Leigh v Sanchez[2024] QDC 149

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the plaintiff in the proceeding for leave to replead. No formal written application has been made. I do not think there is any difficulty with that, the way the case has unfolded.
2. [2]
   The application for leave to replead ultimately came before me today based on leave being sought to file a document, emailed but not filed, and which will now be an exhibit in the proceeding, designated the Second Further Amended Statement of Claim (SFASOC). Mr Levine, for the defendants, objected to the plaintiff being able to rely on that document, because the whole document, (inconsistent with my orders), was not provided until late Tuesday night, on 27 August 2024.
3. [3]
   In the context of this case, I do intend to refuse leave to rely on the SFASOC, to refuse leave to replead the aggravated damages claim, and to otherwise dismiss the application for leave to replead. I explain my reasons as follows.

Background

4. [4]
   I delivered judgment in this case on an application to strike out the greater part of the aggravated damages plea in the existing pleading, the Further Amended Statement of Claim (FASOC), on 6 August 2024. In that judgment, from paragraphs 2 to 18, I set out the procedural history of this matter, starting with its filing on 11 March 2018. The proceedings were not pursued promptly by the plaintiff, nor indeed, the defendants, I suppose, at least from November 2020 to April 2024. And the events around November 2020 related to the assessment of a costs order that had been made 18 months earlier, in July 2018. As my reasons demonstrate, the causes of action in defamation relate to alleged defamatory publications made during the calendar year 2017.
5. [5]
   While referring to paragraphs 2 to 18 of my previous judgment, there are some points I will pick up as I go through these reasons. As I note in my previous judgment, the defendants brought an application to dismiss the whole proceeding for want of prosecution in April 2024. That was ultimately dismissed on 12 June 2024 by Judge Barlow KC. His Honour’s reasons are not before me, and I am not sure if formal reasons were given.
6. [6]
   Ms Leigh, in an outline put before the Court, identified various matters she said were of relevance to his Honour’s decision. Nothing much turns on that because what is relevant, apart from the fact that his Honour dismissed the application to dismiss the proceeding for want of prosecution, is that his Honour set down the matter for trial starting 2 December 2024.
7. [7]
   It is a plain inference, from the dismissal of the want of prosecution application, that it was contemplated by his Honour that, because of the delay in the proceedings, it was important for the matter to come to trial promptly (if five months in the future can be called prompt).

8. [8]
   His Honour’s orders were made the day after Ms Leigh filed an Amended Statement of Claim (ASOC) which raised aggravated damages, at least in a substantive and extended way, for the first time, some six years after the original pleading was filed. That amended statement of claim appears at Court Document 53.
9. [9]
   There followed, after the filing of the ASOC, a procedure which permitted Ms Leigh to file the FASOC that sought to address some of the defects which, I infer, had been raised formally, or informally, by the defendants in relation to the ASOC in respect of the pleading of aggravated damages. The FASOC was filed on 28 June 2024.
10. [10]
    As I say in paragraphs 17 and 18 of my previous judgment, arrangements were effectively made for the hearing of a formal application to strike out the FASOC before me on 25 July 2024. I heard the defendants’ application to strike out the FASOC in respect of aggravated damages on that day. It was a complex application that raised several novel and difficult questions.
11. [11]
    I was conscious of the impending trial date, and I delivered detailed reasons on 6 August 2024. In that judgment I struck out all but a couple of paragraphs of the aggravated damages allegations in the FASOC.
12. [12]
    I was then, as I am now, acutely conscious that the public interest calls strongly for the underlying causes of action, being the alleged defamations in 2017, to be promptly determined. For that reason, not only did I provide the judgment as quickly as I could, prioritising this matter over other cases, but I made an order for a reasonably prompt resolution of the question of leave to replead.
13. [13]
    On the day I delivered the judgment, Mr Myrteza, who at that time, was acting for Ms Leigh, and Mr Levine for the defendants, appeared. I ordered that by Monday, 12 August, the plaintiff serve submissions on the other side and on my Associate as to whether leave to replead was being sought and, if so, as to what issues, and on costs. The orders gave the defendants just a couple of days to respond, that is by 14 August, and I listed the matter for hearing before me on 15 August.

The Second Further Amended Statement of Claim

14. [14]
    Things did not proceed that way. By 15 August the plaintiff had served the text of the SFASOC. However, the SFASOC served did not include Schedules 6 to 10. When finally delivered. those Schedules involved particulars of over 120 different statements by various people relied upon to make good the aggravated damages pleading. Ms Leigh told me that the various daily entries in the Schedules were the same as those contained in the paragraphs of the FASOC dealing with subsequent publications that were struck out. If so, that was not communicated when the SFASOC was provided on 15 August.
15. [15]
    In my respectful view, Mr Levine was correct in his submission that the defendants could not be expected to form a final view on whether leave to replead should be granted without the Schedules being provide. That was correct, not least because the way that the alleged subsequent publications interrelated with the substantive allegations in the proposed SFASOC pleading was something that required thought.

16. [16]
    Ms Leigh, in submissions before me today, said, the defendants had the text of the SFASOC without the Schedules for some time, and they could have formed a view on leave to replead based on that alone. There is some merit in that proposition, in the sense that just reading what is in the SFASOC without the Schedules gives one cause for serious doubt as to whether it is a proper pleading. But the defendants could not fairly be expected to spend some time working on part of a proposed pleading for which leave is sought, and then reconsider the proposed pleading against when the whole of the pleading is provided. In the context of this case, I do not think duties, under rule 5 or otherwise, required the defendants to do that, not least because they were never asked to do it.
17. [17]
    On 15 August I was told that there was a difficulty in getting the Schedules done, so I made orders for the plaintiff to have another week to serve the Schedules to the proposed pleading, and then I listed the application for leave to replead for hearing more than a week after that. So, the Schedules were to be delivered on 22 August, and the application for leave to replead was adjourned to today, 30 August 2024.
18. [18]
    I had previously made directions for the filing and serving of submissions as well, on 7 August 2024. Strictly speaking, I did not make those orders again, but it was reasonable, in my respectful view, for the defendants to expect they would get submissions along with the Schedules.
19. [19]
    There were some submissions provided on 15 August 2024 by Mr Thwaites in support of leave to replead, but in this respect they made three conclusory statements:

1. The revised pleading was consistent with my statements in my judgment and avoided the vices which saw the majority of the aggravated damages pleading struck out;

2. The plaintiff had not engaged in any misconduct which would prevent them advancing their case; and

3. There was enough time before the trial dates to deal with the new allegations in preparing for trial.

20. [20]
    There was no argument in support of leave to replead on 15 August.
21. [21]
    It was plainly intended by my revised timetable that Mr Levine, and his clients and solicitors, would have an opportunity from the 22^nd of August to see the whole of the proposed SFASOC to prepare for the hearing today.
22. [22]
    That intention was frustrated because the Schedules were not delivered on 22 August. Instead on that day, my Associate received an email from the plaintiff that sought a further extensions of time to deliver the Schedules and an outline of submissions. The extension was opposed by the defendants. I refused to grant the extension but, of course, it was open to the plaintiff to deliver the Schedules at the beginning of the next week.
23. [23]
    The Schedules were delivered on Tuesday night, at 10:39pm. Mr Levine has said he had commitments the following two days and has not had an opportunity to prepare submissions on the application for leave to replead. That is not a difficult proposition to accept.

24. [24]
    The plaintiff’s submissions in support of the application for leave to replead arrived yesterday. They contained a great deal of evidence (in unsworn form), much of which was irrelevant.
25. [25]
    There were only seven paragraphs of any relevance to the substantive question of leave to replead in the plaintiff’s submission.
26. [26]
    There was a recent falling out between Ms Leigh, her solicitors, and possibly one or both of her barristers. Ms Leigh advanced the submission that if the cause of her delay was something her solicitors did, then as a matter of law she should not be disadvantaged by that. As a general proposition, I disagree with that. While the Court can consider issues between a client and their solicitors, there is no general proposition that the other party to litigation is somehow required to suffer the disadvantage that might flow from some sort of falling out between a solicitor and their client, if the consequences cannot be dealt with fairly to the other party.

The application for leave to replead

27. [27]
    The matter came before me today. The material relied on by the plaintiff was not in proper form. No affidavit was filed exhibiting the proposed SFASOC. There was no sworn evidence as to the circumstances relating to why leave to replead should be granted. The submissions in support of the pleading were limited to paragraphs 54 to 59 of the plaintiff’s outline of submissions. They did not develop any argument by reference to the specific legal issues. What they did, though, was provide an insight into a couple of matters which clearly loom large in Ms Leigh’s mind.
28. [28]
    The first is her assertion, in paragraph 55, that:

… the Defendants should face the consequences of their seven and a half years of abusive publications about me at a fairly adjudicated trial.

29. [29]
    That statement reflects submissions Ms Leigh made to me. It is plain, in my respectful view, that she is firmly of the view that the trial should be about not just the defamation alleged in 2017 and the damages flowing from them if any, but also about the alleged seven and a half years of abusive publications, and that it is her right to have the trial about that. That is clearly wrong. The subsequent conduct is relevant, if at all, only to aggravated damages for the publications in 2017 relied upon as defamatory.
30. [30]
    Unless and until the subsequent conduct relied upon is in an intelligible pleading, linked in a way which is consistent with the law, to aggravating damages flowing from the alleged 2017 defamations, the alleged seven and a half years of abusive publications is irrelevant.
31. [31]
    The second matter is this. Ms Leigh advanced the proposition that the defendants cannot be allowed to say that the pleading is defective because she was willing to negotiate with them about the form of the SFASOC, and that they did not do that.
32. [32]
    There are two things to say about that, which are related. The first is that no party has an obligation under rule 5 UCPR to negotiate with the other party about what a proper pleading is. Certainly, discussions can and should occur, but the idea that it is a defendant’s fault if they do not raise issues which they later raise in respect of fault alleged in a pleading is, in my respectful view, mistaken.

33. [33]
    There is another related point. Ms Leigh made it clear that she was self-represented now; but no matter what might be the broad justice of your complaint, no matter whether you do, indeed, have an aggravated damages case that could be pleaded, the fact is that unless you do plead it, and plead it to a minimum level of competence such that it discloses a reasonable cause of action, or in this case, a reasonable basis for aggravated damages, and otherwise meets the requirements of rule 171 UCPR, the pleading will be struck out, even if you are a self-represented party and if you are doing your best.^[1]
34. [34]
    Ultimately, when the matter came before me, as I said, Mr Levine, for the defendants, said that he was not ready to mount a full argument about the adequacy of the SFASOC. That left me with two choices. I could either have adjourned the application for leave to replead yet again or uphold Mr Levine’s objection to me receiving the SFASOC on the application for leave to replead and hear the application on the material properly before me.
35. [35]
    In deciding that matter, Ms Leigh raised various points. She submitted:

1. That she had tried to engage with the solicitors for the defendants on the SFASOC and they had not adequately responded;

2. That the Schedules did not make any difference in substance, even if you did not have them, because they contained the same matters as were in the aggravated damages pleading I struck out;

3. That the reason that she did not get the SFASOC with Schedules in it done as directed was her legal representative’s fault; and

4. That the other side was not prejudiced by the delay.

36. [36]
    As I have said, I do not think that it is a correct or fair submission to say that it is somehow the defendants’ fault for not engaging, particularly with a litigant in person, on the adequacy of a pleading from time to time. I have already dealt with the question of the Schedules. Apart from anything else, the defendants could not know what was going to be in the Schedules until they received them. I have also dealt with the legal representation point.
37. [37]
    As to the prejudice point, her submission was there would not be any prejudice flowing from the delay that would result in me further adjourning this application. I was unpersuaded by that. Apart from anything else, this trial starts in three months’ time. The performance of the parties in the three months since it came alive again, after some years of somnolent progress, does not fill me with confidence that adding complexity or delay to this case will not affect the trial dates. And I cannot emphasise enough the vital public interest and, indeed, frankly, the interest of the parties, in this proceeding being finally heard and determined.
38. [38]
    In my view, given the history of this proceeding, any material delay has the risk of affecting whether the trial can proceed, in a way fair to both parties, and on 2 December 2024.

39. [39]
    In any event, however, if it were the case that the amended pleading appeared to be a proper pleading, then one might, nonetheless, have engaged in further delay by reason of adjourning this application further so the defendants could properly prepare for the application. However, it does not. I will explain.
40. [40]
    I start with paragraph 67(a). That alleges that the first defendant, as administrator of the Shonky Caravans page, had control over what posted comments were published on the page. As a plea, that begs the question of on what basis that plea is made.
41. [41]
    In discussing the matter with Ms Leigh, it was an assertion that the first defendant had that control because he was administrator. Whether, and to what extent, he in fact did have such control, of course, from time to time, over the six years that the various allegations span, could become quite a complicated question at trial.
42. [42]
    Ms Leigh cited Voller to me,^[2] but the specific issue here is not whether someone is responsible for a publication for the purposes of the elements of the law of defamation, but whether the first defendant had, in fact, such control in respect of the numerous publications she complains about that he should be taken to be directly responsible for their publication on the web page. If that was the only issue, though, one might not have been too concerned.
43. [43]
    I have a much more substantive concern about paragraph 68(a). Paragraph 68(a) states this:

68. Despite the Plaintiff filing the Statement of Claim in these proceedings, the First Defendant has:

1. continued to publish material about the Plaintiff directly or by inference with the same or similar meanings as contained in paragraphs 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, and 59 above on the Shonky Caravans Facebook Page, which are contained in Schedule 6; and

44. [44]
    Faced with that, one asks, “what does that mean for any particular subsequent publication in the light of the numerous imputations identified in the alleged defamatory publications?”. I think that is a fundamental failing with that allegation. That allegation will tend to prejudice or delay the fair trial of the proceedings, inter alia, by its ambiguity. That kind of defect is repeated in all the substantive allegations in the proposed SFASOC.
45. [45]
    Another significant difficulty I have is with paragraph 68(e) of the SFASOC. It does not seem to be relevant at all. It states:

5. on or about 25 May 2024, renaming the Shonky Caravans Facebook group to closely imitate the name of the Plaintiff’s Lemon Caravans Facebook group and claiming that the newly renamed group, along with with two other groups as the legitimate Lemon Caravans Facebook groups.

(the “First Defendant’s Aggravating Conduct”)

46. [46]
    I also have significant difficulties with paragraphs 70 and 71 of the SFASOC. Paragraph 70 alleges that, at about the time that each of the first defendant’s aggravating conduct occurred, the plaintiff became aware of it. Paragraph 71 is in the same terms but refers to the second defendant.

47. [47]
    That allegation is unparticularised. An issue in the application was how Ms Leigh came to be aware of these publications which occurred on a closed Facebook group page of which she was not a member. When I asked her about it, she said that the individual publications came to her attention because they were sent to her by people on an ad hoc basis.
48. [48]
    It was evident to me that she did not know how that extraordinarily broad allegation was going to be particularised, much less proved, and it seemed to me that arguments about that matter would create a great deal of complexity and a great deal of disclosure which could become bogged down by the ambiguity of exactly what Ms Leigh was saying, given there are no particulars in the allegation.
49. [49]
    This is exactly the kind of matter that could disrupt the preparation of the trial in respect of the underlying causes of action, which are the central concerns of the trial.
50. [50]
    Further, paragraphs 73 and 74 allege the aggravating conduct particularised in the Schedules caused ongoing distress and harm to the plaintiff. That is an irrelevant allegation and would be struck out. Aggravating contact must cause ongoing distress and harm flowing from the causes of action sued on.
51. [51]
    It is a hard thing to refuse a further opportunity to try and articulate a case. But there is not an absolute right to be heard. There is a right to reasonable opportunity to be heard.
52. [52]
    The question of an adequate pleading raising what is, ultimately, a secondary consideration, being aggravated damages, first arose when the ASOC was filed in the middle of June. It is now the end of August and there is still no proper plea of aggravated damages put forward, much less one put forward in a timely way that would give the defendant a reasonable opportunity to make submissions about its adequacy.

Conclusion

53. [53]
    In the light of all the matters that I have discussed in these reasons, I think that further delay in the application for leave to replead is not in the interest of justice and, for that reason, I refuse the plaintiff leave to rely on the SFASOC on her application for leave, and I dismiss that application.
54. [54]
    If I had considered the SFASOC appeared to be a proper plea, I would have been likely to adjourn the application for leave to replead despite the other matters identified telling against a further adjournment.  But it was not.