Hallam v O'Connor (No. 2)[2020] QDC 343

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is the plaintiff in proceedings for defamation against the respondent and another party. Some of the background of the matter is set out in the judgment I have given in Hallam v O'Connor [2019] QDC 130. Subsequent to the commencement of the proceedings, from about the end of June 2018, it is said the first defendant published further defamatory comments on the internet about the applicant. By a further amended statement of claim filed on the 23^rd of March 2020, the applicant seeks damages in respect of 10 such publications identified in that pleading as the 14^th to the 23^rd Lyn O'Connor publications.  They are pleaded in renumbered paragraphs 210 to 268 of that further amended statement of claim.

2. [2]
   The amended pleading generally alleges in relation to each of the 10 publications:

3. (1)
   that from a pleaded date the respondent published a comment or comments on a nominated Facebook page identifying particular words of the publication;

3. (2)
   that the publication has continued to the present or a nominated time;

3. (3)
   what the immediate Facebook context of the publication was;

3. (4)
   that the publication identified, or was understood to refer to, the applicant;

3. (5)
   that the ordinary and natural meaning of the publication is defamatory to the applicant.

3. [3]
   As I have said, that further amended pleading was filed on the 23^rd of March 2020.  It was served shortly thereafter.  The defendant has still not filed a defence to those new allegations and the applicant by application filed on the 11^th of August 2020 seeks orders pursuant to rule 374(5) of the UCPR:

1. (a)
   that the first defendant show cause why judgment, conditional upon an assessment of damages, should not be entered against her in respect of liability for the plaintiff’s causes of action pleaded in paragraphs 210 to 268 of the further amended statement of claim;  and

2. (b)
   the assessment of damages in (a) above be conducted by a Judge of this Court hearing and determining the balance of the proceedings.

4. [4]
   Further orders that are not of direct relevance to today’s matter were also sought in that application.

5. [5]
   The matter came before me on the 15^th of May.  At that time, on the applicant’s application, I made orders in relation to disclosure contemplating completion of that process by the 7^th of August 2020.  I also ordered that the respondent was to file and serve a second further amended defence by the 17^th of July 2020.  The respondent appeared on that occasion as on each subsequent occasion by phone.

6. [6]
   The amended pleading was not filed by the required date.

7. [7]
   During the proceedings on the 15^th of May, the first defendant indicated in making oral submissions by phone that she was significantly limited in her capacity to comply with the requirements to deliver an amended defence by various medical conditions.  Whilst no sworn material was initially relied on, she said:

1. (1)
   that, generally, she works in Cairns on Tuesdays to Thursday each week (see transcript T1-8, L1/2);

2. (2)
   that she has trouble with her vision, having been diagnosed with closed-angle glaucoma (my emphasis) (see T1-8, L9-10);

3. (3)
   in addition to limitations due to her vision, she in 2011 had “a burn-out and I have to manage my symptoms” and was happy to provide “expert evidence” on that issue, which had been prepared “prior to the hearings in 2018” (see T1-8, L28/30);

4. (4)
   that she was unable to work on the file “at all (in) … June due to work commitments” (T1-8, L20/21).

8. [8]
   During yesterday’s hearing, she indicated to me that during June a fellow employee had taken long service leave, necessitating her working longer hours in that month, consistent with the assertion she had made in May 2020.

9. [9]
   Due to the respondent’s failure to file an amended pleading, the applicant filed the application I earlier referred to. The matter came before me again on the 21^st of August.

10. [10]
    Once again, the respondent made assertions unsupported by sworn evidence about her incapacity due to her medical condition. When I asked (at T1-7, L34) what date she proposed to file a defence by, she said:

I cannot give that answer because I do not know.  My capacity does not allow me to put a date on that.

11. [11]
    Subsequently, a general practitioner, Dr Gene Walker, gave evidence by phone and was cross-examined. He was from the practice she attended. A letter from him was provided to the Court, together with medical records.

12. [12]
    The records which were put before me indicated she had seen Dr Emma Griffiths at the practice on the 22^nd of May and Dr Walker on the 26^th of June 2020.  The records of the 22^nd of May appeared to relate to symptoms arising from stress, but no mention is made of vision problems.  The records indicate that the respondent had said she was working three days per week from 8 till 6 pm and, that on the 28^th of May 2019 she was said to haves “bilateral glaucoma chronic open-angle” (my emphasis).  During cross-examination on that occasion, Dr Walker said or agreed with these propositions:

1. Open-angle glaucoma develops slowly over the life of a patient.

2. By contrast, closed-angle glaucoma demands immediate medical attention.

3. That in the case of closed-angle glaucoma, it is almost inevitable once it is detected that it will require intervention by way of laser treatment or conventional surgery, although some people are maintained on a range of eyedrops prior to any intervention.

4. By contrast, open-angle glaucoma does not require immediate surgical intervention and can be treated with a number of preventative treatments such as eyedrops which preserve the patient’s sight.  Eye exercises can also be used as a preventative measure.

5. There was no indication in his records of any laser treatment or surgical intervention for the respondent.

6. On the 26^th of June, her right eye pressure was said to be normal.

7. It was said that the respondent had nocturnal diplopia, but that was said to be a problem which occurred at night and not during the day and, in any case, nocturnal diplopia is amenable to correction by prescription glasses.

13. [13]
    Following the appointment of the 22^nd of May, a mental health plan was developed for the respondent and she was referred to a psychologist in Atherton, Mr Peters.  I shall refer to a report by him in due course.

14. [14]
    The records also note that the respondent’s dosage of Pristiq was increased from 50 milligrams to 100 milligrams. Pristiq is a drug to treat anxiety and enhance mood. The notes of the 26^th of June record that the respondent was working with her psychologist and she felt the increased dosage of Pristiq was effective.

15. [15]
    In such circumstances, on the 21^st of August I ordered inter alia that the hearing and determination of the matters sought in paragraphs 1(a) and 1(b) of the application filed on the 11^th of August, to which I have earlier referred, be listed for hearing on the 17^th of September and that the time within which the respondent had to file and serve a second further amended defence was extended from the 17^th of July to the 14^th of September.  I also made orders relating to the timetable for disclosure of documents currently not relevant. 

16. [16]
    Despite that order and the passage of a further period of about 27 days, the respondent has still not filed a defence.

17. [17]
    Furthermore, she filed no affidavit attesting to her inability to comply with the order. Instead, on Monday, the 14^th of September at 5.21 pm, she emailed my Associate and the applicant’s solicitor seeking an adjournment of the application to be heard on the 17^th of September.  In that email, she said she was making “good progress”, but sought a two-week extension “subject to (her) maintaining current capacity”.  Thus, even that request did not suggest a definite date for delivery of the defence that was not subject to a subjective assessment by the respondent of her own “capacity”.

18. [18]
    The following morning at 9.57 am, my Associate emailed her indicating that if she wanted an adjournment, that could be done either (1) by agreement with the applicant’s solicitor, or (2) by application to the Court. At 11.44 am, the appellant’s solicitor emailed the respondent advising that she must bring an application for the extension of time “supported by sworn affidavits” (see paragraph 7 of that email, being exhibit MFW38 to the affidavit of the applicant’s solicitor, Mr Williams sworn the 17^th of September and filed by leave on that same day).

19. [19]
    After some confusion within the Court as to whether the matter was to be heard by her Honour Judge Clare QC DCJ, who was listed in applications, the matter came before me on the 17^th of September.  Because of a ceremonial sittings of the Court, the matter was listed at short notice for 11 am.  The respondent was unable to then attend because of work commitments, and the matter was then adjourned to 12.45 when it was heard.  As in May and August, the respondent appeared by phone.  During the hearing, she indicated she had no affidavit material, but had spent time working on a partially completed affidavit and partially completed defence.  Although she said she had a partially completed defence, no document was produced to me.  She indicated she is working that week on Tuesday to Thursday, as normal, but also on Friday from 8 to 5.30 pm with half an hour for lunch.  She reiterated earlier comments to me, unsupported by any sworn evidence or expert report, that she was significantly impeded by vision problems. 

20. [20]
    In view of the evidence of Dr Walker to which I have earlier referred, I cannot accept that any problem with her eyes has prevented her from preparing a defence for almost six months since late March 2020. So, too, I cannot accept that her psychological or other health issues have prevented her from doing so. In support of her oral assertions, the respondent sought to rely on a report of her psychologist, Mr Lex Peters, to whom I earlier referred. Counsel for the applicant objected to its admission, since no attempt had been made to have the report admitted through sworn testimony and it did not comply with the rules about expert evidence.

21. [21]
    Ultimately, consideration of the report does not assist the respondent in persuading me that she has by reason of a psychological condition been unable to prepare her defence since March 2020, or that she is currently unable to do so. Mr Peters indicates that he has seen the respondent “at various intervals since 2006” without specifying when or why, and most recently on the 29^th of May and the 4^th of September 2020.  He says she presents with symptoms consistent with chronic fatigue syndrome, severe anxiety and stress.  Without articulating what symptoms she presents with, he opines that they interfere with her normal working functioning and reduce her capacity to cope with stress.

22. [22]
    Such statements do little to assist me in determining whether the respondent has genuinely attempted to comply with her obligation to file a defence in a timely fashion. He says on the 4^th of September she was assessed as having moderate clinical depression, extremely severe levels of anxiety, and severe levels of stress.

23. [23]
    Again, that assertion does not really assist me in determining the reasons or otherwise of the respondent’s conduct. Ultimately, he concludes:

Any additional strategies that could be implemented to prevent or manage her stress factors that could exacerbate her condition would be of significant benefit to her long-term mental health.

24. [24]
    Ultimately, I conclude the report is of no real assistance to me in determining the reasonableness of the respondent’s conduct. In the circumstances, I rule that the report is inadmissible with respect to the opinions expressed therein, opinions which in any case are unhelpful to me, but would allow into evidence those parts which set out the history of consultations and treatments. That is, I accept she attended for treatment on the 29^th of May and the 4^th of September and that she complained of the symptoms that he refers to.

25. [25]
    I have had the benefit of hearing the respondent make oral submissions by phone on each of the 15^th of May, the 21^st of August, and the 17^th of September this year.  On each occasion, she appeared capable of putting her submissions forcefully and without appearing unduly inhibited by stress or anxiety, although it is true that she did get anxious.  She has worked throughout the relevant period apparently three days a week, but been able to increase this to full-time work when asked by her employer to do so in June.  Even this week she, when asked, agreed to work today, the 18^th of September, and said that she was able to do so from 8.30 to 5.30 with only half an hour for lunch.  When I inquired about the possibility of delivering judgment today and asked when that might be able to be done, she, as I said, indicated she was working that extra eight and a-half hours on top of her usual employment of three days per week and provided her answer, indicating also that the time at which she had lunch could not be known and it was dependent on patient demands. 

26. [26]
    It seems to me that when it suits her the respondent has capacity to work and to concentrate. She is able to send detailed emails exhibited to the material before me. I can see no reason why she has not been able to complete her defence within a reasonable time and, certainly, within six months, or a period of almost six months. She has been given significant leniency in relation to this issue. She appears to believe that the requirements of the rules, including the obligation to proceed expeditiously as required by rule 5 of the Uniform Civil Procedure Rules, do not apply to her.

27. [27]
    I accept generally the submission of counsel for the applicant in that regard. She has consistently displayed an unwillingness to cooperate in having the matter proceed in a way which was, in my view, well within her capacity. Her default continues and is causing both unnecessary delay and significant expense to the applicant. It appears to me she is intentionally frustrating the progress of the action. Her ability to work, as she has been working, extended hours when requested on occasions, her obvious exaggeration of her vision problems, and, indeed, of her ability to work due to stress and depression, together with her presentation on the phone during hearings, all assist me in coming to the conclusions I have.

28. [28]
    Her statement that when she receives documents she must put them aside for a period and not read them in order to ensure the documents are not infected with the COVID virus scarcely enhanced the view I have taken of her willingness to ensure this matter proceeds with reasonable dispatch. At no time has the respondent sought to demonstrate that she has any defence to the plaintiff’s new claims. Because of my consideration of similar publications in my earlier published decision, and because of other ongoing non-compliance and refusal to commit to a time when the defence will be provided, or to advise of the nature of a defence in any way, I have come to the conclusion that it is appropriate that there be judgment for the plaintiff with damages to be assessed because of her failure to comply with my orders of the 15^th of May and the 21^st of August relating to the filing of a second further amended defence. 

29. [29]
    In the circumstances, I will order that:

1. (a)
   there be judgment conditional upon an assessment of damages in respect of liability for the plaintiff’s causes of action pleaded in paragraphs 210 to 268 of the further amended statement of claim; and

2. (b)
   the assessment of damage in respect of those matters be conducted by a Judge of this Court hearing and determining the balance of the proceedings.

3. (c)
   I will give the parties liberty to apply for any minor variations to that order that may be necessary.

30. [30]
    I will adjourn the question of costs to the hearing which is to take place on the 12^th of October at 2 pm.