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Hoogendoorn v State of Queensland[2022] QDC 83

Hoogendoorn v State of Queensland[2022] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoogendoorn v State of Queensland & Others [2022] QDC 83

PARTIES:

MICHEAL JOHN HOOGENDOORN

(Applicant)

v

STATE OF QUEENSLAND

(First Respondent)

AND

PAROLE BOARD QUEENSLAND

(Second Respondent)

AND

SARAH MILLER

(Third Respondent)

FILE NO:

3150/21 & 218/22

DIVISION:

Civil

PROCEEDING:

Trial 

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

14 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2022

JUDGE:

Porter QC DCJ

ORDER:

  1. The Originating Applications in 3150/21 & 218/22  are dismissed.

CATCHWORDS:

CIVIL PROCEDURE – LIMITATION OF ACTIONS – TORT – DEFAMATION – APPLICATION FOR AN EXTENSION OF THE LIMITATION PERIOD – Whether the applicant has a cause of action for defamation – Whether it was not reasonable to commence proceedings in respect of the actions within one year.

COUNSEL:

M Hoogendoorn for the Applicant

H Blattman for the First and Second Respondent

G Palk for the Third Respondent (direct access)

SOLICITORS:

M Hoogendoorn self-represented

Crown Law for the First and Second Respondent

Contents

Summary....................................................................................................................................................2

The relevant principles........................................................................................................................3

Background.............................................................................................................................................6

Events leading to this application........................................................................................................6

These proceedings..................................................................................................................................7

The claimed causes of action.............................................................................................................8

The manner of articulation of the causes of action...........................................................................8

Elements of a cause of action for defamation..................................................................................10

The ‘abuse of Mr Rose’ claims.............................................................................................................10

The several claims.............................................................................................................................10

Ms Millins...........................................................................................................................................12

Mr Houchin: Mr Zhouand’s letter......................................................................................................12

Mr Houchin: letter to Ms Van Veldhuizen.........................................................................................13

The unknown officer..........................................................................................................................15

The ‘on-going abuse’ claim...................................................................................................................15

The ‘misspelling’ claim.........................................................................................................................17

The claimed cause of action.............................................................................................................17

Is there a cause of action?................................................................................................................18

The ‘uneducated’ claim........................................................................................................................20

The ‘explanation’ claim........................................................................................................................22

not reasonable to commence within time?................................................................................22

Conclusion.............................................................................................................................................25

Summary

  1. [1]
    Section 10AA Limitation of Actions Act 1974 (LAA) relevantly provides a limitation period for a cause of action in defamation of 1 year from the date of publication.   The applicant seeks by two Originating Applications, extensions of time pursuant to s. 32A(2) LAA to commence proceedings for defamation in respect of several causes of action for defamation. For the reasons which follow, I am not persuaded that Mr Hoogendoorn is entitled to an extension in respect of any of the claimed causes of action.  Accordingly, I dismiss his Originating Applications.

The relevant principles

  1. [2]
    The version of s. 32A LAA applicable to defamatory matter published before 1 July 2021 provides:
  1. (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.
  1. (2)
    A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in s. 10AA to a period of up to 3 years from the date of the publication.
  1. (3)
    A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).  
  1. [3]
    I recently summarised the principles applicable to this section in Newcombe v O'Connor & O'Connor [2022] QDC 19 as follows:

[3] It is with some gratitude to Mr White that I can summarise principles that have been articulated as broadly relevant to the approach to that section as follows: 

  1. (a)
    The onus rests on the plaintiff to satisfy the Court that it was not reasonable in the circumstances for them to have brought proceedings within the limitation period.[1]
  2. (b)
    The Court must be satisfied on the evidence and does not have a discretion to extend the time on grounds of fairness or where it may be just and reasonable to do so.[2]
  3. (c)
    To this end, it has been said that the plaintiff’s excuse for not commencing the proceedings within the limitation period, the merits of the plaintiff’s claim, and any prejudice the plaintiff may suffer on account of the court not granting the extension sought are not relevant considerations for the court.
  4. (d)
    The words ‘not reasonable in the circumstances’ place a high onus on the plaintiff to show that a reasonable person in the plaintiff’s position would not have commenced the action within the time period.
  5. (e)
    The test is not whether it was reasonable for the plaintiff not to have commenced within time, but whether it would not have been reasonable for the plaintiff to have commenced in the time specified. This has been described as a higher threshold to overcome.[3]
  6. (f)
    ‘The circumstances’ refer to the objective circumstances as they appear to the court and not the circumstances the plaintiff believed, however, unreasonably to exist. The plaintiff’s ignorance as to the limitation period is not a reasonable basis for not commencing proceedings.[4]
  7. (g)
    Only in relatively unusual circumstances will a court be satisfied that it was not reasonable to seek to vindicate the plaintiff’s rights in accordance with the law within the time period stipulated.[5]
  8. (h)
    The circumstances must be so compelling as to make it positively unreasonable for a person defamed not to exercise his or her legal rights to sue within the statutorily designated period.[6]
  9. (i)
    It has been held that the test is not satisfied where a plaintiff fails to take legal advice within the limitation period to be advised of the time limit.
  10. (j)
    It would not be reasonable for a plaintiff to commence proceedings within the limitation period if they are unable to prove the extent of the defamation, or one or more of the elements of the cause of action, within the limitation period.[7]
  11. (k)
    If the plaintiff does not know of the existence of the publication or cannot prove the publication until after the limitation period has expired, it would not be reasonable in the circumstances to commence proceedings.[8]
  12. (l)
    The onus will be difficult to meet where the plaintiff knows of the publication and chooses not to sue or does not sue. It is relevant what the plaintiff did and why the plaintiff did not commence proceedings within the limitation period.[9]
  13. (m)
    If, however, the plaintiff is able to satisfy the court as to the reasonableness of his or her failure to commence proceedings within the limitation period, the court must grant an extension, although the period of such an extension remains in the discretion of the court.[10]

[4] Mr Anderson QC accepted the correctness of those propositions. 

[5] It is important to keep firmly in mind that the question for the Court is not whether it was reasonable to commence the proceedings outside the one-year limitation period, but rather whether it was not reasonable, in the circumstances, for the plaintiff to have commenced the action within the one-year period.

[6] A distinction which I think has some relevance, and which I also bear particularly in mind, is that the onus is on the plaintiff to persuade the Court that its power should be exercised and that the Court of Appeal in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 and Noonan v MacLennan [2010] QCA 50 have made clear that limitation periods broadly are there for a purpose and should not be avoided except for good reason, and that the test that it is not reasonable in the circumstances places a high onus on the plaintiff to show a reasonable person in their position would not have commenced the action within the statutory year.

  1. [4]
    There are two points to add to this summary for the purposes of this application.
  2. [5]
    First, paragraph 3(c) above states that the applicant’s excuse for starting proceedings is not relevant.   That is not correct, at least in the absolute terms articulated.  In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, Fraser JA observed at [29]:

In my respectful opinion the primary judge correctly overruled the objection to the respondent’s evidence that she did not commence proceedings prior to 21 June 2009 “as the [appellant] had indicated a willingness to resolve the matter without the institution of proceedings, and I had accepted that a resolution could be reached on that basis”. The admission of this evidence was not inconsistent with the conclusion of the majority in Noonan v MacLennan & Anor that the test under s 32A(2) is an objective one. In response to a submission that the reference to “the circumstances” includes “the subjective understandings of the plaintiff even if those understandings are mistaken, and unreasonably so, in an objective sense”, Keane JA observed that when s 32A(2) refers to “the circumstances”, it means “the circumstances as they appear objectively to the court and not “the circumstances” which the plaintiff believed, however unreasonably, to exist.” That is not to deny that a prospective plaintiff’s reason for not suing in time is itself an objective and relevant circumstance. In my opinion evidence of a prospective plaintiff’s reason for not commencing proceedings within the limitation period is admissible in an application under s 32A.

  1. [6]
    Second, the statute identifies two conditions for the grant of an extension:
    1. (a)
      By s. 32A(1), the applicant must claim to have a cause of action for defamation; and
    2. (b)
      By s. 32A(2), that applicant must establish that it was not reasonable to commence proceedings in respect of that action within 1 year from the date of publication.  
  2. [7]
    If those conditions are met, the Court is obliged to extend time, regardless of the merits of the claimed cause of action.  However, that should not obscure the fact that the applicant must put forward allegations or contentions which can meet the description of a claimed cause of action in defamation to engage the condition in s. 32A(1).  To claim to have a cause of action in defamation must necessarily mean to allege facts capable of comprising a cause of action in defamation.  This must be so because:
    1. (a)
      Allegations of material facts which cannot amount to a cause of action in defamation are, ultimately, just a set of allegations irrelevant to the right conferred by s. 32A(2);
    2. (b)
      Section 32A(2) itself necessarily requires the allegation of the element of publication for the subsection to operate; and
    3. (c)
      The purpose of s. 32A is to authorise the bringing of a claim which is otherwise statute barred.  This necessarily requires the identification of such a claim by the applicant.
  3. [8]
    In my opinion, an applicant can fail in “claiming to have a cause of action for defamation” in at least two ways:
    1. (a)
      The applicant can fail to address one of the elements of the cause of action; or
    2. (b)
      The applicant can make allegations which purport to address each element, but the allegations may, as a matter of law, fail to disclose a cause of action in defamation.  

Background

Events leading to this application

  1. [9]
    The defamatory publications alleged by Mr Hoogendoorn occurred over a period commencing in about early 2019.  At that time, Mr Hoogendoorn was in custody serving a sentence of imprisonment which he had been serving since before 2017. 
  2. [10]
    Mr Hoogendoorn informed me from the Bar Table that he was released from supervision by the Public Trustee in 2017 on his own application.  I infer that Mr Hoogendoorn was referring to Part 7 Public Trustee Act 1978 which provides, by s. 91, that subject to that Part, the Public Trustee is, without order of the Court, manager of the estate of prisoners to whom the Part applies. Where the Public Trustee is manager under that Part, the prisoner cannot, relevantly, bring or defend any action for the recovery of any damages: see s. 95(1)(b).  Part 7 provides by s. 92 that the Public Trustee may discontinue management and it appears that that is what Mr Hoogendoorn was referring to when he said he was released from the supervision of the Public Trustee in 2017.
  3. [11]
    On 5 April 2019, Mr Hoogendoorn made a series of complaints about his treatment in custody to the Office of the Chief Inspector.  Those complaints, and the Chief Inspectors responses, are set out in the Chief Inspector’s letter of 26 April 2019, which relevantly provides:

Dear Mr Hoogendoorn

The office of the Chief Inspector acknowledges receipt of your blue letter dated 23 March 2019, received by our office on 5 April 2019. In your letter you advised of the following complaints:

Complaint One – Failure to resolve previous complaints as submitted in 2018;

Complaint Two – Failure of BTCC Management to provide you with a JP;

Complaint Three – Alleged misconduct by staff members at Palen Creek Correctional Centre in relation to legal mail;

Complaint Four – Breach of Workplace Health and Safety at Brisbane Correctional Centre in that you were “forced to carry over 50kg of legal documents at BCC without a lifting aid”;

Complaint Five – Refusal of Brisbane Correctional Centre management to provide you with a pen, paper and envelop to write a blue letter whilst a medical patient;

Complaint Six – Property lost when transferring from Palen Creek Correctional Centre to Borallon training and Correctional Centre;

Complaint Seven – Failure of the General Manager of Borallon Training and Correctional Centre to resolve, in a timely manner, the complaint in relation to officers targeting you.

The office of the Chief Inspector has received your complaints and provides you with the following information/ advice:

Complaint One

You received written correspondence in relation to the complaints submitted in 2018. Letters dated 30 August 2018, 18 October 2018 and 15 November 2018 were forwarded to you in relation to complaints raised. I have attached further copies of these letters for your records.

Complaint Two

You have been afforded the opportunity of a JP on several occasions:

  • 26/09/2018 – A QCS staff member witnessed an affidavit
  • 20/11/2018 – You requested a QCS staff member to witness an affidavit; however this was refused as it was not presented in the correct format
  • 1/03/2019 – JP William Rose attended to witness your documents
  • 6/03/2019 – JP William Rose attended to witness your documents
  • 8/03/2019 – JP William Rose attended to witness your documents; however, he was not prepared to witness any of the documentation presented due to the fact that it had not been formatted correctly. This appointment was terminated when you commenced to verbally abuse Mr Rose.
  • 11/03/2019 – An Official Visitor attended and witnessed two affidavits, an originating application and signatures on two sets of PIPA claims/
  • 8/04/2019 – An Official Visitor attended to witness your documents; however, due to you verbally advised Mr Millins, the appointment was terminated
  1. [12]
    The character of his interactions with Mr Rose referred to in the fifth dot point in this letter, is the subject of the first category of claimed causes of action.  
  2. [13]
    From time to time, Mr Hoogendoorn was seeking release on parole.  A psychologist’s report was obtained from the third respondent, Ms Miller, dated 24 February 2020.  A supplement to that report was apparently requested by the parole authorities and provided by Ms Miller on 21 January 2021 to an officer of the Parole Board.  That application for parole was refused by notice from the Board dated 19 February 2021.
  3. [14]
    Mr Hoogendoorn was released from custody in early December 2021, seemingly on his full time discharge date.[11] 

These proceedings

  1. [15]
    On 3 December 2021, Mr Hoogendoorn filed the Originating Application in 3150/21 seeking extensions of time under s. 32A(2) LAA.  The matter came before me for mention on 17 December 2021.   I directed service of the Originating Application and affidavits in support by 14 January 2022.  On 4 January 2022, Mr Hoogendoorn filed affidavits in support of that first Originating Application.  3150/21 came before me again on 21 January 2022.  At that stage Mr Hoogendoorn’s hadn written material was a little difficult to follow.  I directed, relevantly, that he file and serve typed affidavits exhibiting a draft pleading and swearing to any facts relevant to his claimed extension of time.  I listed the matter for hearing on 7 March 2022.
  2. [16]
    Also, on 21 January 2022, Mr Hoogendoorn filed proceedings 218/22.  That proceeding was commenced by Originating Application and sought leave under Rule 15 UCPR and s. 21 Defamation Act 2005 Qld to commence proceedings against the first and second respondent.  So far as I can determine, the purpose of this application was to obtain leave to file proceedings rejected by the Registrar on four grounds.  It appears to have been concerned with some of the claimed causes of action raised in 3150/21.
  3. [17]
    Both proceedings ultimately came before me for hearing.

The claimed causes of action

The manner of articulation of the causes of action

  1. [18]
    Mr Hoogendoorn relied upon a draft statement of claim along with sworn material in support of that draft pleading by way of articulation of the claimed causes of action in defamation.  The respondents criticised the form and content of the draft pleading and submitted that leave should be refused because the pleading failed properly to articulate claims for causes of action in defamation, both as to form and as to content. 
  2. [19]
    Before dealing with that submission, it is only fair to recognise that Mr Hoogendoorn is representing himself and that he has made diligent efforts to articulate his case in accordance with the Uniform Civil Produce Rules 1999 (UCPR).  On the last occasion he was before me, I directed him to the relevant rules in the UCPR dealing with pleading and he has plainly reviewed his previous draft and attempted to prepare a new draft which better meets the requirements of the Rules as he understood them.  I also recognise that his present circumstances place him at a considerable disadvantage in articulating his claims.  He has recently been released from prison and has limited resources at his disposal.
  3. [20]
    However, it must be recognised that, regardless of the challenges facing a self represented litigant, such a litigant must still meet the minimum requirements for a proper pleading.  Failure to do so means that the other party is put at a disadvantage in responding to the self represented persons claim.  Further, proper pleadings are central to a fair and efficient trial.  They define the issues for the trial which in turn informs all aspects of interlocutory procedures and conduct of the trial itself.  If a self-represented litigant is unable, despite their best efforts, to produce a proper pleading, the proceeding will be dismissed.
  4. [21]
    In Ross v Hallam [2011] QCA 92 Chesterman JA observed[12]:

[19] The respondent’s prosecution of his action for defamation was frustrated by the appellant’s wilful and persistent failures to plead an intelligible defence. Twice the respondent was put to the expense of applying for orders that the document the appellant proffered as a defence be struck out.

[20] In du Boulay v Worrell and Others [2009] QCA 63 Muir JA described the appropriate course when dealing with an inept pleading by a litigant in person. His Honour said:

“[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.” (footnote omitted)

[21] The effect of the authorities and the relevant rules was aptly summarised by Applegarth J in Mbuzi v Hall [2010] QSC 359. His Honour said:

[25] A self-represented litigant, like any other litigant, impliedly undertakes to the Court and to the other parties to proceed in any expeditious way.[7] The purpose of the rules of civil procedure is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.[8] The just resolution of the real issues in civil proceedings may on occasions require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid “undue delay, expense and technicality”.[9] The proper scope for assistance depends on the particular litigant and the nature of the case.[10] The judge cannot become an adviser to the self-represented litigant, for the role of the judge is fundamentally different to that of a legal adviser. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.[11]”

[22] Althaus v Australian Meat Holdings Pty Ltd [2009] QCA 221 affords an example in which the Court of Appeal endorsed the dismissal of an action brought by litigants in person by reason of their serial failure to articulate their case in an intelligible pleading. The same considerations apply to a defence. If a litigant in person cannot persuade the court that he is able to and will plead his case in a manner that complies with the requirements of the Uniform Civil Procedure Rules judgment will be given against him.

[emphasis added]

  1. [22]
    The respondents’ argument that the proposed pleading[13] is deficient is correct.   Its deficiencies are self evident to the practiced eye and include the following.  
    1. (a)
      First, a pleading should be limited to allegations of material fact and particulars and, if appropriate in the context of the pleading, propositions of law and/or legal conclusions.  The draft pleading adopts a narrative from which elides allegations of fact, particulars, commentary, evidence and legal propositions, so much so that it is very difficult to understand it, and difficult to distil out the central allegations.
    2. (b)
      Second, a statement of claim alleging a cause of action in defamation requires, at the most basic level, the articulation of the elements of that cause of action.  The effect of the narrative form of the pleading is to conceal, rather than elucidate, the material facts necessary to disclose a claim for a cause of action in defamation to the minimum standard.  
  2. [23]
    If this were an application to strike out a pleading in the form of the proposed pleading, it would succeed.  However, it not such an application.  If it is possible for Mr Hoogendoorn to articulate the elements of the claims for defamation he asserts from his material, the precondition in s. 32A(1) LAA will be met. 
  3. [24]
    The duty of a trial judge at its most fundamental level is to ensure a fair hearing.  Where a litigant in person is involved, that engages two countervailing considerations: on the one hand the trial Judge may aid the litigant in person so as to try to minimise the inevitable disadvantage faced by unrepresented parties, while on the other hand, the trial Judge must ensure that he or she does not become, nor be reasonably perceived to become, an advocate for the unrepresented party.  The trial Judge must remain impartial and must ensure that the represented party’s legal rights are fully recognised.[14]
  4. [25]
    Bearing in mind those considerations, I sought to elucidate from Mr Hoogendoorn in oral argument the material facts relevant to the claimed causes of action he relied upon.  

Elements of a cause of action for defamation

  1. [26]
    It is convenient to set out at the start, in a summary way, the elements of a cause of action in defamation (footnotes omitted)[15]:

The tort of defamation consists of the communication of a defamatory meaning ‘of and concerning the plaintiff’ to a person other than the plaintiff. The communication may be achieved through many means, including spoken or written words, gestures, exclamations or laughter, printed or electronic images, publications on the internet, communications in person or communications by broadcast. Any such communication is known as, and amounts to, publication and must itself contain, either directly or by implication, a defamatory meaning. A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:

  1. (1)
    disparaging him or her;
  1. (2)
    causing others to shun or avoid him or her; or
  1. (3)
    subjecting him or her to hatred, ridicule or contempt.

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.

The ‘abuse of Mr Rose’ claims

The several claims

  1. [27]
    This category of claimed causes of action arises out of a series of alleged communications which Mr Hoogendoorn contends describe him wrongly as abusive in his dealings with certain persons. 
  2. [28]
    The first claimed cause of action arises out of statements he alleges by a Ms Millins (an Official Visitor at the prison).  Mr Hoogendoorn alleges that she stated that Mr Hoogendoorn abused a Justice of the Peace named Mr Rose. 
  3. [29]
    The particulars of Ms Millins’ alleged statements in Mr Hoogendoorn’s draft pleading[16] are as follows:
    1. (a)
      Ms Millins stated that Mr Hoogendoorn abused Mr Rose at a visit by Mr Rose on 8 March 2019;
    2. (b)
      Ms Millins made those statement orally and in writing;
    3. (c)
      Ms Millins communicated the statements to Mr Zhouand, the Chief Inspector.
  4. [30]
    The second claimed cause of action arises out of statements he alleges by a Mr Houchin (Deputy General Manager of Borallan Correctional Centre at the time) that Mr Hoogendoorn abused Mr Rose.  
  5. [31]
    The particulars of Ms Houchin’s alleged statements in Mr Hoogendoorn’s draft pleading[17] are as follows:
    1. (a)
      Mr Houchin stated that he abused Mr Rose at a visit by Mr Rose on 8 March 2019;
    2. (b)
      Mr Houchin made that statement orally; and
    3. (c)
      Ms Houchin made the statement to Mr Zhouand. 
  6. [32]
    Mr Hoogendoorn infers the statements were made some time before 26 April 2019, because Mr Zhouand refers to them in his letter set out in paragraph [11] above.
  7. [33]
    Mr Hoogendoorn also alleges Mr Houchin made the same statement to a Ms Van Veldhuisen on 2 May 2019.
  8. [34]
    It appears that Mr Hoogendoorn discovered each of these statements on 5 May 2019, which was approximately when he would have received and read the letter from Mr Zhouand.[18]
  9. [35]
    The third claimed cause of action involves the allegation by Mr Hoogendoorn that an unknown officer told Mr Houchin that Mr Hoogendoorn abused Mr Rose at about the same time.[19]  That appeared to be a reference to a diary note of a corrections officer in these terms:

On Friday 08.03.2019 the above named prisoner was having a visit with William Rose in the Visits Legal Interview Rooms for the purpose of witnessing and signing affidavits.

After 40 minutes Mr Rose having informed prisoner Hoogendoorn on at least 6 occasions that he was not prepared toi sign or witness any of the documentation presented due to the fact they had not been formatted correctly I interjected and ceased the visit as Mr Rose appeared to have become stressed by the continuous badgering by Hoogendoorn.

Upon leaving the area I spoke to Mr Rose to ensure he was alright prior to leaving the Centre.

After having left the Centre Mr Rose slipped on the stairs to X-Block and received a head injury requiring medical attention and an ambulance.

[underlining added]

Ms Millins

  1. [36]
    Mr Hoogendoorn is unable to identify any statement, oral or in writing, by Ms Millins in terms of the alleged “abusive” defamatory communication.  His contention in argument seemed to be that it could be inferred such a statement was made from the reference to it in Mr Zhouand’s letter.[20] There are two difficulties with this argument:
    1. (a)
      The first is that the only reference in that letter to Ms Millins relates to 8 April 2019 (in the last dot point in Mr Zhouand’s letter).  That contains no reference to Mr Rose.  Rather it states that Mr Hoogendoorn verbally abused Ms Millins.
    2. (b)
      The second is that the letter in any event does not state what Ms Millins told Mr Zhouand about this incident.  Indeed, it does not even say that Ms Millins was the source of the information referred to in that dot point.
  2. [37]
    While it would be theoretically possible for Mr Hoogendoorn to assert a defamation claim against Ms Millins based on the alleged inferred statement to which he refers in his draft pleading, this is not a question of what is theoretically possible.  On the evidence before the Court going to the existence and content of the alleged defamatory publication, it would be speculative to claim a cause of action against Ms Millins for communicating to Mr Zhouand that Mr Hoogendoorn had abused Mr Rose. Furthermore, it would be impossible to articulate such a claim in a pleading which complied with the UCPR.  An alleged cause of action in defamation which cannot be pleaded on the basis of material available to the plaintiff is not a claimed cause of action in defamation.
  3. [38]
    I am acutely conscious that the merits of a claimed cause of action in defamation is not the concern of s. 32A LAA.  It is not the case that any flaw or limitation in the articulation of a cause of action will cause it to fail the requirements of s. 32A(1).  The Court must be aware of the distinction between a claim which, while weak, bona fide arises and one which does not.  However, in the circumstances of this case, the claim against Ms Millins does not meet the minimum requirements of s. 32A(1).

Mr Houchin: Mr Zhouand’s letter

  1. [39]
    The situation is the same for the alleged claims for defamation against Mr Houchin said to be inferred from Mr Zhouand’s letter.  Although there is a statement in Mr Zhouand’s letter to the effect that Mr Hoogendoorn “commenced to verbally abuse Mr Rose”, there remain two problems with the claim against Mr Houchin:
    1. (a)
      There is nothing in the letter from Mr Zhouand to indicate that Mr Houchin is the source of that information.  Mr Hoogendoorn’s view that it was Mr Houchin is speculative; and
    2. (b)
      As with Ms Millins, there is no basis for Mr Hoogendoorn properly to assert that Mr Houchin used the words in Mr Zhouand’s letter.
  2. [40]
    As with Ms Millins, the claim against Mr Houchin does not meet the minimum requirements of s. 32A(1) LAA because in my view, no claim against him could properly be pleaded.

Mr Houchin: letter to Ms Van Veldhuizen

  1. [41]
    This claimed cause of action arises out of the content of Mr Houchin’s letter to Ms van Veldhuizen of the Queensland Ombudsman’s Office of 2 May 2019 responding to a complaint by Mr Hoogendoorn.
  2. [42]
    It is necessary to set out the whole letter.  It provided:

Dear Ms Van Veldhuizen,

I provide the following information in relation to the complaint made by your office by Michael Hoogendoorn (ID: A65899), who is currently incarcerated at Borallon Training and Correctional Centre.

Mr Michael Hoogendoorn (ID: A65899) has been accommodated at Borallon Training and Correctional Centre since 13 September 2018.

The Centre has received and responded to an internal complaint from Mr Michael Hoogendoorn and consider the matter to be closed.

Centre Management has had numerous dealings with Mr Michael Hoogendoorn (ID: A65899) in relation to his needs for access to a Justice of the Peace.

The Centre has taken significant and genuine steps in attempting to facilitate Mr Hoogendoorn’s JP requirements. This includes organising an external JP to attend the centre on three occasions, Friday 1 March 2019 from 9am to 11am with JP William Rose, Wednesday 6 March from 8.30am to 11.00am with JP William Rose & Friday 8 March 2019 from 3.00pm to 4.00pm with JP William Rose. BTCC Staff that hold JP qualifications have offered their services on several occasions. In addition to this, Official Visitors from the Office of the Chief Inspector have met with Mr Hoogendoorn and attempted to facilitate his requirements.

Below is a case note generated post an external visit from Mr William Rose JP on the 8th March 2019:

  • On Friday 08.03.2019 the above named prisoner was having a visit with Bill Rose in the Visits Legal Interview Rooms for the purpose of witnessing and signing affidavits. After 40 minutes Mr Rose having informed prisoner Hoogendoorn on at least 6 occasions that he was not prepared toi sign or witness any of the documentation presented due to the fact they had not been formatted correctly I interjected and ceased the visit as Mr Rose appeared to have become stressed by the continuous badgering by Hoogendoorn. Upon leaving the area I spoke to Mr Rose to ensure he was alright prior to leaving the Centre. After having left the Centre Mr Rose slipped on the stairs to X-Block and received a head injury requiring medical attention and an ambulance.

Several BTCC staff that have attempted to assist Mr Hoogendoorn have reported issues due to Mr Hoogendoorn’s behaviour and demeanour. Please see below email from a staff member in relation in his dealings with Mr Hoogendoorn:

  • On the 26/9/18, I witnessed an affidavit for the prisoner. On 30/11/18, the prisoner again presented me with an affidavit that he wished to be witnessed. I informed the prisoner that I was not comfortable in signing due to the format in which the paperwork was made up. The affidavit was written on lined A4 paper without any spaces for witnessing or numbering. All affidavit pages have to be numbered (1 of 3, 2 of 3 etc.) and signed by both the JP and deponent. Prisoner Hoogendoorn became agitated upon being made aware of this and I asked him to return to his unit. He informed me that he was intended to report to the Justice department due to my incompetency.

On Friday the 12 April 2019 I received email correspondence from the Office of the Chief Inspector that included the following information in relation to an interaction between an OV and Mr Hoogendoorn:

  • I note that our official Visitor Ms Joanne Millins attended the centre on 8 April 2019 to assist with this process (as previously requested) but terminated the interview when the prisoner started yelling at her. Jo advised that the prisoner has been afforded two JP’s recently (one for 1.5 hours) and both left upset from the interaction.

It is apparent that in most instances where support has been afforded to Mr Hoogendoorn his conduct has negatively impacted on those offering the support. Official Visitors, JPs from the community and staff that are JPs.

While I acknowledge the Centre is required to take reasonable steps to assist all prisoners in these circumstances, particularly if it is related to court matters associated with sentencing & appeals etc, I don’t believe it’s reasonable that community members, JPs or staff should be subjected to inappropriate, abusive or threatening behaviour by the prisoner.

The Centre will support Mr Hoogendoorn choosing to have his family or other supports arrange for a JP to come into the Centre as party of the visits process.

Please find attached the response to Mr Hoogendoorn’s internal correspondence.

Yours sincerely,

Alan Houchin

A/General Manager

Borallon Training & Correctional Centre

[underlining added]

  1. [43]
    The underlined passages are the most relevant to the claimed “abusive” causes of action in defamation.  Counsel for the State of Queensland contended that this letter, read as a whole, was not capable of sustaining the cause of action claimed by Mr Hoogendoorn in respect of the alleged statement that he had abused Mr Rose. 
  2. [44]
    She contended that the only words about which Mr Hoogendoorn seemed to complain was the words “inappropriate, abusive or threatening behaviour” at the end of the letter.  In respect of these words, she contended that those words could not be defamatory for two reasons.
  3. [45]
    First, they were conclusions based on the facts disclosed in the body of the letter.  She pointed out that Mr Hoogendoorn did not contend that the note was defamatory, and nor did he contend other parts of the letter which described his behaviour were defamatory.  Accordingly, a reasonable reader would be able to form his or her own opinion about whether, on the facts disclosed, one could properly conclude that the conduct met that description.
  4. [46]
    Second, she contended that the conduct described in the letter was such that the use of the words in the letter to describe it, even if inaccurate when using the word abusive, nonetheless could not be defamatory because, given that conduct, it could not as a matter of law reduce the esteem in which Mr Hoogendoorn was held, nor otherwise have any of the consequence necessary to make words into defamatory material by injuring his reputation.
  5. [47]
    I agree with the first point.  The claim against Mr Houchin arising out of the letter to Ms Van Veldhuizen does not meet the minimum requirements of s. 32A(1) LAA because in my view, the letter read as a whole does not give rise to the defamatory meaning that he abused Mr Rose.   It is unnecessary to form a final view on the second point.
  6. [48]
    Mr Hoogendoorn says he became aware of this publication by Ms Pryke’s decision given 17 September 2019, though it appears from her letter that it was referred to in Mr Hoogendoorn’s complaint of 7 August 2019.[21]

The unknown officer

  1. [49]
    In the course of argument, it seemed that Mr Hoogendoorn might have recognised that the diary note did not contain the “abusive” statement he complains about.[22]  In any event, it plainly does not contain any such statement.  No claimed cause of action arises from this note. 
  2. [50]
    Mr Hoogendoorn’s affidavit suggests that the officer must have used the word abuse or abusive in discussions with Mr Houchin but that does not follow as a matter of logic and there is no basis upon which this could be alleged.    The note was referred to in Mr Houchin’s letter of 2 May 2019.  That letter was referred to in Ms Pryke’s letter of 17 September 2019, though the diary note was not set out therein.   It is unclear when Mr Hoogendoorn first obtained a copy of the 2 May 2019 letter, but it was in his possession by 7 August 2019.[23]

The ‘on-going abuse’ claim

  1. [51]
    Mr Hoogendoorn claims a cause of action in defamation against Mr Peter Cantwell, an assistant Ombudsman, contained in an internal email to officers of the Ombudsman’s officer dated 12 March 2019.   
  2. [52]
    The claim arises out of the following email exchange:
    1. (a)
      On 12 March 2019 at 11:29am, Ms Mateer wrote to Mr Cantwell and two other persons (apparently part of the Ombudsman’s office):

Hi Barbara and Peter,

Please see attached correspondence from the Deputy Ombudsman to Mr Hoogendoorn with respect to internal review reference 2018/10037. You will note from the attached decision that Angela has decided to confirm Barbara’s decision and retain the communication management plan.

Yours faithfully,

Lauren Mateer

Principal Internal Review Officer

  1. (b)
    At 11:32 am, Mr Cantwell responded to all with the following:

Thanks. I understand that OHO have just put him back on a restricted communication plan because of ongoing abuse.

  1. (c)
    At 11:53pm, another of the recipients responded:

Thanks for letting me know Lauren.

  1. [53]
    Mr Hoogendoorn alleges that Mr Cantwell’s understanding expressed in his email was incorrect.  Mr Hoogendoorn obtained the email exchange by a Right to Information Request and made a complaint about it to the Queensland Ombudsman’s Officer on 8 October 2019.  The gravamen of the complaint seemed to be that the information in Mr Cantwell’s email might have wrongly influenced the decision of the Deputy Ombudsman, Ms Pryke, in declining to alter the communication plan which had been put in place for Mr Hoogendoorn.  That complaint was dealt with by another Officer of the Ombudsman’s Office on 6 November 2019.  Ms Pryke noted that Mr Cantwell had seemingly not made a note of the source of his understanding.  She also communicated an apology but stated that her earlier decision was not affected by the comment in Mr Cantwell’s email.
  2. [54]
    Mr Hoogendoorn sought a further review of Ms Pryke’s decision which was determined by the Queensland Ombudsman, Mr Clarke, on 30 January 2020.  In broad terms, his decision confirmed Ms Pryke’s decision.
  3. [55]
    A preliminary issue not raised at the hearing was whether any cause of action in defamation could arise against Mr Cantwell at all.  Section 93 of the Ombudsman Act 2001 provides:

 93 Protection from liability

  1. (1)
    An officer of the ombudsman does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.
  1. (2)
    If subsection (1) prevents a civil liability attaching to an officer of the ombudsman, the liability attaches instead to the State.
  1. (3)
    In this section— officer of the ombudsman includes the ombudsman.
  1. [56]
    There is no allegation that Mr Cantwell acted dishonesty nor that he acted with negligence.  The tentative tenor of his communication (“I understand…”) suggests the contrary.   In my view, the proper construction of s. 93 is that it prevents any cause of action for civil liability for arising, rather than providing a defence.  On that construction, so long as an act is done honestly and without negligence, no cause of action appears to arise from Mr Cantwell’s email if it is an act done under the Act.  It seems highly likely that the sending of the email was an act done under the Ombudsman Act, given it was a comment made by Mr Cantwell apparently in the course of his duties.  However, as this issue was not raised at the hearing, I will not consider this issue further.
  2. [57]
    Despite the tentative way Mr Cantwell’s email was framed, it seems to me to be at least arguable that the content of the email is capable as a matter of law of giving rise to a defamatory meaning, being that Mr Hoogendoorn was someone who engaged in on-going abuse which was serious enough to cause the Health Ombudsman to take the step of placing him on a restricted communication plan.  Such a meaning is capable of causing a person to shun or avoid Mr Hoogendoorn. As the email referred clearly to Mr Hoogendoorn and was published to third parties, in this case an arguably cause action in defamation is made out.

The ‘misspelling’ claim

The claimed cause of action

  1. [58]
    The communication relied upon by Mr Hoogendoorn as containing the defamatory matter for this cause of action is contained in a file note contained in Mr Hoogendoorn’s Queensland Corrective Services Offender Case File.  The note relates to 16 February 2020.  The file contains three separate notes for that day covering two pages when printed in A4 format. 
  2. [59]
    The first two notes fill page one of the 16 February entry and contained various references to Mr Hoogendoorn, spelt correctly in each case.  Mr Hoogendoorn complains however about the third note on the second page.  It provides[24]:

NEGATIVE CASENOTE

Prisoner HOOGENDOORN entered the Charlie 1 Education at approximately 1325hrs. Author asked what unit he is accommodated in what the reason for his attendance. He replied “C Block”, then followed with the question of what time I am here til. I stated “when the hobbies that I look after finishes which is about 1500hrs”. HOOGENDOORN then said that he has a letter that states he can access the Legal Library. I replied “not on my watch, as Activities 3 officer, I facilitate required classes, not library sessions” I then stated to prisoner HOOGENDOORN that you are not required at this time for Pre Pac meeting as you’re session does not start until 1400hrs. He mumbled something while walking away to sit in with the B Block meeting all along ignoring my statement.

I contacted Supervisor S. DAVIS for conformation of Pac times and that no representation from other blocks were allowed. When conformation was confirmed, I asked prisoner HOOGENDOORK to return back to his unit and wait to be called. Prisoner HOOGENDOORK refused to leave and demanded to see the Supervisor. I then directed again, in which he replied the same. I said that if there was to be an issue, I will have to close down the session. (Total of 3 times directed throughout the conversation to return back to his unit).

Supervisor S. DAVIS then entered Charlie 1 Education with CIP J. BARNES. Prisoner HOOGENDOORN was then interviewed and escorted back to his unit.

  1. [60]
    Mr Hoogendoorn claims that the misspelling of his name in the third paragraph is defamatory because the word dork is insulting, belittling, makes fun of him and turns him into a joke.   He alleges that the note was published to any officer who reviewed his file.  There is no question that the note refers to him. 
  2. [61]
    He could not be precise as to when he became aware of the publication but considered likely to have been by the time of his complaint about the matter made on 29 November 2021.  He frankly conceded he might have received evidence of the file note well before then but did not recall reading it until about the time of his complaint.

Is there a cause of action?

  1. [62]
    Whether a communication is capable of giving rise to a defamatory meaning ascribed to it is a matter of law.[25]  Ordinarily this principle is applied in the context of contested imputations said to flow from words used in a communication but there is no reason why it would not apply equally to the circumstance of words used which could have a defamatory meaning, but which were used in a context in which the reasonable reader would not infer any imputation from the words.  That latter proposition is relied upon by the State for this alleged defamation.
  2. [63]
    The State contends that Mr Hoogendoorn failed to assert a cause of action because the communication he refers to cannot as a matter of law give rise to a defamatory meaning.   The State submits[26]:

It is plain, and would so appear to any reasonable reader, that the letter “k” is simply a typographical error. Mr Hoogendoorn’s name is spelled correctly in four other places in the same file note. It is submitted that this typographical error is incapable of bearing a defamatory meaning and for that reason Mr Hoogendoorn has no cause of action. Alternatively, there are defences of triviality (section 33 of the Defamation Act 2005) and qualified privilege (section 30) which would appear applicable and which would weigh against this Court exercising a discretion to give Mr Hoogendoorn an extension sufficient to proceed.

  1. [64]
    The subjective intention with which a person makes a communication is not relevant to whether it is capable of being defamatory.[27] However, if the context of a publication objectively communicates to a reasonable reader that alleged defamatory matter was an unintentional typographical error, it cannot defame the person.  This is because the reasonable reader would assume no imputation of the person’s character where it was evident that the apparently defamatory words were an error.   An analogy exists here between obvious typographical errors and so-called “mere vulgar abuse”.[28] 
  2. [65]
    In assessing whether a reasonable person would assume the misspelled name entry was a typographical error, regard must be had to the context in which the two misspellings.  Context cannot be disregarded in assessing whether any defamatory imputation can arise from a communication. The relevant principles are sufficiently summarised as follows (footnotes omitted)[29]:

The meaning conveyed by a publication may be altered by the context in which it is published. In determining the meaning conveyed by the publication the jury is entitled to take into account the emphasis and prominence given to particular parts of the publication, or to the publication generally, by reference to the whole of the publication by which the imputation was conveyed. The plaintiff is obliged to specify, in his or her pleading, every passage which materially alters or qualifies the complexion of the defamatory imputation. Any qualifying material appearing in the same publication cannot be disregarded, as the bane inherent in one part may be completely cured by the antidote provided by the context of the whole. It will, however, be comparatively rare for the antidote to completely negative the bane so as to preclude the capacity of the publication to convey any defamatory meaning. The question whether the antidote has overcome the bane is one of degree and emphasis for the jury.

  1. [66]
    In my view, looked at as a whole, the 16 February 2020 diary note is not capable of communicating any defamatory meaning about Mr Hoogendoorn from the incorrect spelling of his name because in context, a reasonable person would assume the incorrect spelling was a typographical error.  I form that view for the following reasons:
    1. (a)
      The incorrect spelling occurs in the context of repeated examples of correct spelling of Mr Hoogendoorn’s name both in the other notes from that day and the specific note which includes the incorrect spellings.  This creates the strong impression that the writer has simply made an error; and 
    2. (b)
      There are no words associated with the incorrect spellings which give any hint that the writer is spelling the name wrongly on purpose or to insult or defame.  For example, if the incorrectly spelled name was followed by some snide comment or some subtle double entendre, the impression of deliberate incorrect spelling would arise.  However, the two instances appear in the context of otherwise ordinary observational notes related to the events they describe. 
  2. [67]
    I recognise that the misspelling occurred twice, but I do not think that this answers the above matters.
  3. [68]
    There is also an argument that the misspelling of Mr Hoogendoorn’s name is not capable of being defamatory in any event.  It can be fairly recognised that Mr Hoogendoorn might feel sensitive about the misspelling of his name in a way which incorporates a commonly known (but exceedingly mild) insult.  However, the subjective perception of a communication is also irrelevant to the question of law in relation to whether a communication is capable of being defamatory. 
  4. [69]
    There can come a time at which insulting terms come to be used in a manner which is devoid of any defamatory sting.  Expressions like silly billy, dodo and so on might be thought to fall into that category.  In my view, it is strongly arguable that the word dork falls into the category, having almost morphed into a term of patronising endearment in its daily usage.  Mr Hoogendoorn argued that the spelling of his name in that manner communicated that Mr Hoogendoorn was a clown and will be treated like a clown, and that this amounted to ridicule.[30]  I am inclined to think that Mr Hoogendoorn’s contention might be at least arguable, albeit weak, but do not have to decide the matter.
  5. [70]
    In my opinion, for the reasons articulated in paragraph [66], there is no cause of action for defamation arising out of the misspelling in the 16 February 2020 diary note.  For that reason, no extension of time is authorised by the statute.

The ‘uneducated’ claim

  1. [71]
    I referred in paragraph [13] above to Ms Miller’s supplementary comments on 21 January 2021.   The email was in these terms:

On Thur, 21 Jan 2021, 11.21 am Sarah Miller, wrote:

Hi Brittany

Thank you for your time on the phone a short while ago.

I have had a read through the dossier so that I can complete an addendum risk report. It seems that Mr Hoogendoorn has made efforts to respond to my risk mitigation recommendations (made in my report Feb 2020) but I am unsure if he has seen a psychiatrist.

There is a mention that PMSH did not think that he required review, but I am unsure as to why. For instance, is it because he didn’t want to be reviewed or he falls outside of their remit?

He was uneducated and seemed mentally unwell when I assessed him in 2020 but he is of the opinion that his schizophrenia is in remission. I think that his mental state and risk of re-offending are linked. As such, he may benefit from a psychiatric assessment of his mental state (second opinion) & need for medication (out of my remit) because I undertake another risk assessment.

Many thanks for your assistance. I look forward to hearing from you.

Sarah

[underlining added]

  1. [72]
    Importantly, that email was immediately followed up by another 2 minutes later:

From: Sarah Miller

Sent: Thursday, 21 January 2021 11.23 AM

To: Faulkner, Brittany

Subject: Re: Michael HOOGENDOORN A65899

Uneducated *automated text* apologies, this should read unmedicated.

  1. [73]
    That email was followed up by the following from the recipient, Ms Faulkner:

From: Faulkner, Brittany

Sent: Thursday, 21 January 2021 11.27 AM

To: Sarah Miller

Subject: Re: Michael HOOGENDOORN A65899

Thanks Sarah – I will take this to the chair and let you know how we will procced.

Brittany

  1. [74]
    I note that the whole exchange was copied to a general parole board email address.  Mr Hoogendoorn says that he became aware of this email by about 27 February 2021.[31]
  2. [75]
    Mr Hoogendoorn complains that the statement he was uneducated in the first email was defamatory.  Let it be assumed in his favour that that is arguably correct.  The difficulty is that, looked at objectively, Ms Miller did not communicate any such meaning, because her email sent two minutes later to the recipient of the erroneous email was the antidote to any sting from the use of the word uneducated.  The principle is stated as follows (footnotes omitted)[32]:

It is a principle of law that the ‘bane and antidote’ must be taken together. There are cases in which the denial or refutation of the defamatory statement is of such a nature that, taken as a whole, the publication is incapable of conveying the defamatory imputation — where, for example, the imputation arises by way of inference only, and the publication itself contains an express disclaimer of any intention to convey such an imputation or where the denial consists of a statement of fact destructive of the entire basis upon which the defamatory imputation relies. If something disreputable is attributed to the plaintiff, it must be removed by the conclusion and the antidote ‘swamp’ the bane.

As a general rule, if a statement conveys a defamatory imputation but then purports to dispel it or disclaim it, it will only be in the ‘very clearest of cases’ that it achieves the latter.

  1. [76]
    Here, the correction by Ms Miller was immediate and complete.  It left any recipient of the email referring to uneducated in no doubt that the word was an error, and the intended word was unmedicated.  It was the antidote to the sting, if any, in the reference to uneducated.  And for good measure, the two emails together were forwarded to the general parole board email address.
  2. [77]
    I note that Mr Hoogendoorn exhibited a version of the email exchange which omitted the second half of the sentence in the 11:23 am email (which contained the word unmedicated).  It is unclear how this email came to be in this form.  It is particularly unusual that the version exhibited to Mr Hoogendoorn’s affidavit is cut off in the middle of the word “this”.  It is unnecessary to speculate how this happened.  It is sufficient to note that there is nothing about a comparison of the two versions which suggests that the exculpatory part of the 11:23am email was not genuine.
  3. [78]
    No cause of action in defamation can arise from this publication.

The ‘explanation’ claim

  1. [79]
    Mr Hoogendoorn also alleged a cause of action in defamation arose from an email sent to him on 9 March 2022 along with its attachment.[33]  This email sought to explain the reference in the 21 January 2021 email as mistaken because Ms Miller omitted the words “about his condition” after the word uneducated and to apologise.  Mr Hoogendoorn contended this was defamatory because he was well educated about his mental state.[34]  He also has complaints about the statements in that email which he says misrepresent the content of the original report given by Ms Miller.
  2. [80]
    No extension of time is required for any claim for defamation arising out of this email because the limitation period has not yet expired.  However, it is strongly arguable that any defamatory material contained in her email is unlikely to have any material consequence for Mr Hoogendoorn’s reputation given that it was published only to Ms Miller’s legal representative (Dr Palk) and Mr Hoogendoorn. 
  3. [81]
    Further, the publication to Dr Palk must stand on its own terms, and the content of that publication communicated that the reference to uneducated was mistaken and that she considered Mr Hoogendoorn to be educated.  Any inconsistency with the report is irrelevant (even if true).  A defamatory communication must contain the defamatory matter.  The publication to Dr Palk contained no possible defamatory matter to the effect that Mr Hoogendoorn was uneducated where that suggestion is stated to be a mistake and the opposite was correct, especially where accompanied by an apology.
  4. [82]
    No claim for defamation can arise out of the reference to uneducated in those emails.

not reasonable to commence within time?

  1. [83]
    Below is a table summarising the dates of publication and other relevant matters for each of the alleged defamatory publications.  The table also includes the dates by which Mr Hoogendoorn says he became aware of the publications (I have not included the last complaint about Ms Miller’s email of apology because the limitation period has not expired).

Defamatory matter

Publisher

Latest date of publication

Latest expiry date of limitation period

Latest date knowledge of publication acquired

Abuse of Mr Rose claims

Ms Millins

8 March 2019 or

8 April 2019

8 April 2020

5 May 2019

 

Mr Houchin No. 1

26 April 2019

26 April 2020

5 May 2019

 

Mr Houchin No. 2

2 May 2019

2 May 2020

7 August 2019

 

Unknown officer

26 April 2019

26 April 2020

7 August 2019

‘On-going abuse’ claim

Mr Cantwell

12 March 2019

12 March 2020

8 October 2019

Misspelling claim

Unknown officer

16 February 2020

16 February 2021

29 November 2021

The ‘uneducated’ claim

Ms Miller

21 January 2021

21 January 2022

27 February 2021

  1. [84]
    It can be seen from the table that over a year has passed since publication of each alleged defamatory communication.  Accordingly, Mr Hoogendoorn’s claims set out in this judgment (other than the very recent email from Ms Miller) are statute barred, subject to Mr Hoogendoorn establishing, in each case, that it was not reasonable in the circumstances for him to have commenced an action in relation to each alleged publication within 1 year from the date of that publication.
  2. [85]
    Some general observations can be made.
  3. [86]
    First, in respect of every alleged publication except the misspelling publication, Mr Hoogendoorn obtained knowledge of the publication (or the basis for his allegation that publication can be inferred) well within the 1 year limitation period.  For those claims, therefore, Mr Hoogendoorn cannot rely on lack of knowledge of the publication as the circumstance making it not reasonable to commence in time.
  4. [87]
    For the misspelling claim, the date provided is the latest date that he acquired knowledge of the publication.  He freely conceded it might have been earlier.  More relevantly, it was a date by which he was able to articulate a complaint about the note.  Accordingly, while that might be a circumstance which could make it not reasonable to commence within a year, it does not explain why a claim could not have been commenced once knowledge of the publication was obtained.   Mr Hoogendoorn could articulate an internal complaint about the publication by that date.  
  5. [88]
    Second, for the claims relating to file notes or inferred statements by unknown corrections officers, it might be thought that Mr Hoogendoorn can rely on the fact that he did not know, within time, who made those publications.  However, in the case of those publications, proceedings can and should be brought against the State of Queensland.  In this case, I do not see that this consideration is a circumstance making it not reasonable to commence within the limitation period.
  6. [89]
    Third, it occurred to me during argument that Mr Hoogendoorn might establish it was not reasonable to commence within the limitation periods, or at all, until he was released from prison if the fact of being in custody meant that he did not have legal capacity to commence civil proceedings.  However, for the reasons set out in paragraph [10] above, it appears he did have legal capacity to commence civil proceedings.  
  7. [90]
    Fourth, Mr Hoogendoorn swore that he was unaware of the 1 year limitation period.  It is evident from his filing of the Originating Application in this proceeding that he was aware of the limitation period and the terms of s. 32A LAA by 3 December 2021 when he initially filed this application.  I see no reason to doubt his evidence that he did not know of the limitation period until around that time.  However, the authorities make clear that of itself, lack of awareness of the limitation period is not a circumstance which makes it reasonable not to commence within the limitation period.
  8. [91]
    Mr Hoogendoorn raised several contentions to support the conclusion that it was not reasonable for him to have commenced proceedings within time (or at any time until he was released from custody).
  9. [92]
    First, Mr Hoogendoorn contended that it was not reasonable to commence within time for any of his claimed causes of action until after he was released from custody in December 2021 because of the practical limitations on his ability to carry out legal research and prepare Court documents.  He expanded on those difficulties in his affidavit filed 18 February 2022 at paragraphs 4B to 11J. 
  10. [93]
    The difficulty with that contention, as pointed out by Ms Blattman who appeared for the State and the Parole Board, is that the evidence before the Court demonstrates that despite his undoubted limitations in custody, over at least the period from 2019, Mr Hoogendoorn was able to articulate numerous complaints, to engage with decision makers with a view to having them consider his complaints and to press for reviews of determinations of those complaints.  His energetic pursuit of reviews by Ms Pyke and Mr Clarke is but one example.  Further, he managed to articulate and pursue complaints about the many of the matters which he alleges underpin his defamation claims. 
  11. [94]
    Ultimately, it seems to me that in the absence of being aware of the limitation period, Mr Hoogendoorn prioritised pursuing complaints about the alleged defamations with Corrective Services and the Ombudsman over proceedings in Court.  He seemed to accept as much in argument.[35]  I am not persuaded that the limitations on Mr Hoogendoorn in custody prevented him from commencing proceedings within time.   
  12. [95]
    Second, Mr Hoogendoorn contended that it would have been practically impossible for him to conduct proceedings as required by the UCPR while in custody.   I accept that there would have been difficulties with procuring the service of the proceedings and with complying with the requirements for conduct of the proceedings in accordance with Rule 5.  However, I am not persuaded that these difficulties are sufficient to establish that it was not reasonable to commence proceedings in each case within time.  To prevent the statute bar from arising, Mr Hoogendoorn does not have to conduct the proceedings in accordance the Rules, nor does he even have to serve the proceedings.  Rather, it is sufficient to have an originating process articulating the claims for defamation issued by the Court within time.   Under the UCPR this is specifically provided for under Rule 8.[36]
  13. [96]
    Accordingly, to my mind it is not to the point when considering s. 32A LAA that Mr Hoogendoorn would likely have had practical difficulties in attending to the steps which would have been necessary after the claims were issued by the Court.  The focus must be on whether it was not reasonable to have commenced the necessary action. 
  14. [97]
    It might be thought that it was reasonable to have waited to commence proceedings until after release from custody.  But that is not the test posited by the statutory provision.  As the authorities make clear, Mr Hoogendoorn must establish it was not reasonable to have commenced during the limitation period.  I do not think potential practical difficulties in conducting litigation once commenced makes it reasonable not to have commenced litigation. 
  15. [98]
    That conclusion is supported by the consideration that the UCPR can be modified or adjusted to meet the circumstances of any particular case.  Accordingly, if Mr Hoogendoorn did commence proceedings but encountered difficulty in following the procedures in the Rules, the Court could adjust those procedures if it was in the interest of justice to do so. 
  16. [99]
    Third, Mr Hoogendoorn articulated a particular contention arising out of the alleged failure of the Correctional Centre to forward his mail on his release from custody in respect of his claim against Ms Miller relating to the ‘uneducated’ claim.  As I understood it, he submitted that that failure meant that communications from the Registry sent to him dated 7 December 2021 went astray and resulted in him failing to file proceedings 218/22 until 21 January 2022, the day on which he believes the limitation period expired for the first alleged Miller defamation.
  17. [100]
    Even if this was so, that does not justify an extension of time.  First, 218/22 is an application for leave to file proceedings, it is not a substantive claim for damages for defamation against Ms Miller.  Second, even if it could be somehow construed as such a claim, Mr Hoogendoorn would nonetheless fail on the application for an extension of time because there is no arguable claim for defamation arising out of Ms Miller’s publication.
  18. [101]
    For these reasons, I am not persuaded that Mr Hoogendoorn has established that it was reasonable for him not to commence proceedings within the 1 year limitation period for any of the claimed causes of action in defamation he asserts.

Conclusion

  1. [102]
    For these reasons, I conclude that Mr Hoogendoorn is not entitled to an extension of time under s. 32A LAA for any of the alleged causes of action in defamation he raises either because he has not identified a cause of action in defamation known to the law or because he has not established that it was not reasonable to commence proceedings in respect of the cause of action within one year of publication or, in most cases, for both reasons.
  2. [103]
    The Originating Application in proceedings 3150/21 is dismissed.  The Originating Application in proceedings 218/22 was directed at the commencement of the underlying proceedings contemplated by 3150/21.  The dismissal of 3150/21 necessarily leads to the dismissal of 218/22.  

Footnotes

[1] Noonan v MacLennan [2010] QCA 50 at [15]; Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [48].

[2] Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [27]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87].

[3] Robertson v Hollings [2009] QCA 303 [1][7]; Noonan v MacLennan [2010] QCA 50 at [8] and [30].

[4] Noonan v MacLennan [2010] QCA 50 at [19] – [20], and [22]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87].

[5] Noonan v MacLennan [2010] QCA 50 at [15].

[6] Noonan v MacLennan [2010] QCA 50 at [51]

[7] Noonan v MacLennan [2010] QCA 50 at [17].

[8] Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [52]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [56].

[9] Carey v Australian Broadcasting Corporation (2012) NSWLR 90 at [48].

[10] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87] per Applegarth J summarising the principles espoused in Noonan v MacLennan [2010] QCA 50.

[11] Havas CD 10 exhs p. 51

[12] See also McMurdo P (with whom Atkinson J agreed) at [12] to [13]; and Keane JA (with whom Fraser JA and Cullinane J agreed) in Robertson v Hollings [2009] QCA 303 at [11] and see Bentleys (Sunshine Coast) Pty Ltd & Ors v Thomson [2018] QCA 358 at [8]

[13] Hoogendoorn CD 14

[14] Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]; Rajski v Scitec Corporation Pty Ltd (Unreported NSWCA No 146 of 1986) approved by the High Court in Nobarani v Mariconte (2018) 359 ALR 31

[15] LexisNexis, Halsbury’s Laws of Australia (On-line version current 25 January 2018at [145-15].

[16] Hoogendoorn CD 14 at [6] to [7]

[17] Hoogendoorn CD 14 at [6] to [7]

[18] TS 1-20.5

[19] Hoogendoorn CD 14 at [19]

[20] TS1-21

[21] Hoogendoorn CD 14 at [20]

[22] TS1-22

[23] Havas CD 15 at p. 2 (referring to the letter of decision from Deputy Ombudsman, Ms Pryke dated 17 September 2019 to Mr Hoogendoorn).

[24] Havas CD 10 exhs p. 4

[25] Stubbs v Russell [1913] AC 386 at p. 393

[26] First and Second Respondent’s outline of argument CD 11 [25]

[27] Australian Defamation Law and Practice (Lexis Nexus Looseleaf Service) at [3260]

[28] Bennette v Cohen (2005) 64 NSWLR 81 at [51]

[29] LexisNexis, Halsbury’s Laws of Australia (On-line version current 25 January 2018) at [145-665]

[30] TS1-47.40

[31] Hoogendoorn CD 14 at [26]

[32] P George, Defamation Law in Australia (LexisNexis, 2017 3rd ed) at p. 216

[33] Hoogendoorn CD 14 at pp. 7 - 8

[34] Hoogendoorn CD 14 at [28]

[35] TS1-104.35

[36] Cameron v National Mutual Life Assn of Australasia Ltd (No 2) [1992] 1 Qd R 133 at 136, applied to r. Rule 8 UCPR in Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6 at [9] and [111]

Close

Editorial Notes

  • Published Case Name:

    Hoogendoorn v State of Queensland & Others

  • Shortened Case Name:

    Hoogendoorn v State of Queensland

  • MNC:

    [2022] QDC 83

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    14 Apr 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313
2 citations
Jump To
Cite 1 - (2009) 180 FCR 313
Cite 2 - (2009) 180 FCR 313
Althaus v Australia Meat Holdings Pty Ltd [2009] QCA 221
1 citation
Jump To
Cite 1 - [2009] QCA 221
Bennette v Cohen (2005) 64 NSWLR 81
1 citation
Jump To
Cite 1 - (2005) 64 NSWLR 81
Bentleys (Sunshine Coast) Pty Ltd v Thomson [2018] QCA 358
1 citation
Jump To
Cite 1 - [2018] QCA 358
Cameron v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133
1 citation
Jump To
Cite 1 - [1992] 1 Qd R 133
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
1 citation
Jump To
Cite 1 - [2012] NSWCA 176
Carey v Australian Broadcasting Corporation (2012) NSWLR 90
1 citation
Jump To
Cite 1 - (2012) NSWLR 90
du Boulay v Worrell [2009] QCA 63
1 citation
Jump To
Cite 1 - [2009] QCA 63
Mbuzi v Hall [2010] QSC 359
1 citation
Jump To
Cite 1 - [2010] QSC 359
Newcombe v O'Connor & O'Connor [2022] QDC 19
1 citation
Jump To
Cite 1 - [2022] QDC 19
Nobarani v Mariconte (2018) 359 ALR 31
1 citation
Jump To
Cite 1 - (2018) 359 ALR 31
Noonan v MacLennan[2010] 2 Qd R 537; [2010] QCA 50
8 citations
Jump To
Cite 1 - [2010] QCA 50
Cite 2 - [2010] QCA 50
Cite 3 - [2010] QCA 50
Cite 4 - [2010] QCA 50
Cite 5 - [2010] QCA 50
Cite 6 - [2010] QCA 50
Cite 7 - [2010] QCA 50
Cite 8 - [2010] QCA 50
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
6 citations
Jump To
Cite 1 - [2010] QCA 175
Cite 2 - [2010] QCA 175
Cite 3 - [2010] QCA 175
Cite 4 - [2010] QCA 175
Cite 5 - [2010] QCA 175
Cite 6 - [2010] QCA 175
Robertson v Hollings [2009] QCA 303
2 citations
Jump To
Cite 1 - [2009] QCA 303
Cite 2 - [2009] QCA 303
Ross v Hallam [2011] QCA 92
1 citation
Jump To
Cite 1 - [2011] QCA 92
Stubbs Ltd v Russell (1913) AC 386
1 citation
Jump To
Cite 1 - (1913) AC 386
Tomasevic v Travaglini (2007) 17 VR 100
1 citation
Jump To
Cite 1 - (2007) 17 VR 100
Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6
1 citation
Jump To
Cite 1 - [2009] NSWCA 6

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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