Egan v Taylor[2023] QDC 85

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Some of the history of this matter was set out in the previous judgment of Dearden DCJ, Egan & Ors v Taylor [2022] QDC 144.  The plaintiffs (together with the now deceased first plaintiff who is obviously no longer part of the action) commenced proceedings against the defendant for damages for defamation in 2018.  Broadly, the subject of the action is alleged defamatory statements relating to the plaintiffs’ involvement with a charitable organisation.  Although the defendant was previously represented, she has been self-represented for some time.
2. [2]
   There have been a number of disputes during the currency of the action concerning a number of matters including such issues as the issue of subpoenas and arguments about the pleadings.  In the previous judgment referenced above, a further amended defence and counterclaim was disallowed and the amended counterclaim set aside.  Summary judgment was given in favour of the plaintiffs against the defendant on the amended counterclaim.  Subpoenas were set aside.
3. [3]
   The effect of these orders, amongst other things, is that – consequent upon the disallowance of the previous further amended defence pursuant to the Uniform Civil Procedure Rules (“UCPR”) r 379 - the previous version of the defence, being the amended defence filed 31 January 2022 remains in effect.  The present application by the plaintiffs is for the amended defence and the particulars thereto to be struck out; consequentially for summary judgment in favour of the plaintiffs against the defendant in respect of all or part of the claim; further that in consequence of those matters, there be an assessment of damages; and for costs.
4. [4]
   In essence, the defendant’s previous pleading suffered from fatal defects which also had the effect that it was not possible for the plaintiffs sensibly to reply thereto.  In those circumstances, the previous pleading was disallowed.  The plaintiffs’ position now is that the amended defence suffers from at least all of the same defects that lead to the former pleading to be disallowed and, indeed, more. 
5. [5]
   The matter was heard on 31 March 2022 after it had been mentioned in court on 27 March for the purposes of directions.  The defendant did not appear either at the directions hearing or at the hearing of the application.  Service on her was proved. Her name was called. The plaintiffs filed and served an outline of submissions supporting the application in accordance with the directions made.  In the circumstances the matter proceeded in the absence of the defendant; a consequence was – unhelpfully - the absence of a contradictor.

Principles – strike out

6. [6]
   Rule 171 of the UCPR sets out the way in which the jurisdiction is exercised.  The court is empowered to strike out all or part of a pleading where it:

   1. (a)
      discloses no reasonable cause of action or defence
   2. (b)
      has a tendency to prejudice or delay of a fair trial of the proceeding;
   3. (c)
      is unnecessary or scandalous;
   4. (d)
      is frivolous or vexatious;
   5. (e)
      is otherwise an abuse of process of the court.
7. [7]
   There are a number of authorities dealing with the power.  In Robert Bax & Associates v Cavenham Pty Ltd^[1], White JA observed at [16] that:

“… any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.”

8. [8]
   The applicants refer to the function of pleadings and appropriate observance of the fundamental principles set out in r 5 of the UCPR.^[2] 
9. [9]
   The applicants also submit that the purpose of r 171 is to ensure that a pleading which engages one of the grounds to strike to out should not require the opposite party to plead in response and proceed to trial on the infringing pleading.^[3]  It is also said that a pleading is deficient if the case is not advanced in a comprehensible, concise form appropriate for consideration both by the court and for the purpose of the preparation of a response and is liable to be struck out where it includes irrelevant allegations which, by their nature, will affect the expeditious determination of the proceeding.^[4] 

The nature of the pleading

10. [10]
    The plaintiffs argue that the present pleading suffers from at least the defects identified in a r 444 letter delivered on 18^th February 2022 and those listed in the previous judgment at [52]-[59].  These are many, varied and comprehensively set out by his Honour including in a table which sets out the defects with reference to the relevant rules and legislation at paragraph [57] of the judgment. This relieves the court on the present occasion from expressly descending to the same level of particularity of analysis thereof; I respectfully adopt his Honour’s analysis. I also agree with the complaints outlined in the r 44 letter. In summary, the plaintiffs argue that the pleading includes irrelevant allegations; attempts to incorporate (by reference) affidavit material; is obscure, ambiguous and generally impossible to reply to.  Further, it does not comply with the rules in relation to pleading denials, non-admissions and defences; it does not properly plead qualified privilege and contextual truth in that the elements of those defences are not addressed and are apparently untenable on the face of the pleadings.
11. [11]
    In my conclusion, the above arguments as to the nature of the pleading should be accepted.  The amended defence offends r 171(a) to 171(d) in that it discloses no reasonable defence; has a tendency to prejudice or delay a fair trial; is at least unnecessary and also vexatious.  In the result the entirety of the pleading should be struck out. 

Leave to replead

12. [12]
    Consequent upon that conclusion, there necessarily arises a question as to whether leave to replead, if sought, should be granted. This leave is conventionally considered necessary where a defence is struck out, including in defamation proceedings; an example is Robinson v Laws & Anor^[5]. The requirement for leave to replead following strike out is not, however, expressed in UCPR r 171. Thus the source and implications of the requirement fall to be considered.

Necessity for leave

13. [13]
    The necessity for leave may arise in a number of ways:

    1. (a)
       Rule 139 provides for the requirements for a notice of intention to defend; it is mandatory that “the defendant’s defence” be attached. Thus where the defence is struck out, the notice is no longer in compliance with r 139. This may be one reason why leave to replead is necessary.
    2. (b)
       Alternatively the necessity may arise consequent upon the close of pleadings as set out in r 169. That is, in cases such as the present, there is no availability of default judgement^[6] because there was a notice of intention to defend filed which remains in force (despite no longer being compliant with r 139). Thus in this case the applicants appropriately apply for summary judgement; indeed, filing of a notice of intention to defend is a precondition to the application contemplated by r 292. The strength of the applicants’ position on the application, subject to what follows, is of course that at a time when the pleadings have closed there is no pleaded defence in effect.
    3. (c)
       If leave to replead is not necessary after the strike out, the defendant could in theory attempt to file another defence to replace the previous one, possibly in reliance on the rules permitting amendment of pleadings. However the obstacle to that procedure may be that the defendant is not entitled – as of right - to amend under rr 375 and 378 where, after a strike out, there is no pleading in force to amend; the right is to amend, not to file a new pleading.
    4. (d)
       Another alternative is simply that where the court has appropriately and regularly struck out a defence pursuant to the express power in r 171, re-filing a defence without leave would be in effect defying a court order and would also have the effect of either reducing or destroying the intended operation of r 171 as a power to properly regulate the course of pleadings and the conduct of litigation; it would also be inconsistent with the philosophy in r 5 and the court could impose appropriate sanctions.
14. [14]
    Whatever the underlying reason (whether any or all of the above apply), I am of the view that, a defence having been struck out in its entirety, a defendant does require leave to replead, so the question of the leave arises to be determined.

 Should there be leave to replead?

15. [15]
    Of course, in the present circumstances the defendant has not and does not seek leave to replead.  It is also noteworthy that in terms of the course of the action to date, there was no application to replead consequent upon the disallowance of the further amended defence previously.  The plaintiffs also point to the fact that after four attempts the defendant has not produced an appropriate pleading.  The material dealing with the issue of service indicates that the defendant is avoiding any participation in the proceeding.  In all the circumstances, there should be no leave to replead.

Status of the original defence

16. [16]
    This leads to question of the entitlement to summary judgement. I raised an issue as to whether, consequent upon the strike out, even without leave to replead the defendant’s original defence could be argued to in effect revive, remaining in effect such that it should be considered on the summary judgement application.
17. [17]
    The applicants submit this is not the case, pointing to some aspects of the Rules. Firstly r 387 provides relevantly that the amendment (i.e. here, those in the presently amended defence) takes effect on the date of the document being amended (here, the date of the original defence). Further r 385 provides that in this case the defendant having pleaded (to the original statement of claim) before being served with the amended statement of claim, she is taken to have relied on the original defence (r 385(3)) until the amended defence was filed on 31 January 2022. This suggests that the amended defence supplants rather than adds to the original pleading. This is particularly so where the amended defence is taken to have effect from the date of the original defence (11 April 2019); r 387(1). Further, as a matter of principle and logic it is said there cannot be more than one defence (actually or contingently) on the record and in force at the same time; this is said for example to create uncertainty as to what an opponent is to meet at a trial. The latter part of this proposition is doubtful; a trial would proceed on the then operative pleading. However the first part has force, in my view. The system of pleadings and amendments is consistent with the idea that only one version of a defence may be in force at a time.
18. [18]
    Taking into account the above and the overriding philosophy in UCPR r 5, if the amended defence is struck out, the plaintiffs argue the original defence does not remain on foot or revive. In my view these arguments ought to be accepted. The result is that consequent upon the strike out leave to replead was necessary; it is refused; and in the circumstances there is no pleaded defence on foot.

Summary judgment

19. [19]
    In the circumstances, the plaintiffs seek summary judgment pursuant to r 292 of the UCPR.  This rule, in its terms, engages the jurisdiction where the defendant has no real prospect of successfully defending the whole or a part of the plaintiffs’ claim and there is no need for a trial of the claim or that part of the claim.  The phrase “no real prospect” has been considered in Deputy Commissioner of Taxation v Salcedo^[7].  Summary judgement is only appropriate in the clearest of cases.^[8]  The jurisdiction was described as being engaged where there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.^[9]
20. [20]
    Since this matter is being dealt with in circumstances where the defendant’s defence has been struck out without leave to replead, the case is in the category of the clearest of such examples and there is a high degree of certainty as to the plaintiff’s success if the matter went to trial; indeed it is quintessentially a case where there is no need for a trial, at least on liability (subject to the capacity issue discussed below). As the applicants argue, the factual allegations in the further amended statement of claim become the subject of deemed admissions pursuant to UCPR 166.^[10] Thus on the merits the plaintiffs must succeed.
21. [21]
    The only remaining issue in a case of this kind, being a defamation case, is whether as a matter of law I am satisfied that the pleaded imputations are reasonably capable of being conveyed and of being defamatory; this is always a separate question from the factual issue of whether the pleaded imputations were conveyed and defamatory which is the issue no longer contested in the absence of a pleaded defence.^[11]

Capability of Pleaded Imputations to be conveyed

22. [22]
    As to whether the pleaded imputations are being reasonably capable of being conveyed, the various  matters complained of (“MCO”s) are in each case pleaded to be publications of  posts on the defendant’s Facebook page between 13 August 2018 and 9 September 2018 and continuing, set out in annexures to the pleading and said to have been (and now, constructively admitted to have been) downloaded and read by a number of members of the public including a list of identified persons. The publication is particularised as the material having been made available for reading and downloading and it was in fact downloaded and read, by identified persons and others.
23. [23]
    Further the readers were aware of extrinsic facts pleaded at paragraph 1 of the pleading (again this is now constructively admitted), including that the second plaintiff was a founder of the charity Aussie Helpers; the second and third plaintiffs were at all material times directors thereof and together responsible for its day to day operation and management; and the third plaintiff was from August to October 2018 the Chief Executive Officer.^[12]  These details are referred to under the heading “Particulars of identification” in paragraph 2. They assist the plaintiffs, particularly the third plaintiff, in proving one of the necessary elements, namely that the defamatory material was published “of and concerning” the plaintiff.^[13]

Principles as to capacity

24. [24]
    In relation to this issue of the capability of the imputations to arise, the plaintiffs make a number of submissions.  Firstly, since the amended defence has been struck out, the allegations of fact in the further amended statement of claim including as to extrinsic facts and knowledge thereof are deemed admitted pursuant to UCPR 166.  It is pointed out that the judge’s function at the capacity stage is to determine “the outside boundaries of the possible range of meaning.”^[14]  The exercise is also described as whether the challenged imputations were or were not within the range of reasonable understandings of the matter complained of.^[15] 
25. [25]
    It is also submitted that the determination of the capacity of a matter complained of to convey imputations is an exercise in generosity, not parsimony.^[16]  The fact that reasonable minds might differ on the issue of capacity is a strong if not insuperable reason not to strike out an imputation^[17] or, as arises here, reach a determination that the imputations are not capable of arising.
26. [26]
    The plaintiffs also refer to Wagner & Ors v Harbour Radio Pty Ltd & Ors^[18] for propositions, broadly, that sensational publications are less likely to be read with analytical care; wide latitude is given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual (this idea is relied on in particular concerning MCO 1 at paragraph 84 thereof and MCO 8 “you are all going to jail.  Do not pass go or collect any more donations”).  It is also submitted that the relevant material may be “pregnant with insinuations or suggestion”^[19] and may urge a suspicious approach although the author does not care to or dare to express matters in direct terms (reference is made to MCO 1 at paragraph 46 “trying to make me say fraud.  I’ll leave that accusation to the police”).  Further, reasonable, ordinary readers draw implications much more freely than lawyers, especially when derogatory: that is an important reminder for judges.^[20]

First Matter imputations

27. [27]
    The first MCO – annexure A, the entire series of posts - is pleaded in paragraph 3 as conveying imputations of each of the plaintiffs that:-

    1. (a)
       They used money donated to charity to buy residential property for their own personal use;
    2. (b)
       They, together with members of their family, abused the legal system to cheat the family of a deceased woman of $1 million left to charity, in order to satisfy, in each case, her own greed;

(bb) That they are so greedy and unprincipled they will stop at nothing to get money;

3. (c)
   They are being investigated by police for criminal fraud;
4. (d)
   They are about to be charged by police with criminal fraud;
5. (e)
   They are guilty of criminal fraud;
6. (f)
   They each together with members of their family run a fake drought relief charity, structured so that each of them will walk away with 10 million to 15 million dollars in donations when the drought ends;
7. (g)
   The plaintiffs together with members of their family misapplied 2 million dollars donated to charity, by distributing most of it to friends and associates;
8. (h)
   The plaintiffs deliberately failed to lodge tax returns for 17 years, to conceal taxable income;
9. (i)
   The plaintiffs defrauded the Commonwealth by deliberately failing to lodge tax returns, to conceal taxable income received from a sham charity;
10. (j)
    The plaintiffs are going to jail for fraudulently collecting donations to charity;
11. (k)
    The plaintiffs are going to jail for having misappropriated donations given to charity;
12. (l)
    The plaintiffs are criminals, who have been convicted of fraud;
13. (m)
    The plaintiffs are criminals, who have been convicted of fraud and sentenced to a term of imprisonment.

Paragraphs 3(b), 3 (f) and 3 (g) – “together with members of her family”

28. [28]
    The pleaded imputations in paragraphs 3(b), 3(f) and 3(g) refer to the plaintiff “together with members of her family”.  The third plaintiff may not be a family member of the second plaintiff (she is not pleaded to be so), whereas the second plaintiff does have the same surname as the previous first plaintiff (who was presumably alive, and in any case party to the action, as at the first iteration of the pleading).  The third plaintiff was, however, the Chief Executive Officer of the charity Aussie Helpers during the relevant period and, importantly, what is pleaded (in paragraph 3) and therefore admitted is that members of the public to whom the matter complained of was published knew that the third plaintiff was the Chief Executive Officer of Aussie Helpers and responsible, together with the second plaintiff for the day-to-day operation and management of Aussie Helpers (as pleaded in paragraph 1(b)).
29. [29]
    A question thus arises as to whether the imputations in those subparagraphs are capable of being conveyed “of and concerning” the third plaintiff, given the phrase in the pleading being discussed. On this question, as to the imputations that contain the words “together with members of her family” the plaintiffs submit that without that phrase each of the imputations is “simply a variant of the meaning pleaded” and is reasonable capable of arising and is a variation upon which the third plaintiff would be entitled to rely on at trial. Each of the imputations, without that phrase, the plaintiffs argue, carry the same sting in each case. For example, if the words “together with members of her family” were replaced in each case with “together with associates” or “together with associates of Aussie Helpers” the sting would be the same; further the plaintiffs would be entitled to rely on these variations at trial.
30. [30]
    What the plaintiffs argue on this point in a sense is that the phrase under discussion is really surplusage; the third plaintiff is reasonably identified by the constructively admitted extrinsic facts and it matters not, for the question of whether a defamatory imputation is capable of being drawn, whether the reader knows any further extrinsic facts as to the third plaintiff’s family membership. Although the matter calls for analysis (particularly in the absence of a contradictor), in the context of the admitted facts and the relevant principles outlined above I accept these submissions. Thus the pleaded imputations in paragraphs 3(b), 3(f) and 3(g) are capable of being conveyed.

Paragraph 3(h) – failure to lodge for 17 years

31. [31]
    Paragraph 3(h) in relation to the third plaintiff, also calls for analysis because the pleaded facts in paragraph 1(b) only include Ms Price being CEO of the charity between August 2018 and October 2018 (i.e. three months), rather than the 17 years pleaded.  However as noted, paragraph 1(a)(ii) effectively pleads that she and Ms Egan were responsible for its day to day operation and management at all material times. Further, again the plaintiffs submit, as I understand it, that the time period is essentially surplusage and an imputation that the third plaintiff deliberately failed to lodge tax returns to conceal taxable income is contained within the pleaded imputation; again it is a variation the third plaintiff could rely on at trial. Thus the imputation is capable of being conveyed. Again, I accept these submissions.

Paragraphs 3(l) and 3(m) – has been convicted of fraud and sentenced

32. [32]
    Similarly, imputations pleaded in paragraphs 3(l) and 3(m) call for analysis because there is nothing in annexure A expressly referring to a previous trial or conviction. The words used are “You’re all going to jail. Do not pass go or collect anymore donations”. There is nothing in that material expressly saying the plaintiffs have been previously convicted or sentenced to imprisonment; however the argument is that a necessary inference arises; rhetorically, why else would the plaintiffs be said to be going to jail? I accept these imputations are capable of being conveyed.

Second Matter

33. [33]
    The second MCO, pleaded in paragraph 4 is that between the period 13 August 2018 and 9 September 2018 and continuing thereafter the defendants published a series of Facebook posts concerning the second and third plaintiffs as set out in annexure B to the pleading. Annexure B is simply the first page of annexure A, referring inter alia to “the Aussie Helpers’ fully furnished Monopoly” bought with charity money for (their) own use and several “home offices” not required. The relevant imputations said to be conveyed concerning each of the plaintiffs are pleaded at paragraph 5.  They are that:

    1. (a)
       the plaintiff illegally uses money donated to charity to buy residential property for their own use.
34. [34]
    The imputation pleaded is capable of being conveyed by the matters pleaded, in respect of each of the second and third plaintiffs.

Third Matter

35. [35]
    The third MCO, pleaded in paragraph 6 is publication of a Facebook post between 13 August 2018 and 9 September 2018 and daily thereafter, annexed to the pleading as C, also a subset of A. It refers to an incident at an unspecified time where the charity successfully resisted a challenge to a testamentary bequest, “using donations to fight them” and “they will stop at nothing to get money”. This is said in paragraph 7 to convey imputations that:

    1. (a)
       the plaintiff, together with members of her family, used the legal system to cheat the family of a deceased woman of $1,000,000 left to charity, in order to satisfy her own greed;
    2. (b)
       the plaintiff is so greedy and unprincipled that she will stop at nothing to get money.
36. [36]
    In my view in the context of the above findings and applying the relevant principles these imputations are capable of being conveyed. 

Fourth Matter

37. [37]
    The fourth MCO, pleaded in paragraph 8 is a series of Facebook posts, annexure D. The posts include reference to fraud including the defendant posting that she would “leave that accusation to the police”. They are pleaded in paragraph 9 to convey imputations of each of the plaintiffs that:

    1. (a)
       the plaintiff is being investigated by police for criminal fraud;
    2. (b)
       the plaintiff is about to be charged by police for criminal fraud;
    3. (c)
       the plaintiff is guilty of criminal fraud.

Annexure D is again a subset of annexure A. It is the kind of material, as referred to in the plaintiffs’ submissions, which is “pregnant with insinuations or suggestion”^[21] and may urge a suspicious approach although the author does not care to or dare to express matters in direct terms; this is exactly what the defendant’s post does. The pleaded imputations are capable of being conveyed.

Fifth Matter

38. [38]
    The fifth MCO, in paragraph 10 of the pleading, is publication of a Facebook post, annexure E; again a subset of A but the broader context of A is also relied on. The words include “They have millions in the bank and not a care in the world about anyone but themselves”; they are filling their bank accounts and not doing anything with it and will walk away with 10 – 15 million dollars each. They are pleaded in paragraph 11 to convey an imputation of each of the plaintiffs that:

    1. (a)
       the plaintiff together with members of her family runs a fake drought relief charity, structured so that they will each walk away with $10,000,000 to $15,000,000 in donations, when the drought ends.
39. [39]
    Again, for the reasons outlined above, the imputation is capable of being conveyed in respect of both plaintiffs, particularly in context and bearing in mind the proper approach as outlined.

Sixth matter

40. [40]
    The sixth MCO, in paragraph 12 of the pleading, is publication of a series of Facebook posts, annexure F, again a subset of A, referring to 500 Visa cards with a value of $4000 each being distributed mostly allegedly to “friends” of Lindy Morris.  They are pleaded in paragraph 13 to convey imputations of each of the second and third plaintiffs that:

    1. (a)
       The plaintiff, together with members of her family, misapplied 2 million dollars donated to charity, by distributing most of it to friends and associates.
41. [41]
    Again, this annexure is a subset of A and the broader context thereof is relied on.  For the reasons identified above including the proper approach to the issue and the constructively admitted facts, the imputation is capable of being conveyed in respect of both plaintiffs.

Seventh matter

42. [42]
    The seventh MCO, in paragraph 14 of the pleading, is publication of a series of Facebook posts, annexure G.  They include commentary as to they (inferentially those associated with the charity) having no apparent income or means of support and not having done their tax for a few (later, seventeen) years; and are pleaded in paragraph 15 to convey an imputation of each of the second and third plaintiffs that:

    1. (a)
       The plaintiff deliberately failed to lodge tax returns for seventeen years, to conceal taxable income; and
    2. (b)
       The plaintiff defrauded the Commonwealth by deliberately failing to lodge tax returns, to conceal taxable income received from a sham charity.
43. [43]
    Again, the pleading places this in the broader context of the matters pleaded in paragraph 3, which include annexure A.  In the context of the constructively admitted facts and the relevant principles as to the proper approach, each imputation is again capable of being conveyed referable to both plaintiffs.

Eighth matter

44. [44]
    The eighth MCO, in paragraph 16 of the pleading, is publication of a series of Facebook posts, Annexure H.  They include the words in [26] above and are pleaded in paragraph 17 to convey imputations of each of the plaintiffs at:

    1. (a)
       the plaintiff is going to jail for fraudulently collecting donations to charity;
    2. (b)
       the plaintiff is going to jail for having misappropriated donations given to charity;
    3. (c)
       the plaintiff is a criminal, who has been convicted of fraud;
    4. (d)
       the plaintiff is a criminal, who has been convicted of fraud and sentenced to a term of imprisonment.
45. [45]
    Again, the pleading puts this in the broader context of the large number of posts in Annexure A.  As set out in [26] the imputations are capable of being conveyed.
46. [46]
    Thus, in the result I am satisfied that the pleaded imputations are capable of being conveyed.  In respect of all of the pleaded imputations in respect of which I have reached the conclusion that they are capable of being conveyed, in all cases I am also satisfied that they are capable of being defamatory; they are capable of causing serious harm to the plaintiffs’ reputations in the eyes of reasonable members of the community.

Conclusion

47. [47]
    In conclusion for the reasons outlined above, the defendant’s defence should be struck out without leave to replead and the plaintiffs should have summary judgment on liability. All of the pleaded imputations were capable of being conveyed and were capable of being defamatory.  As submitted by the applicants, it is an appropriate case for an assessment of damages. 

Affidavit

48. [48]
    There is a further issue. One of the affidavits filed, that of Ms Virine filed the 1^st March 2023, inadvertently referred to and exhibited some material bearing on without prejudice negotiations. I became aware of the existence of this material but have not seen any of it (upon noticing the apparent nature of the first part of it I immediately stopped reading). Apparently, as the applicants submit, there are copies of a Calderbank offer (Ex. 4); a formal UCPR offer (Ex. 5) and the affidavit includes a paragraph that refers to a formal UCPR offer having been made (paragraph 15). A draft of the affidavit, with annexures, was also included (Ex.6). These matters are obviously in breach of r 357 which forbids such disclosures.
49. [49]
    This was raised with the applicants who submit that a failure such as this to comply with the Rules is an irregularity pursuant to r 371 which provides for remedial powers. The orders sought are to strike out paragraphs 14 and 15 of the affidavit and that Exhibits 4 and 5 be placed in a sealed envelope not to be opened without a further order of the court. These measures are appropriate. In the circumstances the orders will be as follows:

1. The Amended Defence filed 31 January 2022 and the particulars appended thereto be struck out.
2. Summary judgment is to be entered in favour of the second and third plaintiffs against the defendant in respect of all of the claim.
3. Damages referable to the judgment provided for in these orders to be assessed by the District Court on a date to be fixed.
4. It is ordered that:
   1. (a)
      Paragraphs 14 and 15 of the affidavit of Juliana Virine affirmed the 1^st March 2023 be struck out
   2. (b)
      Exhibits 4 and 5 thereto be removed from the affidavit and placed in a sealed envelope marked not to be opened other than pursuant to a further order of the court;
   3. (c)
      the plaintiffs have leave to file and serve further evidence on the question of costs, once all questions of liability and the relief to be given (if any), other than costs have been determined.
5. The costs of the application filed 6 March 2023 and of the proceedings, other than costs the subject of costs orders made by Dearden DCJ on 12 August 2022 be reserved.