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

Craven v Globe Valley Pty Ltd[2019] QDC 28

Craven v Globe Valley Pty Ltd[2019] QDC 28

[2019] QDC 28

DISTRICT COURT OF QUEENSLAND

JARRO DCJ

BD No 228 of 2018

GORDON JAMES CRAVENPlaintiff

AND

GLOBE VALLEY PTY LTD and OTHERS Defendants

BRISBANE

WEDNESDAY, 27 FEBRUARY 2019

JUDGMENT

JARRO DCJ:  The fourth and fifth defendants seek an order for security for costs in the sum of $10,000 on account of their costs in the proceeding.

The applicants submit that there is reason to apprehend that adverse cost orders will not be met, namely that the plaintiff, Mr Craven, is impecunious and has already not met two security for costs orders in connection with this proceeding, and one costs order, despite demand for a money order in this proceeding alone.

The applicants submit that there is reason to discount Mr Craven being a natural person, and that the evidence before this court, for the purposes of this application, suggest the claim has been brought to harass individuals, namely the defendants, rather than in good faith, and in doing so, the applicants rely upon an earlier decision made by his Honour Judge Williamson QC.[1]

On 10 August 2018, his Honour Judge Williamson QC, in Craven v Globe Valley Pty Ltd [2018] QDC 155, dealt with a similar application for security of costs brought by a number of other defendants and delivered written reasons. I respectfully adopt the background factual matters contained in paragraphs 3 to 18 insofar as they are relevant, and consider it unnecessary for the purposes of these extemporaneous reasons to deal with those matters, unless expressly stated.

I, too, respectfully adopt his Honour Judge Porter QC’s ex tempore reasons of 27 September 2018 dismissing Mr Craven’s proceedings against other defendants. His Honour’s reasons recite the factual matters, and I respectfully adopt them to the extent they are relevant to this application, notably paragraphs 7 to 19 of his Honour’s reasons.[2]Again, I consider it unnecessary to recite the factual matters as identified by his Honour, unless expressly stated in these reasons when dealing with the relevant application before me.

Mr Craven unsuccessfully appealed Judge Porter QC’s orders dismissing the action as against the first, second and third defendants.[3]

I have reviewed the current pleadings as against the fourth and fifth defendants, and in short, by way of quick summary, Mr Craven is suing for defamation against the defendants arising out of publication on various internet sites which he alleges made statements referring to him relating to litigation and his conduct online, inter alia, as an internet troll. He pleads defamatory conduct as a consequence of those matters. The defence is that, essentially, the proceedings are statute barred under the Limitation of Actions Act, and that the defendants did not publish the material, or cause such material to be published.

Rule 670 provides as follows:

‘On application by a defendant, the court may order the plaintiff to give the security the court considers appropriate for the defendant’s costs of and incidental to the proceeding.’[4]

The prerequisites for security for costs is set out in rule 671 and relevantly includes, for present purposes, sub-rule (h) being:

‘The justice of the case requires the making of the order.’

The court has an unfettered discretion in deciding whether to order security for costs, having regard to the circumstances of the case.

There are a number of discretionary factors for security for costs, as outlined in rule 672, including an order for security would be oppressive, the prospects of success or merits of the proceeding and the genuineness of the proceeding.

Therefore, the discretion to award security for costs must be exercised judicially, and the court will try to achieve justice by balancing the defendant’s interests in having the costs of their defence secured against the unfavourable position of precluding the plaintiff from litigating the proceeding.

Mr Craven seeks a dismissal of the application. He submits many matters, but it seems to me the gravamen of his resistance to the present application is that, using his words:

‘This latest excursion to the courts originates from myself being falsely defamed by one or more of the Hegarty family who predominantly reside in Western Australia, and their company online business, previously Ready Flowers and now zFlowers, being used as the publication vehicle of the defamatory material.’

He:

‘…believes that [his] strongest position is what is exhibited to affidavit 9, showing the involvement of the fifth defendant on the same pages that falsely defame [him]. I believe this evidence regarding the fifth defendant cannot be refuted, and that along with his insulting email to me, the fifth defendant is one of those that control the false and defamatory publications which also about to a vendetta.’

In support of his resistance to the application, I have considered Mr Craven’s many affidavits.

I have in particular noted his first affidavit deposing, as Mr Craven asserts, that on 11 August 2018 he removed contentious websites that he previously published that were causing some trouble.

Mr Craven also has highlighted his third affidavit at paragraphs 1, 2 and 3, deposing of the steps he took to try and remove the false and defamatory publications about himself without success, and as a result he was provoked into suing.

He also relies upon affidavit 4 at paragraphs 1 and 2 deposing how he was unfairly caught by surprised with respect to his Honour Judge Williamson’s reasons.

Mr Craven also refers to his eight affidavit. That is that that material deposes various matters, such as false and defamatory hyperlinks identified by yellow arrows, the primary defamation material at exhibit pages 77 to 87 which are arrived at by clicking on the hyperlinks, articles and customer reviews dated many years prior to when zFlowers say they became operational, which according to paragraph 6 and 7 of the defence was 1 July 2017 and the vendetta.

Mr Craven also refers to, in particular, his ninth affidavit deposing various matters such as further false and defamatory hyperlinks identified by yellow arrows, what he believes to be irrefutable evidence of the fifth defendants involvement in his deformation of the plaintiff by representing to be the founder, the managing director and the general manager and CEO, representations and a propensity for untruth, the woeful defence of the fourth and fifth defendants, the fiduciary duty of the fourth defendant and what WIPO said.

He also refers to his 10th affidavit, filed by leave this morning, deposing to various matters such as what consumers, newspapers, florists and others say about the online flower business exploits of one or more of the Hegarty family. His purpose in this is to demonstrate that he is not the only critic, also highlighting the misrepresentation and duplicity which assists him to prove a propensity for untruth by one or more of the Hegarty family that he says has falsely defamed him, and his response to some of the submissions made by the solicitor for the fourth and fifth defendants.

Mr Craven also refers to, in particular, his 11th affidavit deposing to various matters, such as further false and defamatory hyperlinks identified by yellow arrows, some of the false and defamatory publications published during the statutory 12 month defamation period, the number of times those pages have been viewed by way of post-views facility on those pages and his injury.

He also refers to his 12th affidavit, which was filed by leave this morning, deposing to matters such as some background material, his unpaid costs, why he ought not be considered to be vexatious, his entitlement to publish the material that is now removed, a response to the fourth defendants affidavit, and then as a director of the first defendant, how he must have become aware of the defamatory material being published by his company and a response to Mr Moore’s affidavit, who is the solicitor for the fourth and fifth defendants.

In particular too, Mr Craven relies upon his affidavit, sworn 27 March 2018, which was relied upon at the hearing before his Honour Judge Williamson QC, which Mr Craven highlights that there are exhibits of a large number of reference material predominantly gathered subsequent to the finality of the Federal Court’s litigation which ended in March 2015.

The previous material that I have referred to is a snapshot of the material Mr Craven relies upon, and is only a summary. It is not intended to be a comprehensive one of the arguments that I have considered in support of Mr Craven’s position to resist the present application, but nonetheless I have considered his material in detail.

Despite reading Mr Craven’s extensive written material, including exhibit 1 before me, in addition to allowing him the opportunity of some two hours to address this court today, whilst I can empathise with, perhaps, what Mr Craven submits, is the genuineness of his grievances with the fourth and fifth defendants, and indeed might I add that these are clearly matters which can be ventilated at trial, I will exercise my discretion to order security for costs.

It is clear to me the plaintiff is impecunious. He has already not met two security for cost orders in connection with this action and one cost order despite demand on a money order in the proceeding.

This lengthy battle between Mr Craven and the defendants initially started in the then, Federal Magistrates Court where he alleged an entity known as Ready Flowers Proprietary Limited – which was a company associated with the second and third defendants – to have allegedly misled and deceived, on part of its business, in the course of its business. In that proceeding, without alleging any loss, Mr Craven purported to sue in the capacity, of, “an average consumer”. Ultimately, he sought, but failed to obtain declarations and injunctions said to arise from misleading and deceptive conduct by Ready Flowers in the course of its selling flowers over the internet. He also sought relief, in the nature of disclosure to consumers and pecuniary penalties.

In this respect, I have read and considered the decisions of Craven v Ready Flowers [2012] FMCA 1128 and Craven v Ready Flowers [2015] FFCA 538. The application in the Federal Circuit was dismissed. But, that was not before Mr Craven:

  1. (a)
    lost a preliminary hearing, on whether Ready Flowers was estopped from denying it was still conducting the floristry business – the subject of the litigation;
  2. (b)
    was refused leave to appeal from that decision;
  3. (c)
    failed to pay costs arising from failure in the application for leave to appeal;
  4. (d)
    failed to comply with a bankruptcy notice, in relation to those costs;
  5. (e)
    applied for an extension of time within which to comply with the notice, but lost that with his Honour, Justice Dowsett, concluding that Mr Craven was not acting bona fide;
  6. (f)
    filed an appeal against Justice Dowsett’s order, but failed to provide security of the appeal, as was ordered by his Honour, Justice Rangiah;
  7. (g)
    failed to resist an order for costs of the failed appeal, with Justice Rangiah observing that the history of the litigation was “torturous” and that Mr Craven had made an unproven allegation of fraud against Ready Flowers Proprietary Limited;
  8. (h)
    was the subject of a sequestration order based on the cost orders; and,
  9. (i)
    unsuccessfully applied to have it set aside with his Honour Justice Logan dismissing suggestions that the decision of Justice Greenwood or a related decision of his Honour Federal Circuit Judge Jarrett was procured by fraud.

After Mr Craven’s failure in the federal arena, the publications of which he complains in this proceeding appeared.

Mr Craven has asserted, in previous versions of the statement of claim, that: 

  1. (a)
    he is well known within the Australian florist community for exposing and publishing misconduct in the online florist industry; 
  2. (b)
    two blogs and a press release were published, which falsely accused Mr Craven of:
  1. (i)
    “being an internet troll”; 
  2. (ii)
    “being a cyberbully”; 
  3. (iii)
    “being mistaken in claims against a website, zFlowers.com”; 
  4. (iv)
    “engaging in cyberstalking, bullying and vilification”; 
  5. (v)
    “suffering misconception as to how international businesses operate”; 
  6. (vi)
    “attacking and publically humiliating companies and public figures”; 
  7. (vii)
    “suing zFlowers.com when he, in fact, sued Ready Flowers Proprietary Limited”;
  8. (viii)
    “making an extortionate demand to settle the case”;  
  9. (ix)
    “pursuing a misguided crusade against zFlowers.com”;
  10. (x)
    “owing money to zFlowers.com”; 
  11. (xi)
    “refusing to comment when he had not been approached for comment”;
  1. (c)
    each of those things is defamatory of him and sits out of range of imputations, although without linking imputations to particular statements; 
  1. (d)
    the conduct in question is also misleading and deceptive in contravention of section 18 in the Australian Consumer Law.

I note that Mr Craven has removed some of those allegations following the decision of his Honour Judge Williamson QC on 10 August 2010.

However, it seems clear on the face of the material, to me, that Mr Craven still harbours the same opinion of his lack of success in the Federal Court actions and this action as it concerns the steps taken by the first to third defendants, culminating in dismissal of the claim against them on 27 September 2018 by his Honour, Judge Porter QC.

Mr Craven said in argument this morning that, “they started this”. Indeed, his diarised website, with the address www.floristcollective.report, and on that website Mr Craven, among other things:

  1. (a)
    refers to “Thomas, Peter and Deborah Hegarty, as arguably the most hated collective of fake florists in Australia”;
  2. (b)
    accuses the defendants variously of avoiding service and of attempting to sabotage his website; and
  3. (c)
    making a number of other statements, with respect to matters concerning the Hegarty family, and in particular, perhaps the fourth and fifth defendants, the subject of this application.

The evidence demonstrates a number of other websites published by Mr Craven, in which he has made perhaps ‘defamatory’ statements about members of the Hegarty family and others.

The applicants submit that that extends to Mr Craven publishing a website, charmingly located at the address, zFlowers.sucks. It includes allegations that the Hegarty family are responsible for publishing fake reviews of floristry services. Allegations that were dismissed as unproven in proceedings in the Federal Circuit Court. I only raise these matters, on the basis that I do not necessarily – and am not to embark upon a finding today, as to whether they are in fact, in defamatory. But, none the less, these are matters that I have considered when exercising my discretion to grant the application. I note, too, that the applicants have conceded, however, that following the decision by his Honour Judge Williamson QC, that Mr Craven removed some of those statements from the websites.

I have formed the view and am persuaded by the submission that Mr Craven’s concerns to continue to attack the Hegarty family is carried over into this proceeding, with his making accusation of, perhaps untruthfulness, on their part, in the affidavit material filed in response to this application. Those can have no relevance to the issues raised in this application. Nonetheless, the inference which the applicants invite me to consider, is that it is taken on occasion, with respect to privilege. All of those matters, and indeed, the affidavit material that has been filed today by Mr Craven, for example his 10th affidavit, where he refers to, in bold, “He continues to be personally disgusted” with the behaviour of one of the – more defendants. That is identified paragraph 1 to his affidavit. As well as his 12th affidavit, sworn today, at paragraphs 18A, 24 and 41, which cause me to consider, perhaps, the need, in the circumstances, to award security for costs.

It is also to be noted that Mr Craven’s allegations of dishonesty have been made without ever being, at this point, substantiated by the evidence. That is, though, a matter to be raised and ventilated at trial.

I am satisfied that there is no doubt that Mr Craven will fail to meet cost orders, as he has done so on two previous occasions in this action – whether it be in this court, or indeed, in the Court of Appeal. And in that respect, I have noted that the decision of his Honour Judge Porter QC was dismissed by the Court of Appeal recently in Globe Valley and Others v Craven [2018] QCA 328.

It seems to me that, indeed, Mr Craven is impecunious and it is a reasonable inference to draw that he will be bankrupt again, in the event that he fails to comply with the bankruptcy notice presently issued to him.

Indeed, there is no suggestion that he intends to meet any of the previous cost orders he has incurred.

I also have considered the current state of the pleadings, and in light of the Defence – and whilst recognising that this is not a trial of the matter today, my preliminary view of it, is that I am not so satisfied the prospects of the claim are strong. That, though, will be a matter for the trial judge.

All of these factors cause me to consider, in exercising my discretion, that it is appropriate to make an order for security against Mr Craven.

In doing so, too, I note that the applicants have not been extravagant in the amount sought, offering to accept $10,000 by way of security. The usual order is for security up to and including the first day of trial. I note the claim will have to be as submitted re-pleaded so as to identify the imputations, in respect of each set of defamatory words. Once that happens, the defendants, the fourth and fifth defendants, will have the opportunity to re-plead and will be entitled to their costs thrown away in that effort. There will then have to be disclosure. And if Mr Craven’s approach to previous litigation is, perhaps, an indication, there too will be further interlocutory stoushes. The first day of trial is likely to cost the applicants around as much as the security sought in the correspondence performing.

Out of an abundance of caution, too, when considering the other discretionary factors for security for cost, I note too that there has been raised by indeed the applicants that there could have been an assertion regarding delay, in respect to that matter. That matter was not agitated by Mr Craven, this morning. However, I note that the fourth and fifth defendants entered defences in this matter on 27 September 2018 and 22 October 2018, respectively. The request to the plaintiff that he provide security for costs was issued to the plaintiff on 22 October 2018. There has been a delay of some-three months but that delay is not significant, in my view, in all of the circumstances, given the fourth and fifth defendants are of limited financial means. Therefore, I am not satisfied that there has been prejudice to Mr Craven, in delay in bringing this application. But, as noted, that was not raised during the course of oral argument as a factor for me to consider against exercising a discretion not to award security for costs.

The order, therefore, will be that the plaintiff is to provide security for the fourth and fifth defendant’s costs of the proceedings, in the amount of $10,000, in a form acceptable to the registrar of the court, within 28 days.

Footnotes

[1] Craven v Globe Valley Pty Ltd & Ors [2018] QDC 155 (Williamson QC DCJ)

[2] Craven v Globe Valley Pty Ltd & Ors [2018] QDC 198 (Porter QC DCJ)

[3] Globe Valley Pty Ltd & Ors v Craven [2018] QCA 328

[4] Uniform Civil Procedure Rules 1999, r 670.

Close

Editorial Notes

  • Published Case Name:

    Craven v Globe Valley Pty Ltd

  • Shortened Case Name:

    Craven v Globe Valley Pty Ltd

  • MNC:

    [2019] QDC 28

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    27 Feb 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.