Egan v Taylor[2022] QDC 144

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The first plaintiff, Brian Egan, second plaintiff, Nerida Egan and third plaintiff, Samantha Price, commenced proceedings against the defendant for damages for defamation in a Claim and Statement of Claim dated 19 December 2018. 
2. [2]
   It appears to be common ground that the first plaintiff in the original proceedings, Brian Egan, died in January 2020.^[1] However, subsequent court documents have variously retained that naming convention and/or identified Nerida Egan as the first plaintiff and Samantha Price as the second plaintiff.^[2] There does not appear to have been an application to remove Brian Egan as the first plaintiff. For consistency, the parties will be referred to throughout these reasons, and orders, where relevant, as the first plaintiff (Brian Egan), second plaintiff (Nerida Egan) and third plaintiff (Samantha Price).

1. [3]
   These reasons deal with the applications brought by the defendant Kara Taylor,^[3] and an application brought by the plaintiffs.^[4]  As a matter of convenience, both applications were heard before me on 26 April 2022. 
2. [4]
   The defendant’s application seeks the following orders:^[5]

An order for costs to be awarded to the defendant per Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 307(1)(a)(b) and the Defamation Act 2005 (Qld) (‘Defamation Act’) s 10(2), given proceedings have ended for the first plaintiff since his death on 5 January 2020.

The defendant is seeking $15,000 to cover costs. 

An order for security for costs from the second and third plaintiffs per UCPR r 670.

An order under UCPR rr 414(9) and 458(1) for Ms Natasha Kocks and Mr John Payne to comply with the subpoena or be held in contempt of court, as they have not complied with the subpoena for production served on 3 February 2022, and due for return of listed documents on 18 February at 10am to the Queensland District Court.

Request leave of the court under s 32A(2) of the Limitation of Actions Act 1974 (Qld) and UCPR rr 69(1)(b), 69(2)(b) and 69(f); with respect to the counterclaim filed on 31 January 2022, to include the additional parties listed, and to allow a defamation course [sic] of action from August 2018.

The plaintiffs pay the costs of the defendant as a result of this application.

1. [5]
   The plaintiffs’ application seeks the following orders:^[6]

1.  Order under UCPR r 379 that the Further Amended Defence and Amended Counterclaim served 28 March 2022 be disallowed in whole or in part.

2.  In the alternative to order 1, that under UCPR rr 149(1)(a)-(b), 161, 171(1)(b)-(c) and r 171(2) that the Defence and Counterclaim served 3 February 2022 and the particulars amended to them, the Further Amended Defence and Amended Counterclaim served 28 March 2022, and the particulars amended to them, be struck out in whole or in part.

3.  In the alternative, or further to orders 1 and 2, order under UCPR r 293 for summary judgment in favour of the first and second plaintiffs/cross defendants against the defendant/cross-claimant in respect of all or part of the counterclaim.

4.  Order under UCPR rr 416 and 415(6)(a), (b)-(d) that the subpoenas for production issued by the defendant to the following be set aside:

1. (a)
   John Payne; and
2. (b)
   Natasha Kocks.

5.  The defendant/cross-claimant pay the costs of the first and second plaintiffs/cross-defendants.

Discussion – defendant’s application

Order 1: Costs – first plaintiff deceased

1. [6]
   This application purports to be brought pursuant to UCPR r 307(1) which relevantly provides:

“307 Costs

3. (1)
    A party who discontinues or withdraws is liable to pay—

1. (a)
    the costs of the party to whom the discontinuance or withdrawal relates up to the discontinuance or withdrawal; and

2. (b)
    the costs of another party or parties caused by the discontinuance or withdrawal.”^[7]

1. [7]
   Further, Defamation Act s 10(2) provides:

“10 No cause of action for defamation of, or against, deceased persons

3. (2)
    Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.”^[8]

1. [8]
   The defendant’s argument is that she should receive legal costs incurred given that “no cause of action remains for the first plaintiff”.^[9]  In oral submissions, the defendant seeks to argue that the second plaintiff, Nerida Egan, should pay the costs that the defendant incurred “from [her] previous lawyers Harwood Andrews”.^[10]  In terms of quantum, the defendant could only submit orally that the $15,000 was “the approximate costs as incurred from Harwood Andrews between January of 2019 and up until the time [the defendant] elected to represent [herself] in November of 2021.”^[11]  When queried further as to whether the defendant had affidavit material in respect of the quantum of costs the defendant said “no”.^[12]
2. [9]
   The plaintiffs’ primary submission is that an order for costs cannot be made against a non-existent person, given there is no one for the costs order to bind or operate upon.^[13]
3. [10]
   In respect of the defendant’s reference to section 10(2) of the Defamation Act, the plaintiffs argue that the proceedings remain on foot and have not been discontinued.^[14] Rather, one of the parties to the action to the proceedings is deceased, and the proceedings continue with the remaining parties.

11. [11]
    In any event, the plaintiffs argue that if this court was persuaded that it was “in the interests of justice” to determine the question of costs for proceedings discontinued because of the death of the first plaintiff, it would be necessary for the defendant to seek leave for a further step in the proceeding pursuant to UCPR r 72(1),^[15] and seek to have a trustee, legal personal representative or some other person substituted pursuant to UCPR r 72(2).^[16]
12. [12]
    The plaintiffs further submit that there is, in any event, no affidavit material in either the affidavit of Kara Taylor affirmed 15 March 2022,^[17] nor the affidavit of Kara Taylor affirmed 25 January 2022,^[18] which discloses any basis to establish the sum of $15,000 sought pursuant to order 1 of the defendant’s application.^[19]
13. [13]
    As previously noted, it appears common ground that the first plaintiff died in January 2020. However, a precise date does not appear on the material filed in these proceedings.^[20]
14. [14]
    In my view, it is clear that this court has no capacity to make an order for costs in respect of the deceased first plaintiff. In any event, nothing placed before me in this application persuades me that it is in the interests of justice to make an order pursuant to the Defamation Act s 10(2) and, regardless, no application has been made by the defendant to obtain leave to proceed pursuant to UCPR r 72(1),^[21] nor has any application been made for leave to proceed or leave to substitute a trustee, legal personal representative or some other person pursuant to UCPR r 72(2).^[22]  In addition, as identified above, there is, in any event, no affidavit material disclosing any basis whatsoever to establish the sum of $15,000 costs sought by the defendant, who is now self‑represented.
15. [15]
    Accordingly, the order sought pursuant to paragraph one of the application filed 17 March 2022 is refused.^[23]

Order 2: Defendant’s application filed 17 March 2022 – security for costs of self-represented party

16. [16]
    The defendant, in her affidavit material, asserts that the third plaintiff sold her home on 18 January 2022,^[24] although the affidavit material does not in any way link the third plaintiff, to the address of a house in Charleville, in an exhibit which appears to be the screenshot of a real estate listing of a house at a nominated address in Charleville having been sold.  Without other evidence, the defendant asserts that the third plaintiff is “appearing to remove assets as not to be liable for any costs order.”^[25] 
17. [17]
    The defendant then argues that the plaintiff’s address was not listed in the original claim; asserts that the second and third plaintiffs appear to have minimal means between them; asserts a belief that the proceedings are being funded by Aussie Helpers Ltd; and on that basis seeks security for costs.
18. [18]
    An application for security for costs proceeds pursuant to UCPR r 670 which provides:

“670Security for costs

1. (1)
   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.

2. (2)
   This rule applies subject to the provisions of these rules, particularly, rules 671 and 672.”

19. [19]
    In respect of applications for security for costs of a self-represented party, Applegarth J in Mbuzi v Hall & Anor [2010] QSC 359 stated: 

“A court may order pursuant to r 670 a ‘plaintiff’ to give the security the court considers appropriate ‘for the defendant’s costs of and incidental to the proceeding’ only if the court is satisfied of one or more of the matters stated in r 671.  If the applicant is not a ‘plaintiff’ for the purposes of r 670, then the matters stated in r 671 and the discretionary considerations stated in r 672 provide guidance about matters which may be relevant to the exercise of the court’s inherent jurisdiction.  However, these are not exhaustive of the factors that may be taken into account in deciding whether to order security for costs pursuant to either r 670 or the court’s inherent jurisdiction.”^[26]  [citations deleted]

20. [20]
    Drawing on the analysis by Applegarth J in Mbuzi v Hall & Anor [2010] QSC 359, [57]-[69] the plaintiffs identify the following principles:

“(a) the application does not distinguish between the defendant’s costs of defending the proceedings, as opposed to the costs of the counterclaim (cf UCPR r 677);

2. (b)
    the counterclaim is statute barred;

3. (c)
    the application is brought over three years since these proceedings were commenced on 19 December 2018;

4. (d)
    there is no explanation given for the delay in bringing the application: significant unexplained delay in bringing the application can ordinarily be expected to result in its refusal [Morris v Handley [2021] NSWCA 374];

5. (e)
    if the application is for costs already said to have been incurred, the court will be reluctant to make an order where the application has not been brought promptly [Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114];

6. (f)
    the application does not distinguish between costs already incurred and costs to be incurred [Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114];

7. (g)
    the defendant/cross claimant has dispensed with the legal representation, so any order would be of limited utility;

8. (h)
    the plaintiffs have good prospects of success, admissions having been made as to publication of the posts comprising the matters complained of (Further Amended Defence paragraphs 4(a), 5(a), 6(a), 7(a), 8(a), 10(a), 12(a), 14(a) – no truth defence has been pleaded);

9. (i)
    the defendant/cross claimant has poor prospects of success on the counterclaim, which is statute barred;

10. (j)
     the proceedings are genuine;

11. (k)
     an order for security of costs would oppressive;

12. (l)
     impecuniosity is no bar to seeking vindication by way of an action in defamation, a cause of action in which courts are reluctant to make security for costs orders against a plaintiff.”^[27]

21. [21]
    I consider on the basis of the material provided that there has been no basis to suggest that the provision of an address for the plaintiffs, care of the plaintiffs’ solicitors, amounts to evidence of an intention to deceive. Further, as noted above, there is no proper evidentiary basis for the assertion that the third plaintiff has disposed of any real property asset; there is no proper evidentiary basis for the assertions made as to the impecuniosity of the second plaintiff; and, in any event, an assertion in respect of real property assets of the second plaintiff would appear to indicate that she is not impecunious.
22. [22]
    It follows that no proper basis has been established for an application for security for costs by the defendant and this aspect of the application must fail.

Order 3 – subpoenas

23. [23]
    The defendant/cross-claimant seeks, in order 3 of her application,^[28] an order compelling compliance with subpoenas addressed to a non-party, John Payne, and to Natasha Kocks, named as the fourth cross-defendant in the Amended Counterclaim dated 15 March 2022.^[29]
24. [24]
    This aspect of the defendant’s application needs to be considered in the context of the plaintiffs’ application filed 6 April 2022,^[30] which seeks that the Further Amended Defence and Amended Counterclaim be disallowed, ^[31] either in whole or in part, or in the alternative, that the particulars appended to the Further Amended Defence and Amended Counterclaim be struck out in whole or in part, or in further alternative, summary judgment in favour of the first and second plaintiffs/cross-defendants against the defendant/cross-claimant in respect of all or part of the counterclaim, as well as seeking orders to set aside the subpoenas issued by the defendant in respect of John Payne and Natasha Kocks.
25. [25]
    Accordingly, rather than dealing with the application under UCPR r 414(9),^[32] it is more appropriate to deal with the plaintiffs’ application to have the amended pleadings disallowed or struck out in whole or in part, given the asserted forensic relevance of the subpoenas on John Payne and Natasha Cox, and the issues arising out of the limitation periods pursuant to the Limitation of Actions Act 1974 (Qld) s 32A.^[33]

Order 4 – extension of limitation period

26. [26]
    The application seeks leave of the court pursuant to Limitation of Actions Act 1974 (Qld) s 32A(2) and UCPR rr 69(1)(b), 69(2)(b) & 69(f) with respect to the counterclaim filed on 31 January 2022, to include the additional parties listed in that counterclaim, and to allow a defamation course [sic] of action from August 2018.
27. [27]
    As the plaintiff identifies, the Amended Counterclaim pleads publication of four matters as follows:

1. 24 August 2018;^[34]
2. On or about 13 August 2018;^[35]
3. On or about 14 August 2018;^[36] and
4. On or about 7 November 2018.^[37]

28. [28]
    The Limitation of Actions Act 1974 (Qld) s 10AA provides:

“10AA Defamation actions

3. (1)
    An action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

3. (2)
    The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.

3. (3)
    The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires.

Example—

Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.

3. (4)
    In this section—

concerns notice see the Defamation Act 2005, section 12A(1).

date of the publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.”^[38]

29. [29]
    The Limitation of Actions Act s 32A provides:

“32A Defamation actions

3. (1)
    A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

3. (2)
    The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

3. (3)
    In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—

1. (a)
    the length of, and the reasons for, the plaintiff’s delay; and

2. (b)
    if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—

1. (i)
    the day on which the facts became known to the plaintiff; and

2. (ii)
    the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

3. (c)
    the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

3. (4)
    An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.”^[39]

30. [30]
    In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, Fraser JA (with whom Fryberg J agreed) summarised the application of Limitation of Actions Act 1974 (Qld) s 32 as follows:-

“[34] Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time.  Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted… (The selection of the period of any extension is discretionary, but that is not relevant in this appeal). The decision does involve an evaluation but that was also true in Warren v Coombes: trial judges are routinely called upon to evaluate the relative weight to be afforded to competing circumstances in the course of deciding whether the defendant failed to act with reasonable care. In relation to the principles governing appellate review it is not easy to identify any significant conceptual difference between that task and the task under s 32A”^[40] [citations omitted]

31. [31]
    The eighth cross-defendant identified in the defendant’s Amended Defence and Counterclaim is Aussie Helpers Charity Ltd. ^[41]  The eight cross-defendant submits that the evidentiary burden to be discharged by the applicant in an application for an extension of time, such as this, is to establish that it was not reasonable in the circumstances for the plaintiff, in this case the defendant/counterclaimant, to have commenced an action in relation to the matter complained of within a year from the date of publication.^[42]  The onus of proof rests with the applicant plaintiff.^[43]
32. [32]
    The one-year limitation period expired with respect to the four matters complained of relevantly on 24 August 2019, 13 August 2019, 14 August 2019 and 7 November 2019.  This court can only extend the limitation period in a defamation action up to a period of three years running from the date of the alleged publication of the matter, subject to being satisfied that it is just and reasonable to allow an action to proceed.^[44] Relevantly, those periods again expired with respect to the four matters in the Counterclaim on 24 August 2021, 13 August 2021, 14 August 2021 and 7 November 2021.  The Amended Defence and Counterclaim of the defendant was filed in this court on 31 January 2022 and as a consequence, I accept that there is no capacity for this court to extend the operational limitation period beyond the three years referred to in the Limitations of Actions Act 1974 (Qld) s 32A(2).^[45]  It follows that order 4 sought pursuant to the application by the defendant/counterclaimant should be refused.^[46]

Discussion – plaintiffs’ application

Disallowance of the Further Amended Defence and Amended Counterclaim

Principles – Leave to amend pleadings

33. [33]
    The Court of Appeal in Monto Coal 2 Pty Ltd & Ors v Sanrus Pty Ltd as trustee of the QC Trust & Ors [2014] QCA 267 held:

“In Hartnett v Hynes [2009] QSC 225 [27] Applegarth J outlined, by express reference to Aon Risk Services Ltd v Australian National University [2009] 239 CLR 175, 12 principles with respect to amendments for which leave is required. Justice Boddice in Groves v Groves [2011] QSC 411 [see also Mokrzeki v Popham [2013] QSC 123, [26]] stated that the principles identified by Applegarth J apply ‘whether or not leave to amend is required as amendments made without leave can be disallowed.’ The principles in Aon Risk Services Ltd v Australian National University are therefore of general application in the circumstances of the present appeal, namely an amendment pursuant to [UCPR] r 378 and an objection pursuant to [UCPR] r 379. The statements to this effect by Applegarth and Boddice JJ should be accepted as correct. The 12 principles identified by Applegarth J are, of course, only a guide in the sense that the application of those principles will vary from case to case. Each case will depend on its own circumstances.”^[47]

34. [34]
    In Hartnett v Hynes [2009] QSC 225, Applegarth J articulated those principles as follows:^[48]

“1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.

2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.

3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.

4. The court should not be seen to accede to applications made without adequate explanation or justification.

5. The existence of an explanation for the amendment is relevant to the court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”.

6. The objective of the court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.

7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.

8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.

9. Justice requires consideration of the prejudice caused to other parties, other litigants and the court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.

10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.

11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.

12. The applicant must satisfy the specific requirements of rules, such as UCPR r 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”

Principles – summary judgment

35. [35]
    In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, the Court of Appeal held:

“[46] As a result of r 5, r 292 and r 293 of the UCPR, a party seeking summary judgment is no longer required to satisfy the test set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

[47] As has been held in this court the test to be applied is that adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 in relation to r 24 of the Civil Procedure Rules (UK) which is in similar terms to r 292 and r 293; that is, the court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment. These rules benefit both parties as neither faces the expense of taking a matter to trial when the result of such a trial is inevitable as there is no real prospect of one of the parties being successful. There are also obvious advantages to the administration of justice if matters that can and ought be dealt with summarily, are so dealt with.”^[49]

Principles – setting aside subpoenas

36. [36]
    The relevant principles in setting aside subpoenas are referred to in QBSA v Guardian Pest & Weed Control Services Pty Ltd [2000] QBT 65 which, in turn quotes, with approval, a passage of the text in Ryan, Weld and Lees Volume 1 of Supreme Court Practice Queensland, p 527:

“[40.29.3] Validity - Ad testificandum A subpoena is automatically issued by the court at the request of a party, and the court does not then inquire into its validity. But if it is improperly issued, it may be set aside and the modern practice is to allow Counsel to appear for a witness who wishes to attack the subpoena ... Application may be made before the hearing; indeed, if the matter is complex, it is better to resolve it before the hearing. ...

[40.29.6] Validity - Duces tecum the subpoena duces tecum is used to force a party or witness to produce a document to the court where its production will not be made voluntarily. ...

[40.29.7] These are some of the more important principles which emerge from the cases: ...

2. (b)
    The witness who objects to the subpoena may take the objection on the return day, or apply to the court beforehand to set it aside. ... Objection can also be taken by a party, or by any other person who has a legitimate interest in having the subpoena set aside: Botany Bay Instrumentation & Control Pty Ltd -v- Stewart [1984] 3 NSWLR 98 at 102. ...

1. (i)
    There is a distinction between the process of discovery, and the obligation to produce documents on subpoena. Discovery relates to the issues in the litigation, and requires the discovering party to make a judgment about relevance. A subpoena should require no such judgment, but be capable of easy understanding and obedience: Waind -v- Hill and National Employer's Mutual General Assoc Ltd [1978] 1 NSWLR 372; Southern Pacific Hotel Services Inc -v- Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710. A subpoena which asks for such discovery is an abuse of process, and will be set aside at the request of a party, against whom the usual discovery process is available.

10. (j)
     Only relevant documents need to be produced. That is, a subpoena cannot demand production of a document unless it may add, in some way or another, to the relevant evidence in the case: Spencer Motors Pty Ltd -v- LNC Industries Ltd [1982] 2 NSWLR 921. The question of relevance does not depend on the sworn opinion of the witness, but on the opinion of the judge. If the court sets the subpoena aside, and it later appears that the witness can give relevant evidence, then the witness may be ordered by the judge to attend ...”^[50]

37. [37]
    In Mandic v Phillis [2005] 88 ALD 676, Conti J summarises the following considerations in an application to set aside subpoenas, namely:

1. (a)
   A subpoena must firstly be issued for a legitimate and proper purpose, being for the purposes of current litigation, and not for some collateral or private purpose [National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372];
2. (b)
   The material sought under the subpoena must be relevant to the proceedings – if the material sought bears no apparent relevance to the proceedings than it is liable to be set aside as an abuse of the court’s process. Importantly, the material sought must be relevant to the parties case as that case is pleaded [Trade Practices Commission v Arnott’s Ltd (No 2) [1989] 88 ALR 90];
3. (c)
   The test for determining relevant is commonly cited as whether it is “on the cards” that the information sought will assist the parties case [Alister v R [1983] 154 CLR 404] or that it will “materially assist on an identified issue” [ICAP Australia Pty Ltd v BFC Partners (Australia) Pty Ltd [2009] NSWCA 307];
4. (d)
   If the subpoena calls for a large amount of documents, not all of which are relevant to the parties case in the proceedings, it may be set aside (in whole or in part) as an abuse of process [Commissioner for Railways v Small [1938] 38 SR (NSW) 564;
5. (e)
   A subpoena can also be set aside if it is oppressive, where compliance with it would mean the subpoena recipient is forced to engage in an unduly burdensome or expensive exercise [Commissioner for Railways v Small [1938] 38 SR (NSW) 564.

38. [38]
    A subpoena may be liable to be set aside as an abuse of process, where it is sought to be used as a substitute for or to go behind a party’s affidavit of discovery, or for a purpose other than the conduct of the litigation.^[51]

Discussion – summary judgment (counterclaim)

39. [39]
    As indicated in paragraph [32] above, I have concluded that the causes of action pleaded in the Counterclaim are statute barred.^[52]  Accordingly, the defendant/cross-claimant has no real prospect of succeeding on the Counterclaim. In those circumstances, there is no need for a trial of that Counterclaim and the appropriate step would be to strike out the Counterclaim,^[53]  and grant summary judgment in favour of the plaintiffs/cross-defendants,^[54] applying the principles identified in Chan v Australian and New Zealand Banking Group Ltd & Anor [2001] QSC 43.^[55]

Discussion – subpoenas

40. [40]
    The defendant/cross-claimant is seeking an order asserting non-compliance with the subpoenas served on John Payne, a non-party, and Natasha Kocks, named as the fourth cross-defendant on the counterclaim. 
41. [41]
    I accept that the plaintiffs have standing to set aside the subpoenas, given their role in the litigation.
42. [42]
    The defendant seeks to rely on UCPR rr 213 & 214, but those provisions only relate to discovery between parties in the litigation. 
43. [43]
    The subpoena to Mr Payne is addressed to him personally and is not addressed to, and was not served on, Hall Payne Solicitors, which is the firm acting for the plaintiffs.  There is no evidence before the court that Mr Payne has any role, current or otherwise, in the litigation, or for that matter even as to his present relationship with the firm, Hall Payne Solicitors.
44. [44]
    The plaintiffs’ assert, and I accept, that there is a lack of forensic relevance that must be determined on the pleadings.  As indicated at paragraphs [32] and [39] above, I have already ruled that the Amended Counterclaim be struck out. 
45. [45]
    The subpoena to Mr Payne seeks invoices from and copies of bank transactions to and from Hall Payne Solicitors under certain reference numbers, but it is submitted, and I accept, that there is no admissible evidence as to any connection between those reference numbers cited and these current proceedings. 
46. [46]
    In addition, the subpoena to Mr Payne, on its face, appears to seek production of privileged material, and arguably constitutes an abuse of process.
47. [47]
    In my view, the subpoena, in respect of John Payne, should be set aside.
48. [48]
    The subpoena to Ms Natasha Kocks is addressed to her personally, and is neither addressed to nor is there any evidence of it being served upon Aussie Helpers Ltd.  The purported joining of Ms Natasha Kocks and Aussie Helpers Ltd as parties to the counterclaim fails for the reasons indicated above at paragraphs [32] and [39], given that the causes of action are statute barred.  It follows that there is no forensic relevance in respect of the material sought from Ms Kocks. Accordingly, that subpoena should also be set aside.

Discussion – disallowance of Further Amended Defence

49. [49]
    The plaintiffs submit that the Further Amended Defence and Amended Counterclaim, which incorporates further amendments not previously made and is the fourth iteration of the defendant/cross-claimant’s pleading, should be disallowed.^[56]
50. [50]
    The plaintiffs rely on the decision in Monto Coal 2 Pty Ltd & Ors v Sanrus Pty Ltd as trustee of the QC Trust & Ors [2014] QCA 267 [74] and the 12 principles from Hartnett v Hynes [2009] QSC 225 which it adopts as the basis for arguing that the same principles apply, whether the application before me proceeds as a strike out application or as an application to disallow the amended pleadings.  I accept that submission.
51. [51]
    The plaintiffs argue that what remains of the qualified privilege defence has not been correctly pleaded and remains inadequately particularised as follows:

1. What remains of the qualified privileged defence (which has been substantially abandoned) is not correctly pleaded and remains inadequately particularised;^[57]
2. The Defence and Counterclaim cannot succeed even in its limited scope, as it is not pleaded, as it must be, to the matters complained of, as opposed to four selected imputations from the first matter complained of;^[58] and
3. The balance of the complaints identified in the plaintiffs Rule 444 letters dated 5 April 2022,^[59] and the correspondence 14 April 2022,^[60] identify the basis on which the Further Amended Defence and Amended Counterclaim should be struck out or disallowed.

UCPR r 149(1)(a)-(b), r 161, 171

52. [52]
    Relevantly, UCPR r 149(1)(a)-(b) requires pleadings to be brief as the nature of the case permits and to contain a statement of all the material facts on which the party relies, but not the evidence by which the facts are to be proved.
53. [53]
    As the plaintiffs submit, the Further Amended Defence and Counterclaim consists partly of statements of material facts; partly of an account of the evidence by which those material facts are to be proved; partly of argumentative material in the nature of submissions; much of which is irrelevant to the issues in the proceedings; and, with respect to the Further Amended Crossclaim, a large number of annexures.
54. [54]
    The inclusion of that material, it is submitted, results in a Further Amended Defence and Amended Counterclaim which is “embarrassing” to plead to, and further, has a tendency to prejudice or delay the fair trial of the proceedings.^[61]
55. [55]
    The defences of qualified privilege and contextual truth, as sought to be raised in the following subparagraphs of the Further Amended Defence, namely subparagraphs 3(d)(iii) & (iv); (3)(i)(iii) & (iv); (3)(j)(iii) & (iv); (3)(k)(iii) & (iv); (3)(l)(vii) & (ix) are not properly pleaded or particularised in accordance with the Defamation Act ss 26 & 30.
56. [56]
    In particular it is submitted that the contextual imputations:

1. Are not capable of arising at the same time and in addition to the imputations of which the plaintiffs complain; and
2. Are incapable of outweighing and/or not pleaded to outweigh the imputations of which the plaintiffs complain.^[62]

57. [57]
    Set out below is a table which specifically identifies the plaintiffs’ objections to each of the impugned paragraphs of the Further Amended Defence filed 17 March 2020,^[63] identifying which specific paragraph or aspect of a paragraph has been identified by the plaintiff as being non-compliant either with one or more specified provisions of the Uniform Civil Procedure Rules, and/or the Defamation Act 2005 (Qld) s 26, as indicated in the decisions of Mizikovski v Queensland Televisión Ltd & Ors [2013] QCA 68 and Besser v Kermode [2011] NSWCA 174.

58. [58]
    In each case that raises the issue of the Defamation Act s 26, namely paragraph 3(d)(iii); 3(d)(iv); 3(i)(vii); 3(j)(iv); 3(k)(iv); 3(l)(viii); and 3(l)(ix), the pleading fails to follow the words of Defamation Act s 26 and plead that by reason of any damage done by the plaintiffs’ imputation, “the defamatory imputations do not further harm the reputation of the plaintiffs because of the substantial truth of the contextual imputations.”
59. [59]
    In short, I accept the submissions of the plaintiffs in respect of each of the impugned paragraphs as identified in the table above.  It is clear that upon the current state of the pleadings, it is effectively impossible for the plaintiffs to reply. 

Conclusion

60. [60]
    In a practical sense, given the conclusion I’ve reached in respect of the Amended Counterclaim, the only appropriate step is to make orders that the Further Amended Defence and Amended Counterclaim be disallowed, noting that if I had not made that order, I would have ordered, in any event, that the Further Amended Defence and Amended Counterclaim and particulars appended be struck out; and ordered that the Amended Counterclaim be set aside and an order made for summary judgment in respect of that counterclaim; and orders for the subpoenas on Mr Payne and Ms Kocks to be set aside.

Orders

1. (1)
   Order under UCPR r 379 that the Further Amended Defence and Amended Counterclaim served 21 April 2022 be disallowed.
2. (2)
   Order under UCPR r 16(e) that the Amended Counterclaim served 21 April 2022 be set aside.
3. (3)
   Order for summary judgment under UCPR r 293 in favour of the first, second and third plaintiffs/cross defendants against the defendant.cross-claimant in respect of all of the Amended Counterclaim served 21 April 2022. 
4. (4)
   Order under UCPR rr 416 and 415(6)(a), (b) and (d) that the subpoenas for production issued by the defendant to the following be set aside:

   1. John Payne; and
   2. Natasha Kocks.
5. (5)
   Application by the defendant/cross-claimant dated 15 March 2022 be dismissed.

61. [61]
    I will hear the parties on costs.