38, 41(a) & (b), 42, 45(a) & (b) and 46 to 51.
  1. [27]
    The plaintiff argues that the defendant fails to evidence any detail about the inquiries he has made, if any, and why those inquiries have left him with a genuine doubt as to the truth of the allegations. The plaintiff’s counsel pointed to some examples to illustrate his point, including inferential conduct of others by posting comments on his earlier social media post. That matter has been disclosed (and before me) and the commentators are identified by their unique social media profile.
  1. [28]
    Of course, the sufficiency of any evidentiary support to now plead a nonadmission must also be judged in light of the particular allegation.
  1. [29]
    The pleading and evidence about “The First Matter” is illustrative, in conjunction with consideration of the extracts from Facebook in Exhibit NVS 12 of the affidavit of the plaintiff’s solicitor. Paragraph 6, 7, 8 and 9 of the Statement of Claim are in these terms:

“6. On or about 23 July 2018:

  1. a)
    the defendant caused the following words to be uploaded and posted @ 11.47am on the Mark Fraenkel Facebook page:

“In Perth for Chelsea tonight.

Had an interesting exchange earlier with a deluded Spurs fan on messenger

He complained about Chelsea’s racism (we do have now a thankfully small racist core to our support these days) and then said how he admired Tommy Robinson. I won’t name the fool, you know who you are.

But it seems to me you carer not on jot about racism and only care about slagging another team. Racism is just your vehicle, so to speak.

Thankfully there are plenty of Spurs fans who I hugely respect, here’s one. Pat stack, Spurs season ticket holder for longer than your life. There are plenty more proper Spurs fans.

PS you are welcome to moan about Chelsea. It’s your pandering to racism that disgusts me. I’ve got more in common with Pat that any Nazis at Chelsea – or you it seems";

(the First Matter)

  1. b)
    the first matter was downloaded and read by each of the defendant’s friends subsequent to its being posted;
  1. c)
    Further to paragraph 6(b) above, by reason of the fact that the Mark Fraenkel Facebook page was accessible to Facebook users generally and by reasons of the fact that any posts on the Mark Fraenkel Facebook Page were automatically posted on the Facebook pages of the defendants followers, it ought to be inferred that the First Matter was subsequently downloaded and read by further substantial, but presently unquantifiable, number of third parties; and
  1. d)
    in the premises of subparagraphs 6(a) to 6(c) above, the defendant caused the First Matter to be published to multiple persons.
  1. In its natural and ordinary meaning the First Matter meant and was understood to mean (as separate imputations arising in respect of the plaintiff) that the plaintiff is:
  1. a)
    a racist;
  1. b)
    an admirer of racist people; and
  1. c)
    a fool.
  1. Further, in the premises of paragraphs 5 and 6 above, and by way of true innuendo the First Matter meant, and was understood to mean (as separate imputations arising in respect of the plaintiff) that the plaintiff is:
  1. a)
    a racist;
  1. b)
    an admirer of racist people; and
  1. c)
    a fool.
  1. The First Matter:
  1. a)
    by reasons of the matters pleases in paragraphs 5 and 6 above and by reasons of the subsequent references ot the plaintiff in the Second, Third, Seventh and Ninth Matters pleaded herein:
  1. i)
    Would be reasonably understood by any Facebook user who downloaded and read the first matter to be a reference to the plaintiff;
  1. ii)
    Further, or alternatively to subparagraph 9(a)(i) above, would be reasonable understood by the defendant’s friends, the plaintiff’s friends and the N17 followers to be a reference to the plaintiff; and
  1. iii)
    in the premises, was of and concerning the plaintiff; and
  1. b)
    was defamatory of the plaintiff.”
  1. [30]
    Here the exemplar allegations use compound-complex sentence structures to express co-dependent behaviour of third parties in one course of conduct. That style of pleading is not conducive to piecemeal treatment by a counter-pleader, and a holistic response could satisfy the rules. The problem is compounded when pleading to later co-dependent allegations is infected by the initial basal allegation. The plaintiff’s disclosure containing the subject matter also reinforces the level of care needed by a defendant in pleading to marginally inferential (perhaps speculative) conduct apparently drawn from text and algorithmic displays attributed to others.
  1. [31]
    The defence responded as follows:
  1. “In respect to paragraph 6 defendant does not admit the allegations because:

 There is not mention of Simon or N17. This indicated I am trying to make Simon see sense rather than defame him. Otherwise why wouldn’t I use his name?

  1. In respect to paragraph 7 the defendant does not admit the allegations because the plaintiff omits facts as stated above concerning the use of the racist term ‘yido’, his support for a convicted racist and criminal ‘#freeTommyRobinson’ and “I knew that would get a rise out of you".
  1. In respect to paragraph 8 the defendant does not admit the allegations because the plaintiff omits facts as stated above concerning the use of the racist term ‘yido', his support for a convicted racist and criminal  ‘#freeTommyRobinson’ and “I knew that would get a rise out of you“.

 Whether Simon is racist or not, there certainly is some evidence is there not? Posting #freeTommyRobinson and wanting the freedom of a convicted racist indicates a state of mind as does the public use of the term “yido” posted to his personal Facebook page but open to be viewed by the wider public and amazingly linked to his business page. “I knew that would get a rise out of you” doesn’t seem to be the voice of a victim of defamation after all. He accuses me of being “violent racist thug” providing no evidence whatsoever.

  1. In respect to paragraph 9 the defendant does not admit the allegations because the plaintiff omits facts as stated above concerning the use of the racist term ‘yido’, his support for a convicted racist and criminal ‘#freeTommyRobinson’ and ‘I knew that would get a rise out of you“. 
  1. [32]
    In his affidavit filed in this application, the defendant deposes in relation to the plaintiff’s allegation that:

“ 24 My defence does not admit these allegations.

25   My proposed defence:

  1. a)
    Admits the allegation in sub-paragraph 6(a) that I was the author of the First Matter.
  2. b)
    Does not admit the allegation in sub-paragraph 6(b) that the First matter was read by a substantial number of third parties.
  3. c)
    Does not admit the allegation in sub-paragraph 6(d) that the first matter was read as alleged.
  4. d)
    Denies the alleged defamatory meanings pleaded in paragraphs 7 and 8.
  5. e)
    Denies that the first matter identified the plaintiff as alleged.
  6. f)
    Denies that any imputations if they do arise in fact defame the plaintiff

26 I do not know and have no means of knowing whether any person  downloaded and read the material published as the first matter.

27  I genuinely disagree that the imputations alleged do arise on any natural and ordinary reading of the material or that the imputations defamed the plaintiff.

28  I also genuinely disagree that any Facebook use downloading the matter would identify the plaintiff from it.

29 It was not my intention that my pleading to paragraph 6 to 9 both inclusive in the statement of claim would give rise to deemed admissions I do not have experience in litigation and was not familiar with the effect and operation of rules 166 and 188.

30  On the advice of my solicitor I have also pleaded defences of qualified privilege pursuant to section 30 in the defamation act, alternatively, qualified privilege at common law, alternatively honest opinion and triviality.

  1. [33]
    The defendant has instructed solicitors to prepare a defence, and deposes that “This defence truly reflects my response to the allegations contained in the statement of claim”.[10]  In his draft defence the defendant proposes to plead as follows:

The First Matter

7. In respect to paragraph 6 of the statement of claim, the defendant: 

a)  admits the allegation in sub-paragraph (a) of paragraph 6;

b)  does not admit the allegation in sub-paragraph (b) of paragraph 6 because despite reasonable enquiries the defendant remains uncertain of the allegation that the first mater was read and comprehended by any of the defendant’s friends subsequent to it being posted;

c)  does not admit the allegation in sub-paragraph (c) of paragraph 6 because despite reasonable enquiries the defendant remains uncertain as to the truth or otherwise of the allegation that the first matter was read by any third parties; and

d)  in respect to the allegation in sub-paragraph (d) of paragraph 6 the defendant does not admit that the first matter was read and comprehended as alleged because despite reasonable enquiries the defendant remains uncertain as to the truth or otherwise of the allegation.

8.  The defendant denies the allegations in paragraph 7 and 8 because the meanings complained of are incapable of arising and do not in fact arise and the imputations (even if they arise) are not in fact defamatory of the plaintiff.

9.  In respect to paragraph 9(a) the defendant does not admit that the first matter was of and concerning the plaintiff because the defendant despite reasonable enquiries remains uncertain as to the truth or otherwise of the allegation that the first matter was read and comprehended by any of the personas referred to in sub-paragraph (a)(i) and (ii) of paragraph 9.

10.  In respect to paragraph 9(b) of the statement of claim the defendant repeats his denial of the allegation that the first matter or the meanings alleged in paragraph 7 and 8 of the statement of claim do in fact arise and that the imputations (if they do arise) are in fact defamatory of the plaintiff.

11.  Alternatively, regarding the allegations in paragraph 7 and 8, if and to the extent that the alleged imputations pleaded therein are held to arise and are defamatory of the plaintiff, the defendant says:

a)  the recipients had an interest in or apparent interest in having information on the subject of the prevalence of racial attitudes amongst some followers of English football;

b)  the defendant believed on reasonable grounds the recipients had an apparent interest in having information on the above mentioned subject;

Particulars

The defendants belief and the reasonable grounds for it are recorded in the first matter.

c)  the matter in paragraph 7 and 8 were published to the recipients in the course of them giving information on that subject;

d)  the conduct of the defendant in publishing the said matters was reasonable in all the circumstances;

e)  therefore, he has a defence of qualified privilege pursuant to section 30 of the Defamation Act 2005 Qld (‘the Act’);

f)  or alternatively, qualified privilege at common law in that the defendant had a duty both social and moral to publish the first matter and the recipients of the first matter had a reciprocal interest in receiving the said matter.

12.  alternatively, regarding the allegations in paragraphs 7 and 8, if and to the extent that the alleged imputations pleades therein are held to arise, the defendant says;

a)  the defamatory matter the expression of opinion of the defendant rather than a statement of fact;

b)  the opinion related to a matter of public interest;

Particulars

The matter of public interest concerned the prevalence of racial attitudes amongst some followers of English Football.

c)  the opinion was based on proper material in that the first matter was published on an occasion of qualified privilege for the reasons pleaded in paragraph 9 of this defence;

d)  therefore, he has a defence of honest opinion pursuant to section 31 of the Act.

13.  Alternatively, the defendant says that the circumstances of the publication were such that the plaintiff was unlikely to suffer any harm and therefore he has a defence of triviality to the publication pursuant to section 33 of the Act, in that the Facebook users having knowledge of the extrinsic facts pleaded in the statement of claim were able to make their own assessment of the first matter.

  1. [34]
    I accept that the defendant’s inquiries to find out whether the allegation is true or untrue seem shallow by not extending beyond his own knowledge. However, I think his limited inquiries for the plaintiff’s allegations are reasonable having regard to the timing of this application, the complexity of the case, and the apparently partisan third party commentators to the alleged defamatory matter. I do not accept that a party ought too readily make inquiry of a social media participant and commentator whose existence and identity is limited to their self-fashioned and limited profile. A party will be guarded before making conventional inquiries with such identities, and the court’s expectation ought be moderated in those circumstances.
  1. [35]
    In my view the defendant’s approach has been prudent, and reasonable, and that he remains uncertain as to the truth or falsity of the allegation to found a nonadmission.
  1. [36]
    It seems to me that the other allegations going to reputation, extrinsic facts, publication, identification and remedy more or less suffer from much the same vice – and similarly limit the defendant’s reliable inquiries and uncertainty to found a nonadmission.
  1. [37]
    The defendant “remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.”[11]  In the result he can amend his defence appropriately, informed by inquiry as to whether the allegation is true or false of witnesses who might more reliably be identified and engaged.  This may result in a more eloquent, informed and refined pleading narrowing the genuine dispute for trial including any admission or denial of an allegation.  Otherwise, he faces costs sanctions if found to be unreasonable.[12]
  1. [38]
    The defendant’s draft pleading envisages denials in respect of the statement of claim paragraphs 7, 8, 9(b), 11, 12, 13(c), 15, 16, 17(c), 19, 20, 21(b), 23, 24, 25(b), 27, 28, 29(b), 31, 32, 33(c), 35, 36, 37(b), 39, 40, 41(c) 43, 44 and 45(b).
  1. [39]
    In this context the plaintiff criticises the defendant for failing to adequately and directly explain his belief that the plaintiff’s allegation is untrue, but merely asserting that a dispute exists, saying for example: “I dispute…” or “I generally dispute…” the imputation allegations and the defamation allegations.
  1. [40]
    Again, the sufficiency of any evident belief must be judged in light of the particular allegation. The court does not expect a hollow explanation, which may fuel a false issue or enliven a red herring, in response to an encompassing, summarising and conclusory allegations, for example, the imputation allegations and defamation allegations here.  Disputation of such allegations does not readily lend itself to tangible explanation.  It seems to me that the defendant has adequately explained his belief as best as possible having regard to the terms of the allegations. 
  1. [41]
    Accordingly, in my respectful view, the defendant does demonstrate a sufficient evidentiary basis for withdrawing admissions, and a genuine contest of the allegations having regard to his affidavit and the refined terms of the exhibited amended defence and counterclaim.

The Proposed Counterclaim

  1. [42]
    While the joinder of the proposed counterclaim would involve the addition of a further cause of action, I agree with the defendant’s submissions that:
  1. (a)
    A further cause of action would plainly enough arise out of a common underlying substratum of facts involving a somewhat unhappy history of interaction between, and concerning, the plaintiff and the defendant;
  2. (b)
    There is no realistic likelihood that the proposed counterclaim for damages for negligence is out of time.
  1. [43]
    The proposed cause of action in the counterclaim arises out of a publication allegedly made in or about December 2018 – well within the one year time limit provided for under s 10AA of the Limitation of Actions Act 1974 (Qld).  Therefore, the defendant is at liberty to commence fresh proceedings at any time.  This would force the parties to litigate in multiple actions arising out of a suite of potentially overlapping facts and circumstances.  This in turn will expose the parties and the court to intolerable risk of inconsistent assessment of credit, and inconsistent findings of fact or law, as well as inconvenience and undue costs of multiple proceedings arising out of an overlapping factual substratum.[13]
  1. [44]
    This course has obvious merit and accord with the overriding philosophies in r 5, and the express obligation to avoid multiplicity of litigation required by s 7(1)(b) of the Civil Proceedings Act 2011 (Qld).

Dispensation of marking up

  1. [45]
    The defendant also seeks dispensation from the requirement to mark up all amendments, as would otherwise be required under r 382(7).
  1. [46]
    In view of my conclusions above, and the proposed comprehensive amended pleading there will be no informational benefit gained by marking up the totality of the amended pleading in strict compliance with the rules.
  1. [47]
    In those circumstances, I will relieve the defendant from marking up the amendments.

Conclusion

  1. [48]
    For these reasons, I allow the application and make the following orders:
  1. The defendant has leave to withdraw the admissions made in or by the defence filed on 5 November 2018.
  1. The defendant has leave to file an amended defence and counterclaim in the terms of the draft pleading being exhibit MF1 to the affidavit of the defendant filed on 10 July 2019.
  1. The requirement to mark up all amendments contained in the amended defence and counterclaim otherwise required under r. 382(7) of the Uniform Civil Procedure Rules is dispensed with.
  1. Unless either party applies for a different costs order within 14 days of this order, the defendant will pay the plaintiff’s costs of the application to be assessed on the standard basis.

Judge DP Morzone QC

Footnotes

[1] Ridolfi v Rigato Farms [2000] 2 Qd R 455, 461 [32] (per Williams J).


[2] Hanson Construction Materials v Davey [2010] QCA 246 at [10] per Chesterman JA (Muir JA and Applegarth J agreeing).

[3] Ridolfi v Rigato Farms [2001] 2 Qd R 455 at 460 per McPherson JA.

[4]  Compare du Boulay v Worrell [2009] QCA 63, at [69]; Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126, at [35].

[5] Uniform Civil Procedure Rules 1999 (Qld), s 5(3).

[6] Uniform Civil Procedure Rules 1999 (Qld), s 5(1) & (2).

[7]  Cf. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, French CJ at [14], and Gummow, Hayne, Crennan, Kiefel and Bell JJ at [82].

[8]  Affidavit of Mr Fraenkel, paras 11, 20, 23, 29, 35, 41, 47, 53, 59, 70, 76, 82 and 86.

[9] Hanson Construction Materials v Davey [2010] QCA 246 at [10] per Chesterman JA (Muir JA and Applegarth J agreed).  Ridolfi v Rigato Farms [2000] 2 Qd R 455, 461 [32] (per Williams J).

[10]  Affidavit Fraenkep, para. 3 & Exhibit MF1.

[11] Uniform Civil Procedure Rules 1999 (Qld), s 166(6).

[12] Uniform Civil Procedure Rules 1999 (Qld), s 166(7).

[13] Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281 per Dixon J; Salt v Cooper (1880) 16 Ch. D. 544 at 552-553; McGowan v Middleton (1883) 11 QBD 464 at 472-473; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 168 CLR 457 at 489 and McLeish v Faure (1979) 25 ALR 403 at 413.

Close

Editorial Notes

  • Published Case Name:

    Macleod v Fraenkel

  • Shortened Case Name:

    Macleod v Fraenkel

  • MNC:

    [2019] QDC 203

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    11 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.